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BA-12B-65-04/2016

PERAYU EUROMOBIL SDN BHD (No. Syarikat: 596498-M) RESPONDEN NAN YA HARDWARE SDN BHD (No. Syarikat: 610801-V)

17/11/2017

YA DATIN ZALITA BINTI DATO' HJ. ZAIDAN (PK)

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=ae907fba-e8cb-4432-96d6-5567b4fc72a9&Inline=true

DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN, MALAYSIA RAYUAN SIVIL NO. BA-12B-65-04/2016 ANTARA EUROMOBIL SDN BHD (No. Syarikat: 596498-M) …. PERAYU DAN NAN YA HARDWARE SDN BHD (No. Syarikat: 610801-V) ….RESPONDEN [DALAM MAHKAMAH SESYEN DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN, MALAYSIA GUAMAN SIVIL NO.: B52-194-11/2014 ANTARA NAN YA HARDWARE SDN BHD (No. Syarikat: 610801-V) ….PLAINTIF DAN EUROMOBIL SDN BHD (No. Syarikat: 596498-M) ….DEFENDAN] GROUND OF JUDGMENT Introduction [1] This is an appeal by the Appellant (Defendant) on the Sessions Court’s decision of 23.3.2016 where the Respondent’s (Plaintiff) claim was allowed under section 32 of Consumer Protection Act 1999 (CPA) and the Appellant’s counterclaim of RM 19,550.00 was dismissed. [2] For ease of reference, the parties in this judgment, will be known as they were in the Sessions Court. Facts [3] The relevant facts to this case can be summarised based on the Plaintiff’s Statement of Claim and both counsels’ written submissions as follows: (a) The Plaintiff is a company incorporated in Malaysia and having its business address at Lot 4846, Jalan KPB 11A, Kawasan Perindustrian Kampung Baru Balakong, 43300 Seri Kembangan, Selangor Darul Ehsan. (b) The Defendant is a company incorporated in Malaysia having its registered address at Level 5, Wisma DRB-Hicom, No. 2 Jalan Usahawan U1/8, Seksyen U1, 40150 Shah Alam, Selangor Darul Ehsan and its business address at Lot 27, Jalan Pelukis U1/46, Seksyen Utara Satu Kawasan Perindustrian Temasya, 40150 Shah Alam, Selangor Darul Ehsan. (c) The Defendant carries on the business as the importer, distributor and services provider of Audi motor vehicles in Malaysia. (d) By a Vehicle Sales Order dated 09.07.2012 (page 18 of Appeal Record (C)), the Defendant as the supplier had agreed to sell and the Plaintiff as consumer had agreed to purchase an Audi motor vehicle model A8L 3.0 TFSI QTR at the price of RM668,355.00 by paying to the Defendant an initial booking fee of RM30,000.00 (“Booking Fee”), particulars of which is within the knowledge of the Defendant. (e) On around 30.08.2012, the Defendant delivered to the Plaintiff an Audi motor vehicle bearing Registration No. WWB 888, Model Code: Audi A8L 3.0 TFSI QTR, Chassis No. WAUZZZ4H6DN002018 and Engine No: CGW049203 (“the Vehicle”. (f) Upon delivery of the Vehicle, the Plaintiff had paid a further sum of RM38,684.00 to the Defendant, thus making a total deposit sum of RM68,684.00 (“Deposit”) to the Defendant as shown in the Defendant’s Invoice No: 2610031645 with its corresponding Vehicle Delivery Order No: 610032921 (page 20 of Appeal Record (Bahagian C)). (g) To finance the purchase of the Vehicle, the Plaintiff had on 04.09.2012 obtained a hire purchase facility sum of RM600,000.00 from Affin Bank Berhad (“the Financier”) at the term charges at 2.28% per annum (which term charges for 5 years shall amount to RM68,400.00) and the total amount of RM668,400.00 (being the principal sum of RM600,000.00 plus term charges of RM68,400.00, hereinafter referred as “Total Amount Payable to Financier”) shall be repaid to the Financier by way of 60 equal monthly installments of RM11,000.00 each commencing from 04.10.2012. (h) The Plaintiff claimed that less than a month after the Plaintiff had taken delivery of the Vehicle from the Defendant, the Plaintiff discovered defects in the Vehicle with unusual loud and rattling noise emanating from the rear passenger seats even while driving at low speed (“the Defects”). (i) The Plaintiff had complained to the Defendant about the Defects and had sent the Vehicle to the Defendant’s authorized service centers for repairs and rectifications on the following occasions and at the following service centers:- i. from 26.09.2012 to 08.10.2012 (13 days) at Glenmarie; ii. from 09.10.2012 to 10.10.2012 (3 days ) at Chan Sow Lin; iii. from 21.06.2013 until to-date at Glenmarie. (j) The Plaintiff claimed that despite having sent the Vehicle to the Defendant’s authorised service centers for repairs and rectifications, the Defendant had not rectified and upon Plaintiff’s request for an identification of the problem and/or cause of the Defects and for a confirmation whether the Vehicle has been repaired, the Plaintiff avers the following: (i) the Defendant had through their letter dated 14.08.2013 informed the Plaintiff that they have removed the complete rear suspension assembly and re-assembled the same, done the wheel alignment and camber setting and had escalated the matter to Audi AG for assistance and advise on the next steps; (ii) the Defendant had through their email of 12.09.2013 to the Plaintiff’s representative by the name of one Elaine Tan (“Plaintiff’s Representative”) had admitted that the Defects still persists even though the Defendant had removed and re-installed the anti-roll bar and replaced the Vehicle’s stabilizer bar and the coupling rod and had also lubricated, cleaned and retightened the bolts and nuts leading to the sub-frame and anything that comes in contact with connecting to the rear undercarriage, including the interior car items; (iii) in the same email of 12.9.2013, the Defendant further confirmed that they suspected the noise was coming from both rear air dampers and that the technical support of Singapore has agreed to replace the said parts. The Defendant by letter of 2.10.2013 informed the Plaintiff that they have received the parts from Audi AG in Germany and was then in the midst of carrying out the repairs. (k) In reply to the Defendant’s letter dated 02.10.2013, the Plaintiff claimed via their letter of 08.10.2013 voiced out their grave concern on the repairs done, stating Plaintiff’s opinion, “feels like this car has been taken apart by your so-called qualified technicians and put back again like an accident car which have been salvaged from the wreckers” and the Plaintiff had also requested from the Defendant for an assurance and guarantee that the Vehicle will be functional and safe. (l) Despite numerous requests and/or reminders by the Plaintiff and/or the Plaintiff’s Representative for and identification of the cause of the Defects and also for an assurance and guarantee that the Defects have been fully rectified and that the Vehicle will be functional and safe, the Defendant had failed and/or unable to do so. (m) The Plaintiff pleaded that the Defendant is in breach of section 32 of CPA which provides that there is an implied guarantee that the Vehicle supplied by the Defendant must be of acceptable quality, by supplying the Vehicle which is not of acceptable quality and/or that the Defects are failure of a substantial character which the Plaintiff as a reasonable consumer would not have purchased the Vehicle had they been fully acquainted with the nature and extent of the Defects. (n) The Plaintiff then rejected the Vehicle, by leaving the Vehicle in the Defendant’s service center and had through their solicitor’s letter dated 22.10.2013 notified the Defendant stating that the Plaintiff had exercised its rights to reject the Vehicle together with the grounds for the rejection pursuant to the provisions of the Consumer Protection Act 1999 and demanded for a full refund of the purchase price. (o) Notwithstanding such rejection and demand, the Defendant had refused to refund the full purchase price or any part thereof to date. (p) On 17.12.2013, the Plaintiff commenced a legal suit against the Defendant in Shah Alam Sessions court vide Suit No. B52-183-12/2013 (“the Suit”) claiming for the relief as pleaded in paragraph 22 below. (q) Before the commencement of the full trial, the Defendant proposed to resolve the disputes between the parties out of court. However, the Defendant was unable to determine and finalise the terms and conditions of their proposal at that time as the new Audi A8, being the main subject of their proposal, would only be launched around June or July 2014. (r) In view of a probable out of court settlement, the parties had requested for the trial to be adjourned pending the outcome of the settlement but was declined by the court. As a result, the Plaintiff had on15.04.2014 withdrew the Suit with liberty for file afresh. (s) However, the settlement negotiation between the parties had failed and thus the filing of this suit. The Plaintiff claims against the Defendant as follows: (a) a declaration that the Plaintiff shall be entitled to reject the Vehicle; (b) a refund of the deposit sum of RM68,684.00; (c) the sum of RM668,4000.00 together with any penalty that may be imposed by the Financier towards the Plaintiff; (d) damages; (e) interest at the rate of 5% per annum on the sum to be paid from the dated of this Writ until full realization; and (f) costs, (g) any other reliefs as the court shall deem fit. (t) The Defects of the Vehicle was denied by the Defendant and stated that the Plaintiff’s complaints about the Vehicle “at all material time was in regard to the noise emanating from the passenger seat, if any”. The Defendant claimed that the Plaintiff’s complaint was never about the performance of the car but was confined to the noise which was discovered in the Vehicle which in any event was not of a substantial character. (u) The Defendant claimed that the Defendant had loaned to the Plaintiff a courtesy car of similar model and built pending inspection and repairs as follows: (i) car model Audi A8 bearing registration No. WVH 776 from the period of 20.06.2013 to 01.10.2013; (ii) Car model Audi A8 bearing registration No. WUV 30 from 01.10.2013 to 08.11.2013. (v) The Defendant counter-claimed for the storage fees for the Vehicle at the Defendant’s center calculated at RM50.00 per day from 20.12.2013 to the date of filing of the Defence for 391 days, the sum of RM19,550 for which continues to accrue per day, costs of defending and counter-claim for this action and interest rate at 5% per annum calculated from date the sum for counter-claim was due until full settlement. (w) The Sessions Court allowed the Plaintiff’s claims as prayed. Dissatisfied with the Session Judge’s decision, the Defendant appealed to this Court. Plaintiff’s case [4] The learned counsel for the Plaintiff advanced several arguments for his claim, premised on the rights and remedy of a consumer based on the CPA that the Vehicle was not of acceptable quality and the Defects was of a substantial character. [5] The Plaintiff’s counsel averred that there is an important difference between Sale of Goods Act 1957 (SOGA) and CPA, where in the former, SOGA provides an implied condition that the goods supplied shall be of “merchantable quality” whereas in the latter, there is an implied guarantee that the goods shall be of “acceptable quality”. Citing a New Zealand’s Court of Appeal’s case of Nesbit v Porter [2000] 2 NZLR 465 on the concept of acceptable quality as distinguished from merchantable quality, the Plaintiff’s counsel submitted that the New Zealand Court of Appeal concluded that goods may be of merchantable quality yet still fall short of being an acceptable quality. [6] The Plaintiff’s counsel submitted that in Malaysia the statutory implied guarantee that the Vehicle supplied of must be of acceptable quality is provided under Section 32 CPA and therefore when the Plaintiff purchased the Vehicle from the Defendant, there was an implied guarantee under the CPA that the Vehicle was of acceptable quality, a quality befitting a new luxury motor vehicle free from minor defects and should be reasonably fit for purpose as a new luxury motor vehicle, for comfortable and uninterrupted travelling. This is in reliance of a Court of Appeal case of Matang Plastik & Metal Work Industries Sdn Bhd & Ors v Daimler Chrysler Malaysia Sdn Bhd & Ors [2014] 8 CLJ 998, that once the goods is purchased, the provisions of section 32(1) of CPA would apply which is the implied guarantee. [7] It was brought to this Court’s attention that the Plaintiff had purchased from the Defendant a brand new Audi A8 in July 2012 for a price of RM668,684.00. According to the Plaintiff’s witness, SP1, the Plaintiff decided to buy the Vehicle because Audi is a world renowned for its luxury automobiles and Audi A8 is the top luxury sedan car with a high level of comfort, performance, craftsmanship and numerous high-tech features. [8] It was submitted that the Plaintiff purchased the Vehicle not merely for the purpose of travelling from one place to another but of doing so with the appropriated degree of comfort, reliability and pride and with the intention to enhance Plaintiff’s image and status in the business world. [9] The counsel for the Plaintiff submitted that the Defendant’s sales manager, one Wendy Tan (SD1) who had been working in automobiles industry for 18 years had confirmed during the cross-examination (pages 123-124 of Appeal Record (B)), as follows: (a) Audi A8 is the most expensive sedan car in Audi brand; (b) the purpose of buying an Audi A8 is not only for driving but to enhance the business image and status; (c) consumers purchase Audi A8 because it has a high level of comfort, reliability, luxury and craftsmanship; and (d) when the Respondent purchased the Audi A8, they would expect the Vehicle to have a quality befitting a new luxury car. [10] It was submitted that soon after the delivery of the Vehicle, the Plaintiff discovered the Defects, the unusual noise and/or rattling noise emanating from the rear passenger seats even while driving at low speed. The Plaintiff also submitted that the Defendant had admitted in paragraph 10.3 of its Defence that the Vehicle did have Defects but alleged it as a minor defect. [11] The Plaintiff’s counsel submitted the facts on the services rendered to the Vehicle based on the job sheets (pages 60-61 of Appeal Record) and Plaintiff’s witness’ (SP2) witness statement regarding the third service dated 21.6.2013, who previously owned an Audi Q5 Quatro purchased from the Defendant, assisted the Plaintiff that when she collected the Vehicle sometime in mid-July 2013, two of Defendant’s staffs tested the Vehicle and acknowledged that the Defects persist (page 260 of Appeal Record). [12] The Plaintiff’s counsel submitted that based on an email of 12.9.2013 from one Mr. Thamodharan, the Defects still persist even after the repairs had been carried out (SP2’s Witness Statement, page 261 Appeal Record (B)), “(a) replacing the vehicle’s stabilizer bar and the coupling rod; and (b) lubricated, cleaned and retighten the bolts and nuts leading to the subframe, and anything in contact with connecting to the rear undercarriage, including the interior car items.” [13] The Plaintiff’s counsel averred that the Plaintiff’s witness emailed to the Defendant on 13.9.2013 which was replied by the Defendant on 17.9.2013 that Defendant is receiving detailed technical advice from Audi AG and Audi TSC Singapore and “that there were few more steps to carry out before the rectification is done” but with no explanation as to why such repair has to be carried out or why such parts need to be replaced and to date the Defendant failed to identify the cause or nature of the Defects. [14] The Plaintiff’s counsel submitted that the Defendant’s witness (SD4) who is Defendant’s former Executive for Product Support, confirmed during the cross-examination that the noise can be heard during a test drive whom was accompanied with an Audi expert from Singapore, one Daniele Luisi, after the Vehicle was repaired (page 239 of Appeal Record (B)). [15] It was submitted that the Vehicle was defective when it was delivered to the Plaintiff and as such, the Plaintiff rejecting the Vehicle is reasonable relying on the authority of Puncak Niaga (M) Sdn Bhd v NZ Wheels Sdn Bhd [2011] 9 CLJ 833 where in that case, the Court of Appeal allowed the appellant’s claim to reject the Mercedes Benz car under the CPA by way of a summary judgment as the respondent had breached the implied guarantee under CPA. [16] In relation to the issue of rejection, the counsel averred that the Plaintiff is entitled to reject, as at mid-September 2013, the problem was not resolved and the Defendant was still unable to identify the cause of the problem. In the email of 12.09.2013, the counsel pointed that the Defendant had admitted that the noise still persists despite replacing the Vehicle’s stabilizer bar and the coupling rod, lubricated, cleaned and retightened the bolts and nuts leading to the sub-frame and anything that comes in contact with connecting to the rear undercarriage, including the interior car items. [17] The counsel for the Plaintiff submitted that despite a series of attempt to repair the Defects, there was no solution forthcoming from the Defendant, Plaintiff lost all confidence in the Vehicle and rejected the Vehicle within a reasonable time based on the remedies to reject under section 41(1)(b)(i)of the CPA and following the case of Puncak Niaga (supra). Counterclaim [18] In relation to the counterclaim by the Defendant, the Plaintiff’s counsel asserted that the storage charges as stated in the Defendant’s Repair Order from 10.12.2013 until the date of filing of the Defence with the rate of RM50.00 per day was never signed by the Plaintiff and the Plaintiff never agreed to such terms and conditions and therefore it is not binding against the Plaintiff: Lim Hong Yeu v Mercedes-Benz Malaysia Sdn Bhd & 2 Ors [2013] 1 LNS 192. The Court was told that during the period where the Vehicle was placed with the Defendant, there had been summons issued to the Plaintiff which proved that the Vehicle had been used by the Defendant (page 24 of Appeal Record (A) and (C)). Defendant’s case [19] The learned counsel for the Defendant advanced several grounds for this appeal and divided its arguments into four main areas that the Session Judge was erred on facts and law: (a) whether the alleged noise from the rear of the Vehicle was Defects; (b) whether the alleged Defects was substantial in nature; (c) the Plaintiff failed to identify the Defects and continues to fail to rectify / repair the Defects; and (d) the time of rejection of the Vehicle was unreasonable. [20] The counsel for the Defendant submitted that it is for the Plaintiff to show on facts and law that the Vehicle was Defects, not of an acceptable quality under section 32 of CPA. The Defendant’s counsel contended that since the Plaintiff failed to proof, the Vehicle has no Defects under section 32 CPA. The definition of ‘defect’ was submitted based on Black’s Law Dictionary (Eight Edition) by Bryan A. Garner, at page 450, to mean, as “an imperfection or shortcoming, esp. in a part that is essential to the operation or safety of a product”. [21] The Defendant’s counsel relied on the case of Asia Pacific Information Services Sdn Bhd v Cycle & Carriage Bintang Bhd & Anor [2010] 6 CLJ 681 submitting that as no evidence was adduced to prove that the defects were in fact materially inherent latent defects in the car, the Plaintiff in this case failed to prove its case on a balance of probabilities as the only witness produced by the Plaintiff were the CEO of the Plaintiff and his driver without any technical witness nor expert evidence tendered to determine the cause of the problem encountered. [22] It was submitted by the Defendant that during the trial, the Plaintiff had on each of the two occasions brought the Vehicle to the Service Centre complaining of the alleged ‘noise’ as a loud and rattling noise which was never detected, except after a second test drive done in the presence of Plaintiff’s witness (SP2) (one Ms. Tan Nyi Ring) and Defendant’s witness (DW3) (Thamodharan Anatharsekaran) where SP2 confirmed that the alleged noise was in fact a ‘soft sound’ emanating from the rear right side of the Vehicle which could only be heard by sitting at the right hand side of the back seat and when the Vehicle was driven over uneven road surfaces. [23] It was brought to this Court’s attention that the alleged ‘noise’ recorded by the Plaintiff was replayed at the trial where the learned Session Judge had commented, “Ini bukan rattling”. The sound was detected on the second test drive conducted sometime in September 2013 and submitted that the Defendant had then immediately taken the necessary measures to identify and rectify the alleged ‘noise’ which was found to have come from the rear air dampers of the Vehicle and were replaced even though the air dampers were found to be, “perfect working condition performance wise. The original air dampers will not have any effect on the drive-ability, roadworthy, reliability and performance of the car and therefore can still be used.” [24] The counsel for the Defendant pointed to the testimony of DW4 (one Faeroz Kahn Bin Mahbul Husain, the Defendant’s Executive Technical Support) which was unchallenged by the Plaintiff’s counsel that the Defendant had proceeded to replace the said air dampers “…so as to address the Respondent’s complaint to their level of satisfaction, and as part of our professionalism to our customer”. [25] The Defendant’s counsel averred that the test to determine Defects can be found in the High Court case of Chai Lang Fah @ Chai Lian Fah V. Cycle & Carriage Bintang Berhad [2011] 1 LNS 357 where the High Court in that case adopted the Federal Court in Lau Hee Teah v. Hargill Engineering Sdn Bhd & Anor [1979] 1 LNS40; [1979] 1 MLJ 145, in connection with the issue of what constitutes a new car, agreed with and adopted the test propounded by the Court of Appeal in England in Reg v Ford Motor Co. Ltd [1974] 1 WLR 1220, 1227-1228 by relying the test of the extent and nature of damage and the quality of the repairs. [26] The Defendant’s counsel submitted that even if there was defect, it was not substantial in nature as the Vehicle could be repaired and relied on the Federal Court cases of Seng Hin v. Arathoon Sons Ltd [1968] 1 LNS 134 and Lau Hee Teah v. Hargill Engineering Sdn Bhd & Anor [1979] 1 LNS 40; [1979] 1 MLJD 145, to support the contention that that if the said parts of the Vehicle can be repaired, the Vehicle cannot be said to be of unmerchantable quality or unfit for the purpose, to which the burden of proof is under the Sale of Goods Act. [27] The counsel for the Defendant submitted that the cases relied by the Plaintiff’s counsel is distinguishable from the current case where in Matang Plastik & Metal Work Industries Sdn Bhd & Ors v Daimler Chrysler Malaysia Sdn Bhd [2014] 8 CLJ 998 [Auth 17 ABOA], there were two material differences, that is firstly the car in question had suffered four breakdowns before it caught fire and was extensively damaged and secondly, the Plaintiffs in that case had called two expert witnesses to prove their claim. [28] The Defendant’s counsel averred that the only case which will be of any significance is the case of Seah Peh Yee v Hap Seng Star Sdn Bhd [2013] 1 LNS 229 where the plaintiff had rejected the car within one month after the defendant was not able to identify the problem but the car in that case had only accumulated mileage of 1,700 km as opposed to the current case where the Plaintiff, according to the testimony of DW3 (page 246 Appeal Record (B)), accumulated mileage of 10,000.00 plus kilometers. [29] Based on the arguments put forward, the counsel for the Defendant urged this Court to apply the case of Asia Pacific Information Services Sdn Bhd v Cycle & Carriage Bintang Bhd & Anor [2010] 6 CLJ 681 where it was held that the problems encountered although not minor, were not sufficiently serious or fundamental to amount to a breach of the implied condition at the time of the sale. [30] It was submitted that even if there was defect, based on all of the above, the defect is not substantial as the Defendant had attended and resolved the noise and had been rectified on three occasions, that is on 2.10.2013, 14.10.2013 and 21.10.2013, the latter by courtesy call where the Plaintiff informed the Defendant that the Plaintiff will collect the Vehicle on 30.10.2013. The counsel averred for this Court’s intervention that the Session Judge had misdirected herself and in not considering the relevant evidence and had contradicted herself in the finding of facts, relying on the cases, China Airlines Ltd v Maltran Air Corp. Sdn Bhd & Another Appeal [1996] 3 CLJ 163 and Lee Ing Chin @ Lee Tech Seng & Ors v Gan Yook Chin & Anor [2003] 2 MLJ 97. [31] The Defendant’s counsel also brought to this Court’s attention that the timing of rejection by Plaintiff was unreasonable as there was a gap of slightly more than one year from 9 October 2012 until 22 October 2013 and that following section 43(1)(a) of CPA, the rejection must be done within a reasonable period of time. [32] In relation to the counterclaim, the Defendant claimed that the Plaintiff had agreed over the phone on a day before the ‘collection date’ to collect the Vehicle and would be estopped from rejecting the Vehicle. It was submitted that the Plaintiff only requested Defendant “to buy back” and did not say rejecting the Vehicle, arguing further that if 1.20.2013 was the rejection date, there should be a letter issued which was Plaintiff’s letter of 22.10.2013 rejecting the Vehicle. The Sessions Court’s Decision [33] The Sessions Court’s decision can be found at Rekod Rayuan Tambahan Bahagian A & C, pages 1-18. Some parts of the finding is reproduced, for ease of reference: “3. Plaintif telah pada 26.09.2012 menghantar Kenderaan tesebut ke pusat servis Defendan dan mengadu tentang Defek-Defek tersebut. Akan tetapi Defek-Defek terseubt belum dapat dibaiki lagi. Seterusnya, Plaintif telah pada 09.10.2012 menghantar Kenderaan tersebut ke pusat servis Defendan untuk membuat penampalan tayar dan pada masa yang sama telah mengadu tentang Defek-Defek tersebut yang masih berterusan. Walaupun aduan telah dibuat, Defendan telah gagal mengenalpasti punca Defek-Defek tersebut. Memandangkan Defek-Defek tersebut masih berterusan, Plaintif telah sekali lagi pada 21.06.2013 menghantar Kenderaan tersebut ke pusat servisDefendan untuk membaiki Defek-Defek tersebut. Sejak itu, Kenderaan tersebut telah berada di pusat servis berkenaan. Walaupun Defendan telah mengambil masa beberapa bulan untuk membaiki Defek-Defek tersebut, Defendan sehingga kini masih gagal dan / atau tidak dapat mengenal pasti masalah dan / atau punca Defek-Defek tersebut dan membaiki Defek-Defek tersebut dengan sepenuhnya. 4. Defek-Defek tersebut merupakan kegagalan yang bersifat substantial (“failure of substantial character”) kerana Plaintif, sebagai pengguna yang munasabah (“reasonable consumer”) tidak akan membeli Kenderaan tersebut sekiranya mereka mengetahui sepenuhnya tentang jenis dan takat Defek-Defek tersebut (“had they been fully acquainted with the nature and extent of the Defects”). Kegagalan Defendan untuk mengenal pasti masalah dan / atau punca Defek-Defek tersebut dan membaiki Defek-Defek tersebut selepas banyak percubaan jelas menunjukkan betapa substantialnya Defek-Defek tersebut. Plaintif menegaskan bahawa Defek-Defek tersebut telah ditemui kurang daripada sebulan selepas Plaintif telah menerima Kenderaan tersebut daripada Defendan dan Plaintif telah dengan segera mengadu kepada Defendan pada 26.09.2012, 09.10.2012 dan 21.06.2013. Walaupun Kenderaan tersebut telah dihantar ke pusat-pusat servis Defendan yang dibenarkan untuk pembaikan dan pembetulan, Defek-Defek tersebut belum diperbaiki lagi dan walaupun Plaintif telah meminta pengenalpastian tentang masalah dan / atau pun Defek-Defek tersebut, Defendan telah gagal untuk berbuat sedemikian. 5. Plaintif telah melaksanakan haknya untuk menolak Kenderaan tersebut dalam masa yang munasabah apabila Plaintif berbuat demikian dengan meninggalkan Kenderaan tersebut di pusat servis Defendan dan telah melalui surat peguamcara mereka bertarikh 22.10.2013 memberitahu Defendan bahawa Plaintif telah melaksanakan hak-hak mereka. Kelewatan yang dikatakan dalam menolak Kenderaan tersebut, adalah semata-mata kerana Defendan telah mengambil masa yang lama untuk cuba membaiki Kenderaan tersebut. Defendan telah gagal dan / atau tidak dapat mengenal pasti masalah dan / atau punca Defek-Defek tersebut dan tidak dapat memperbaiki Defek-Defek tersebut dengan sepenuhnya. 6. Menurut Plaintif Kenderaan tersebut tidak mempunyai kualiti yang boleh diterima di bawah Seksyen 32, Akta Perlindungan Pengguna 1999 kerana:- (i) Kenderaan tersebut tidak mempunyai kualiti bersamaan sebuah kereta mewah yang tiada kecacatan dan / atau bebas daripada defek kecil (“free from minor defects”). (ii) Kenderaan tersebut adalah tidak munasabah sesuai (“not reasonably fit”) untuk kegunaan sebagai sebuah kereta mewah baru bagi perjalanan yang selesa dan tiada gangguan. Defendan tidak pernah pada apa-apa masa memberikan penjelasan atau pengenalpastian terhadap masalah dan / atau punca Defek-Defek tersebut ataupun memberikan jaminan kepada Plaintif bahawa Defek-Defek tersebut telah dibaiki sepenuhnya dan Kenderaan tersebut akan berfungsi dengan baik dan selamat. Kedua-dua surat Defendan yang bertarikh 14.10.2013 dan 30.10.2013 langsung tidak memberikan penjelasan atau pengenalpastian terhadap masalah dan / atau punca Defek-Defek tersebut ataupun memberikan jaminan seperti yang diminta. Dalam keadaan ini, Plaintif tidak boleh dijangkakan untuk mengambil balik Kenderaan tersebut. 7. Berkaitan dengan tuntutan balas Defendan, disepanjang perbicaraan dijalankan Defendan gagal / tidak mengemukakan sebarang dokumentasi bagi menyokong tuntutan balas mereka. Oleh yang demikian, tuntutan balas Defendan sewajarnya ditolak dengan kos. KESIMPULANNYA:- Berdasarkan dari keterangan-keterangan seperti di atas, Mahkamah mendapati pihak Plaintif telah berjaya membuktikan kes atas beban bukti imbangan kebarangkalian terhadap Defendan. oleh itu berdasarkan dari Pernyataan Tuntutan Plaintif pada perenggan 22, tuntutan yang dibenarkan adalah prayer (a), (b), (c), (e), (f) dan (g). Prayer (d) gantirugi – digugurkan. Kos diberikan RM12,000.00. Tuntutan balas Defendan terhadap Plaintif ditolak dengan kos. Kos diberikan RM8,000.00. THE COURT’S FINDING [34] Generally, an appellate court is slow to interfere with the trial judge’s finding of facts unless there is a clear misdirection of law by the trial judge or the trial judge made a wholly erroneous estimate of damage suffered that warrants this Court to intervene: Multar Masngud v Lim Kim Chet & Anor [1982] CLJ 237, FC and the case of Ming Holdings (M) Sdn Bhd v Syed Azahari Noh Shahabudin & Anor [2010] 6 CLJ 857, FC. [35] It is the Plaintiff who brought this suit and in consumer protection claims, the burden is still on the Plaintiff to proof based on the balance of probability following section 101 of Evidence Act 1950 and the Federal Court case of Letchumanan Chettiar Alagappan @ L. Allagapan, M. Venkatachalam S/O Venkatachalam Chettiar v Secure Plantation Sdn Bhd No. 02-78-10/2014 which illustrates the burden of proof that once the burden is discharged by the Plaintiff, the onus than shifts to the Defendant. [36] This is Plaintiff’s pleaded case that the Defendant had statutorily breached section 32 of CPA that the Vehicle purchased was not of acceptable quality due to the Defects discovered. The Defendant on the other hand denied in its Defence and Counterclaim that the Vehicle was defective and even if there were defects they were not of a substantial character under CPA. [37] Under the CPA, the proposition of law as explained in ‘Business Law’, by Lee Mei Pheng and Ivan Jeron Detta, Second Edition, 2014, at page 389, it provides the protection for consumers covering deceptive conduct, false representation and unfair practices of traders where ‘goods’ are subject to implied guarantees as to ‘acceptable quality’, title, fitness for purpose and that the goods comply with description and price. ‘Goods’ are defined under section 3 of CPA to mean, “which are primarily purchased, used or consumed for personal, domestic or household purposes, and includes – (a) goods attached to, or incorporated in, any real or personal property; (b) animals, … (c) vessels and vehicles; (d) utilities; and (e) trees, plants and crops… but does not include choses in action, including negotiable instruments, shares, debentures and money;” [38] The ‘goods’ is for personal consumption as opposed to commercial and CPA applies to purchase of vehicle. The core issue is the ‘acceptable quality’ unlike ‘merchantable quality’ under SOGA which was the law prior to CPA, enunciated under section 32 CPA. I vehemently would refer to the CPA which should be construed as a whole, without isolating other relevant provisions pertinent to the acceptable quality test. I refer to the authority by M.N. Rao, Amita Dhanda in N S Bindra’s Interpretation of Statutes, Tenth Edition, 2007 at page 690, the legal intendment in statutory interpretation is that, each and every clause in a statute has been inserted for some useful purpose and therefore the instrument of the Act must be read as a whole to ascertain both its intent and general purpose. [39] The implied guarantee of acceptable quality provided under section 32 CPA, is reproduced, for easy reference, as follows: “32. Implied guarantee as to acceptable quality. (1) Where goods are supplied to a consumer there shall be implied a guarantee that the goods are of acceptable quality. (2) For the purpose of subsection (1), goods shall be deemed to be of acceptable quality--- (a) if they are--- (i) fit for all the purposes for which goods of the type in question are commonly supplied; (ii) acceptable in appearance and finish; (iii) free from minor defects; (iv) safe; and (v) durable; and (b) a reasonable consumer fully acquainted with the state and condition of the goods, including any hidden defects, would regard the goods as acceptable having regard to --- (i) the nature of the goods; (ii) the price; (iii) any statements made about the goods on any packaging or label on the goods (iv) any representation made about the goods by the supplier or the manufacturer; and (v) all other relevant circumstances of the supply of the goods.” [40] The language of section 32(1) CPA provides the mandatory requirement that there shall be an implied guarantee, applicable to any supplier of goods to consumer. The term ‘supplier’ is defined under section 3 CPA which includes a person who in trade supplies goods to a consumer. Following section 32(2)(a)(i) – (v) CPA, what is meant by the goods shall be deemed as acceptable quality is listed which includes ‘fit for all the purposes’ and ‘free from minor defects’. It follows that section 32(2)(a) CPA must be read with part (b) of section 32(2) CPA. Reading the whole section 32(2) CPA, the goods shall be deemed to be acceptable quality if they fulfil the following requirements: (a) they are fit for all purposes, acceptable in appearance and finish, free from minor defects, safe and durable; (b) meet the standards that are reasonable consumer fully acquainted with the state and condition of the goods, including any hidden defects would regard the good as acceptable having regard to the nature of the goods, the price, any statements on the packaging or label, any representation made about the goods and all other relevant circumstances. [41] The evidence adduced by the Plaintiff, taking into account the admission of the Defendant that the Vehicle has Defects even after numerous repairs, I viewed that the Vehicle is not of an acceptable quality within the provisions of the CPA. [42] For the Vehicle to be considered as an acceptable quality, based on the reading of section 32(2)(a) and (b) CPA, it requires an overall assessment together with the consumer’s knowledge and expectation. I hold such view on the ground of reasonable consumer test and “all other relevant circumstances” as stipulated under section 32(2)(b)(v) CPA and the decided appellate court cases. [43] As pleaded by the Plaintiff, the purchase of the Vehicle was made in reliance of the Defendant’s skill and knowledge and the public perception of the Vehicle that carries with it the business image and status, that it has a high level of comfort, reliability, luxury and craftsmanship. The Plaintiff pleaded that despite the image and status it carries, the Vehicle is not an acceptable quality. [44] The main contention revolves around the issue of acceptable quality which is the fulfillment of the standards including ‘fit for all the purposes’ and ‘free from minor defects’. According to Plaintiff’s line of argument, once the Vehicle is in breach on the implied guarantee, the Plaintiff’s right of redress is to reject the Vehicle: section 41(3)(b) CPA. The Defendant’s counsel’s counter-argument was that there was noise, albeit minor defect, is not of substantial character. [45] On this aspect of ‘defect’, the Defendant’s counsel referred to the Black Law’s Dictionary as well as case laws, describing it as an imperfection or shortcoming, “…to the operation or safety of a product”. The Defendant’s counsel referred to one High Court case of Chai Lang Fah @ Chai Lian Fah v Cycle & Carriage Bintang Berhad [2011] 1 LNS 357 which adopted a Federal Court case of Lau Hee Teah v Hargill Engineering Sdn Bhd & Anor [1979] 1 LNS 40, [1979] 1 MLJ 145 that if the parts of the car can be repaired than it cannot be said to be of unmerchantable quality or unfit for the purpose under SOGA and not a defect of substantial character under CPA. [46] This Court viewed that the authority referred by the Defendant’s counsel of Chai Lang Fah (supra) case which made reference to the Federal Court case of Lau Hee Teah v Hargill Engineering (supra), was a negligent and misrepresentation case in reference to a dispute under SOGA and not CPA where in the former, prove of relationship between the manufacturer and the consumer and the causal link between damage and defect must be shown. [47] Upon careful perusal, the CPA does not specifically defined ‘defect’ for section 32 CPA claims. The only definition provided is in relation to product liability under section 67 (1) of Part X CPA which provides, “Subject to subsections (2) and (3), there is a defect in a product for the purposes of this Part if the safety of the product is not such as a person is generally entitled to expect.” Subsections (2) and (3) of section 67(1) CPA provides the determination of what a person is generally entitled to expect, all the relevant circumstances which includes the manner in which, and the purpose for which, the product has been marketed. [48] Again, the CPA is to protect the consumer based on an objective standard where in the case of product liability, the issue of safety should be judged based on the public’s entitlement to expectation and not based on actual expectation: A and Others v National Blood Authority and other [2002] ALL ER 289. In relation to section 32 CPA claims, it is tested against the opinion and fully-acquainted reasonable consumer. The objective standard can be found in the New Zealand’s Court of Appeal’s case of Nesbit v Porter (supra) that, “…. goods are acceptable quality only if fit for all purposes for which goods of the type in question are commonly used and they meet the other standards referred to in section 7(1), including being free from minor defects, with all of these matters being tested against the opinion of a reasonable and fully-acquainted consumer having regard to the matters in paras (f) to (j) of that subsection.” [49] The CPA was drawn on the New Zealand’s Consumer Guarantees Act 1993 (NZCGA) where section 32 CPA is drafted based on section 7 of NZCGA. The case of Nesbit v Porter (supra) was decided on the interpretation of NZCGA, involving a second-hand Nissan Navara, an eleven year old vehicle imported from Japan. In that case, after five months, there were small problems that needed replacement and certain parts were found defective to which the appellants who purchased the car, remedied the defects on their own expenses as the dealer was alleged to be uncooperative. To cut the story short, the test applied is based on a reasonable consumer with the consideration of the vehicle’s age and type, where it was viewed that it was reasonable to expect defects, latent at the time of supply, to be apparent soon after the supply of the vehicle. [50] The New Zealand Court of Appeal held that the goods are of acceptable quality only if fit for all purposes for which goods of the type are commonly used and they meet other standards including free from minor defect, tested against the opinion of a reasonable and fully-acquainted customer having regard to the matters listed that is the nature of the goods, the price, any statements made on the goods, any representation made and all other relevant circumstances of the supply of the goods. It was held that such standard of having regard to all the list under section 7(1) NZCGA is not similar their Sale of Goods Act. The appeal by the purchaser was unsuccessful because the right of rejection was found to be exercised not timeously. [51] For section 32 CPA claims, a failure to comply with the implied guarantee shall be of a substantial character, as defined under section 44 CPA that, (a) the goods would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of failure; (b) the goods depart in one or more significant respects from the description or the sample; (c) the goods are substantially unfit for the ordinary purpose or special purpose made known to the supplier; (d) the goods are not of acceptable quality within the meaning of section 32 because they are unsafe. [52] On the evidence adduced by the Plaintiff, the first Defects was first communicated to the Defendant after less than a month where the first service or repair was carried out in the same month the Vehicle was purchased in September 2012. Based on the pleadings, the Plaintiff had sent the Vehicle to the Defendant’s authorized service centers for repairs. The Defendant had replaced the screen on the rear front seats where the Defendant testified that the screen was loosely placed and Defendant claimed it was rectified. On the second occasion, 9.10.2012, the Plaintiff sent the Vehicle to fix the Defects and to fix the punctured tyre (page 61 of Appeal Record (C)) but Defendant could not detect the Defects and they were not rectified. [53] The Plaintiff’s counsel submitted that numerous calls were made to fix an appointment for the Defects to be rectified but the appointment was always full and no one could attend to the Defects until the assistance from Plaintiff’s representative, SP2 on 21.6.2013. The Vehicle went for a test drive and Defendant acknowledged that there was noise from the rear passenger seat (page 260 of Appeal Record (B)). Sometime mid-July 2013, SP2 went to collect the Vehicle and the Vehicle was test driven by the Defendant whom acknowledged that the Defects persist (page 260 of Appeal Record (B)) and the Defendant told SP2 to leave the Vehicle with the Defendant. [54] Based on Plaintiff’s evidence, in mid-August 2013, the Vehicle was test driven and the noise still persist (pages 91-93 of Appeal Record (B)). The Defendant emailed to the Plaintiff on 14.8.2013 in reference to the test drive of the Vehicle on 13.8.2013 and confirmed that there was noise but the level of the noise had been reduced and they removed the complete rear suspension assembly and reassembled and done the alignment and camber setting (page 23 of Appeal Record (C)). The Defendant also stated that they will escalate the matter to Audi AG for assistance. [55] Based on the evidence before this Court, this Court finds that the Plaintiff strongly objected to the Defendant’s evidence that the level of noise had been reduced as claimed by Defendant, producing Defendant’s email of 12.9.2013 stating that the Defects still persist even after Defendant had done all the rectification (pages 260-261 of Appeal Record (B)) which is, “removed and re-installed the anti-roll bar and replaced the Vehicle’s stabilizer bar and the coupling rod and also had lubricated, cleaned and retightened the bolts and nuts leading to the sub-frame and anything that comes in contact with connecting to the rear undercarriage, including the interior car items” The Defendant had on the same day stated in its email of 12.9.2013 confirming that the suspected noise was coming from both rear air dampers and the technical support of Singapore has agreed to replace the said parts. [56] The air dampers were replaced in October 2013 based on the letter of the Defendant dated 2.10.2013 (page 24 of Appeal Record (C)). Although the air dampers were in perfect working condition, as affirmed by the Defendant in its oral evidence, the Defendant admitted that the noise came from the air dampers. The Plaintiff expressed his concern to the Defendant based on an email and letter of 8.10.2013 questioning the safety of the Vehicle (based on Plaintiff’s solicitor’s letter, pages 25-27 and pages 67- 68 of Appeal Record (C)): “…. Your explanation about carrying out the repairs on the car which in our opinion feels like this car has been taken apart by your so called qualified technicians and put back again like an accident car which have been savaged from the wreckers. We fear for our lives and safety when driving this car. Perhaps you can offer guarantee to our personal safety that this car will be functional and safe when on the road. Otherwise, we wish to know what are your solutions to us that our lives will be safe when driving this car. “ [57] This Court finds that if the air dampers were in perfect condition but had caused the Defects to the Vehicle which requires the Vehicle to be taken apart, it would be a reasonable inference that the Vehicle failed to comply the implied guarantee which was of a substantial character. This Court made a finding that the Defendant’s letter of 2.10.2013 did not explain the Vehicle’s diagnosis except to state that the Vehicle, “had been diagnosed following strictly to AUDI repair standards and guidelines and a courtesy car has been provided …” [58] Upon careful perusal of the documentary evidence adduced by the Plaintiff, the Defendant did not provide a guarantee on the Vehicle upon request by the Plaintiff. Following section 38 of CPA, an express guarantee by manufacturer would have been binding on the consumer. Section 38 CPA defines ‘express guarantee’ as an undertaking and the letter by the Defendant was not a guarantee nor an undertaking that the Vehicle is of acceptable quality. Following section 3 of CPA, the definition of ‘manufacturer’ includes the importer or distributor of the goods which is applicable on the Defendant. Under the CPA, the Defendant is to inform the Plaintiff on the repairs carried out for the Plaintiff to understand the history of the faults and repairs, as the Plaintiff is entitled to an informed decision whether to reject the Vehicle or otherwise. [59] The principle of CPA can be found in one New Zealand’s case, decided by the New Zealand District Court, in Cooper v Ashley & Johnson Motor Ltd [1997] DCR 170, where it was held among others at page 2, that the NZCGA, “…. clearly vests the consumer with new right focused on reasonable consumer expectation rather than the previous rigid and technical approach. Where it was found there had been a breach of the Act a consumer was given the option under s 18(2) of requiring the supplier to remedy the defect within a reasonable time or alternative to reject the goods and seek damages and compensation.” [60] The legal principle derived from New Zealand’s cases have been followed by our Court of Appeal cases, the first was the case of Puncak Niaga (supra) attributed by Plaintiff’s counsel, that made reference to the three authorities by Court of Appeal Judge Abdul Malik Ishak (as he then was), one of them is an English case of Rogers and another v Parish (Scarborough) Ltd and another [1987] 1 QB 933. In Rogers (supra) case, it was held that goods which were defective on delivery were not to be taken to be of merchantable quality for the purpose of s 14 of the Sale of Goods Act 1979 by reason of the fact that the defects had not destroyed the workable character of the goods, and it was not relevant as to whether the goods had been of merchantable quality upon delivery that the defects had subsequently been repaired. [61] In Rogers (supra) case, the consumer’s expectation was looked into not only on the purpose for which that kind was commonly bought including driving the vehicle, but that of doing so, with degree of comfort, ease of handling, reliability and pride in its appearance appropriate for the market at which the vehicle was aimed; “that defects which might be acceptable in a second hand vehicle and which would not therefore render it unmerchantable were not reasonably to be expected in a vehicle sold as new. …” The plaintiffs in Rogers v Parish (supra) case were held to be entitled to repudiate the contract since the vehicle was not fit for its purpose as what plaintiffs were entitled to expect. [62] The other two cases are the decisions of the New Zealand District Court where the third case of Coopers v Ashley & Johnson Motors Ltd [1997] DCR 170, it was held in reference to the second case Stephens v Chevron Motor Court Ltd [1996] DCR 1 that a consumer’s election to have repairs carried out by the dealer might not prejudice a subsequent right to reject the goods if the consumer had not been provided with sufficient information by the dealer to make an informed decision as to whether to reject or not, which is the scenario in the current case. [63] In the Court of Appeal case of Matang Plastik & Metal Work Industries Sdn Bhd & Ors v Daimler Chrysler Malaysia Sdn Bhd & Ors [2014] 8 CLJ 998, it was held that once a car is purchased, the provision of section 32(1) CPA applied where the car is to be of acceptable quality, “…must be fit for all purposes for which the car was bought, acceptable in appearance and finish, free from minor defects, safe and durable.” [64] Based on the facts and evidence before this Court, the Plaintiff had proven based on the balance of probability that there were Defects of substantial character that the Vehicle was not fit for all purposes which it was bought, it was not free from minor defects and the facts on its durability and safety were doubtful. The onus shifted to the Defendant to adduce evidence to rebut Plaintiff’s evidence but was never produced. There was no guarantee by the Defendant that the Defects was not of substantial character that would amount to a breach of an implied guarantee. The Defendant failed to provide evidence to corroborate particularly the technical advice that should be given by one Daniele Luisi who witnessed the Defects during one of the test drives. [65] The recorded sound produced by the Plaintiff is disregarded based on the evidence adduced (pages 235-236 of Appeal Record (B)) and the fact that the Defendant admitted that there was such noise and is a defect, which is not expected from a new and luxury vehicle as this Vehicle. Right of Rejection [66] This Court is of the view that the Plaintiff has the right to exercise its option to reject which was done reasonably, in the month of October 2013, when the Plaintiff was fully-acquainted with the hidden defects having regard to all the matters listed in section 32(2)(b) CPA. This Court finds that the Plaintiff’s offer to Defendant on 1.10.2013 to buy back the Vehicle was first an act of rejection followed by a written statement via Plaintiff’s solicitor’s letter of 22.10.2013 and therefore was reasonable within the purview of section 41 and section 45 CPA. [67] I have to disagree with the Defendant’s counsel’s argument of laying down the timeline from October 2012 till October 2013 as this would run contrary to the reading of section 32(2)(b) CPA. Furthermore, it would be unreasonable to expect the Plaintiff to wait for the Vehicle to be a total wreck before it can exercise its right of rejection. The law is clear as decided by the appellate courts and based on the persuasive authorities of New Zealand, that the right to reject must be exercised within a reasonable time. [68] As decided in Puncak Niaga (supra) case, based on the facts and evidence adduced in this case, the time to reject would begin to run as soon as when the Vehicle had defects of a substantial character that was fully acquainted by Plaintiff in the month of September 2013 and the rejection exercised was in October 2013, is reasonable. [69] To answer Defendant’s counsel’s invitation to use the case of Asia Pacific Information (supra) as a reference, I hold the view that previous decisions cannot be a blanket application as they are not one size fits all. Ultimately, the facts must be determined on a case by case basis and on legal principles, I am bound by the appellate court’s decision. In addition, Asia Pacific Information Services (supra) case must be distinguished from the current case as the dispute in that case was considered under SOGA. Counterclaim [70] I dismiss the Defendant’s counterclaim for the simple reason that firstly, there were no terms and conditions agreed between the Plaintiff and the Defendant. It was undisputed that the Repair Orders were never signed by the Plaintiff for the terms to be binding on the Plaintiff. Secondly, as the Vehicle had been rejected, been returned by leaving the Vehicle with the Defendant, the Plaintiff is not liable for any storage charges: section 45 (2)(c) CPA. [71] In view of the above, I do not find the Session Judge had misdirected herself in facts and law which requires this Court’s intervention. [72] In light of the above reasons, I dismiss the appeal and the counterclaim with cost. Dated: 17 November 2017 (ZALITA BINTI DATO’ ZAIDAN) Judicial Commissioner Shah Alam High Court COUNSEL FOR THE APPELLANT / DEFENDANT 1. NADZARIN BIN WOK NORDIN 2. WONG JING EN Tetuan Nadzarin Kuok Puthucheary & Tan B4-3A, Solaris Dutamas Jalan Dutamas 50450 Kuala Lumpur [Ref: NKPT[L]14.1043] Tel: 03-207 8986 Fax: 03-6207 8987 COUNSEL FOR THE RESPONDENT / PLAINTIFF 1. SIMON HUE 2. EDWARD YII Tetuan Simon Hue & Associates W-0906, Amcorp Business Suites Tingkat 9, Menara Melawangi Amcorp Trade Centre No. 18, Jalan Persiaran Barat 46050 Petaling Jaya Selangor Darul Ehsan [Ref: SH/L1-2719(1013)/NYHSB/SH) Tel: 03-7960 7761 Fax: 03-7960 776 40

Tika 2.6.0

BA-12B-65-04/2016

PERAYU EUROMOBIL SDN BHD (No. Syarikat: 596498-M) RESPONDEN NAN YA HARDWARE SDN BHD (No. Syarikat: 610801-V)

17/11/2017

YA DATIN ZALITA BINTI DATO' HJ. ZAIDAN (PK)

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=ae907fba-e8cb-4432-96d6-5567b4fc72a9&Inline=true

DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN, MALAYSIA RAYUAN SIVIL NO. BA-12B-65-04/2016 ANTARA EUROMOBIL SDN BHD (No. Syarikat: 596498-M) …. PERAYU DAN NAN YA HARDWARE SDN BHD (No. Syarikat: 610801-V) ….RESPONDEN [DALAM MAHKAMAH SESYEN DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN, MALAYSIA GUAMAN SIVIL NO.: B52-194-11/2014 ANTARA NAN YA HARDWARE SDN BHD (No. Syarikat: 610801-V) ….PLAINTIF DAN EUROMOBIL SDN BHD (No. Syarikat: 596498-M) ….DEFENDAN] GROUND OF JUDGMENT Introduction [1] This is an appeal by the Appellant (Defendant) on the Sessions Court’s decision of 23.3.2016 where the Respondent’s (Plaintiff) claim was allowed under section 32 of Consumer Protection Act 1999 (CPA) and the Appellant’s counterclaim of RM 19,550.00 was dismissed. [2] For ease of reference, the parties in this judgment, will be known as they were in the Sessions Court. Facts [3] The relevant facts to this case can be summarised based on the Plaintiff’s Statement of Claim and both counsels’ written submissions as follows: (a) The Plaintiff is a company incorporated in Malaysia and having its business address at Lot 4846, Jalan KPB 11A, Kawasan Perindustrian Kampung Baru Balakong, 43300 Seri Kembangan, Selangor Darul Ehsan. (b) The Defendant is a company incorporated in Malaysia having its registered address at Level 5, Wisma DRB-Hicom, No. 2 Jalan Usahawan U1/8, Seksyen U1, 40150 Shah Alam, Selangor Darul Ehsan and its business address at Lot 27, Jalan Pelukis U1/46, Seksyen Utara Satu Kawasan Perindustrian Temasya, 40150 Shah Alam, Selangor Darul Ehsan. (c) The Defendant carries on the business as the importer, distributor and services provider of Audi motor vehicles in Malaysia. (d) By a Vehicle Sales Order dated 09.07.2012 (page 18 of Appeal Record (C)), the Defendant as the supplier had agreed to sell and the Plaintiff as consumer had agreed to purchase an Audi motor vehicle model A8L 3.0 TFSI QTR at the price of RM668,355.00 by paying to the Defendant an initial booking fee of RM30,000.00 (“Booking Fee”), particulars of which is within the knowledge of the Defendant. (e) On around 30.08.2012, the Defendant delivered to the Plaintiff an Audi motor vehicle bearing Registration No. WWB 888, Model Code: Audi A8L 3.0 TFSI QTR, Chassis No. WAUZZZ4H6DN002018 and Engine No: CGW049203 (“the Vehicle”. (f) Upon delivery of the Vehicle, the Plaintiff had paid a further sum of RM38,684.00 to the Defendant, thus making a total deposit sum of RM68,684.00 (“Deposit”) to the Defendant as shown in the Defendant’s Invoice No: 2610031645 with its corresponding Vehicle Delivery Order No: 610032921 (page 20 of Appeal Record (Bahagian C)). (g) To finance the purchase of the Vehicle, the Plaintiff had on 04.09.2012 obtained a hire purchase facility sum of RM600,000.00 from Affin Bank Berhad (“the Financier”) at the term charges at 2.28% per annum (which term charges for 5 years shall amount to RM68,400.00) and the total amount of RM668,400.00 (being the principal sum of RM600,000.00 plus term charges of RM68,400.00, hereinafter referred as “Total Amount Payable to Financier”) shall be repaid to the Financier by way of 60 equal monthly installments of RM11,000.00 each commencing from 04.10.2012. (h) The Plaintiff claimed that less than a month after the Plaintiff had taken delivery of the Vehicle from the Defendant, the Plaintiff discovered defects in the Vehicle with unusual loud and rattling noise emanating from the rear passenger seats even while driving at low speed (“the Defects”). (i) The Plaintiff had complained to the Defendant about the Defects and had sent the Vehicle to the Defendant’s authorized service centers for repairs and rectifications on the following occasions and at the following service centers:- i. from 26.09.2012 to 08.10.2012 (13 days) at Glenmarie; ii. from 09.10.2012 to 10.10.2012 (3 days ) at Chan Sow Lin; iii. from 21.06.2013 until to-date at Glenmarie. (j) The Plaintiff claimed that despite having sent the Vehicle to the Defendant’s authorised service centers for repairs and rectifications, the Defendant had not rectified and upon Plaintiff’s request for an identification of the problem and/or cause of the Defects and for a confirmation whether the Vehicle has been repaired, the Plaintiff avers the following: (i) the Defendant had through their letter dated 14.08.2013 informed the Plaintiff that they have removed the complete rear suspension assembly and re-assembled the same, done the wheel alignment and camber setting and had escalated the matter to Audi AG for assistance and advise on the next steps; (ii) the Defendant had through their email of 12.09.2013 to the Plaintiff’s representative by the name of one Elaine Tan (“Plaintiff’s Representative”) had admitted that the Defects still persists even though the Defendant had removed and re-installed the anti-roll bar and replaced the Vehicle’s stabilizer bar and the coupling rod and had also lubricated, cleaned and retightened the bolts and nuts leading to the sub-frame and anything that comes in contact with connecting to the rear undercarriage, including the interior car items; (iii) in the same email of 12.9.2013, the Defendant further confirmed that they suspected the noise was coming from both rear air dampers and that the technical support of Singapore has agreed to replace the said parts. The Defendant by letter of 2.10.2013 informed the Plaintiff that they have received the parts from Audi AG in Germany and was then in the midst of carrying out the repairs. (k) In reply to the Defendant’s letter dated 02.10.2013, the Plaintiff claimed via their letter of 08.10.2013 voiced out their grave concern on the repairs done, stating Plaintiff’s opinion, “feels like this car has been taken apart by your so-called qualified technicians and put back again like an accident car which have been salvaged from the wreckers” and the Plaintiff had also requested from the Defendant for an assurance and guarantee that the Vehicle will be functional and safe. (l) Despite numerous requests and/or reminders by the Plaintiff and/or the Plaintiff’s Representative for and identification of the cause of the Defects and also for an assurance and guarantee that the Defects have been fully rectified and that the Vehicle will be functional and safe, the Defendant had failed and/or unable to do so. (m) The Plaintiff pleaded that the Defendant is in breach of section 32 of CPA which provides that there is an implied guarantee that the Vehicle supplied by the Defendant must be of acceptable quality, by supplying the Vehicle which is not of acceptable quality and/or that the Defects are failure of a substantial character which the Plaintiff as a reasonable consumer would not have purchased the Vehicle had they been fully acquainted with the nature and extent of the Defects. (n) The Plaintiff then rejected the Vehicle, by leaving the Vehicle in the Defendant’s service center and had through their solicitor’s letter dated 22.10.2013 notified the Defendant stating that the Plaintiff had exercised its rights to reject the Vehicle together with the grounds for the rejection pursuant to the provisions of the Consumer Protection Act 1999 and demanded for a full refund of the purchase price. (o) Notwithstanding such rejection and demand, the Defendant had refused to refund the full purchase price or any part thereof to date. (p) On 17.12.2013, the Plaintiff commenced a legal suit against the Defendant in Shah Alam Sessions court vide Suit No. B52-183-12/2013 (“the Suit”) claiming for the relief as pleaded in paragraph 22 below. (q) Before the commencement of the full trial, the Defendant proposed to resolve the disputes between the parties out of court. However, the Defendant was unable to determine and finalise the terms and conditions of their proposal at that time as the new Audi A8, being the main subject of their proposal, would only be launched around June or July 2014. (r) In view of a probable out of court settlement, the parties had requested for the trial to be adjourned pending the outcome of the settlement but was declined by the court. As a result, the Plaintiff had on15.04.2014 withdrew the Suit with liberty for file afresh. (s) However, the settlement negotiation between the parties had failed and thus the filing of this suit. The Plaintiff claims against the Defendant as follows: (a) a declaration that the Plaintiff shall be entitled to reject the Vehicle; (b) a refund of the deposit sum of RM68,684.00; (c) the sum of RM668,4000.00 together with any penalty that may be imposed by the Financier towards the Plaintiff; (d) damages; (e) interest at the rate of 5% per annum on the sum to be paid from the dated of this Writ until full realization; and (f) costs, (g) any other reliefs as the court shall deem fit. (t) The Defects of the Vehicle was denied by the Defendant and stated that the Plaintiff’s complaints about the Vehicle “at all material time was in regard to the noise emanating from the passenger seat, if any”. The Defendant claimed that the Plaintiff’s complaint was never about the performance of the car but was confined to the noise which was discovered in the Vehicle which in any event was not of a substantial character. (u) The Defendant claimed that the Defendant had loaned to the Plaintiff a courtesy car of similar model and built pending inspection and repairs as follows: (i) car model Audi A8 bearing registration No. WVH 776 from the period of 20.06.2013 to 01.10.2013; (ii) Car model Audi A8 bearing registration No. WUV 30 from 01.10.2013 to 08.11.2013. (v) The Defendant counter-claimed for the storage fees for the Vehicle at the Defendant’s center calculated at RM50.00 per day from 20.12.2013 to the date of filing of the Defence for 391 days, the sum of RM19,550 for which continues to accrue per day, costs of defending and counter-claim for this action and interest rate at 5% per annum calculated from date the sum for counter-claim was due until full settlement. (w) The Sessions Court allowed the Plaintiff’s claims as prayed. Dissatisfied with the Session Judge’s decision, the Defendant appealed to this Court. Plaintiff’s case [4] The learned counsel for the Plaintiff advanced several arguments for his claim, premised on the rights and remedy of a consumer based on the CPA that the Vehicle was not of acceptable quality and the Defects was of a substantial character. [5] The Plaintiff’s counsel averred that there is an important difference between Sale of Goods Act 1957 (SOGA) and CPA, where in the former, SOGA provides an implied condition that the goods supplied shall be of “merchantable quality” whereas in the latter, there is an implied guarantee that the goods shall be of “acceptable quality”. Citing a New Zealand’s Court of Appeal’s case of Nesbit v Porter [2000] 2 NZLR 465 on the concept of acceptable quality as distinguished from merchantable quality, the Plaintiff’s counsel submitted that the New Zealand Court of Appeal concluded that goods may be of merchantable quality yet still fall short of being an acceptable quality. [6] The Plaintiff’s counsel submitted that in Malaysia the statutory implied guarantee that the Vehicle supplied of must be of acceptable quality is provided under Section 32 CPA and therefore when the Plaintiff purchased the Vehicle from the Defendant, there was an implied guarantee under the CPA that the Vehicle was of acceptable quality, a quality befitting a new luxury motor vehicle free from minor defects and should be reasonably fit for purpose as a new luxury motor vehicle, for comfortable and uninterrupted travelling. This is in reliance of a Court of Appeal case of Matang Plastik & Metal Work Industries Sdn Bhd & Ors v Daimler Chrysler Malaysia Sdn Bhd & Ors [2014] 8 CLJ 998, that once the goods is purchased, the provisions of section 32(1) of CPA would apply which is the implied guarantee. [7] It was brought to this Court’s attention that the Plaintiff had purchased from the Defendant a brand new Audi A8 in July 2012 for a price of RM668,684.00. According to the Plaintiff’s witness, SP1, the Plaintiff decided to buy the Vehicle because Audi is a world renowned for its luxury automobiles and Audi A8 is the top luxury sedan car with a high level of comfort, performance, craftsmanship and numerous high-tech features. [8] It was submitted that the Plaintiff purchased the Vehicle not merely for the purpose of travelling from one place to another but of doing so with the appropriated degree of comfort, reliability and pride and with the intention to enhance Plaintiff’s image and status in the business world. [9] The counsel for the Plaintiff submitted that the Defendant’s sales manager, one Wendy Tan (SD1) who had been working in automobiles industry for 18 years had confirmed during the cross-examination (pages 123-124 of Appeal Record (B)), as follows: (a) Audi A8 is the most expensive sedan car in Audi brand; (b) the purpose of buying an Audi A8 is not only for driving but to enhance the business image and status; (c) consumers purchase Audi A8 because it has a high level of comfort, reliability, luxury and craftsmanship; and (d) when the Respondent purchased the Audi A8, they would expect the Vehicle to have a quality befitting a new luxury car. [10] It was submitted that soon after the delivery of the Vehicle, the Plaintiff discovered the Defects, the unusual noise and/or rattling noise emanating from the rear passenger seats even while driving at low speed. The Plaintiff also submitted that the Defendant had admitted in paragraph 10.3 of its Defence that the Vehicle did have Defects but alleged it as a minor defect. [11] The Plaintiff’s counsel submitted the facts on the services rendered to the Vehicle based on the job sheets (pages 60-61 of Appeal Record) and Plaintiff’s witness’ (SP2) witness statement regarding the third service dated 21.6.2013, who previously owned an Audi Q5 Quatro purchased from the Defendant, assisted the Plaintiff that when she collected the Vehicle sometime in mid-July 2013, two of Defendant’s staffs tested the Vehicle and acknowledged that the Defects persist (page 260 of Appeal Record). [12] The Plaintiff’s counsel submitted that based on an email of 12.9.2013 from one Mr. Thamodharan, the Defects still persist even after the repairs had been carried out (SP2’s Witness Statement, page 261 Appeal Record (B)), “(a) replacing the vehicle’s stabilizer bar and the coupling rod; and (b) lubricated, cleaned and retighten the bolts and nuts leading to the subframe, and anything in contact with connecting to the rear undercarriage, including the interior car items.” [13] The Plaintiff’s counsel averred that the Plaintiff’s witness emailed to the Defendant on 13.9.2013 which was replied by the Defendant on 17.9.2013 that Defendant is receiving detailed technical advice from Audi AG and Audi TSC Singapore and “that there were few more steps to carry out before the rectification is done” but with no explanation as to why such repair has to be carried out or why such parts need to be replaced and to date the Defendant failed to identify the cause or nature of the Defects. [14] The Plaintiff’s counsel submitted that the Defendant’s witness (SD4) who is Defendant’s former Executive for Product Support, confirmed during the cross-examination that the noise can be heard during a test drive whom was accompanied with an Audi expert from Singapore, one Daniele Luisi, after the Vehicle was repaired (page 239 of Appeal Record (B)). [15] It was submitted that the Vehicle was defective when it was delivered to the Plaintiff and as such, the Plaintiff rejecting the Vehicle is reasonable relying on the authority of Puncak Niaga (M) Sdn Bhd v NZ Wheels Sdn Bhd [2011] 9 CLJ 833 where in that case, the Court of Appeal allowed the appellant’s claim to reject the Mercedes Benz car under the CPA by way of a summary judgment as the respondent had breached the implied guarantee under CPA. [16] In relation to the issue of rejection, the counsel averred that the Plaintiff is entitled to reject, as at mid-September 2013, the problem was not resolved and the Defendant was still unable to identify the cause of the problem. In the email of 12.09.2013, the counsel pointed that the Defendant had admitted that the noise still persists despite replacing the Vehicle’s stabilizer bar and the coupling rod, lubricated, cleaned and retightened the bolts and nuts leading to the sub-frame and anything that comes in contact with connecting to the rear undercarriage, including the interior car items. [17] The counsel for the Plaintiff submitted that despite a series of attempt to repair the Defects, there was no solution forthcoming from the Defendant, Plaintiff lost all confidence in the Vehicle and rejected the Vehicle within a reasonable time based on the remedies to reject under section 41(1)(b)(i)of the CPA and following the case of Puncak Niaga (supra). Counterclaim [18] In relation to the counterclaim by the Defendant, the Plaintiff’s counsel asserted that the storage charges as stated in the Defendant’s Repair Order from 10.12.2013 until the date of filing of the Defence with the rate of RM50.00 per day was never signed by the Plaintiff and the Plaintiff never agreed to such terms and conditions and therefore it is not binding against the Plaintiff: Lim Hong Yeu v Mercedes-Benz Malaysia Sdn Bhd & 2 Ors [2013] 1 LNS 192. The Court was told that during the period where the Vehicle was placed with the Defendant, there had been summons issued to the Plaintiff which proved that the Vehicle had been used by the Defendant (page 24 of Appeal Record (A) and (C)). Defendant’s case [19] The learned counsel for the Defendant advanced several grounds for this appeal and divided its arguments into four main areas that the Session Judge was erred on facts and law: (a) whether the alleged noise from the rear of the Vehicle was Defects; (b) whether the alleged Defects was substantial in nature; (c) the Plaintiff failed to identify the Defects and continues to fail to rectify / repair the Defects; and (d) the time of rejection of the Vehicle was unreasonable. [20] The counsel for the Defendant submitted that it is for the Plaintiff to show on facts and law that the Vehicle was Defects, not of an acceptable quality under section 32 of CPA. The Defendant’s counsel contended that since the Plaintiff failed to proof, the Vehicle has no Defects under section 32 CPA. The definition of ‘defect’ was submitted based on Black’s Law Dictionary (Eight Edition) by Bryan A. Garner, at page 450, to mean, as “an imperfection or shortcoming, esp. in a part that is essential to the operation or safety of a product”. [21] The Defendant’s counsel relied on the case of Asia Pacific Information Services Sdn Bhd v Cycle & Carriage Bintang Bhd & Anor [2010] 6 CLJ 681 submitting that as no evidence was adduced to prove that the defects were in fact materially inherent latent defects in the car, the Plaintiff in this case failed to prove its case on a balance of probabilities as the only witness produced by the Plaintiff were the CEO of the Plaintiff and his driver without any technical witness nor expert evidence tendered to determine the cause of the problem encountered. [22] It was submitted by the Defendant that during the trial, the Plaintiff had on each of the two occasions brought the Vehicle to the Service Centre complaining of the alleged ‘noise’ as a loud and rattling noise which was never detected, except after a second test drive done in the presence of Plaintiff’s witness (SP2) (one Ms. Tan Nyi Ring) and Defendant’s witness (DW3) (Thamodharan Anatharsekaran) where SP2 confirmed that the alleged noise was in fact a ‘soft sound’ emanating from the rear right side of the Vehicle which could only be heard by sitting at the right hand side of the back seat and when the Vehicle was driven over uneven road surfaces. [23] It was brought to this Court’s attention that the alleged ‘noise’ recorded by the Plaintiff was replayed at the trial where the learned Session Judge had commented, “Ini bukan rattling”. The sound was detected on the second test drive conducted sometime in September 2013 and submitted that the Defendant had then immediately taken the necessary measures to identify and rectify the alleged ‘noise’ which was found to have come from the rear air dampers of the Vehicle and were replaced even though the air dampers were found to be, “perfect working condition performance wise. The original air dampers will not have any effect on the drive-ability, roadworthy, reliability and performance of the car and therefore can still be used.” [24] The counsel for the Defendant pointed to the testimony of DW4 (one Faeroz Kahn Bin Mahbul Husain, the Defendant’s Executive Technical Support) which was unchallenged by the Plaintiff’s counsel that the Defendant had proceeded to replace the said air dampers “…so as to address the Respondent’s complaint to their level of satisfaction, and as part of our professionalism to our customer”. [25] The Defendant’s counsel averred that the test to determine Defects can be found in the High Court case of Chai Lang Fah @ Chai Lian Fah V. Cycle & Carriage Bintang Berhad [2011] 1 LNS 357 where the High Court in that case adopted the Federal Court in Lau Hee Teah v. Hargill Engineering Sdn Bhd & Anor [1979] 1 LNS40; [1979] 1 MLJ 145, in connection with the issue of what constitutes a new car, agreed with and adopted the test propounded by the Court of Appeal in England in Reg v Ford Motor Co. Ltd [1974] 1 WLR 1220, 1227-1228 by relying the test of the extent and nature of damage and the quality of the repairs. [26] The Defendant’s counsel submitted that even if there was defect, it was not substantial in nature as the Vehicle could be repaired and relied on the Federal Court cases of Seng Hin v. Arathoon Sons Ltd [1968] 1 LNS 134 and Lau Hee Teah v. Hargill Engineering Sdn Bhd & Anor [1979] 1 LNS 40; [1979] 1 MLJD 145, to support the contention that that if the said parts of the Vehicle can be repaired, the Vehicle cannot be said to be of unmerchantable quality or unfit for the purpose, to which the burden of proof is under the Sale of Goods Act. [27] The counsel for the Defendant submitted that the cases relied by the Plaintiff’s counsel is distinguishable from the current case where in Matang Plastik & Metal Work Industries Sdn Bhd & Ors v Daimler Chrysler Malaysia Sdn Bhd [2014] 8 CLJ 998 [Auth 17 ABOA], there were two material differences, that is firstly the car in question had suffered four breakdowns before it caught fire and was extensively damaged and secondly, the Plaintiffs in that case had called two expert witnesses to prove their claim. [28] The Defendant’s counsel averred that the only case which will be of any significance is the case of Seah Peh Yee v Hap Seng Star Sdn Bhd [2013] 1 LNS 229 where the plaintiff had rejected the car within one month after the defendant was not able to identify the problem but the car in that case had only accumulated mileage of 1,700 km as opposed to the current case where the Plaintiff, according to the testimony of DW3 (page 246 Appeal Record (B)), accumulated mileage of 10,000.00 plus kilometers. [29] Based on the arguments put forward, the counsel for the Defendant urged this Court to apply the case of Asia Pacific Information Services Sdn Bhd v Cycle & Carriage Bintang Bhd & Anor [2010] 6 CLJ 681 where it was held that the problems encountered although not minor, were not sufficiently serious or fundamental to amount to a breach of the implied condition at the time of the sale. [30] It was submitted that even if there was defect, based on all of the above, the defect is not substantial as the Defendant had attended and resolved the noise and had been rectified on three occasions, that is on 2.10.2013, 14.10.2013 and 21.10.2013, the latter by courtesy call where the Plaintiff informed the Defendant that the Plaintiff will collect the Vehicle on 30.10.2013. The counsel averred for this Court’s intervention that the Session Judge had misdirected herself and in not considering the relevant evidence and had contradicted herself in the finding of facts, relying on the cases, China Airlines Ltd v Maltran Air Corp. Sdn Bhd & Another Appeal [1996] 3 CLJ 163 and Lee Ing Chin @ Lee Tech Seng & Ors v Gan Yook Chin & Anor [2003] 2 MLJ 97. [31] The Defendant’s counsel also brought to this Court’s attention that the timing of rejection by Plaintiff was unreasonable as there was a gap of slightly more than one year from 9 October 2012 until 22 October 2013 and that following section 43(1)(a) of CPA, the rejection must be done within a reasonable period of time. [32] In relation to the counterclaim, the Defendant claimed that the Plaintiff had agreed over the phone on a day before the ‘collection date’ to collect the Vehicle and would be estopped from rejecting the Vehicle. It was submitted that the Plaintiff only requested Defendant “to buy back” and did not say rejecting the Vehicle, arguing further that if 1.20.2013 was the rejection date, there should be a letter issued which was Plaintiff’s letter of 22.10.2013 rejecting the Vehicle. The Sessions Court’s Decision [33] The Sessions Court’s decision can be found at Rekod Rayuan Tambahan Bahagian A & C, pages 1-18. Some parts of the finding is reproduced, for ease of reference: “3. Plaintif telah pada 26.09.2012 menghantar Kenderaan tesebut ke pusat servis Defendan dan mengadu tentang Defek-Defek tersebut. Akan tetapi Defek-Defek terseubt belum dapat dibaiki lagi. Seterusnya, Plaintif telah pada 09.10.2012 menghantar Kenderaan tersebut ke pusat servis Defendan untuk membuat penampalan tayar dan pada masa yang sama telah mengadu tentang Defek-Defek tersebut yang masih berterusan. Walaupun aduan telah dibuat, Defendan telah gagal mengenalpasti punca Defek-Defek tersebut. Memandangkan Defek-Defek tersebut masih berterusan, Plaintif telah sekali lagi pada 21.06.2013 menghantar Kenderaan tersebut ke pusat servisDefendan untuk membaiki Defek-Defek tersebut. Sejak itu, Kenderaan tersebut telah berada di pusat servis berkenaan. Walaupun Defendan telah mengambil masa beberapa bulan untuk membaiki Defek-Defek tersebut, Defendan sehingga kini masih gagal dan / atau tidak dapat mengenal pasti masalah dan / atau punca Defek-Defek tersebut dan membaiki Defek-Defek tersebut dengan sepenuhnya. 4. Defek-Defek tersebut merupakan kegagalan yang bersifat substantial (“failure of substantial character”) kerana Plaintif, sebagai pengguna yang munasabah (“reasonable consumer”) tidak akan membeli Kenderaan tersebut sekiranya mereka mengetahui sepenuhnya tentang jenis dan takat Defek-Defek tersebut (“had they been fully acquainted with the nature and extent of the Defects”). Kegagalan Defendan untuk mengenal pasti masalah dan / atau punca Defek-Defek tersebut dan membaiki Defek-Defek tersebut selepas banyak percubaan jelas menunjukkan betapa substantialnya Defek-Defek tersebut. Plaintif menegaskan bahawa Defek-Defek tersebut telah ditemui kurang daripada sebulan selepas Plaintif telah menerima Kenderaan tersebut daripada Defendan dan Plaintif telah dengan segera mengadu kepada Defendan pada 26.09.2012, 09.10.2012 dan 21.06.2013. Walaupun Kenderaan tersebut telah dihantar ke pusat-pusat servis Defendan yang dibenarkan untuk pembaikan dan pembetulan, Defek-Defek tersebut belum diperbaiki lagi dan walaupun Plaintif telah meminta pengenalpastian tentang masalah dan / atau pun Defek-Defek tersebut, Defendan telah gagal untuk berbuat sedemikian. 5. Plaintif telah melaksanakan haknya untuk menolak Kenderaan tersebut dalam masa yang munasabah apabila Plaintif berbuat demikian dengan meninggalkan Kenderaan tersebut di pusat servis Defendan dan telah melalui surat peguamcara mereka bertarikh 22.10.2013 memberitahu Defendan bahawa Plaintif telah melaksanakan hak-hak mereka. Kelewatan yang dikatakan dalam menolak Kenderaan tersebut, adalah semata-mata kerana Defendan telah mengambil masa yang lama untuk cuba membaiki Kenderaan tersebut. Defendan telah gagal dan / atau tidak dapat mengenal pasti masalah dan / atau punca Defek-Defek tersebut dan tidak dapat memperbaiki Defek-Defek tersebut dengan sepenuhnya. 6. Menurut Plaintif Kenderaan tersebut tidak mempunyai kualiti yang boleh diterima di bawah Seksyen 32, Akta Perlindungan Pengguna 1999 kerana:- (i) Kenderaan tersebut tidak mempunyai kualiti bersamaan sebuah kereta mewah yang tiada kecacatan dan / atau bebas daripada defek kecil (“free from minor defects”). (ii) Kenderaan tersebut adalah tidak munasabah sesuai (“not reasonably fit”) untuk kegunaan sebagai sebuah kereta mewah baru bagi perjalanan yang selesa dan tiada gangguan. Defendan tidak pernah pada apa-apa masa memberikan penjelasan atau pengenalpastian terhadap masalah dan / atau punca Defek-Defek tersebut ataupun memberikan jaminan kepada Plaintif bahawa Defek-Defek tersebut telah dibaiki sepenuhnya dan Kenderaan tersebut akan berfungsi dengan baik dan selamat. Kedua-dua surat Defendan yang bertarikh 14.10.2013 dan 30.10.2013 langsung tidak memberikan penjelasan atau pengenalpastian terhadap masalah dan / atau punca Defek-Defek tersebut ataupun memberikan jaminan seperti yang diminta. Dalam keadaan ini, Plaintif tidak boleh dijangkakan untuk mengambil balik Kenderaan tersebut. 7. Berkaitan dengan tuntutan balas Defendan, disepanjang perbicaraan dijalankan Defendan gagal / tidak mengemukakan sebarang dokumentasi bagi menyokong tuntutan balas mereka. Oleh yang demikian, tuntutan balas Defendan sewajarnya ditolak dengan kos. KESIMPULANNYA:- Berdasarkan dari keterangan-keterangan seperti di atas, Mahkamah mendapati pihak Plaintif telah berjaya membuktikan kes atas beban bukti imbangan kebarangkalian terhadap Defendan. oleh itu berdasarkan dari Pernyataan Tuntutan Plaintif pada perenggan 22, tuntutan yang dibenarkan adalah prayer (a), (b), (c), (e), (f) dan (g). Prayer (d) gantirugi – digugurkan. Kos diberikan RM12,000.00. Tuntutan balas Defendan terhadap Plaintif ditolak dengan kos. Kos diberikan RM8,000.00. THE COURT’S FINDING [34] Generally, an appellate court is slow to interfere with the trial judge’s finding of facts unless there is a clear misdirection of law by the trial judge or the trial judge made a wholly erroneous estimate of damage suffered that warrants this Court to intervene: Multar Masngud v Lim Kim Chet & Anor [1982] CLJ 237, FC and the case of Ming Holdings (M) Sdn Bhd v Syed Azahari Noh Shahabudin & Anor [2010] 6 CLJ 857, FC. [35] It is the Plaintiff who brought this suit and in consumer protection claims, the burden is still on the Plaintiff to proof based on the balance of probability following section 101 of Evidence Act 1950 and the Federal Court case of Letchumanan Chettiar Alagappan @ L. Allagapan, M. Venkatachalam S/O Venkatachalam Chettiar v Secure Plantation Sdn Bhd No. 02-78-10/2014 which illustrates the burden of proof that once the burden is discharged by the Plaintiff, the onus than shifts to the Defendant. [36] This is Plaintiff’s pleaded case that the Defendant had statutorily breached section 32 of CPA that the Vehicle purchased was not of acceptable quality due to the Defects discovered. The Defendant on the other hand denied in its Defence and Counterclaim that the Vehicle was defective and even if there were defects they were not of a substantial character under CPA. [37] Under the CPA, the proposition of law as explained in ‘Business Law’, by Lee Mei Pheng and Ivan Jeron Detta, Second Edition, 2014, at page 389, it provides the protection for consumers covering deceptive conduct, false representation and unfair practices of traders where ‘goods’ are subject to implied guarantees as to ‘acceptable quality’, title, fitness for purpose and that the goods comply with description and price. ‘Goods’ are defined under section 3 of CPA to mean, “which are primarily purchased, used or consumed for personal, domestic or household purposes, and includes – (a) goods attached to, or incorporated in, any real or personal property; (b) animals, … (c) vessels and vehicles; (d) utilities; and (e) trees, plants and crops… but does not include choses in action, including negotiable instruments, shares, debentures and money;” [38] The ‘goods’ is for personal consumption as opposed to commercial and CPA applies to purchase of vehicle. The core issue is the ‘acceptable quality’ unlike ‘merchantable quality’ under SOGA which was the law prior to CPA, enunciated under section 32 CPA. I vehemently would refer to the CPA which should be construed as a whole, without isolating other relevant provisions pertinent to the acceptable quality test. I refer to the authority by M.N. Rao, Amita Dhanda in N S Bindra’s Interpretation of Statutes, Tenth Edition, 2007 at page 690, the legal intendment in statutory interpretation is that, each and every clause in a statute has been inserted for some useful purpose and therefore the instrument of the Act must be read as a whole to ascertain both its intent and general purpose. [39] The implied guarantee of acceptable quality provided under section 32 CPA, is reproduced, for easy reference, as follows: “32. Implied guarantee as to acceptable quality. (1) Where goods are supplied to a consumer there shall be implied a guarantee that the goods are of acceptable quality. (2) For the purpose of subsection (1), goods shall be deemed to be of acceptable quality--- (a) if they are--- (i) fit for all the purposes for which goods of the type in question are commonly supplied; (ii) acceptable in appearance and finish; (iii) free from minor defects; (iv) safe; and (v) durable; and (b) a reasonable consumer fully acquainted with the state and condition of the goods, including any hidden defects, would regard the goods as acceptable having regard to --- (i) the nature of the goods; (ii) the price; (iii) any statements made about the goods on any packaging or label on the goods (iv) any representation made about the goods by the supplier or the manufacturer; and (v) all other relevant circumstances of the supply of the goods.” [40] The language of section 32(1) CPA provides the mandatory requirement that there shall be an implied guarantee, applicable to any supplier of goods to consumer. The term ‘supplier’ is defined under section 3 CPA which includes a person who in trade supplies goods to a consumer. Following section 32(2)(a)(i) – (v) CPA, what is meant by the goods shall be deemed as acceptable quality is listed which includes ‘fit for all the purposes’ and ‘free from minor defects’. It follows that section 32(2)(a) CPA must be read with part (b) of section 32(2) CPA. Reading the whole section 32(2) CPA, the goods shall be deemed to be acceptable quality if they fulfil the following requirements: (a) they are fit for all purposes, acceptable in appearance and finish, free from minor defects, safe and durable; (b) meet the standards that are reasonable consumer fully acquainted with the state and condition of the goods, including any hidden defects would regard the good as acceptable having regard to the nature of the goods, the price, any statements on the packaging or label, any representation made about the goods and all other relevant circumstances. [41] The evidence adduced by the Plaintiff, taking into account the admission of the Defendant that the Vehicle has Defects even after numerous repairs, I viewed that the Vehicle is not of an acceptable quality within the provisions of the CPA. [42] For the Vehicle to be considered as an acceptable quality, based on the reading of section 32(2)(a) and (b) CPA, it requires an overall assessment together with the consumer’s knowledge and expectation. I hold such view on the ground of reasonable consumer test and “all other relevant circumstances” as stipulated under section 32(2)(b)(v) CPA and the decided appellate court cases. [43] As pleaded by the Plaintiff, the purchase of the Vehicle was made in reliance of the Defendant’s skill and knowledge and the public perception of the Vehicle that carries with it the business image and status, that it has a high level of comfort, reliability, luxury and craftsmanship. The Plaintiff pleaded that despite the image and status it carries, the Vehicle is not an acceptable quality. [44] The main contention revolves around the issue of acceptable quality which is the fulfillment of the standards including ‘fit for all the purposes’ and ‘free from minor defects’. According to Plaintiff’s line of argument, once the Vehicle is in breach on the implied guarantee, the Plaintiff’s right of redress is to reject the Vehicle: section 41(3)(b) CPA. The Defendant’s counsel’s counter-argument was that there was noise, albeit minor defect, is not of substantial character. [45] On this aspect of ‘defect’, the Defendant’s counsel referred to the Black Law’s Dictionary as well as case laws, describing it as an imperfection or shortcoming, “…to the operation or safety of a product”. The Defendant’s counsel referred to one High Court case of Chai Lang Fah @ Chai Lian Fah v Cycle & Carriage Bintang Berhad [2011] 1 LNS 357 which adopted a Federal Court case of Lau Hee Teah v Hargill Engineering Sdn Bhd & Anor [1979] 1 LNS 40, [1979] 1 MLJ 145 that if the parts of the car can be repaired than it cannot be said to be of unmerchantable quality or unfit for the purpose under SOGA and not a defect of substantial character under CPA. [46] This Court viewed that the authority referred by the Defendant’s counsel of Chai Lang Fah (supra) case which made reference to the Federal Court case of Lau Hee Teah v Hargill Engineering (supra), was a negligent and misrepresentation case in reference to a dispute under SOGA and not CPA where in the former, prove of relationship between the manufacturer and the consumer and the causal link between damage and defect must be shown. [47] Upon careful perusal, the CPA does not specifically defined ‘defect’ for section 32 CPA claims. The only definition provided is in relation to product liability under section 67 (1) of Part X CPA which provides, “Subject to subsections (2) and (3), there is a defect in a product for the purposes of this Part if the safety of the product is not such as a person is generally entitled to expect.” Subsections (2) and (3) of section 67(1) CPA provides the determination of what a person is generally entitled to expect, all the relevant circumstances which includes the manner in which, and the purpose for which, the product has been marketed. [48] Again, the CPA is to protect the consumer based on an objective standard where in the case of product liability, the issue of safety should be judged based on the public’s entitlement to expectation and not based on actual expectation: A and Others v National Blood Authority and other [2002] ALL ER 289. In relation to section 32 CPA claims, it is tested against the opinion and fully-acquainted reasonable consumer. The objective standard can be found in the New Zealand’s Court of Appeal’s case of Nesbit v Porter (supra) that, “…. goods are acceptable quality only if fit for all purposes for which goods of the type in question are commonly used and they meet the other standards referred to in section 7(1), including being free from minor defects, with all of these matters being tested against the opinion of a reasonable and fully-acquainted consumer having regard to the matters in paras (f) to (j) of that subsection.” [49] The CPA was drawn on the New Zealand’s Consumer Guarantees Act 1993 (NZCGA) where section 32 CPA is drafted based on section 7 of NZCGA. The case of Nesbit v Porter (supra) was decided on the interpretation of NZCGA, involving a second-hand Nissan Navara, an eleven year old vehicle imported from Japan. In that case, after five months, there were small problems that needed replacement and certain parts were found defective to which the appellants who purchased the car, remedied the defects on their own expenses as the dealer was alleged to be uncooperative. To cut the story short, the test applied is based on a reasonable consumer with the consideration of the vehicle’s age and type, where it was viewed that it was reasonable to expect defects, latent at the time of supply, to be apparent soon after the supply of the vehicle. [50] The New Zealand Court of Appeal held that the goods are of acceptable quality only if fit for all purposes for which goods of the type are commonly used and they meet other standards including free from minor defect, tested against the opinion of a reasonable and fully-acquainted customer having regard to the matters listed that is the nature of the goods, the price, any statements made on the goods, any representation made and all other relevant circumstances of the supply of the goods. It was held that such standard of having regard to all the list under section 7(1) NZCGA is not similar their Sale of Goods Act. The appeal by the purchaser was unsuccessful because the right of rejection was found to be exercised not timeously. [51] For section 32 CPA claims, a failure to comply with the implied guarantee shall be of a substantial character, as defined under section 44 CPA that, (a) the goods would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of failure; (b) the goods depart in one or more significant respects from the description or the sample; (c) the goods are substantially unfit for the ordinary purpose or special purpose made known to the supplier; (d) the goods are not of acceptable quality within the meaning of section 32 because they are unsafe. [52] On the evidence adduced by the Plaintiff, the first Defects was first communicated to the Defendant after less than a month where the first service or repair was carried out in the same month the Vehicle was purchased in September 2012. Based on the pleadings, the Plaintiff had sent the Vehicle to the Defendant’s authorized service centers for repairs. The Defendant had replaced the screen on the rear front seats where the Defendant testified that the screen was loosely placed and Defendant claimed it was rectified. On the second occasion, 9.10.2012, the Plaintiff sent the Vehicle to fix the Defects and to fix the punctured tyre (page 61 of Appeal Record (C)) but Defendant could not detect the Defects and they were not rectified. [53] The Plaintiff’s counsel submitted that numerous calls were made to fix an appointment for the Defects to be rectified but the appointment was always full and no one could attend to the Defects until the assistance from Plaintiff’s representative, SP2 on 21.6.2013. The Vehicle went for a test drive and Defendant acknowledged that there was noise from the rear passenger seat (page 260 of Appeal Record (B)). Sometime mid-July 2013, SP2 went to collect the Vehicle and the Vehicle was test driven by the Defendant whom acknowledged that the Defects persist (page 260 of Appeal Record (B)) and the Defendant told SP2 to leave the Vehicle with the Defendant. [54] Based on Plaintiff’s evidence, in mid-August 2013, the Vehicle was test driven and the noise still persist (pages 91-93 of Appeal Record (B)). The Defendant emailed to the Plaintiff on 14.8.2013 in reference to the test drive of the Vehicle on 13.8.2013 and confirmed that there was noise but the level of the noise had been reduced and they removed the complete rear suspension assembly and reassembled and done the alignment and camber setting (page 23 of Appeal Record (C)). The Defendant also stated that they will escalate the matter to Audi AG for assistance. [55] Based on the evidence before this Court, this Court finds that the Plaintiff strongly objected to the Defendant’s evidence that the level of noise had been reduced as claimed by Defendant, producing Defendant’s email of 12.9.2013 stating that the Defects still persist even after Defendant had done all the rectification (pages 260-261 of Appeal Record (B)) which is, “removed and re-installed the anti-roll bar and replaced the Vehicle’s stabilizer bar and the coupling rod and also had lubricated, cleaned and retightened the bolts and nuts leading to the sub-frame and anything that comes in contact with connecting to the rear undercarriage, including the interior car items” The Defendant had on the same day stated in its email of 12.9.2013 confirming that the suspected noise was coming from both rear air dampers and the technical support of Singapore has agreed to replace the said parts. [56] The air dampers were replaced in October 2013 based on the letter of the Defendant dated 2.10.2013 (page 24 of Appeal Record (C)). Although the air dampers were in perfect working condition, as affirmed by the Defendant in its oral evidence, the Defendant admitted that the noise came from the air dampers. The Plaintiff expressed his concern to the Defendant based on an email and letter of 8.10.2013 questioning the safety of the Vehicle (based on Plaintiff’s solicitor’s letter, pages 25-27 and pages 67- 68 of Appeal Record (C)): “…. Your explanation about carrying out the repairs on the car which in our opinion feels like this car has been taken apart by your so called qualified technicians and put back again like an accident car which have been savaged from the wreckers. We fear for our lives and safety when driving this car. Perhaps you can offer guarantee to our personal safety that this car will be functional and safe when on the road. Otherwise, we wish to know what are your solutions to us that our lives will be safe when driving this car. “ [57] This Court finds that if the air dampers were in perfect condition but had caused the Defects to the Vehicle which requires the Vehicle to be taken apart, it would be a reasonable inference that the Vehicle failed to comply the implied guarantee which was of a substantial character. This Court made a finding that the Defendant’s letter of 2.10.2013 did not explain the Vehicle’s diagnosis except to state that the Vehicle, “had been diagnosed following strictly to AUDI repair standards and guidelines and a courtesy car has been provided …” [58] Upon careful perusal of the documentary evidence adduced by the Plaintiff, the Defendant did not provide a guarantee on the Vehicle upon request by the Plaintiff. Following section 38 of CPA, an express guarantee by manufacturer would have been binding on the consumer. Section 38 CPA defines ‘express guarantee’ as an undertaking and the letter by the Defendant was not a guarantee nor an undertaking that the Vehicle is of acceptable quality. Following section 3 of CPA, the definition of ‘manufacturer’ includes the importer or distributor of the goods which is applicable on the Defendant. Under the CPA, the Defendant is to inform the Plaintiff on the repairs carried out for the Plaintiff to understand the history of the faults and repairs, as the Plaintiff is entitled to an informed decision whether to reject the Vehicle or otherwise. [59] The principle of CPA can be found in one New Zealand’s case, decided by the New Zealand District Court, in Cooper v Ashley & Johnson Motor Ltd [1997] DCR 170, where it was held among others at page 2, that the NZCGA, “…. clearly vests the consumer with new right focused on reasonable consumer expectation rather than the previous rigid and technical approach. Where it was found there had been a breach of the Act a consumer was given the option under s 18(2) of requiring the supplier to remedy the defect within a reasonable time or alternative to reject the goods and seek damages and compensation.” [60] The legal principle derived from New Zealand’s cases have been followed by our Court of Appeal cases, the first was the case of Puncak Niaga (supra) attributed by Plaintiff’s counsel, that made reference to the three authorities by Court of Appeal Judge Abdul Malik Ishak (as he then was), one of them is an English case of Rogers and another v Parish (Scarborough) Ltd and another [1987] 1 QB 933. In Rogers (supra) case, it was held that goods which were defective on delivery were not to be taken to be of merchantable quality for the purpose of s 14 of the Sale of Goods Act 1979 by reason of the fact that the defects had not destroyed the workable character of the goods, and it was not relevant as to whether the goods had been of merchantable quality upon delivery that the defects had subsequently been repaired. [61] In Rogers (supra) case, the consumer’s expectation was looked into not only on the purpose for which that kind was commonly bought including driving the vehicle, but that of doing so, with degree of comfort, ease of handling, reliability and pride in its appearance appropriate for the market at which the vehicle was aimed; “that defects which might be acceptable in a second hand vehicle and which would not therefore render it unmerchantable were not reasonably to be expected in a vehicle sold as new. …” The plaintiffs in Rogers v Parish (supra) case were held to be entitled to repudiate the contract since the vehicle was not fit for its purpose as what plaintiffs were entitled to expect. [62] The other two cases are the decisions of the New Zealand District Court where the third case of Coopers v Ashley & Johnson Motors Ltd [1997] DCR 170, it was held in reference to the second case Stephens v Chevron Motor Court Ltd [1996] DCR 1 that a consumer’s election to have repairs carried out by the dealer might not prejudice a subsequent right to reject the goods if the consumer had not been provided with sufficient information by the dealer to make an informed decision as to whether to reject or not, which is the scenario in the current case. [63] In the Court of Appeal case of Matang Plastik & Metal Work Industries Sdn Bhd & Ors v Daimler Chrysler Malaysia Sdn Bhd & Ors [2014] 8 CLJ 998, it was held that once a car is purchased, the provision of section 32(1) CPA applied where the car is to be of acceptable quality, “…must be fit for all purposes for which the car was bought, acceptable in appearance and finish, free from minor defects, safe and durable.” [64] Based on the facts and evidence before this Court, the Plaintiff had proven based on the balance of probability that there were Defects of substantial character that the Vehicle was not fit for all purposes which it was bought, it was not free from minor defects and the facts on its durability and safety were doubtful. The onus shifted to the Defendant to adduce evidence to rebut Plaintiff’s evidence but was never produced. There was no guarantee by the Defendant that the Defects was not of substantial character that would amount to a breach of an implied guarantee. The Defendant failed to provide evidence to corroborate particularly the technical advice that should be given by one Daniele Luisi who witnessed the Defects during one of the test drives. [65] The recorded sound produced by the Plaintiff is disregarded based on the evidence adduced (pages 235-236 of Appeal Record (B)) and the fact that the Defendant admitted that there was such noise and is a defect, which is not expected from a new and luxury vehicle as this Vehicle. Right of Rejection [66] This Court is of the view that the Plaintiff has the right to exercise its option to reject which was done reasonably, in the month of October 2013, when the Plaintiff was fully-acquainted with the hidden defects having regard to all the matters listed in section 32(2)(b) CPA. This Court finds that the Plaintiff’s offer to Defendant on 1.10.2013 to buy back the Vehicle was first an act of rejection followed by a written statement via Plaintiff’s solicitor’s letter of 22.10.2013 and therefore was reasonable within the purview of section 41 and section 45 CPA. [67] I have to disagree with the Defendant’s counsel’s argument of laying down the timeline from October 2012 till October 2013 as this would run contrary to the reading of section 32(2)(b) CPA. Furthermore, it would be unreasonable to expect the Plaintiff to wait for the Vehicle to be a total wreck before it can exercise its right of rejection. The law is clear as decided by the appellate courts and based on the persuasive authorities of New Zealand, that the right to reject must be exercised within a reasonable time. [68] As decided in Puncak Niaga (supra) case, based on the facts and evidence adduced in this case, the time to reject would begin to run as soon as when the Vehicle had defects of a substantial character that was fully acquainted by Plaintiff in the month of September 2013 and the rejection exercised was in October 2013, is reasonable. [69] To answer Defendant’s counsel’s invitation to use the case of Asia Pacific Information (supra) as a reference, I hold the view that previous decisions cannot be a blanket application as they are not one size fits all. Ultimately, the facts must be determined on a case by case basis and on legal principles, I am bound by the appellate court’s decision. In addition, Asia Pacific Information Services (supra) case must be distinguished from the current case as the dispute in that case was considered under SOGA. Counterclaim [70] I dismiss the Defendant’s counterclaim for the simple reason that firstly, there were no terms and conditions agreed between the Plaintiff and the Defendant. It was undisputed that the Repair Orders were never signed by the Plaintiff for the terms to be binding on the Plaintiff. Secondly, as the Vehicle had been rejected, been returned by leaving the Vehicle with the Defendant, the Plaintiff is not liable for any storage charges: section 45 (2)(c) CPA. [71] In view of the above, I do not find the Session Judge had misdirected herself in facts and law which requires this Court’s intervention. [72] In light of the above reasons, I dismiss the appeal and the counterclaim with cost. Dated: 17 November 2017 (ZALITA BINTI DATO’ ZAIDAN) Judicial Commissioner Shah Alam High Court COUNSEL FOR THE APPELLANT / DEFENDANT 1. NADZARIN BIN WOK NORDIN 2. WONG JING EN Tetuan Nadzarin Kuok Puthucheary & Tan B4-3A, Solaris Dutamas Jalan Dutamas 50450 Kuala Lumpur [Ref: NKPT[L]14.1043] Tel: 03-207 8986 Fax: 03-6207 8987 COUNSEL FOR THE RESPONDENT / PLAINTIFF 1. SIMON HUE 2. EDWARD YII Tetuan Simon Hue & Associates W-0906, Amcorp Business Suites Tingkat 9, Menara Melawangi Amcorp Trade Centre No. 18, Jalan Persiaran Barat 46050 Petaling Jaya Selangor Darul Ehsan [Ref: SH/L1-2719(1013)/NYHSB/SH) Tel: 03-7960 7761 Fax: 03-7960 776 40

Tika 2.6.0

BA-24FC-321-03/2017

PLAINTIF MALAYAN BANKING BERHAD DEFENDAN 1. KANG TSI YAN @ KANG TSI LING (NO.K/P: 500703-04-5303 / 3325898) 2. KANG TSI YAN @ KANG TSI LING (sebagai Pentadbir kepada harta pusaka Chong Yim Mui, Si Mati) (NO.K/P: 500703-04-5303 / 3325898)

17/11/2017

YA DATUK AZIMAH BINTI OMAR

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=441dca38-6e88-4789-94cc-11c7c58055bf&Inline=true

1 DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM DI DALAM NEGERI SELANGOR DARUL EHSAN SAMAN PEMULA NO: BA-24FC-321-03/2017 Dalam perkara mengenai Hartanah yang dipegang di bawah HS(D) 57513, PT No. 43260, Mukim Kajang, Daerah Ulu Langat, Negeri Selangor Darul Ehsan. Dan Dalam perkara mengenai Gadaian No. Perserahan 58742/2002. Dan Dalam perkara mengenai Seksyen 256 dan 257 Kanun Tanah Negara 1965 Dan Dalam perkara mengenai Aturan 83 Kaedah 2 Kaedah-Kaedah Mahkamah 2012 2 ANTARA MALAYAN BANKING BERHAD … PLAINTIF DAN 1. KANG TSI YAN @ KANG TSI LING (NO.K/P: 500703-04-5303 / 3325898) 2. KANG TSI YAN @ KANG TSI LING (sebagai Pentadbir kepada harta pusaka Chong Yim Mui, Si Mati) (NO.K/P: 500703-04-5303 / 3325898) …DEFENDAN-DEFENDAN ALASAN PENGHAKIMAN (Kandungan 1 – Permohonan Untuk Suatu Perintah Jualan) A. PENGENALAN [1] Saman Pemula (Kandungan 1) di hadapan Mahkamah ini adalah satu prosiding halang tebus yang dimulakan oleh Plaintif (Malayan Banking Berhad) sebagai pemegang gadaian. Di dalam Kandungan 1nya, Plaintif telah memohon untuk mendapatkan antara lain perintah-perintah berikut: 3 i. bahawa tanah kepunyaan Defendan-defendan yang dipegang di bawah HS(D) 57513, PT No. 43260, Mukim Kajang, Daerah Ulu Langat, Negeri Selangor Darul Ehsan yang digadaikan oleh Defendan-defendan kepada Plaintif dijualkan secara lelongan awam di bawah Seksyen 256 dan 257 Kanun Tanah Negara 1965 untuk menyelesaikan jumlah yang terhutang kepada Plaintif. ii. bahawa satu tarikh jualan secara lelongan awam ditetapkan di mana tarikh yang ditetapkan adalah tidak kurang daripada satu bulan selepas tarikh perintah ini diperoleh. iii. bahawa keseluruhan jumlah terhutang Defendan-defendan ditentukan setakat 1 Ogos 2008 atau tarikh perintah ini diperolehi. B. LATAR BELAKANG KES [2] Latar belakang kes yang membawa kepada pemfailan prosiding halang tebus ini oleh Plaintif adalah seperti berikut: 4 2.1 Kang Tsi Yan @ Kang Tsi Ling (Defendan Pertama) dan Chong Yim Mui adalah tuanpunya-tuanpunya bersama berdaftar bagi keseluruhan tanah yang dipegang di bawah HS(D) 57513, PT No. 43260, Mukim Kajang, Daerah Ulu Langat, Negeri Selangor Darul Ehsan (“hartanah tersebut”). 2.2 Namun, Chong Yim Mui telah meninggal dunia pada 12.6.2006. Dengan kematian Chong Yim Mui (Si Mati) tersebut, suatu Geran Probet bertarikh 15.4.2008 telah dikeluarkan oleh Mahkamah Tinggi Kuala Lumpur melalui Petisyen No. S1-32- 89-2008 untuk melantik Defendan Pertama sebagai Wasi tunggal dan Pemegang Amanah (Trustee) bagi harta pusaka Si Mati. Justeru, Defendan Pertama (D1) di dalam kes ini adalah juga bertindak sebagai wasi Si Mati dan telah dijadikan sebagai Defendan Kedua di dalam tindakan ini. 2.3 D1 dan wasi Si Mati selepas daripada ini akan kadang kalanya dirujuk sebagai Defendan-defendan. 5 2.4 Melalui Surat Tawaran bertarikh 5.1.2000 (“Surat Tawaran tersebut”), Plaintif telah bersetuju memberi pinjaman perumahan sebanyak RM132,260.00 kepada D1 dan Si Mati. 2.5 Selaras dengan Surat Tawaran tersebut, D1 dan Si Mati telah menandatangani satu Perjanjian Kemudahan bertarikh 12.4.2000 (“Perjanjian Kemudahan tersebut”) bagi kemudahan pinjaman tersebut. 2.6 Sebagai jaminan kepada Perjanjian Kemudahan tersebut, Defendan 1 dan Si Mati telah melaksanakan satu gadaian ke atas hartanah tersebut kepada Plaintif melalui Nombor Perserahan 58742/2002 yang didaftarkan pada 13.9.2002 (“Gadaian tersebut”). 2.7 D1 dan Si Mati kemudiannya telah memungkiri syarat dan terma-terma Surat Tawaran, Perjanjian Pinjaman dan/atau Gadaian tersebut yang diberikan kepada mereka apabila gagal membuat pembayaran ansuran yang ditetapkan di dalam Surat Tawaran, Perjanjian Pinjaman dan/atau Gadaian tersebut. 6 2.8 Di atas kemungkiran D1 dan Si Mati tersebut, Plaintif melalui peguamcaranya telah memulakan tindakan menguatkuasakan hak dan remedi statutorinya ke atas gadaian yang didaftarkan di atas hartanah tersebut dengan menamatkan dan menarikbalik kemudahan pinjaman tersebut. 2.9 Plaintif seterusnya melalui peguamcaranya telah menghantar suatu Notis Tuntutan bertarikh 29.9.2016 kepada Defendan- defendan untuk menuntut keseluruhan jumlah terhutang setakat 1.8.2008 sebanyak RM212,085.02. Walau bagaimanapun, Defendan-defendan masih gagal, enggan dan/atau cuai meremedikan jumlah terhutang tersebut. 2.10 Oleh yang demikian, Plaintif melalui peguamcaranya selanjutnya telah mengeluarkan suatu Notis Statutori Borang 16D bertarikh 17.11.2016 (“Notis 16D”) dan telah menyampaikannya kepada Defendan-defendan. 2.11 Defendan-defendan sehingga kini masih gagal meremedikan kemungkiran dan tuntutan yang dicatatkan dalam Notis 16D 7 tersebut. Justeru Plaintif telah memfailkan Saman Pemula dalam Kandungan 1 di Mahkamah ini. [3] Mahkamah ini perlu menyatakan di sini bahawa sebelum daripada ini, iaitu pada tahun 2010 Plaintif telahpun memulakan suatu prosiding halang tebus terhadap Defendan-defendan melalui Saman Pemula No. 24-996-2010 (“SP 996”). Namun, permohonan Plaintif di dalam SP 996 tersebut telah ditolak pada 16.8.2011. C. TENTANGAN DEFENDAN-DEFENDAN [4] Defendan-defendan telah menentang keras permohonan Plaintif dengan memfailkan afidavit-afidavit berikut: i. Afidavit Membantah Defendan-defendan bertarikh 9.5.2017 (Kandungan 3). ii. Afidavit Lanjutan bagi pihak Defendan-defendan bertarikh 15.5.2017(Kandungan 4). [5] Di dalam menentang dan membantah permohonan Plaintif ini, Defendan-defendan telah membangkitkan alasan-alasan berikut: 8 (i) tindakan Saman Pemula Plaintif di sini adalah diestop/ dihalang oleh doktrin res judicata. (ii) tindakan Saman Pemula Plaintif di sini adalah dihalang oleh had masa. (iii) Plaintif adalah tidak dibenarkan untuk menuntut hutang dan faedah yang telah dihalang oleh had masa. [6] Adalah menjadi dakwaan Defendan-defendan bahawa alasan-alasan yang dibangkitkan oleh mereka di perengan 5(i), (ii) dan (iii) di atas telah mewujudkan kausa yang bertentangan yang boleh menghalang suatu perintah jualan terhadap hartanah tersebut dikeluarkan oleh Mahkamah ini. D. Kausa yang bertentangan [7] Undang-undang adalah jelas bahawa mana-mana pemegang gadaian boleh memulakan prosiding halang tebus/menguatkuasakan hak atau remedi statutori yang ada dengan memohon satu perintah jualan dibawah seksyen 256 Kanun Tanah Negara 1965 (“KTN”) dengan mematuhi Aturan 83 Kaedah-Kaedah Mahkamah 2012 (“KKM 2012”). 9 [8] Undang-undang adalah jelas dan jitu juga bahawa Mahkamah tidak akan menguatkuasakan hak atau remedi statutori yang ada kepada pemegang gadaian dengan mengeluarkan satu perintah menjual secara lelongan awam melainkan Mahkamah berpuas hati bahawa wujudnya suatu kausa yang bertentangan. [9] Mahkamah ini merujuk kepada seksyen 256 (3) KTN 1965 yang memperuntukkan seperti berikut: “(3) On any such application, the Court shall order the sale of the land or lease to which the charge relates unless it is satisfied of the existence of cause to the contrary”. (Penekanan oleh Mahkamah) [10] Justeru itu, mana-mana pemberi gadaian yang berhasrat untuk menepis satu perintah jualan melalui lelongan awam oleh Mahkamah hendaklah membuktikan bahawa wujudnya kausa yang bertentangan. 10 [11] Di dalam pentakrifan frasa kausa yang bertentangan, Mahkamah merujuk kepada kes Low Lee Lian v. Ban Hin Lee Bank Berhad [1997] 1 MLJ 77, di mana Mahkamah Persekutuan telah menerangkan bahawa kausa yang bertentangan boleh dijelaskan antara lain seperti berikut: “It is not sufficient to allege mere breaches by the charge of the loan agreement between the charge and the borrower, or even of the terms of the annexure to the charge in order to resist an application under s.256(3) of the NLC. An allegation that the charge acted in breach of contract, while it may give rise to an independent action in personam, is sufficient per se to defeat the ad rem rights of a charge under his registered charge to an order for sale. These are the following categories of cases where cause to the contrary within s.256(3) of the NLC may be established: i. Firstly, a chargor who is able to bring his case within any of the exceptions to the indefeasibility doctrine housed in s.340 of the NLC. ii. Secondly, a chargor may show cause to the contrary within s.256(3) of the Code by demonstrating that the chargee has failed to meet the conditions precedent for the making of an application for an order 11 for sale. For example, failure on part of the charge to prove the making of a demand or service upon the chargor of a notice in Form 16D would constitute cause to contrary. Similarly where the notice demands sums not lawfully due from the charge. iii. Thirdly, a chargor may defeat an application for an order of sale by demonstrating that its grant would be contrary to some rule or equity.” [12] Dalam mencapai pendekatan terhad dengan memberikan tiga kategori kausa yang bertentangan ini, Mahkamah Persekutuan di dalam kes Low Lee Lian tersebut telah memberikan alasan- alasannya dengan menyatakan seperti berikut: “We are conscious that the approach we have adopted results in a very narrow and restrictive interpretation of s.256(3) of the Code. But there are good reasons of policy for such an interpretation. It must not be forgotten that in the ordinary way, banks and other financial institutions loan moneys deposited with them by their customer to a borrower on the faith of the security of a charge created over the landed property of the borrower, or as here, of a third party. In the event of a default by the borrower, the lending institution normally looks to early recovery of all or a substantial part of the 12 money due to them from a sale of a security. If the courts of this country interpret the phrase ‘cause to contrary’ appearing in s.256(3) of the Code liberally, then, institutional lenders would loose confidence in their right to realize their security through an order for sale. Financial institutions would then become reluctant to lend money to bonafide entrepreneurs. Commerce would come to a standstill and the development of land and industries in this country which are largely dependent upon loans from banks would cease. No judgment of this court will be designed to produce such a consequence.” “Although each case turns upon its own facts, we propose to consider by way of illustration only, the usual kind of case with which this court has been faced on numerous occasions. An application under s.256 is opposed by the chargor on the ground that the charge has acted in breach of contract, e.g. by not releasing moneys due under the loan agreement or by increasing the rate of interest without proper notice or by not giving any proper account of the sums paid by the borrower. A judge faced with such complaints will merely say that they do not, on proper reading of s.256(3) and the authorities which have considered the section, constitute cause to the contrary. He will not, and ought not to, to enter upon a discussion of the question whether any or all of these complaints have or are devoid of any merit.” 13 Alasan i: Tindakan Plaintif adalah diestop/ dihalang oleh doktrin res judicata. [13] Defendan-defendan telah membantah tindakan Plaintif dengan mendakwa bahawa tindakan Plaintif ini adalah diestop/dihalang oleh doktrin atau prinsip res judicata kerana Plaintif telahpun memfailkan prosiding halang tebus ke atas hartanah tersebut melalui SP 996 dan tindakan Plaintif untuk mendapatkan perintah jualan tersebut telah ditolak oleh Mahkamah. [14] Menurut peguam Defendan-defendan, memandangkan tiada rayuan telah difailkan oleh Plaintif terhadap keputusan mahkamah yang telah menolak SP 966 Plaintif tersebut, maka adalah menjadi hujahan peguam Defendan-defendan bahawa pertikaian di antara Plaintif dan Defendan-defendan berhubung hartanah tersebut telahpun dibicarakan dan diputuskan, maka keputusan mahkamah yang menolak SP 966 tersebut (tiada rayuan telah difailkan terhadap keputusan tersebut), maka ini menjadikan keputusan Mahkamah yang menolak SP 966 suatu perintah akhir atau perintah muktamad. 14 [15] Dengan hormatnya merujuk kepada hujahan peguam Defendan- Defendan mengenai prinsip res judicata berhubung sesuatu prosiding halang tebus atau permohonan untuk suatu perintah jualan hartanah yang telah dicagarkan sebagai sekuriti/cagaran bagi kemudahan- kemudahan perbankan bagi faedah pemegang gadaian. Kedudukan undang-undang mengenai prinsip res judicata telah jelas dibincangkan dan diputuskan di dalam kes Kandiah Peter v. Public Bank Bhd [1994] 1 MLJ 119. [16] Di dalam kes Kandiah Peter ini, Mahkamah Agung telah memutuskan seperti berikut: “… A chargee who makes an application for an order for sale in foreclosure proceedings does not commence an action. He merely enforces his rights as a chargee by exercising his statutory remedy against the chargor in default. In order for the doctrines of res judicata, cause of action estoppel or issue estoppel to apply, the earlier proceedings must have resulted in a final judgment or decree. This requirement is not met by foreclosure proceedings which do not result or terminate in a final judgment or decree. 15 … The order for sale when made under S. 256 of the Code is not a judgment or a decree. The court hearing the application for foreclosure does not make, and in any event ought to make, any adjudication upon any substantive issue. (Penekanan oleh Mahkamah) [17] Seterusnya Mahkamah Agung di dalam kes Kandiah Peter ini juga memutuskan bahawa: … Where a chargor raises issues and relies upon facts to show ‘cause to the contrary’ in proceedings brought by the charge under S. 256 of the Code, he is not barred from bringing a fresh action against the charge (notwithstanding that an order for sale has been made) and raising in that action the same or similar facts and issues as those raised by him in the foreclosure proceedings. Neither res judicata nor cause of action estoppel nor issue estoppel are available answers to the charge to meet the chargor’s action. [18] Berhubung perkara ini juga, adalah molek juga jika Mahkamah ini merujuk kepada kes Oriental Bank Bhd v Mohinder Pal Kaur a/p Tirlok Singh [1996] 1 MLJ 788 di mana Mahkamah telah memutuskan seperti berikut: 16 “For completeness, it must also be said that all objections raised by the defendant in encl 28 were raised by her in encl 16, and to reopen the same issues as she did in encl 28 was an abuse of the process of court, and even res judicata in that sense. However, it is settled law that in order for the doctrines of res judicata, cause of action estoppel or issue estoppel to apply, the earlier proceedings must have resulted in a final judgment or decree (see Kandiah Peter v. Public Bank Bhd [1994] 1 MLJ 119 at p. 123) and an order for sale made under s. 256 of the NLC is not a final judgment or decree. The Supreme Court per Eusoff Chin SCJ (as he then was) at p. 123 said: It is equally settled law that in order for the doctrines of res judcata, cause of action estoppel or issue estoppel to apply, the earlier proceedings must have resulted in a final judgment or decree;.. This requirement is not met by foreclosure proceedings which, as we have observed earlier, do not result or terminate in a final judgment or decree.” [19] Di dalam perkara prinsip res judicata ini peguam Defendan-defendan telah cuba bergantung kepada keputusan Mahkamah Persekutuan di dalam kes CIMB Investment Bank Berhad v Metroplex Holdings Sdn Bhd [2014] 9 CLJ 1012 dengan menghujahkan bahawa kononnya keputusan Mahkamah Agung di dalam kes Kandiah Peter 17 berhubung prinsip res judicata di dalam sesuatu prosiding halang tebus telah diatasi (overruled) dan tidak lagi menjadi undang-undang jitu. Peguam Defendan-defendan di dalam menghujahkan sedemikian telah meletakkan penggantungannya kepada perenggan-perenggan [21], [26] dan [27] penghakiman Mahkamah Persekutuan di dalam kes CIMB Investment Bank Berhad. [20] Dengan segala hormatnya, Mahkamah ini perlu menyatakan bahawa nampaknya peguam Defendan-defendan sebenarnya telah tersalah tafsir akan penghakiman Mahkamah Persekutuan di dalam kes CIMB Investment Bank Berhad tersebut. [21] Pada hakikatnya keputusan Mahkamah Agung di dalam Kandiah Peter masih kekal dan masih menjadi undang-undang yang jitu. Apa yang telah diputuskan oleh Mahkamah Persekutuan di dalam kes CIMB Investment Bank Berhad di perenggan [21], [26] dan [27] mestilah dan hendaklah dibaca menurut konteks fakta kes yang wujud di dalam kes CIMB Investment Bank Berhad tersebut. 18 [22] Hakikat yang jelas dan terang, fakta di dalam kes Kandiah Peter adalah sangat jauh berbeza dengan apa yang berlaku di dalam kes CIMB Investment Bank Berhad tersebut. [23] Apa yang berlaku di dalam kes CIMB Investments Bank Bhd adalah; terdapat suatu prosiding halang tebus atau tindakan penguatkuasaan gadaian terdahulu ("Tindakan Gadaian tersebut") yang mana Perayu (CIMB Investments Bank Bhd) telahpun memfailkan tindakan gadaian tersebut di Mahkamah Tinggi terhadap Responden (Metroplex Holdings Sdn Bhd) bagi mendapatkan suatu perintah jualan. Responden telah menentang tindakan gadaian tersebut. Walau bagaimanapun, Mahkamah Tinggi telah memberikan/mengeluarkan suatu perintah jualan dan rayuan Responden di Mahkamah Rayuan terhadap perintah jualan tersebut juga tidak berjaya. [24] Namun, selepas rayuannya (Responden) tidak berjaya di Mahkamah Rayuan, Responden selanjutnya telah memfailkan satu guaman/tindakan sivil yang baharu (“guaman sivil tersebut”) atau guaman tambahan untuk membantah perintah jualan itu berdasarkan 19 alasan-alasan yang sama sebagaimana yang dibangkitkan dalam tindakan gadaian tersebut. Di dalam guaman sivil tersebut, Perayu telah memfailkan permohonan untuk membatalkan guaman sivil tersebut atas alasan res judicata. [25] Isu res judicata tersebut telah dibincangkan di Mahkamah Persekutuan di mana Mahkamah Persekutuan memutuskan bahawa prinsip res judicata adalah terpakai bagi guaman sivil tersebut. Di dalam membenarkan rayuan Perayu itu, Mahkamah Persekutuan memutuskan bahawa:- a. di perenggan 26, muka surat 1036 Penghakiman pada baris ke-10 hingga 20, Mahkamah Persekutuan setelah meneliti permohonan Responden bagi antara lain, ‘perintah jualan bertarikh 16 Julai 2007, lelongan dan perintah lain yang dibuat yang berkenaan dengan tanah ... diketepikan’, memutuskan bahawa tindakan ini merupakan suatu tindakan in rem. b. Mahkamah Persekutuan seterusnya pada perenggan yang sama pada baris ke-21 hingga 26 telah membezakan kes di 20 hadapannya dengan apa yang ada ( fakta yang wujud) di dalam Kandiah Peter yang mana ‘Kandiah Peter menyatakan bahawa tindakan in personam boleh dibawa, iaitu, jika tindakan in personam adalah “berdasarkan fakta yang sama yang tidak digunakan (penggadai) dalam membantah permohonan di bawah s.256". .. Oleh itu, Kandiah Peter tidak boleh terpakai,…’. c. Mahkamah Persekutuan juga memutuskan dalam perenggan 27, muka surat 1036 Penghakiman bahawa ‘Prosiding gadaian membawa kepada pemberian atau penolakan suatu perintah jualan, dan bukannya kepada suatu penghakiman atau dekri. Walau bagaimanapun, perintah jualan, apabila diberikan dan melainkan jika diketepikan, merupakan suatu perintah akhir '. [26] Untuk kefahaman jelas konteks sebenar apabila Mahkamah Persekutuan memutuskan sedemikian, maka keseluruhan perenggan [26] diperturunkan di bawah ini: “[26] Low Lee Lian concurred with Kandiah Peter that foreclosure proceedings result not in a judgment or decree and that “the making of an 21 order for sale upon the failure of a chargor to satisfy the court that there existed cause to the contrary did not bar a subsequent action in personam brought by the chargor based upon the same facts that did not avail him in opposing the application under s. 256”. Low Lee Lian also pronounced, and we wholly agree, that “an action brought to set aside a charge upon one or more of the grounds of defeasibility specified under s. 340 of the Code is an action in rem”. Hence, the action below for a declaration “that the charge is not indefeasible within the meaning of s. 340(2) of the National Land Code, “that the charge is null and void”, “that the charge, the instrument and the memorial are invalid”, “that the charge, the instrument and the memorial be set aside”, and, “that the order for sale dated 16 July 2007, the auction and other related orders in respect of the land made in the Kuala Lumpur High Court OS Proceedings (Suit No: S-24- 2394-2005) be set aside”, which attacked the indefeasibility of the charge, was not an action in personam but an action in rem and which could not be brought. Kandiah Peter pronounced that an action in personam could be brought, that is, if the action in personam is “based upon the same facts that did not avail (the chargor) in opposing the application under s. 256”. But the present action was an action in rem that was based moreover on facts that were not raised in the foreclosure proceedings. Given so, Kandiah Peter could not apply, just as Badiaddin was wholly inapplicable.” 22 [27] Justeru, adalah jelas bahawa hujahan peguam Defendan-defendan yang mengatakan bahawa keputusan Mahkamah Persekutuan di dalam kes CIMB Investments Bank Bhd telah mengatasi Kandiah Peter di dalam hal perkara prinsip res judicata adalah satu khilaf tafsiran. [28] Adalah jelas bahawa kes CIMB Investments Bank Bhd tidak terpakai bagi kes di hadapan Mahkamah ini kerana di dalam kes CIMB Investments Bank Bhd, Perayu CIMB Investments Bank Bhd telahpun memperolehi perintah jualan dari Mahkamah Tinggi dan rayuan Responden Metroplex atas perintah jualan itu juga tidak berjaya. Maka, apabila Responden memfailkan guaman sivil yang baharu tersebut untuk membantah perintah jualan itu. Justeru Mahkamah Persekutuan telah memutuskan bahawa perintah jualan, apabila diberikan dan melainkan jika diketepikan, merupakan suatu perintah akhir. Perlu ditegaskan sekali lagi bahawa Mahkamah Persekutuan di dalam kes CIMB Investments Bank Bhd telah memutuskan berikut: 23 “Foreclosure proceedings result in the grant or refusal of an order for sale, and not in a judgment or decree. But an order for sale, once granted and unless set aside, is nonetheless, a final order; (Mui Bank Bhd v Cheam Kim Yu (Beh Sai Ming, Intervener, refd). (para 27)” (Penekanan oleh Mahkamah) [29] Kedudukan kes di hadapan Mahkamah ini adalah ketara berbeza dengan kes CIMB Investments Bank Bhd kerana permohonan Plaintif untuk satu perintah jualan di dalam SP 966 telah ditolak. Berdasarkan hujahan peguam Defendan-defendan yang telah dibangkitkan di dalam kes SP 996 (hujahan peguam Defendan- defendan yang telah dilampirkan di Afidavit Jawapan Plaintif), di dalam SP 966 tersebut Defendan-defendan telah menentang SP 966 tersebut dengan membangkitkan isu-isu berikut: i. Surat Tuntutan bertarikh 5.3.2010 tidak diserahkan ke alamat penyampaian Defendan-defendan. ii. Notis 16D bertarikh 25.3.2010 tidak dialamatkan kepada D2; dan iii. Surat Tuntutan bertarikh 5.3.2010 dan Notis 16D bertarikh 25.3.2010 telah menyatakan bahawa pengiraan faedah yang dikira oleh Plaintif adalah terhalang dengan had masa dan menyebabkan ianya tidak sah. . 24 [30] Namun, apa yang jelas dan hakikatnya tiada sebarang perintah jualan yang telah diperolehi dalam SP 966 yang terdahulu. Kini, Plaintif di hadapan Mahkamah ini memulakan sekali lagi prosiding halang tebus terhadap hartanah tersebut dengan pengeluaran atau pengisuan Notis 16D bertarikh 17.11.2016 kepada Defendan- defendan. [31] Tindakan Plaintif di sini bukanlah satu tindakan ‘in personam’ di atas keberhutangan Defendan-defendan tetapi ianya adalah satu tindakan secara ‘in rem’ iaitu untuk menguatkuasakan hak atau remedi statutori Plaintif di bawah gadaian yang telah dilaksanakan menurut peruntukan seksyen 256 KTN. [32] Maka, Plaintif adalah bebas menguatkuasakan hak atau remedi statutorinya dan penguatkuasaan hak atau remedi ini oleh Plaintif adalah tidak dihalang oleh prinsip res judicata. [33] Adalah menjadi dapatan Mahkamah ini bahawa keputusan yang yang menolak SP 966 tersebut bukanlah satu perintah yang boleh 25 menghalang Plaintif untuk memulakan satu prosiding tebus halang yang baru bagi menguatkuasakan hak atau remedi statutorinya. Alasan ii: Tindakan Saman Pemula Plaintif disini dihalang oleh had masa [34] Adalah dihujahkan oleh peguam Defendan-defendan bahawa tindakan halang tebus Plaintif ini dihalang oleh had masa dan seterusnya membawa kepada ketidakpatuhan seksyen 21(2) Akta Had Masa 1953 (“AHM”). [35] Adalah menjadi hujahan peguam Defendan-defendan bahawa kausa tindakan halang tebus Plaintif adalah terakru pada tarikh 22.7.2002 iaitu dari tempoh surat tuntutan pertama dikeluarkan oleh Plaintif kepada Defendan-defendan. [36] Menurut Peguam Defendan-defendan lagi, Defendan-defendan gagal membuat bayaran ke atas kemudahan pinjaman tersebut, Plaintif telah mengeluarkan surat tuntutan bertarikh 22.7.2002 dan atas kegagalan Defendan-defendan mematuhi surat tuntutan tersebut, Plaintif berhak memulakan prosiding terhadap Defendan-defendan. 26 Adalah dihujahkan seterusnya oleh peguam Defendan-defendan bahawa Plaintif hanya mempunyai hak memulakan tindakan menuntut kembali jumlah terhutang serta memulakan prosiding halang tebus dalam tempoh 12 tahun selepas tempoh surat Tuntutan pertama bertarikh 22.7.2002 tersebut terakru. [37] Peguam Defendan-defendan menghujahkan seterusnya bahawa tempoh masa 12 tahun tersebut telahpun luput pada bulan Julai 2014. Memandangkan tempoh masa 12 tahun telahpun luput, maka prosiding halang tebus yang dimulakan oleh Plaintif di hadapan Mahkamah ini adalah dihalang oleh had masa 12 tahun tersebut. [38] Berhubung dengan perkara had masa ini, Mahkamah ini merujuk kepada seksyen 21(2) AHM. Seksyen 21(2) AHM memperuntukkan seperti berikut: “(2) No foreclosure action in respect of mortgaged personal property shall be brought after the expiration of twelve years from the date on which the right to foreclosure accrued: 27 Provided that if, after that date the mortgagee was in possession of the mortgaged property, the right to foreclose on the property which was in his possession shall not, for the purposes of this subsection, be deemed to have accrued until the date on which his possession discontinued”. [39] Adalah jelas bahawa seksyen 21(2) AHM telah memperuntukkan bahawa tempoh atau had masa bagi sesuatu tindakan halang tebus adalah 12 tahun dari tarikh hak halang tebus itu terakru. [40] Dalam hal ini, suka Mahkamah merujuk kepada kes Peh Lai Huat v MBF Finance Bhd. [2011] 3 MLJ 470 di mana Mahkamah Rayuan telah memutuskan antara lain bahawa: “…Similarly, S. 21( 2 ) of the Limitation Act which reads:- (2) No foreclosure action in respect of mortgaged personal property shall be brought after the expiration of twelve years from the date on which the right to foreclose accrued: 28 Provided that if after that date mortgage was in possession of the mortgages property, right to foreclose on the property which was in his possession shall not, for the purposes of this subsection, be deemed to have accrued until the date on which his possession discontinued. Also has no application to this case. That is because the cause of action here, that is to say, the right to exercise the statutory remedy of an Order for Sale did not arise until after the Appellate had failed to remedy the default specified in the Form of 16D notice…” (Penekanan oleh Mahkamah) [41] Mahkamah ini juga merujuk kepada kes Jigarlal K. Doshi @ Jigarlal A/L Kantilal Doshi v Resolution Alliance Sdn Bhd [2013] 3 MLJ 61 dimana Mahkamah Rayuan menyatakan seperti berikut: “The law is clear that the cause of action by a chargor does not accrue from the date of default of repayment of the loan but instead from the time the chargor fails to remedy the default as specified in the Form 16D Notice”. [42] Berdasarkan kes-kes di atas, adalah menjadi prinsip undang-undang yang jitu dan jelas bahawa tempoh atau had masa untuk memulakan tidakan /prosiding halang tebus adalah 12 tahun, namun adalah juga menjadi undang-undang yang jelas dan jitu bahawa kausa tindakan 29 bagi prosiding halang tebus hanya bermula daripada tarikh kemungkiran Defendan-defendan memulihkan atau meremedikan keingkaran pembayar jumlah terhutang sepertimana yang tercatat dalam Notis 16D tersebut dan ianya bukanlah selepas kegagalan Defendan’defendan memulihkan keingkaran pembayaran di dalam Surat Tuntutan pertama tersebut. [43] Berbalik kepada kes di hadapan Mahkamah ini, adalah tidak dipertikaikan bahawa Plaintif telah mengeluarkan atau mengisu Notis 16D kepada Defendan-defendan pada 17.11.2016. Di dalam hal yang sedemikian, kausa tindakan halang tebus Plaintif terhadap Defendan- defendan hanya bermula apabila Defendan-defendan gagal memulihkan kemungkiran jumlah terhutang di dalam Notis 16D terakru. [44] Justeru, adalah menjadi dapatan Mahkamah ini bahawa apabila Plaintif memulakan prosiding halang tebus ini, Plaintif adalah di dalam tempoh had masa halang tebus sepertimana yang diperuntukkan menurut seksyen 21(2) AHM dan tindakan Plaintif ini memang tidak langsung dihalang oleh had masa. 30 Alasan iii: Plaintif adalah tidak dibenarkan untuk menuntut hutang dan faedah yang telah dihalang oleh had masa. [45] Defendan-defendan telah membangkitkan bahawa pihak Plaintif adalah tidak dibenarkan untuk menuntut hutang dan faedah yang telah dihalang oleh had masa. Untuk itu, peguam Defendan-defendan telah menghujahkan bahawa di dalam kes ini terdapat ketidakpatuhan seksyen 6(1)(a) AHM di mana Plaintif adalah tidak berhak untuk menuntut keseluruhan jumlah yang terhutang dikira setakat 1.8.2008 iaitu sebanyak RM212,085.02. [46] Defendan-defendan telah mendakwa bahawa kiraan faedah yang dituntut oleh Plaintif tersebut adalah dihalang oleh had masa. Peguam Defendan-defendan telah menghujahkan bahawa keingkaran membuat bayaran telah berlaku sejak Julai 2002 di mana surat tuntutan telah dikeluarkan oleh Plaintif pada 22.7.2002. Walaupun Defendan-defendan ingkar membuat pembayaran ansuran kemudahan pinjaman, atas keingkaran Defendan-defendan tersebut 31 tiada tuntutan telahpun dibuat oleh Plaintif terhadap Defendan- defendan dalam tempoh enam (6) tahun. [47] Di dalam keadaan ini, menurut peguam Defendan-defendan, apabila Plaintif di dalam prosiding ini telah menuntut keseluruhan jumlah terhutang di mana jumlah terhutang yang dituntut dengan memasukkan faedah, jumlah yang terhutang adalah termasuk jumlah faedah yang telah dihalang had masa enam (6) tahun. Oleh itu adalah menjadi hujahan peguam Defendan-defendan bahawa jumlah yang terhutang adalah tidak sah. [48] Mahkamah ini bersependapat dengan peguam Plaintif bahawa di dalam kes tidak wujud ketidakpatuhan seksyen 6(1)(a) AHM seperti yang didakwa Defendan-defendan. Adalah jelas di sini, prosiding yang telah dimulakan oleh Plaintif terhadap Defendan-defendan adalah prosiding halang tebus iaitu Plaintif telah memohon kepada Mahkamah agar satu perintah jualan dikeluarkan bagi menjual hartanah tersebut melalui lelongan awam. Kausa tindakan halang tebus telah hanya bermula selepas Notis 16D bertarikh 17.11.2016 dikeluarkan di mana Defendan-defendan telah gagal memulihkan 32 atau meremedikan keingkaran tersebut dengan membuat pembayaran jumlah terhutang sebanyak RM212,085.02 dalam tempoh satu (1) bulan dari tarikh penyampaian Notis 16D. Di dalam Notis 16D tersebut telah dinyatakan dengan jelas keberhutangan Defendan-defendan dengan penyataan berikut: “Bahawa kamu telah melakukan kemungkiran ke atas peruntukan- peruntukan Gadaian ini dengan gagal menjelaskan baki terhutang sebanyak RM212,085.02 setakat 1hb Ogos 2008.” [49] Di dalam perkara jumlah keberhutangan Defendan-defendan kepada Plaintif, Plaintif di perenggan 10 Afidavit Sokongannya (Kandungan 2) telah mengatakan berikut: “Plaintif telah melalui peguamcaranya, Tetuan Jal & Lim menghantar notis tuntutan bertarikh 29.9.2016 kepada Defendan-defendan untuk menuntut keseluruhan jumlah terhutang sebanyak RM212,085.02 setakat 1.8.2008. Walaubagaimanapun, Defendan telah gagal, enggan dan/atau cuai membayar jumlah terhutang tersebut. Salinan notis tuntutan dan akuan- akuan pengeposan dilampirkan di sini dan kesemuanya ditandakan secara kolektif sebagai “JR-3”.” 33 [50] Namun, di dalam mempertikaikan dan menafikan jumlah terhutang yang tertera di dalam Notis Tuntutan bertarikh 29.9.2016 dan di Notis 16D, Defendan-defendan hanya menyatakan berikut di perenggan 5.3 Afidavit Membantah Pihak Defendan-defendan (Kandungan 3): “5.3 Ketiganya, Plaintif tidak berhak untuk menuntut bagi tunggakan faedah bagi tempoh masa yang dihalang dibawah undang had masa yang terpakai dan dengan itu, jumlah yang dituntut oleh Plaintif adalah jumlah yang tidak sah dan ia bukanlah jumlah yang terhutang disisi undang.” [51] Adalah menjadi dapatan Mahkamah ini bahawa pengataan Defendan-defendan di perenggan 5.3nya tersebut, adalah penafian dan pengataan kosong semata-mata. Defendan-defendan di dalam percubaan mempertikaikan jumlah keberhutangan mereka kepada Plaintif langsung tidak menimbulkan atau tidak menyatakan apakah butir-butir yang tertera perenggan 10 Afidavit Sokongan Plaintif yang tidak tepat, apakah jumlah yang dikatakan tunggakan faedah bagi tempoh masa yang dihalang dibawah undang-undang had masa, 34 jumlah mana yang tidak menggambarkan jumlah sebenar hutang Defendan-defendan kepada Plaintif. [52] Berhubung perkara pertikaian dan penafian pengiraan jumlah keberhutangan, sukacita Mahkamah ini merujuk kes Ambank Bhd. (successor in title “Arab-Malaysian Finance Bhd.”) v Chidambara Nathan a/l MST Muthusamy & Anor [2014] 2 MLJ 86 di mana di perenggan 17 dan 18 Mahkamah Rayuan telah berkata seperti berikut: “…There is a clear distinction between sums lawfully due and alleged arithmetical miscalculations. A miscalculation by the chargee on the interest due in the Form 16D notice does not invalidate the notice. A variation of the rate of interest by the charge without giving any notice of the same to the chargor would not amount to cause to the contrary…” “…However, the chargor must be able to point to a statutory direction or some rule of common law or doctrine of equity operating in his favour and against which an Order for Sale would militate. Anything that falls short of 35 this requirement will not amount to cause to the contrary under s 256(3) of the NLC…” (Penekanan oleh Mahkamah) [53] Mengambil panduan daripada keputusan Mahkamah Rayuan di dalam kes Ambank Bhd., Defendan di dalam percubaan untuk mempertikaikan jumlah terhutang mestilah berupaya menunjukkan kepada Mahkamah ini secara tepat apakah jumlah yang telah dituntut oleh Plaintif yang memihak kepada Defendan dan apakah butir hutang secara spesifiknya yang tidak dinyatakan oleh Plaintif yang mana tidak mematuhi butiran yang dikehendaki di bawah Aturan 83 KKM 2012. [54] Di dalam hal ini, molek juga dirujuk kepada penghakiman oleh Mahadev Shankar H (YA pada masa itu) di dalam kes Citibank NA v Ibrahim bin Othman [1994] 1 MLJ 608 berkenaan kepatuhan Aturan 83 dan butiran-butiran yang perlu bagi mematuhi Aturan 83 ini. Di dalam kes Citibank NA ini, Mahadev Shankar H telah memutuskan bahawa: 36 “(2) The Objective of O 83 r 3 is to enable the defendant to know at least by the date the originating summons is filed, what is the exact sum he is legally liable to pay so that he can make up his mind to contest or pay up. If there is a dispute as to the amount payable, the court must be able to say precisely when making its order ‘the total amount due to the charge at the date on which the order is made’. These words are from s 257(1)(c) of the National Land Code 1965 and they are mandatory.” Hakim Mahadev Shankar seterusnya di muka surat 615 penghakimannya telah berkata: “What the chargor has lost where there is a failure to comply with Order 83 r 3(3) is opportunity to satisfy himself of the correctness of the amount claimed, and to challenge the figures if he is not. A bare denial of a debt was never enough. The chargor also has an onus if he denies the amount claimed to say how much he admits owing. In this kind of case the dismissal of the application for non-compliance with some aspect of the rules does not estinguish the debt. The chargee can start afresh but there will then be additional costs, interest and delay.”(penekanan oleh Mahkamah ini) 37 [55] Merujuk pula kepada keputusan Jeffrey Tan H (YA pada masa itu) di dalam kes Multi-Purpose Bank Bhd v Diamond Agreement Sdn Bhd & Anor [2000] 2 CLJ 73 di mana antara lain telah diputuskan bahawa: “[4] Given that the provisions of s. 257(1)(a) – (d) of the NLC are mandatory, it is absolutely essential that charges state the “total amount due as the date on which the order is to be made”, so that the court may specify the total amount due to the chargee at the date on which the order is made. It is imperative, therefore, the charges state the aggregate sum of the principal and overdue interest due at the date on which the order is made. Indeed, given that the “state of the account between the chargor and charge at the date on which the order is made” is the aggregate sum of the principal and overdue interest due on the date the order is made rather than the aggregate sum of the principal and overdue interest due at the date of the affidavit, knowledge of the “amount of the interest in arrear at the date of the affidavit” or absence thereof has no real significance. Rather, it is knowledge of the principal and overdue interest due at the date on which the order is made that holds real significance. In the present case, the defendants had not been deprived of that knowledge. They knew and they know the exact amount outstanding 38 under the charge. The defendants had not been deprived of any opportunity to repay the defendant. Therefore, the plaintiff’s failure to state the “amount of the interest in arrear at the date of the affidavit” had not prejudiced the defendants and there was no cause to the contrary.” [56] Apa tah lagi, apabila Kaedah-Kaedah Mahkamah 2012 (KKM 21012) berkuatkuasa pada 1.8.2012, peruntukan Aturan 83(3) di dalam Kaedah-Kaedah Mahkamah Tinggi 1980 telah dipinda di mana butir- butir keberhutangan yang perlu dinyatakan oleh Plaintif telah dipermudahkan seperti berikut: Aturan 83(3) KKM 2012 (3) Jika Plaintif menuntut penyerahan milikan afidavit itu hendaklah menunjukkan hak keadaan yang menurutnya hak kepada milikan itu berbangkit dan, kecuali jika Mahkamah dalam apa-apa kes atau golongan kes mengarahkan selainnya, butir-butir amaun yang belum dibayar di bawah gadaian sebagai tarikh pendengaran saman pemula itu. (Penekanan oleh Mahkamah) [57] Walau apapun, bagi menentukan samada faedah yang dituntut oleh Plaintif adalah dihalang oleh had masa atau tidak, Mahkamah ini 39 hanya perlu merujuk kepada klausa 6.04 di Perjanjian Kemudahan tersebut. Klausa 6.04 tersebut memperuntukkan seperti berikut: “… interest on any principal moneys for the time being hereby secured (including capitalized interest) may at the sole discretion of the Bank at the end of month, be capitalized and added for all purposes to the principal sum then owing…” [58] Manakala, klausa 7.01(b) di dalam Perjanjian Kemudahan tersebut juga menyatakan seperti berikut: “(b) No part of any Instalments to be paid by the Borrower as herein before provided or any other payments which the Borrower may make to the Bank shall be deemed to be a repayment of principal until all interest and other monies due or deemed to be due to the Bank has been paid”. [59] Merujuk kepada klausa-klausa di atas, adalah jelas bahawa di bawah Perjanjian Kemudahan tersebut faedah yang dituntut oleh Plaintif 40 adalah dianggap sebagai sebahagian daripada jumlah wang pokok yang dijamin oleh Gadaian yang dilaksanakan tersebut. [60] Perlu dinyatakan sekali lagi bahawa prosiding halang tebus Plaintif di sini adalah tertakluk kepada had masa menurut seksyen 21 AHM dan bukannya seksyen 6(1)(a) AHM seperti yang didakwa Defendan- defendan. Had masa di bawah seksyen 21 AHM adalah dua belas (12) tahun dari tarikh kausa tindakan terakru. [61] Had masa yang diperuntukkan di bawah seksyen 6(1)(a) AHM iaitu enam (6) tahun adalah bagi suatu tindakan “in personam” terhadap Defendan-defendan sendiri atas keberhutangan mereka dan ini bukanlah kesnya bagi prosiding Plaintif ini. [62] Walau apa pun, Mahkamah ini bersetuju dengan hujahan peguam Plaintif bahawa di dalam kes di hadapan Mahkamah ini, di dalam Notis 16D nya, Plaintif telah menuntut jumlah keberhutangan sebanyak RM212,085.02 setakat 1.8.2008. Jumlah faedah yang dituntut oleh Plaintif adalah setakat 1.8.2008 dan maka pengiraan 41 faedah yang dituntut oleh Plaintif masih tidak melampaui tempoh enam tahun pun. [63] Berhubung dengan isu pengiraan faedah ini, kes Bank Pertanian Malaysia v. Mohd Gazzali Mohd Ismail [1996] 5 MLJ 692 adalah wajar dirujuk. Di dalam kes Bank Pertanian Malaysia ini, Zaleha Zahari, PK (YA pada ketika itu) telah memutuskan seperti berikut: “It would therefore appear that the charge comprises future interest and by the express mention the word ‘faedah’ (interest) in the charge in the form prescribed for payment of a principal sum, interest was to be treated as part of the principal sum secured by the charge. There was furthermore the express provision of cl. 10(c) of the charge annexure which provided that no payment made by the chargor shall be treated as repayment of principal until all interest due or deemed to be due or accrued has been paid. In this circumstances I hold that there were provisions in the charge and charge annexure whereby arrears of interest has to be treated as part of the principal sum of money secured by the charge and that interest shall not be deemed to become due before the right to receive the principal sum of money has accrued or is deemed to have accrued. In my judgment proviso 42 (b) to s. 21(5) of the LA 1953 applies and that the period applicable in this case is 12 years and not six years”. [64] Adalah menjadi dapatan Mahkamah ini bahawa alasan had masa yang dibangkitkan oleh Defendan-defendan atas tunggakan faedah dan jumlah terhutang langsung tidak bermerit. Apa yang jelas, tuntutan Plaintif terhadap keseluruhan jumlah terhutang (wang pokok dan faedah) adalah di dalam tempoh had masa yang ditetapkan di mana tempoh had masa adalah dikira apabila Notis 16D bertarikh 17.11.2016 dikeluarkan dan keingkaran berlaku. E. Dapatan Mahkamah [65] Adalah menjadi dapatan Mahkamah ini bahawa alasan-alasan yang ditimbulkan Defendan-defendan di dalam percubaannya untuk membuktikan atau menunjukkan sebab atau mewujudkan kausa yang bertentangan bagi menghalang satu perintah penjualan melalui lelongan awam adalah alasan-alasan yang tidak bermerit langsung. [66] Atas alasan-alasan di atas, Saman Pemula Plaintif dalam Kandungan 1 dengan ini dibenarkan dengan kos. Keseluruhan jumlah terhutang yang dibenarkan untuk dituntut oleh Plaintif terhadap Defendan- 43 defendan bagi akaun pinjaman perumahan No. 414011-185748 adalah RM212,084.98 setakat tarikh pendengaran. Mahkamah ini memerintahkan supaya Defendan-defendan membayar kos sebanyak RM5000.00 kepada Plaintif. Tarikh Lelongan awam ditetapkan pada 19.12.2017. t.t. ..................................................... (DATUK AZIMAH BINTI OMAR) Hakim Mahkamah Tinggi Shah Alam (Saman Pemula) Selangor Darul Ehsan Bertarikh 17hb November 2017 Peguam Plaintif - Tetuan Jal & Lim Encik H.L Khor Peguam Defendan - Tetuan Zubeda & Amarjeet Encik Amarjeet Singh Encik Avtar Singh

Tika 2.6.0

42S(A)-39-7/16

PENDAKWARAYAPuan Ainul Wardah binti Shahidan TERTUDUH NIK ADIB BIN NIK MAT

Criminal Appeal - Cyber Offences - The Accused/Appellant appealed against his conviction and sentence of two charges, viz., posting pictures and comments which were false and offensive on the website and for having in possession obscene films and photographs - appeal was allowed in part - appeal against conviction was dismissed but the appeal against sentence was allowed - thus the High Court had set aside the sentence imposed by the Sessions Judge and substituted it with 1 week imprisonment and a fine of RM3,000 in default 3 months imprisonment for the first charge and a fine of RM10,000 in default 1 ½ years imprisonment for the second charge - the Public Prosecutor then filed an appeal to the Court of Appeal against the decision - Communication and Multimedia Act 1998 [Act 588], section 233(1) (a) and (3); Film Censorship Act 2002 [Act 2002], section 5(1)(a) & (2).

16/11/2017

YA DATO' AHMAD BIN BACHE

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=dc29cb18-0ec3-4f6b-b7d5-680570a15244&Inline=true

DALAM MAHKAMAH TINGGI MALAYA DI KOTA BHARU DALAM NEGERI KELANTAN, MALAYSIA RAYUAN JENAYAH NO: 42S(A)-39-7/16 (MAHKAMAH SESYEN KOTA BHARU, KELANTAN [NO. SKB(A):61-11-09/16] BETWEEN NIK ADIB BIN NIK MAT ... APPELLANT AGAINST PUBLIC PROSECUTOR ... RESPONDENT GROUNDS OF JUDGEMENT (ON SENTENCE) A. BACKGROUND [1] The Accused/Appellant was charged before the Sessions Court for an offence of posting pictures and comments regarding certain leaders on the website which were offensive and false, an offence under subsection 233(1)(a) of the “Communication and Multimedia Act 1998” (Act 588) and punishable under subsection 233(3) of the same Act. [2] The Accused was also charged for having in his possession obscene films and photographs, an offence under section 5(1)(a) of the “Film Censorship Act 2002” (Act 2002) punishable under section 5(2) of the same Act. [3] At the conclusion of the case, the learned Sessions Judge found him guilty and convicted him and sentenced him to 1 year imprisonment for the 1st charge from the date of sentencing, and 1 year imprisonment for the second charge which was to be served upon completion of the first imprisonment. [4] Dissatisfied, the Accused/Appellant filed an appeal before this court on both conviction and sentence. Upon hearing the appeal, this court had allowed the Accused/Appellant’s appeal in part whereby the appeal against conviction was dismissed but the appeal against sentence was allowed. [5] This court had set aside the sentence imposed by the learned Sessions Judge and substituted it with 1 week imprisonment and a fine of RM3,000 in default 3 months imprisonment for the first charge and a fine of RM10,000 in default 1 ½ years imprisonment for the second charge. [6] Dissatisfied, the Public Prosecutor filed an appeal to the Court of Appeal. Hence here are the grounds for that decision. B. THE CHARGES [7] The charges are as follows: First Charge “Bahawa kamu pada 08/08/2014 jam lebih kurang 9.00 malam di alamat Lot 2137 Jalan Maahad Saniah dalam daerah Pasir Puteh, dalam Negeri Kelantan telah menggunakan perkhidmatan aplikasi internet secara sadar membuat dan memulakan penghantaran gambar bertajuk ‘Pesta Bogel’ yang berunsur lucah dan palsu sifatnya di https://www.facebook.com/kopi.rajaakar dengan niat untuk menyakitkan hati orang lain. Oleh itu kamu telah melakukan satu kesalahan di bawah subseksyen 233(1)(a) Akta Komunikasi dan Multimedia 1998 (Akta 588) dan boleh dihukum di bawah Subseksyen 233(3) akta yang sama.” Second charge “Bahawa kamu pada 21 Ogos 2014 jam lebih kurang 4.45 pagi di alamat Lot 2137, Jalan Maahad Saniah dalam daerah Pasir Puteh, dalam Negeri Kelantan telah ada dalam milikan kamu filem-filem dan bahan publisiti filem yang lucah. Dengan itu kamu telah melakukan suatu kesalahan di bawah seksyen 5(1)(a) Akta Penapisan Filem 2002 yang boleh dihukum di bawah seksyen 5(2) akta yang sama.” C. THE FACTS OF THE CASE [8] The facts of the Prosecution’s case can be gleaned from the learned judges grounds of judgment at pages 24 to 26 of the Appeal Record as follows: “Keterangan pihak pendakwaan ialah pada 8/8/2014, jam lebih kurang 9.00 malam, semasa SP3 membuka Facebook beliau melihat maklumat yang dihantar oleh ‘friend’ di dalam Facebook beliau. Antaranya beliau melihat satu gambar jelik beberapa pemimpin negara di atas nama ‘friend’ “Kopi Raja Akar”. Beliau telah membuat salinan kepada gambar tersebut yang bertajuk “pesta bogel” (P8) dan juga membuat laporan polis (P9). Pada 30/8/2014 dan 31/8/2014, SP3 telah menerima beberapa sms dari seseorang yang menggunakan nombor telefon 01125070528 (salinan sms - P10). SP3 mengagak ianya berkait dengan laporan polis yang dibuatnya. Pada 21.8.2014, lebih kurang 4.45 pagi, SP2 bersama beberapa anggota termasuk SP4 telah rumah Lot 2137, Jalan Maahad Saniah, Pasir Puteh, Kelantan. SP2 telah mengetuk pintu di mana OKT telah muncul memperkenalkan dirinya. SP2 telah memaklumkan tujuan penangkapan dan OKT telah membenarkan SP2 masuk. OKT telah menunjukkan sebuah ‘laptop’ (P6) dan sebuah ‘adaptor’ (P7) di dalam sebuah bilik. Semasa dirampas P6 dalam keadaan ‘off’ dan berada di atas meja dalam bilik yang ditunjukkan oleh OKT. Keadaan skrin terbuka sepenuhnya. Menurut SP4 terdapat retakan pada skrin P6. SP2 telah merampas P6 dan P7. OKT dan barang-barang kes telah dibawa ke IPD Pasir Puteh dan satu laporan polis (P4) telah dibuat oleh SP2. Pada 25/8/2014, SP8 telah menerima P6 dan P7 dari SP1. SP8 telah menjalankan analisa terhadap ‘hard disk’ dalam P6 dan telah menyediakan laporan bertarikh 4.9.2014 (P25). Menurut SP8 beliau telah menjumpai gambar P8. SP8 juga telah menemui beberapa video berunsur lucah. SP8 telah pindahkan video lucah tersebut ke dalam DVD (P17). Menurut SP8 skrin laptop telah rosak. Gambar barisan kabinet bogel telah diedit. P25 menyatakan imej P8 dipercayai di ‘download’ dari sumber luar dan bukannya dibuat pengubahsuaian menggunakan laptop P6 kerana hanya terdapat satu imej yang berkaitan ditemui dalam laptop P6. Analisis telah dijalankan oleh SP7. SP7 telah menyediakan satu laporan bertarikh 4.4.2015 (P21). Hasil analisis yang dijalankan oleh SP7 menunjukkan akaun Facebook “Kopi Raja Akar” di alamat https://facebook.com/kopi.rajaakar adalah akaun untuk mempromosikan Kopi Raja Akar yang diuruskan oleh OKT yang memiliki akaun Facebook “Adib Raja Akar” di alamat https:/www.facebook.com/profile.php?id=100004123603276. SP11 telah menjalankan analisa digital forensik melalui data dalam ‘hard disk’ dari P6. SP11 telah menyediakan laporan bertarikh 3.5.2016 (P38). Berdasarkan analisa yang dijalankan SP11 menyatakan laman Facebook “Kopi Raja Akar” adalah laman Facebook yang sama dengan Laman Facebook “Adib Raja Akar”. Kedua-dua akaun laman Facebook adalah akaun yang sama. OKT adalah pemilik dan orang yang menguruskan akaun Facebook “Kopi Raja Akar”. SP11 juga telah menemui 883 video lucah dalam hard disk tersebut. SP11 telah ekstrak dan letakkan video-video lucah tersebut di dalam satu pen drive (P36).” D. THE LAW ON APPEAL AGAINST SENTENCE [9]  The law on appeal against sentence is trite that the appellate court should be slow to interfere or disturb with the sentence passed by the court below unless it is manifestly wrong or unsuitable to the proved facts and circumstances of the case. The mere fact that another court might pass a different sentence, provides no reason for the appellate court to interfere if the trial court applies the correct principles of sentencing. [10]  Although there is a plethora of authorities on this point, suffice for this Court to apply the principles of sentencing as enunciated in the decision of the Court of Appeal in PP v Ling Leh Hoe (2015) 4 CLJ 869 viz: “[14] The appellate court can and will interfere in the sentence imposed by the lower court if it is satisfied that any of the following four grounds are made out: (a) The sentencing judge had made a wrong decision as to the proper factual basis for the sentence; (b) There had been an error on the part of the trial judge in appreciating the material facts placed before him; (c) The sentence was wrong in principle; or (d) The sentence imposed was manifestly excessive or inadequate. (See R v. Ball [1951] 35 Cr App. R 164; Loo Weng Fatt v. Public Prosecutor [2001] 3 SLR 313 at para [65]; Public Prosecutor v. UI [2008] 4 SLR (R) 500).” [11]  To generalize it, whilst an appellate court should be slow in interfering the sentence imposed by the trial court in the exercise of their discretion as sentencing is not a science of mathematical application, an appellate court can interfere on the sentence if it is wrong in principle or the sentence imposed is manifestly excessive or manifestly inadequate. In fact the court of Criminal Appeal in Dookes v PP (2010) SCJ 71 said: “However, even if there is nothing wrong with the principle, the sentence may be increased by the appellate court if it is unduly lenient.” E. THE GROUNDS OF JUDGMENT OF THE SESSIONS JUDGE [12] The learned judge gave quite a brief ground of judgment regarding sentence where he said at pages 46 to 47 of the Appeal Record as follows: “Peguambela OKT telah mengemukakan rayuan agar mahkamah menjatuhkan hukuman denda yang paling minima bagi kedua-dua pertuduhan. OKT yang berumur 43 tahun merupakan seorang guru sekolah Yayasan Islam Kelantan (YIK). Kesalahan pertama. Mempunyai 4 orang anak. Isteri OKT juga bekerja sebagai guru. OKT juga menanggung seorang ibu yang sudah tua dan menanggung ekonomi adik. Pihak pendakwaan memohon hukuman yang berat bagi kedua-dua pertuduhan. Mahkamah telah sabitkan OKT di atas kedua-dua pertuduhan dan menjatuhkan hukuman penjara 1 tahun dari tarikh hukuman dijatuhkan (20.7.2016) bagi pertuduhan pertama. Bagi pertuduhan kedua, OKT dijatuhkan hukuman penjara 1 tahun bermula selepas menjalani hukuman pertuduhan pertama. Mahkamah telah meneliti dan mempertimbangkan faktor-faktor rayuan oleh peguambela OKT dan hujahan pemberatan hukuman oleh pihak pendakwaan. Mahkamah berpendapat selain dari menimbangkan faktor-faktor rayuan berkenaan kepentingan OKT dan keluarga OKT, mahkamah juga hendaklah menimbangkan faktor kepentingan awam. Mahkamah berpendapat kepentingan OKT dan keluarga OKT tidak dapat mengatasi kepentingan awam. Mahkamah berpendapat hukuman yang berat amat penting supaya OKT dan orang lain tidak melakukan kesalahan-kesalahan yang sama. Hukuman denda tidak sesuai diberikan kerana OKT telah melakukan kesalahan yang serius. Pertuduhan pertama melibatkan pemimpin-pemimpin negara yang mempunyai unsur Iucah dan palsu manakala pertuduhan kedua juga melibatkan unsur yang lucah OKT sebagai seorang guru yang mengajar di sebuah sekolah agama sepatutnya memberikan teladan kepada anak-anak, pelajar-pelajar dan masyarakat secara amnya, tidak sepatutnya melakukan kesalahan dalam pertuduhan pertama dan pertuduhan kedua. OKT sepatutnya memikirkan kesan perbuatan beliau sebelum melakukan kesalahan-kesalahan tersebut. Mahkamah berpendapat hukuman yang telah dijatuhkan adalah setimpal dengan kesalahan-kesalahan yang telah dilakukan oleh OKT dan ianya dapat memberikan pengajaran kepada OKT dan orang lain agar tidak melakukan kesalahan-kesalahan tersebut lagi.” F. SUBMISSIONS BY PARTIES [13] The Defence submitted at the court below that the accused was 43 years old at the time of committing the offence. He worked as a teacher with a salary of only RM1,500.00 a month and has 4 children. He is the sole bread winner of the family. [14] The Defence further submitted that the accused was a first offender and has no criminal record. A second chance should be given to him to mend himself. [15] The learned counsel also submitted that the offence under section 233(1)(a) of the Act carries a maximum sentence of 1 year imprisonment with a provision of a fine of not more than a fifty thousand ringgit. Hence to sentence the accused to a maximum sentence is very harsh and excessive being a first offender. Meanwhile for the second offence, the section provides a sentence of a fine of not less than RM10,000 and not more than RM50,000 or an imprisonment of not more than 5 years or both. Hence to impose a sentence of 12 months imprisonment likewise is harsh and excessive being a first offender. [16] The Defence futher submitted that the accused did not profit from the acts done. Further there was no violence involved and that the accused gave all his cooperation to the authorities whilst under investigation. [17] Infact the accused regretted and was remorseful of his act and promise not to repeat the mistakes. [18] The Prosecution on the other hand submitted inter alia that these 2 offences are serious offences. The public interest should supersede the personal interest of the accused before meting out the sentence. An appropriate sentence should be meted out. G. ANALYSIS AND FINDING OF THE COURT [19] This court shares the view that cyber offences are serious offences especially the offence at hand, as those offensive materials could be easily disseminated to the public at large within seconds at a touch of a button. [20] The Sessions Judge was right in complying with the principles of sentencing that the public interest is of paramount importence and should supersede the interest of the Accused/Appellant. [21] However this court was of the considered opinion that the personal interest of the Accused should not be disregarded at all (Tan Sri Abdul Rahim Noor v PP (2001) 1 MLJ 193). There are circumstances in which public interest itself warrants that an accused should not be put behind bars for far too long as that will do more harm than good as it might cause a crushing effect on him and could turn him into a hardened criminal instead. [22] Thus, this court was inclined to hold the view that a sentence that could reform him and turn his life from a criminal to an honest life must be favoured. In the words of Hashim Yeop Sani, High Court Judge Malaya, as he then was in the case of Loo Choo Fatt (1976) 2 MLJ 256 who said: “The public interest is indeed served, and best served, if the offender is induced to turn from criminal ways to honest living”. [23] Hence, this court had to strike a balance in order to do justice to the Accused/Appellant and to the public. Towards that end, this court had taken into account of the fact that the Accused/Appellant had repented and was remorseful, and regretted what he had done and also of the fact that he has many children to take care and the sole bread winner of the family. Further, he had lost his present job as a teacher. [24] In meting out the sentence this court had also taken into consideration the circumstances surrounding the offence committed by him. The offence was committed by using his own laptop/computer, forwarding and disseminating information regarding his part time business i.e. selling and promoting coffee products, including the unlawful dissemination of images and materials that was the subject of the first charge. Everyone would know that the images were photographs of naked children superimposed with the images of national leaders, amongst others. Little did he realize that this would land him in trouble with the authorities that eventually led to his being arrested and later charged. [25] Whilst the court does not condone this act, this court was of the considered view that the circumstances surrounding the committing of these 2 offences should be considered as there were no violence involved as the accused “went on a frolic of his own”. Further the accused did not profit from this unlawful acts. [26] This court also had considered the trend of sentencing for these 2 offences. From the various authorities, the sentencing trend seems to show that the sentence imposed were mainly fines or bound over for good behavior. In the case of PP v Muslim Ahmad (2013) 5 CLJ 822, the accused was fined RM10,000 for the charge under Act 588. In the case of Ahmad Abdul Jalil v PP (2015) 5 CLJ 580, the accused was fined RM20,000 for the same offence. Likewise for the second charge, the trend showed that fines of between RM10,000 to RM20,000 were usually imposed. [27] This court had also considered that the Accused/Appellant was a first offender. As a first offender, this court took into consideration that this was the only crime he committed as he has no criminal record before. Hence a special consideration should be given to him in so far as sentencing is concerned so that he can mend his ways and “turn over a new leaf”. Further this court took into consideration that he would face difficulties in finding a new job, after serving his time in prison. [28] The court also took cognizance that the maximum sentence for the first charge was 1 year imprisonment. Yet the learned judge sentenced him for the maximum sentence even though he was a first offender. This was a misdirection on the part of the learned judge which warranted appellate intervention. [29] After considering all the factors aforesaid, this court opined that a fine or a bound over were not suitable but it warranted some form of custodial sentence and fines. H. CONCLUSION [30] In the upshot for the aforesaid reasons, this court allowed the Accused’s/Appellants appeal and substituted it with 1 week imprisonment and a fine of RM3,000 in default 3 months imprisonment for the first charge and for the second charge, a fine of RM10,000 in default 1 ½ years imprisonment. Dated: 16 November 2017 (DATO’ AHMAD BIN BACHE) Pesuruhjaya Kehakiman Mahkamah Tinggi Kota Bharu Kelantan. Pendakwa Raya/Responden: TPR Puan Ainul Wardah binti Shahidan, Pejabat Penasihat Undang-Undang Negeri Kelantan, Blok 5, Tingkat Bawah, Kota Darulnaim, 15050 Kota Bharu, Kelantan. Peguamcara/Perayu: En. Mohd Riza bin Zakaria Tetuan Riza, Yusoff & Partners Peguambela & Peguamcara, 43-3A-2, Jalan Metro Perdana Barat 1, Taman Usahawan Kepong 52100 Kuala Lumpur. 12

Tika 2.6.0

42S(A)-39-7/16

PENDAKWARAYAPuan Ainul Wardah binti Shahidan TERTUDUH NIK ADIB BIN NIK MAT

Criminal Appeal - Cyber Offences - The Accused/Appellant appealed against his conviction and sentence of two charges, viz., posting pictures and comments which were false and offensive on the website and for having in possession obscene films and photographs - appeal was allowed in part - appeal against conviction was dismissed but the appeal against sentence was allowed - thus the High Court had set aside the sentence imposed by the Sessions Judge and substituted it with 1 week imprisonment and a fine of RM3,000 in default 3 months imprisonment for the first charge and a fine of RM10,000 in default 1 ½ years imprisonment for the second charge - the Public Prosecutor then filed an appeal to the Court of Appeal against the decision - Communication and Multimedia Act 1998 [Act 588], section 233(1) (a) and (3); Film Censorship Act 2002 [Act 2002], section 5(1)(a) & (2).

16/11/2017

YA DATO' AHMAD BIN BACHE

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=dc29cb18-0ec3-4f6b-b7d5-680570a15244&Inline=true

DALAM MAHKAMAH TINGGI MALAYA DI KOTA BHARU DALAM NEGERI KELANTAN, MALAYSIA RAYUAN JENAYAH NO: 42S(A)-39-7/16 (MAHKAMAH SESYEN KOTA BHARU, KELANTAN [NO. SKB(A):61-11-09/16] BETWEEN NIK ADIB BIN NIK MAT ... APPELLANT AGAINST PUBLIC PROSECUTOR ... RESPONDENT GROUNDS OF JUDGEMENT (ON SENTENCE) A. BACKGROUND [1] The Accused/Appellant was charged before the Sessions Court for an offence of posting pictures and comments regarding certain leaders on the website which were offensive and false, an offence under subsection 233(1)(a) of the “Communication and Multimedia Act 1998” (Act 588) and punishable under subsection 233(3) of the same Act. [2] The Accused was also charged for having in his possession obscene films and photographs, an offence under section 5(1)(a) of the “Film Censorship Act 2002” (Act 2002) punishable under section 5(2) of the same Act. [3] At the conclusion of the case, the learned Sessions Judge found him guilty and convicted him and sentenced him to 1 year imprisonment for the 1st charge from the date of sentencing, and 1 year imprisonment for the second charge which was to be served upon completion of the first imprisonment. [4] Dissatisfied, the Accused/Appellant filed an appeal before this court on both conviction and sentence. Upon hearing the appeal, this court had allowed the Accused/Appellant’s appeal in part whereby the appeal against conviction was dismissed but the appeal against sentence was allowed. [5] This court had set aside the sentence imposed by the learned Sessions Judge and substituted it with 1 week imprisonment and a fine of RM3,000 in default 3 months imprisonment for the first charge and a fine of RM10,000 in default 1 ½ years imprisonment for the second charge. [6] Dissatisfied, the Public Prosecutor filed an appeal to the Court of Appeal. Hence here are the grounds for that decision. B. THE CHARGES [7] The charges are as follows: First Charge “Bahawa kamu pada 08/08/2014 jam lebih kurang 9.00 malam di alamat Lot 2137 Jalan Maahad Saniah dalam daerah Pasir Puteh, dalam Negeri Kelantan telah menggunakan perkhidmatan aplikasi internet secara sadar membuat dan memulakan penghantaran gambar bertajuk ‘Pesta Bogel’ yang berunsur lucah dan palsu sifatnya di https://www.facebook.com/kopi.rajaakar dengan niat untuk menyakitkan hati orang lain. Oleh itu kamu telah melakukan satu kesalahan di bawah subseksyen 233(1)(a) Akta Komunikasi dan Multimedia 1998 (Akta 588) dan boleh dihukum di bawah Subseksyen 233(3) akta yang sama.” Second charge “Bahawa kamu pada 21 Ogos 2014 jam lebih kurang 4.45 pagi di alamat Lot 2137, Jalan Maahad Saniah dalam daerah Pasir Puteh, dalam Negeri Kelantan telah ada dalam milikan kamu filem-filem dan bahan publisiti filem yang lucah. Dengan itu kamu telah melakukan suatu kesalahan di bawah seksyen 5(1)(a) Akta Penapisan Filem 2002 yang boleh dihukum di bawah seksyen 5(2) akta yang sama.” C. THE FACTS OF THE CASE [8] The facts of the Prosecution’s case can be gleaned from the learned judges grounds of judgment at pages 24 to 26 of the Appeal Record as follows: “Keterangan pihak pendakwaan ialah pada 8/8/2014, jam lebih kurang 9.00 malam, semasa SP3 membuka Facebook beliau melihat maklumat yang dihantar oleh ‘friend’ di dalam Facebook beliau. Antaranya beliau melihat satu gambar jelik beberapa pemimpin negara di atas nama ‘friend’ “Kopi Raja Akar”. Beliau telah membuat salinan kepada gambar tersebut yang bertajuk “pesta bogel” (P8) dan juga membuat laporan polis (P9). Pada 30/8/2014 dan 31/8/2014, SP3 telah menerima beberapa sms dari seseorang yang menggunakan nombor telefon 01125070528 (salinan sms - P10). SP3 mengagak ianya berkait dengan laporan polis yang dibuatnya. Pada 21.8.2014, lebih kurang 4.45 pagi, SP2 bersama beberapa anggota termasuk SP4 telah rumah Lot 2137, Jalan Maahad Saniah, Pasir Puteh, Kelantan. SP2 telah mengetuk pintu di mana OKT telah muncul memperkenalkan dirinya. SP2 telah memaklumkan tujuan penangkapan dan OKT telah membenarkan SP2 masuk. OKT telah menunjukkan sebuah ‘laptop’ (P6) dan sebuah ‘adaptor’ (P7) di dalam sebuah bilik. Semasa dirampas P6 dalam keadaan ‘off’ dan berada di atas meja dalam bilik yang ditunjukkan oleh OKT. Keadaan skrin terbuka sepenuhnya. Menurut SP4 terdapat retakan pada skrin P6. SP2 telah merampas P6 dan P7. OKT dan barang-barang kes telah dibawa ke IPD Pasir Puteh dan satu laporan polis (P4) telah dibuat oleh SP2. Pada 25/8/2014, SP8 telah menerima P6 dan P7 dari SP1. SP8 telah menjalankan analisa terhadap ‘hard disk’ dalam P6 dan telah menyediakan laporan bertarikh 4.9.2014 (P25). Menurut SP8 beliau telah menjumpai gambar P8. SP8 juga telah menemui beberapa video berunsur lucah. SP8 telah pindahkan video lucah tersebut ke dalam DVD (P17). Menurut SP8 skrin laptop telah rosak. Gambar barisan kabinet bogel telah diedit. P25 menyatakan imej P8 dipercayai di ‘download’ dari sumber luar dan bukannya dibuat pengubahsuaian menggunakan laptop P6 kerana hanya terdapat satu imej yang berkaitan ditemui dalam laptop P6. Analisis telah dijalankan oleh SP7. SP7 telah menyediakan satu laporan bertarikh 4.4.2015 (P21). Hasil analisis yang dijalankan oleh SP7 menunjukkan akaun Facebook “Kopi Raja Akar” di alamat https://facebook.com/kopi.rajaakar adalah akaun untuk mempromosikan Kopi Raja Akar yang diuruskan oleh OKT yang memiliki akaun Facebook “Adib Raja Akar” di alamat https:/www.facebook.com/profile.php?id=100004123603276. SP11 telah menjalankan analisa digital forensik melalui data dalam ‘hard disk’ dari P6. SP11 telah menyediakan laporan bertarikh 3.5.2016 (P38). Berdasarkan analisa yang dijalankan SP11 menyatakan laman Facebook “Kopi Raja Akar” adalah laman Facebook yang sama dengan Laman Facebook “Adib Raja Akar”. Kedua-dua akaun laman Facebook adalah akaun yang sama. OKT adalah pemilik dan orang yang menguruskan akaun Facebook “Kopi Raja Akar”. SP11 juga telah menemui 883 video lucah dalam hard disk tersebut. SP11 telah ekstrak dan letakkan video-video lucah tersebut di dalam satu pen drive (P36).” D. THE LAW ON APPEAL AGAINST SENTENCE [9]  The law on appeal against sentence is trite that the appellate court should be slow to interfere or disturb with the sentence passed by the court below unless it is manifestly wrong or unsuitable to the proved facts and circumstances of the case. The mere fact that another court might pass a different sentence, provides no reason for the appellate court to interfere if the trial court applies the correct principles of sentencing. [10]  Although there is a plethora of authorities on this point, suffice for this Court to apply the principles of sentencing as enunciated in the decision of the Court of Appeal in PP v Ling Leh Hoe (2015) 4 CLJ 869 viz: “[14] The appellate court can and will interfere in the sentence imposed by the lower court if it is satisfied that any of the following four grounds are made out: (a) The sentencing judge had made a wrong decision as to the proper factual basis for the sentence; (b) There had been an error on the part of the trial judge in appreciating the material facts placed before him; (c) The sentence was wrong in principle; or (d) The sentence imposed was manifestly excessive or inadequate. (See R v. Ball [1951] 35 Cr App. R 164; Loo Weng Fatt v. Public Prosecutor [2001] 3 SLR 313 at para [65]; Public Prosecutor v. UI [2008] 4 SLR (R) 500).” [11]  To generalize it, whilst an appellate court should be slow in interfering the sentence imposed by the trial court in the exercise of their discretion as sentencing is not a science of mathematical application, an appellate court can interfere on the sentence if it is wrong in principle or the sentence imposed is manifestly excessive or manifestly inadequate. In fact the court of Criminal Appeal in Dookes v PP (2010) SCJ 71 said: “However, even if there is nothing wrong with the principle, the sentence may be increased by the appellate court if it is unduly lenient.” E. THE GROUNDS OF JUDGMENT OF THE SESSIONS JUDGE [12] The learned judge gave quite a brief ground of judgment regarding sentence where he said at pages 46 to 47 of the Appeal Record as follows: “Peguambela OKT telah mengemukakan rayuan agar mahkamah menjatuhkan hukuman denda yang paling minima bagi kedua-dua pertuduhan. OKT yang berumur 43 tahun merupakan seorang guru sekolah Yayasan Islam Kelantan (YIK). Kesalahan pertama. Mempunyai 4 orang anak. Isteri OKT juga bekerja sebagai guru. OKT juga menanggung seorang ibu yang sudah tua dan menanggung ekonomi adik. Pihak pendakwaan memohon hukuman yang berat bagi kedua-dua pertuduhan. Mahkamah telah sabitkan OKT di atas kedua-dua pertuduhan dan menjatuhkan hukuman penjara 1 tahun dari tarikh hukuman dijatuhkan (20.7.2016) bagi pertuduhan pertama. Bagi pertuduhan kedua, OKT dijatuhkan hukuman penjara 1 tahun bermula selepas menjalani hukuman pertuduhan pertama. Mahkamah telah meneliti dan mempertimbangkan faktor-faktor rayuan oleh peguambela OKT dan hujahan pemberatan hukuman oleh pihak pendakwaan. Mahkamah berpendapat selain dari menimbangkan faktor-faktor rayuan berkenaan kepentingan OKT dan keluarga OKT, mahkamah juga hendaklah menimbangkan faktor kepentingan awam. Mahkamah berpendapat kepentingan OKT dan keluarga OKT tidak dapat mengatasi kepentingan awam. Mahkamah berpendapat hukuman yang berat amat penting supaya OKT dan orang lain tidak melakukan kesalahan-kesalahan yang sama. Hukuman denda tidak sesuai diberikan kerana OKT telah melakukan kesalahan yang serius. Pertuduhan pertama melibatkan pemimpin-pemimpin negara yang mempunyai unsur Iucah dan palsu manakala pertuduhan kedua juga melibatkan unsur yang lucah OKT sebagai seorang guru yang mengajar di sebuah sekolah agama sepatutnya memberikan teladan kepada anak-anak, pelajar-pelajar dan masyarakat secara amnya, tidak sepatutnya melakukan kesalahan dalam pertuduhan pertama dan pertuduhan kedua. OKT sepatutnya memikirkan kesan perbuatan beliau sebelum melakukan kesalahan-kesalahan tersebut. Mahkamah berpendapat hukuman yang telah dijatuhkan adalah setimpal dengan kesalahan-kesalahan yang telah dilakukan oleh OKT dan ianya dapat memberikan pengajaran kepada OKT dan orang lain agar tidak melakukan kesalahan-kesalahan tersebut lagi.” F. SUBMISSIONS BY PARTIES [13] The Defence submitted at the court below that the accused was 43 years old at the time of committing the offence. He worked as a teacher with a salary of only RM1,500.00 a month and has 4 children. He is the sole bread winner of the family. [14] The Defence further submitted that the accused was a first offender and has no criminal record. A second chance should be given to him to mend himself. [15] The learned counsel also submitted that the offence under section 233(1)(a) of the Act carries a maximum sentence of 1 year imprisonment with a provision of a fine of not more than a fifty thousand ringgit. Hence to sentence the accused to a maximum sentence is very harsh and excessive being a first offender. Meanwhile for the second offence, the section provides a sentence of a fine of not less than RM10,000 and not more than RM50,000 or an imprisonment of not more than 5 years or both. Hence to impose a sentence of 12 months imprisonment likewise is harsh and excessive being a first offender. [16] The Defence futher submitted that the accused did not profit from the acts done. Further there was no violence involved and that the accused gave all his cooperation to the authorities whilst under investigation. [17] Infact the accused regretted and was remorseful of his act and promise not to repeat the mistakes. [18] The Prosecution on the other hand submitted inter alia that these 2 offences are serious offences. The public interest should supersede the personal interest of the accused before meting out the sentence. An appropriate sentence should be meted out. G. ANALYSIS AND FINDING OF THE COURT [19] This court shares the view that cyber offences are serious offences especially the offence at hand, as those offensive materials could be easily disseminated to the public at large within seconds at a touch of a button. [20] The Sessions Judge was right in complying with the principles of sentencing that the public interest is of paramount importence and should supersede the interest of the Accused/Appellant. [21] However this court was of the considered opinion that the personal interest of the Accused should not be disregarded at all (Tan Sri Abdul Rahim Noor v PP (2001) 1 MLJ 193). There are circumstances in which public interest itself warrants that an accused should not be put behind bars for far too long as that will do more harm than good as it might cause a crushing effect on him and could turn him into a hardened criminal instead. [22] Thus, this court was inclined to hold the view that a sentence that could reform him and turn his life from a criminal to an honest life must be favoured. In the words of Hashim Yeop Sani, High Court Judge Malaya, as he then was in the case of Loo Choo Fatt (1976) 2 MLJ 256 who said: “The public interest is indeed served, and best served, if the offender is induced to turn from criminal ways to honest living”. [23] Hence, this court had to strike a balance in order to do justice to the Accused/Appellant and to the public. Towards that end, this court had taken into account of the fact that the Accused/Appellant had repented and was remorseful, and regretted what he had done and also of the fact that he has many children to take care and the sole bread winner of the family. Further, he had lost his present job as a teacher. [24] In meting out the sentence this court had also taken into consideration the circumstances surrounding the offence committed by him. The offence was committed by using his own laptop/computer, forwarding and disseminating information regarding his part time business i.e. selling and promoting coffee products, including the unlawful dissemination of images and materials that was the subject of the first charge. Everyone would know that the images were photographs of naked children superimposed with the images of national leaders, amongst others. Little did he realize that this would land him in trouble with the authorities that eventually led to his being arrested and later charged. [25] Whilst the court does not condone this act, this court was of the considered view that the circumstances surrounding the committing of these 2 offences should be considered as there were no violence involved as the accused “went on a frolic of his own”. Further the accused did not profit from this unlawful acts. [26] This court also had considered the trend of sentencing for these 2 offences. From the various authorities, the sentencing trend seems to show that the sentence imposed were mainly fines or bound over for good behavior. In the case of PP v Muslim Ahmad (2013) 5 CLJ 822, the accused was fined RM10,000 for the charge under Act 588. In the case of Ahmad Abdul Jalil v PP (2015) 5 CLJ 580, the accused was fined RM20,000 for the same offence. Likewise for the second charge, the trend showed that fines of between RM10,000 to RM20,000 were usually imposed. [27] This court had also considered that the Accused/Appellant was a first offender. As a first offender, this court took into consideration that this was the only crime he committed as he has no criminal record before. Hence a special consideration should be given to him in so far as sentencing is concerned so that he can mend his ways and “turn over a new leaf”. Further this court took into consideration that he would face difficulties in finding a new job, after serving his time in prison. [28] The court also took cognizance that the maximum sentence for the first charge was 1 year imprisonment. Yet the learned judge sentenced him for the maximum sentence even though he was a first offender. This was a misdirection on the part of the learned judge which warranted appellate intervention. [29] After considering all the factors aforesaid, this court opined that a fine or a bound over were not suitable but it warranted some form of custodial sentence and fines. H. CONCLUSION [30] In the upshot for the aforesaid reasons, this court allowed the Accused’s/Appellants appeal and substituted it with 1 week imprisonment and a fine of RM3,000 in default 3 months imprisonment for the first charge and for the second charge, a fine of RM10,000 in default 1 ½ years imprisonment. Dated: 16 November 2017 (DATO’ AHMAD BIN BACHE) Pesuruhjaya Kehakiman Mahkamah Tinggi Kota Bharu Kelantan. Pendakwa Raya/Responden: TPR Puan Ainul Wardah binti Shahidan, Pejabat Penasihat Undang-Undang Negeri Kelantan, Blok 5, Tingkat Bawah, Kota Darulnaim, 15050 Kota Bharu, Kelantan. Peguamcara/Perayu: En. Mohd Riza bin Zakaria Tetuan Riza, Yusoff & Partners Peguambela & Peguamcara, 43-3A-2, Jalan Metro Perdana Barat 1, Taman Usahawan Kepong 52100 Kuala Lumpur. 12

Tika 2.6.0

WA–22NCC–195–05/2017

PLAINTIF STARFIELD CAPITAL SDN BHD DEFENDAN STONE MASTER CORPORATION BERHAD

16/11/2017

YA TUAN MOHAMED ZAINI BIN MAZLAN

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=b5c69df0-a159-4408-90fa-a8ddeb7f85af&Inline=true

1 IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR (COMMERCIAL DIVISION) IN THE STATE OF WILAYAH PERSEKUTUAN, MALAYSIA SUIT NO. WA – 22NCC – 195 – 05/2017 BETWEEN STARFIELD CAPITAL SDN BHD PLAINTIFF AND STONE MASTER CORPORATION BERHAD DEFENDANT JUDGMENT Introduction [1] The defendant had sought to stay the execution of the consent judgment entered in this suit on the 30 May 2017, pending the disposal of another suit that it had filed (Kuala Lumpur High Court suit no. WA-22NCC-232-06/2017) to set aside the consent judgment (‘suit 232’). [2] I had allowed the defendant’s application, and set out the grounds for my decision. 2 Brief facts [3] This was one of the many suits that were filed sometime this year pertaining to the defendant company. Suffice for me to state that the suits were in gist pertaining to the fight to gain control of the defendant company. [4] In this suit, the plaintiff’s claim was premised on two loan agreements between it and the defendant. The first loan was for RM2,500,000.00, and the second one for RM15,500,000.00. The signatories for the both agreements were Datin Chan Chui Mei (‘Datin Chan’) for the plaintiff, and Dato’ Eii Ching Siew @ Yii Ching Siew (‘Dato Eii’) for the defendant. [5] Both parties subsequently entered into a settlement agreement, where the defendant acknowledged owing the plaintiff RM18,000,000.00, and that it agreed to pay through an issuance of 45,000,000 ordinary shares worth RM0.25 each at the value of RM0.40 per share in the defendant company. This was however subject to the approval of the defendant’s shareholders. The defendant failed to obtain its shareholders approval within the stipulated time. This led to the plaintiff filing this suit, to claim for the sum of RM18,000,000.00 from the defendant. [6] The plaintiff had also filed an application for a mareva injunction against the defendant on the 29 May 2017, which was three days after it had filed the writ of summons and 3 statement of claim. Based on the certificate of urgency, the application was fixed for hearing the very next day on the 30 May 2017. The application had apparently been served on the defendant, as its counsel was present on the hearing date. Counsel for both parties then informed the court that they have reached a settlement based on the draft consent judgment presented to the court. Consent judgment was then recorded based on the terms of the draft consent judgment. It was at that point in time, quite a quick disposal of a suit, as it had taken merely 5 days to conclude. The defendant’s application [7] It would be necessary to briefly outline the events leading to the defendant’s application. [8] Prior to 30 May 2017, the defendant’s board of directors comprised of three individuals, namely Dato Lee Fong Yin @ Lee Vun Ya, Dato’ Koh Mui Tee (‘Dato’ Koh’) and Datuk Lee Hwa Chong (‘Datuk Lee’). An extraordinary general meeting was held on the 30 May 2017 (‘the EGM’), whereDato’ Koh and Datuk Lee were removed as directors by a majority vote of 91.48%. Seven new directors were appointed to the board. [9] The defendant claimed that the former directors who were subsequently removed at the EGM were the ones who had appointed the previous solicitors. It was also alleged that 4 they were the ones responsible in instructing the previous solicitors to enter into the consent judgment. [10] One of the many suits filed in relation to the defendant was presided by Justice Lau Bee Lan, who on the 28 June 2017, declared among others, that any meetings held by the defendant from its Annual General Meeting on 30 March 2017 without the presence of Dato’ Eii were invalid, null and void. The defendant therefore contends that any acts done by the defendant when Dato’ Koh and Datuk Lee were in control were invalid, null and void, including the appointment of the solicitors for this suit and the subsequent entering of the consent judgment. [11] The defendant claimed that the loan agreements were a sham. The loans were taken up to pay the agency fees amounting to RM3.05 billion to twenty three companies incorporated in the Republic of China. The defendant had apparently entered into twenty-three exclusive agency agreements with these twenty-three Chinese companies. Now the terms and mechanism of these agency agreements are not entirely crucial for the purposes of this application, save that the fee payable to these twenty three Chinese companies were to be paid to twenty three of their wholly owned subsidiaries incorporated in Malaysia (‘twenty three local beneficiaries’). [12] One of the former director, namely Dato’ Koh, had entered into twenty three settlement agreements with the twenty 5 three local beneficiaries, where it was agreed that the defendant would allot and issue ordinary shares of the defendant. Incidentally, these settlement agreements with the local beneficiaries were also entered on the same day as the settlement agreement with the plaintiff here in respect of the RM18,000,000.00loans. [13] It was Dato’ Koh who was responsible for these settlement agreements. The solicitors who acted for the defendant was a firm called Messrs Koh & Associates, which apparently was Dato’ Koh’s own firm. The firm had also charged a hefty fee of RM1,285,000.00. [14] There were many more allegations made by the defendant, but suffice to state that the defendants alleged that the loan agreements between the defendant and plaintiff were fraudulent transactions. Apparently, the sole signatory of the bank accounts for the twenty-three local beneficiaries was Datin Chan. [15] Datin Chan’s activities caught the attention of the Securities Commission (‘SC’), which subsequently resulted in the SC commencing a suit against her for alleged breaches under s. 179, 317A and 370 of the Capital Markets and Services Act 2007. The suit pertained to the loan agreements between the defendant and plaintiff that were mentioned earlier. The SC managed to obtain a mareva injunction against Datin Chan in October 2016. 6 [16] The defendant contends that the consent judgment was part of a web of conspiracy and fraud between the former directors, Datin Chan and the plaintiff, with the intention of injuring the defendant for their benefit. The defendant also alleged that the former directors had clearly flouted their fiduciary duties, and did not act in the best interest of the defendant. [17] The defendant has also been classified as a PN17 company, and given up to December 2017 to regularise its affairs. It contends that the impact on the defendant would be irreversible, if a stay is not granted, as it will derail its regularisation plan. This is due to the fact that it would need to cough up the judgment sum, which would cripple its plans to put the company back into the black. [18] The defendant in urging this court to stay the execution of judgment, stated that there is a need for the court in suit 232 to make a finding on the following issues:- (a) Whether the loans taken by the defendant from the plaintiff were fraudulent transactions; (b) Whether the plaintiff was attempting to circumvent the SC’s action against Datin Chan; (c) Whether the consent judgment was a collateral attack on the mareva injunction granted in the SC suit; 7 (d) Whether the consent judgment was an attempt to cloak the loan transactions into a genuine transaction for Datin Chan’s benefit; and (e) Whether the plaintiff had abused the court’s process to perpetuate fraud. [19] The defendant also contended that suit 232 and the mareva injunction obtained by SC would be rendered academic and superfluous respectively, if a stay was not granted. The plaintiff’s response [20] The deponent for the plaintiff’s affidavit was Datin Chan. She alleged that the EGM and its results were manipulated. She also contended that the consent judgment was regularly entered into, and that it was made pursuant to instructions given by those in control of the defendant at the material time. [21] The plaintiff also refuted the defendant’s allegation pertaining to the loan agreements between the defendant and the plaintiff, and highlighted that the defendant’s directors’ report had acknowledged the loan agreements. [22] As for the SC’s suit against her, Datin Chan contended that it was taken out of context, and that the allegations made were irrelevant. She also pointed out that mareva injunction was merely an interim order, and that there should not be a 8 presumption of guilt until the suit has reached its conclusion. Further, she highlighted the fact that the SC’s suit was against her personally, and not against the plaintiff, and that it should not cast any aspersion on the plaintiff. [23] The defendant in reply stated that Datin Chan owns 99% of the shares in the plaintiff and is also a director. The defendant takes the view that Datin Chan is the alter ego of the plaintiff, as it is a dormant company. [24] In respect of Justice Lau Bee Lan’s decision, she contended that the aggrieved party has filed an appeal. On this point, the defendant had in its affidavit in reply stated that it had questioned the authority of the solicitors who had filed the notice of appeal on its behalf, as it had not instructed any firm to do so. The defendant had as such warned the firm not to take any further action without a proper authorisation from the defendant. Findings [25] The first issue raised by the plaintiff is the authority of the defendant’s current solicitors, Messrs Munhoe & Mark, to act for the defendant. I noted that this objection was not raised in any of the plaintiff’s affidavit. In fact, the plaintiff’s counsel had never once raised or made known an intention to raise this objection during any of the case managements for this application. On this point alone, I find that they should be 9 precluded from now raising this issue. I will nevertheless for completeness address the objection. [26] It was submitted that the defendant’s current solicitors, had never filed a notice of change of solicitors to put on record that they have taken over conduct from the previous solicitors. The Court of Appeal’s decision in Lagenda Kencana Sdn Bhd v Peter’s Holdings Sdn Bhd [2012] 4 MLJ 855was relied on. [27] Briefly, in that case, the appellant who was the plaintiff in the High Court suit, had applied to set aside the consent order that was entered in the High Court. The firm that initially acted for the appellant had been dissolved. One of the lawyer then joined another firm, which then proceeded to act for the appellant without the appellant’s knowledge. This new firm then proceeded to withdraw the appellant’s suit during trial with the respondent’s consent. This was done without the appellant’s knowledge or authorisation. [28] The appellant’s application to set aside the consent order was dismissed by the High Court, and hence its appeal. The Court of Appeal noted that the new firm did not file a notice of change of solicitors. The appellate court in allowing the appellant’s appeal, held that the requirement to file a notice of change of solicitors as provided for under O. 64 r. 1 of the then Rules of High Court 1980 is a mandatory rule. The non- filing of the notice of change was not a mere irregularity, and that its non-compliance had occasioned a substantial 10 miscarriage of justice on the appellant. The Court of Appeal further held that the new firm has no locus standi to act for the appellant, and that the appellant had suffered a grave injustice when the consent order was entered without its knowledge or authorisation. [29] I am of the view that the facts of the Lagenda Kencana case (supra) can be distinguished. In that case the appellant was aggrieved, as it had no knowledge of the new firm acting for it. More importantly, the appellant had never given any instructions to the new firm to withdraw its suit through a consent order. The pertinent point to note in the Lagenda Kencanacase is that the appellate court held that the new firm had no locus standi by virtue of the fact that the appellant had not instructed it. The fact that it had not filed the notice of change of solicitors supports this fact. The pertinent point is the authority to act. The primary question is whether the solicitors have been duly authorised by their client to act. [30] In this case, there is no issue of Messrs Munhoe & Mark’s authority to act for the defendant. Conversely, it was the previous solicitors authority to act for the defendant that was questioned. Zakaria Sam JC (as he then was) in Jutamark Sendirian Berhad v Ironwood Shipyard Sdn Bhd [2001] MLJU 447 held: “The rationale behind the filing of the notice of change or appointment of solicitors is to identify the counsels (sic) on 11 record and their address of service. The filing of the notice is important to avoid any confusion as to who actually is acting for a party. This is the spirit of O. 64 RHC”. I therefore find that the plaintiff’s objection is without merits. [31] The second point raised by the plaintiff is two prong. The plaintiff referred to O. 55 r. 16 Rules of Court 2016 and s. 73 Court of Judicature Act 1964, and contended that an appeal shall not operate as a stay of execution. The second point raised is on the issue of whether the court is functus officio after the consent judgment has been recorded. The Federal Court’s decision in Badiaddin Bin Mohd Mahidin v Arab- Malaysian Finance Bhd [1998] 1 MLJ 393 was referred to in support of this proposition. In referring to the Badiaddin case, it was strenuously emphasized that this court is functus officio, as there was no application to set aside the judgment in this court. [32] The proposition that the court is functus officio would only apply in relation to the court where the consent judgment was entered. It is settled law that the court where the judgment or order was pronounced is functus officio, save for instances under the slip rule of the Rules of Court 2016, or a default judgment. [33] With respect, I am also of the view that the plaintiff had taken an oversimplified and selective reading of the Badiaddin case (supra).The apex court in Badiaddin also referred to its 12 own decision in Hock Hua Bank v Sahari bin Murid [1981] 1 MLJ 143, where it was held that a separate suit must be filed to set aside a judgment, if the party seeking to set it aside alleges that it was obtained by fraud, or where further evidence could not be adduced in the original suit. Now this was in the context of judgment. In the context of consent judgment, the Federal Court held that where the aggrieved party sought to prove that there were grounds that could vitiate such free consent, a fresh suit must then be taken up to set aside the judgment. One of the ground is fraud. I set out the relevant passage in the judgment by Peh Swee Chin FCJ to illuminate this point:- “The grounds referred to for setting aside a consent order of a judgment by consent are grounds which basically relate to consensus ad idem or the free consent of parties to a binding agreement or contract. It is elementary that if it is proved that there are grounds which vitiate such free consent, the agreement is not binding. Now a consent order or a judgment by consent us undoubtedly based on an agreement of both parties where consent to the agreement must or should have been free in the first place. If the agreement upon which a consent order or judgment by consent is based is vitiated by any ground recognised in equity as vitiating such free consent, such as fraud, mistake, total failure of consideration (see Huddersfield Banking Co Ltd v Henry Lister & Sons [1895] 2 Ch 273 and the cases cited therein), then such a perfected order or judgment by consent could be set aside in a fresh action filed for the 13 purpose. Grounds which would vitiate such free consent should also include misrepresentation, coercion, an undue influence and other grounds in equity” [p 418-419] (emphasis added). [34] Here, the defendant has clearly sought to establish fraud on the part of the plaintiff in entering into the consent judgment. The plaintiff nevertheless contended that the defendant had failed to substantiate its allegation of fraud in respect of the loan, and maintained that it was a bona fide transaction. This response is bereft of merits. The plaintiff will only need to prove its case in suit 232 at trial. It is not for this court to make a determination on contentious facts adduced through affidavit evidence; Seruan Gemilang Makmur Sdn Bhd v Kerajaan Negeri Pahang Darul Makmur [2016] 3 CLJ 1 (FC). [35] It is trite that an applicant seeking to stay the execution of a judgment can only succeed, if it can demonstrate special circumstances; Kosma Palm Oil Mill Sdn Bhd v Koperasi Serbausaha Makmur Bhd [2004 ] 1 MLJ 257 (FC). What amounts to special circumstances must be looked at on a case-to-case basis. [36] The defendant contended that there are special circumstances to support its case for a stay, in that the plaintiff has perpetuated fraud through the consent judgment by colluding with the former directors who acted without authority. 14 [37] In Citibank N.A v Mrs N.D Chandrasegaran Nee Nirmala Devi a/p P. Ratnadurai [2007] 8 MLJ 149, the plaintiff had sought to stay the execution of the order for sale of her property, pending the determination of her impeachment proceedings of all order judgments or decrees granted by the High Court. The plaintiff alleged that the power of attorney that the defendant had given to her attorney was fraudulent. Abdul Malik Ishak J (as he then was), in granting the stay, held that the plaintiff would suffer irreparable damage which could not be compensated with costs, and that the impeachment proceedings would be rendered nugatory, if a stay is not granted. His lordship held that if proceedings were allowed to continue, there is a real danger of the alleged fraud being perpetuated against the court and the plaintiff, and that that these are special circumstances which warranted a stay. [38] The grounds put forward in the Citibank case are quite similar to the one here. I too find that the grounds put forward by the defendant are special circumstances that warrant a stay of execution of the judgment. The allegations of fraud are serious and demands further deliberation and determination in suit 232. Suffice to add that suit 232 would be rendered nugatory if a stay is not granted. 15 Conclusion [39] For the reasons that I have set out, it is my finding that the defendant has adduced sufficient grounds for a stay. I have as such allowed the defendant’s application with costs of RM5,000 subject to allocatur. Dated: 16 November 2017. -sgd- (Mohamed Zaini Mazlan) Judge Kuala Lumpur High Court (Commercial Division) Counsel for the plaintiff Adrian Silvarajoo and Haselyn Binti Mohd Ali [Messrs Ramli Yusuff & Co] Counsel for the defendant Wong Mun Hoe and Long Chay Jo [Messrs Mun Hoe & Mar]

Tika 2.6.0

02-19-04/2016

PERAYU 1. Far East Holdings Bhd 2. Kampong Aur Oil Palm Sdn Bhd ... Appellants RESPONDEN Majlis Ugama Islam dan Adat Resam Melayu Pahang ... Respondent

Arbitration — Appeal — Award — Setting aside final award — Grounds for the court’s intervention — Whether award manifestly unlawful and unconscionable — Whether arbitrator adopted proper approach in construing agreement — Whether arbitrator committed any error of law in construing agreement — Whether there was need to intervene as to method adopted by arbitrator to assess value of shares — Whether arbitrator erred in awarding pre and post award interest— Arbitration Act 1952 [Act 93- now repealed by Act 646], section 24; Arbitration Act 2005 [Act 646], section 37(1), section 42 (1) and (1A)

15/11/2017

YA TAN SRI JEFFREY TAN KOK WHA KorumYAA TAN SRI DATO' SERI ZULKEFLI BIN AHMAD MAKINUDINYA TAN SRI DATUK RAMLY BIN HAJI ALIYAA TAN SRI AZAHAR BIN MOHAMEDYAA TAN SRI ZAHARAH BINTI IBRAHIMYA TAN SRI JEFFREY TAN KOK WHA

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=582dda87-190e-4e4a-a4fe-91074741a6a7&Inline=true

kjhggjj 1 IN THE FEDERAL COURT OF MALAYSIA AT PUTRAJAYA CIVIL APPEAL NO. 02-19-04/2016 and other appeals BETWEEN 1. Far East Holdings Bhd 2. Kampong Aur Oil Palm Sdn Bhd ... Appellants AND Majlis Ugama Islam dan Adat Resam Melayu Pahang ... Respondent CORAM: Zulkefli Ahmad Makinudin PCA Ramly Ali FCJ Azahar Mohamed FCJ Zaharah Ibrahim FCJ Jeffrey Tan FCJ JUDGMENT OF THE COURT 1. These 3 related appeals arose from a domestic arbitral award (award) dated 19.9.2012, as amended by a corrective award dated 11.10.2012, of a single arbitrator who granted the claim of the Majlis Ugama Islam dan Adat Resam Melayu Pahang (Majlis) against Far East Holdings Bhd (Far East) and Kampong Aur Oil Palm Sdn Bhd (KAOP). 2 2. Further to the award and pursuant to section 42 (section 42) of the Arbitration Act 2005 (AA 2005), Far East and KAOP referred 18 “questions of law arising out of the award” to the High Court. Meanwhile, pursuant to section 38 of AA 2005, Majlis applied to the High Court for recognition and enforcement of the award. On 31.3.2014, the High Court held that “there were no questions of law that merit intervention ... under section 42”. Despite so, the High Court set aside the pre and post-award interest awarded by the arbitrator. All parties appealed. The Court of Appeal dismissed all 3 appeals (see Far East Holdings Bhd & Anor v Majlis Ugama Islam Dan Adat Resam Melayu Pahang and another appeal [2015] 4 MLJ 766). Thereafter, all parties obtained leave to respectively raise the following ‘questions of law’ (leave questions) to this court: Civil Appeals 02-19-04/2016 and 02-20-04/2016 a) Whether the approach under the Arbitration Act 1952 (repealed) of a distinction between a general reference and a specific reference (see Syarikat Pemborong Pertanian Sdn Bhd v. Federal Land Development Authority [1971] 2 MLJ 210), and that there could be no reference over an error of law under a specific reference, is applicable under the provisions of the Arbitration Act 2005? b) Whether the test of ‘illegality’ stated in the Government of India v. Cairn Energy India Pte Ltd & Anor [2011] 6 MLJ 441 or the test of ‘patent injustice’ stated in Ajwa For Food Industries Co. (MIGOP), Egypt v. Pacific Inter-Link Sdn Bhd & Anor Appeal [2013] 2 CLJ 395 or the test of 3 ‘manifestly unlawful and unconscionable’ and/or ‘a perverse decision’ in Kerajaan Malaysia v. Perwira Bintang Holdings Sdn Bhd [2015] 1 CLJ 617 are applicable tests under section 42(1) and (1A) of the Arbitration Act 2005? c) Whether by the application of the correct test for review under Section 42(1) and (1A) of the Arbitration Act 2005, the decision in the present case on the issues of the Capital Increase, the two Options and the Damage Award are sustainable? Civil Appeal 02-21-04/2016 a) Whether under or in proceedings under the Arbitration Act 2005, the Arbitrator has the jurisdiction to award pre-award interest? b) Whether the Arbitrator has the jurisdiction to award pre-award and post award interests when it is not specifically pleaded? c) Whether the Arbitrator has the power to award pre- award and post award interests under the general relief, “all further and/or incidental relief which are appropriate under the circumstances of the present case to be awarded to the Claimant?” d) Whether the Court can interfere with the discretionary power of the Arbitrator to award pre- award and post award interests? Background facts 3. In Appeals 02-19-04/2016 and 02-20-04/2016, Far East and KAOP are the appellants while Majlis is the respondent. In Appeal 02-21-04/2016, Majlis is the appellant, while Far East and 4 KAOP are the respondents. For ease of reference, we would refer to the parties as Far East, KAOP and or Majlis. 4. Majlis is a body corporate established under section 4 of the Administration of Islamic Law Enactment 1991 (Enactment). Far East is a public listed company wholly or substantially owned by the Government of the State of Pahang. KAOP is a wholly owned subsidiary of Far East. 5. On 29.1.1985, the state authority approved the alienation of 11,073 acres of land (said land) to Majlis for the cultivation of commercial crops. Thereafter, Majlis entered into negotiations with Far East and KAOP to cultivate the said land. On 16.1.1992, all three parties entered into an agreement (agreement) to develop the said land into an oil palm plantation. Inter alia, the agreement provided that the said land would be so developed by a wholly owned subsidiary of KAOP, and that Majlis would transfer the said land to the said subsidiary of KAOP. 6. Clause 2.01 of the agreement (the clauses of the agreement would henceforth be referred as clause/sub-clause) thus stipulated the monetary value of the said land: “All the three parties in this agreement agree and accept that the value of the said Land is Ringgit: TWO THOUSAND FOUR HUNDRED AND THIRTY NINE AND SEVEN CENTS (RM2,439-07) only per hectare or Ringgit: NINE HUNDRED EIGHTY SEVEN AND EIGHT CENTS (RM987-08) only per acre, and the total price of the said Land with an area of 4.481.3 hectares or 11,073 acres is 5 Ringgit: TEN MILLION NINE HUNDRED TWENTY NINE THOUSAND NINE HUNDRED AND EIGHTY THREE (RM10,929,983-00) only and if the area of the said Land according to the Document of Title is more or less of the area designated therefore the total value of the said Land being provided for herein with the additional/deductible rate according to the final area of the said Land.” 7. On 5.4.1996, Majlis was registered as proprietor of the said land. On 13.4.1999, Majlis transferred the said land to Madah Perkasa Sdn Bhd (Madah Perkasa), the wholly owned subsidiary of KAOP who would develop the said land. In consideration of the transfer of the said land, Majlis on or about 19.4.1999 was allotted 8,218,033 less 201,650 shares [there was a deduction of 201,650 shares for non payment of RM201,650.00 towards the premium and quit rent of the said land, pursuant to clause 2.01(d)] at the nominal value of RM1.33 per share. 8. Majlis contended that: (a) clause 2.02(a) provided that with allotment of 8,218,033 shares to Majlis, the issued share capital of KAOP would be held in the proportion of 33% (8,218,033 shares) to Majlis and 67% (16,685,099 shares) to Far East; (b) clause 2.02(b) provided an option (1st option) to Majlis to purchase a further 3,984,501 shares at RM1.33 per share from Far East; (c) clause 2.02(c) provided that the 1st option was binding on Far East for a period of two years “from the date of the receipt of the approvals by the 6 shareholders of FEH through Extraordinary Meeting, Foreign Investment Committee (FIC) relating to this joint venture and the Majlis Mesyuarat Kerajaan Negeri relating to the approval of transfer of the said Land to the Developer Company (whichever the later)”; (d) clause 2.02(b) provided that with exercise of the 1st option, Majlis would hold a further 16% (16%) of the issued share capital of KAOP; (e) clause 2.02(e) provided that a further option (2nd option) to Majlis to purchase a further 11% (11%) of the issued share capital of KAOP from Far East; (f) clause 2.02(f) provided the 2nd option shall be binding on Far East for three (3) years starting and effective from the fifth year after the approvals mentioned in clause 2.02 (c) above are obtained. Dispute 9. Dispute arose between the parties. According to Far East and KAOP, Far East had extended loans totalling RM22,096,868.00 to KAOP to finance the development of the said land. In 1998, KAOP capitalised those loans as paid up capital and allotted 22,096,868 shares to Far East who consequently held 38,781,967 shares (16,685,099 + 22,096,868). But in the result, the allotment of 8,218,033 shares to Majlis would only amount to 17.5% and not 33% equity of KAOP. Because Far East held 38,781,967 plus 201,650 [there was an increase of 201,650 shares to Far East for payment of the premium and quit rent of the said land – see clause 2.01(d)] out of a total of 47,000,000 shares, 7 Majlis contended that exercise of the [2] options to purchase shares from Far East would not give Majlis control, let alone 60% control, of KAOP. The Arbitral Proceeding 10. Clause 5.01(f) provided that “ ... disputes that may arise between the three parties herein in relation to this agreement and cannot be resolved by mutual agreement shall be decided by an arbitrator agreed upon and appointed by the parties herein pursuant to the Arbitration Act 1952”. On 24.7.2008, the Kuala Lumpur Regional Centre for Arbitration appointed the instant arbitrator as the sole arbitrator to arbitrate the dispute. 11. In its statement of claim, Majlis pleaded that in 1998 Far East unlawfully increased the paid up capital of KAOP by 22,096,868 shares; that Far East failed to transfer the said 16% to Majlis despite exercise of the 1st option; that Far East failed to fix a price for the said 11% despite exercise of the 2nd option; that Far East unilaterally fixed the price of the said 11% at the exorbitant price of RM5.50 per share; that Far East diluted the interest of Majlis in KAOP; and that Far East breached the agreement which provided that Majlis would ultimately own 60% of the equity of KAOP. 12. Majlis prayed for (i) an order to cancel the allotment of 22,096,868 shares to Far East; (ii) an order that Far East transfer 8 the said 16% shares to Majlis; (iii) an order that the arbitrator to determine the value of the said 11% in accordance with clause 2.02(e); (iv) an order that Far East transfer the said 11% to Majlis, that is, upon payment of the consideration as determined by the arbitrator; and, (v) “damages and losses payable to [Majlis] by [Far East] in respect of the dividends and all other payments for the dilution of [Majlis’] interest in [KAOP] to 17% and for the failure on the part of [Far East] to transfer 16% and 11% of the shares, respectively, in [KAOP] to [Majlis]”. 13. In its statement of defence, Far East and KAOP pleaded that the holding of Majlis “would only be increased from 33% to 60% subject to the terms of the said agreement”; that Majlis failed to exercise the options within time, that is, by or before 4.10.2000 and 4.10.2006; that clause 3.02 did not specifically state that Far East and KAOP were responsible for the finance to develop the said land; that clause 3.02 merely stated the manner in which Far East and KAOP would fund the development of the said land; that there was no prohibition in the agreement to an increase of the issued share capital of KAOP; that the agreement did not stipulate that Majlis would be entitled to any allotment of the increased issued share capital of KAOP; that Majlis and Far East, as shareholders, were jointly responsible to pay the loan and accrued interest; that Majlis was aware and consented on 10.4.1997 and 13.5.1997 to the increase in the equity; that Majlis merely expressed an intention to exercise the 1st option without any indication on the 9 payment of the consideration; that failure to pay the consideration nullified the intention to exercise the 1st option; that transfer of the said 16% could not occur without payment and because the 1st option had expired; that the purported exercise of the 2nd option was made without any indication to pay the consideration based on the value of the current assets of KAOP; that failure to pay the consideration nullified the intention to exercise the 2nd option; that on 28.8.2006, Far East offered sale of the said 11% at the price of RM5.50 per share; that the agreement did not provide that the price of the said 11% should be jointly fixed; that Majlis never protested against the valuation of RM5.50 per share; that Majlis requested for time to consider the price of RM5.50 per share and for an extension of time to 31.12.2006 to exercise the 2nd option; and that notwithstanding the request for extension of time, Majlis commenced legal proceedings. 14. In reply, Majlis pleaded that time to exercise the 1st option could not run without an offer from Far East to Majlis to exercise the 1st option; that Far East could only make the offer after registration of the said land in the name of Madah Perkasa; that Far East was aware of the intention of Majlis to exercise the 1st option; that time was not a fundamental term of the agreement but was at large; that Far East failed and or refused to give notice for the exercise of the 1st option; that Majlis did not breach any of the fundamental terms as alleged; that by letters dated 1.9.2004 and 8.9.2004, Majlis notified Far East of its intention to exercise 10 the 2nd Option; that by letters dated 26.10.2004 and 25.11.2004, both parties agreed that the said 11% would be valued by a valuer appointed with the consent of the parties; that any decision that concerned Majlis and the agreement could only be made in accordance with the Enactment and not by any individual; that Majlis never agreed to the increase in the issued share capital of KAOP; that Far East did not justify the alleged advance of RM22,096,868.00 to entitle Far East to the allotment of 22,096,868 shares; that the allotment of 22,096,868 shares was not in accordance with the memorandum and articles of KAOP; that the allotment contravened the provisions of the Companies Act 1965; that Dato Haji Abdul Mutalib was not authorised to decide on matters that pertained to Majlis and to the agreement without the prior approval of Majlis given in accordance with the Enactment; that Majlis never agreed to reduce its holding by 201,650 shares on account of non-payment of RM201,650.00 towards premium and quit rent of the said land; that Majlis was ready and able to pay all dues related to the said land and the consideration payable on exercise of the 1st Option; that Far East unilaterally appointed Aftaas Corporate Advisory Services Sdn Bhd(AFTAAS) to value the said 11% shares; and that Far East disregarded the rights of Majlis. 15. Parties could not reach agreement on the issues and facts. All the same, Far East and KAOP submitted the following issues to the arbitrator for determination: 11 (a) Whether the agreement prohibited Far East from increasing the paid up capital of KAOP; (b) Whether Majlis had exercised the 1st option to purchase 3,984,501 shares at the price of RM1.33 per share amounting to RM5,299,386.33 within the time stipulated in clause 2.02(b) and (c); (c) Whether Majlis had exercised the 2nd option to purchase 2,739,344 shares within the time stipulated in clause 2.02(e) and (f); (d) Whether the time for the exercise of the options was a fundamental term of the agreement.; (e) Whether Majlis failed to exercise the 1st and 2nd options within the time stipulated in clause 2.02(c) and (f) and therefore breached the fundamental terms of the agreement. 16. The arbitrator delivered a most detailed award that covered all issues raised. 17. On whether the agreement was a shareholders’ agreement or a joint venture agreement, the arbitrator held that what was material was the terms of the agreement (para 8.3 of the award). 18. On whether Majlis pleaded (i) absence of knowledge of the dates of the relevant approvals, (ii) disagreement with the reduction of 201,650 shares by reason of non–payment of quit rent of the said land, (iii) particulars of the special damages claimed, payment of interest on damages awarded, and loss of dividends, 12 the arbitrator held that [at the material time] Majlis did not know when Far East obtained the required approvals from the KLSE and FIC (see paras 10(a) and 21.4 of the award); that whether Majlis agreed to reduce its shareholding by 201,650 shares by reason of non–payment of quit rent was pleaded in the reply (see para 10(b) of the award); that Far East had sufficient notice of the damages claimed (see paras 10(c) and 30.4 of the award); and that pre- award interest, although not pleaded, could be awarded (see paras 10(d) and 31.1 of the award). 19. On whether KAOP could increase its paid up capital, the arbitrator held (i) that Majlis had not given any mandate to Dato’ Abdul Muttalib and or Dato Wan Ahmad Tajuddin to consent to the allotment of 22,096,868 shares to Far East (see para 12.5 of the award); (ii) that on 16.4.1997 and 13.5.1997, KAOP was still wholly owned by Far East, and Majlis was yet not a shareholder of KAOP (see para 13.5 of the award); (iii) that only Dato Hamdan bin Jaafar, the proxy for Far East, had voting rights at those board meetings (see para 13.6 of the award); and (iv) that Dato’ Abdul Muttalib and Dato Wan Ahmad Tajuddin, who had no voting rights, were present on 16.4.1997 and 13.5.1997 as mere observers (see para 13.6 of the award). 20. On whether the objection of Majlis to the allotment of 22,096,868 shares to Far East was an afterthought, the arbitrator held (i) that Far East and KAOP should have pleaded limitation and 13 (ii) that Majlis only later knew about the allotment (see para 14.3 of the award). 21. On the allegation that Dato’ Abdul Muttalib and Dato Wan Ahmad Tajuddin were KAOP directors, the arbitrator held that Dato’ Abdul Muttalib and Dato Wan Ahmad Tajuddin were appointed by Far East, not by Majlis, to represent Majlis (see para 15.3 of the award) and that the presence of Dato’ Abdul Muttalib and Dato Wan Ahmad Tajuddin at board meetings did not constitute consent by Majlis to the said allotment (see 15.8 of the award). 22. On the reduction of 201,650 shares to Majlis, because of the non-payment of RM201,650.00 towards quit rent, the arbitrator held that Majlis requested such reduction (see para 15.9 of the award). 23. On the allotment of additional shares to Far East to settle the loans, the arbitrator held that there was no provision in the agreement for the capitalisation of loans (see para 15.10 of the award). 24. On the funding for the development of the said land, the arbitrator held (i) that clause 3.02 provided the manner to raise those required funds (see para 15.11 of the award); (ii) that it was not provided that the development of the said land would be financed by allotment of shares (see para 15.13 of the award); and (iii) that the said allotment in 1998 effectively prevented Majlis 14 from acquiring majority control of KAOP, which was contrary to the spirit and intent of the agreement (see para 15.14 of the award). 25. On the defence in general, the arbitrator remarked at paras 16 to 19 of the award (i) that in contradistinction to the formal exchange of correspondence between Majlis and Far East with respect to the allotment of 151,616 shares, there was no official meeting or letter from Majlis to confirm the allotment of 22,096,868 shares; (ii) that after 13.5.1995, when Far East found out that the terms of the agreement were not to its liking, it expressed intention to fundamentally change the terms of the agreement; (iii) that Far East, who alleged that Dato Abdul Muttalib and Dato Wan Ahmad Tajuddin consented to the allotment, must call Dato Abdul Muttalib and Dato Wan Ahmad Tajuddin to testify; (iv) that an adverse inference should be invoked against Far East for failure to call Dato Abdul Muttalib and or Dato Wan Ahmad Tajuddin to testify; (v) that no benefit could be derived by Majlis to agree to the capitalisation of the loans and interest; (vi) that the true reason for the allotment in 1998 was to deny Majlis a 60% interest in KOAP; (vii) that the income generated by KOAP, which could give generous dividends, would settle the bank loans and interest in due course; (viii) that the reasons proffered for the said allotment could not be accepted; and (ix) that the board meeting on 13.5.1997, when Far East was the only shareholder of KOAP, set the scene to deprive Majlis of ever acquiring a majority control of KOAP. 15 26. At para 20 of the award, the arbitrator held that Majlis “had successfully established” (i) that the agreement expressly stated that Majlis was entitled to exercise 2 options to ultimately own 60% shares; (ii) that after execution of the agreement, any change in the equity of KAOP required the consent of Majlis which could only be given by a committee or person authorised by Majlis pursuant to the Enactment; (iii) that 22,096,8686 shares were allotted without the consent of Majlis; (iv) that the said allotment was a fundamental breach of the agreement; (v) that the allotment of 22,096,8686 shares to Far East at RM1.00 per share was inconsistent with the agreement which provided that the allotment to Majlis was at RM1.33 per share and inconsistent with the allotment of 151,616 shares at RM1.33 per share to capitalise the RM201,650.00 paid towards the premium and quit rent. 27. At para 20.3 of the award, the arbitrator concluded (i) that the allotment of 22,096,868 shares should be cancelled; (ii) that Far East should pay damages to Majlis; and (iii) that Majlis, with the cancellation of the allotment of 22,096,868 shares, would be indebted to Far East in the sum of RM22,096,868.00. The arbitrator noted that Far East had enjoyed dividends from those 22,096,868 shares from 2002 to date of the award. Thereafter, the arbitrator held that there should be a “re-allocation” of the dividends between Far East and Majlis and that there should be payment of interest at the rate of 4% per annum “on the shortfall of the dividends payable to Majlis” by Far East to Majlis. But in 16 favour of Far East, the arbitrator held that there was justification for the allotment of 151,616 shares to Far East, that is, to capitalise the payment of RM201,650.00 towards the premium and quit rent of the said land. 28. As said, the arbitrator delivered a most detailed award, to the point that even after he made his aforesaid conclusions, he persisted to deliberate on the issues and evidence to further justify his conclusions. 29. On the 1st option, the arbitrator held (i) that the 2-year time line under clause 2.02(c) was subject to clause 2.02(b); (ii) that Far East was aware that Majlis intended to exercise the 1st option; (iii) that notice of that intention was given by letter dated 2.11.1995; (iv) that on 12.12.1995, Far East replied that the conditions in clause 2.02 were yet to be fulfilled; (v) that by letter dated 21.8.1996, Majlis again informed Far East of its intention to exercise the 1st option, to which Far East did not reply; (vi) that time was not of the essence, as clause 2.02(c) was dependant on an offer by Far East to Majlis; (vii) that Far East must give notice under section 47 of the Contracts Act to make time of the essence; and (viii) that in the absence of a notice fixing time for exercise of the 1st option, Far East could not contend that time to exercise the 1st option had lapsed (see paras 22.1 – 24.4 of the award). 30. On the time to exercise the options, the arbitrator held that once time for completion was allowed to pass and parties 17 entered into negotiations, there was a waiver on time being of the essence (see para 24.5 of the award). 31. On the negotiations between the parties and the exercise of the 1st option, the arbitrator held (i) that Majlis, by letters dated 2.11.1995 and 21.8.1996, had clearly put Far East on notice of its intention to exercise the 1st option; (ii) that Majlis expected Far East to inform Majlis of the date for completion; (iii) that clause 2.02(b) provided that Far East must make an offer to Majlis; (iv) that the conduct of the parties plus clause 2.02(b) had lulled Majlis into a sense of security that notice would be given to Majlis to exercise the 1st option; and (v) that the letter of Majlis dated 14.10.2002 fulfilled clause 2.02(b) of the agreement (see para 24.6 – 24.10 of the award). 32. On the contention that Majlis had no funds to exercise the options, the arbitrator held that the accounts of Majlis showed that Majlis had sufficient funds to exercise the options (see para 25.3 of the award). 33. On Far East’s revocation of the offer to exercise the 1st option, the arbitrator held (i) that the 1st option, in the absence of an offer by Far East to Majlis to trigger time to run, was still valid and in subsistence; (ii) that Majlis, by letter dated 14.10.2002, had lawfully exercised the 1st option; (iii) that Far East, by letter dated 24.12.2002, unlawfully revoked the option; and (iv) that time for 18 exercise of the options was not of the essence, which, even if of the essence, was waived by conduct (see para 26.1 of the award). 34. On the 2nd option, the arbitrator held (i) that clauses 2.02(e) and (f) were the applicable provisions; (ii) that Far East, by letter dated 22.10.2003, informed Majlis that the 2nd option could be exercised at any time between 5.10.2003 to 5.10.2006; (iii) that the 2nd option could only be exercised after a valuation of the shares as determined by negotiation and based on the current asset value of KAOP and Madah Perkasa at the time of exercise of the 2nd option; (iv) that Majlis, by letter dated 1.9.2004, informed Far East that it would exercise the 2nd option; (v) that it was agreed at a meeting between Majlis and Far East on 8.9.2004 that the value of the shares would be the value as at the date of exercise of the 2nd option and as determined by a valuer appointed with the consent of the parties and by negotiation; and (vi) that witness RW1 confirmed that there was such a meeting on 8.9.2004 and such an agreement (see paras 27.7(a) and 27.8 of the award). 35. As to whether Majlis could exercise the 2nd option, the arbitrator held that the 2nd option was valid and that Majlis was entitled to exercise the 2nd option at a price to be determined, for the following reasons: (i) Majlis had exercised the 2nd option on 1.9.2004; (ii) Far East had not sought the consent of Majlis to appoint AFTAAS as the valuer; (iii) there was no explanation from Far East for the delay in the appointment of a valuer, even though agreement was reached on 8.9.2004 on the appointment of a 19 valuer with the consent of the parties; (iv) in not appointing a valuer with the consent of the parties, Far East delayed and prevented exercise of the 2nd option; and (v) time was not of the essence (see paras 27.14 and 27.15 of the award). 36. On the AFTAAS report on the value of the shares, the arbitrator held (i) that AFTAAS was appointed without the consent of Majlis; (ii) that the AFTAAS report was commissioned for Far East; (iii) that Far East only appointed AFTAAS when it was hardly a month before expiry of the 2nd option; (iv) that Majlis received the AFTAAS report on 4.9.2006; (v) that Majlis could not have agreed to AFTAAS as the valuer, as a director of AFTAAS was also a director of Far East; and (vi) that the AFTAAS report should be viewed with caution (see para 28.1 – 28.14 of the award). 37. On the fair value of the shares, the arbitrator held (i) that the Nett Tangible Asset was the better approach to value the shares; and (ii) that the fair value of each share was RM5.3244 (see para 29.5 – 29.10 of the award). 38. On damages for breach of the agreement, the arbitrator held (i) that the loss of dividends was a direct result of breach to transfer the said 16% and 11% to Majlis; (ii) that Majlis’ loss of dividends for the period up to 2010 amounted to RM97,692,957.00; (iii) that the cost of exercise of the 1st option was RM5,299,386.00; (iv) that the cost of exercise of the 2nd option was RM14,585,363.20; (v) that the total cost of exercise of 20 both options was RM19,884,749.20; and (vi) that the quantum of damages payable by Far East to Majlis was RM77,808,207.80 (RM97,692,957.00 less RM19,884,749.20) (see para 30.1 -30.13 of the award). 39. On interest, the arbitrator held (i) that payment of interest was based on common law and section 11 of the Civil Law Act; (ii) that it was held in Karpal Singh v DP Vijandran [2003] 2 MLJ 385 that an award of interest is a matter of court discretion; (iii) that an award of pre-award interest at 4% per annum was reasonable; (iv) that jurisdiction to award post-award interest was provided in section 33(6) of AA 2005; and (v) that the award should carry post-award interest at the rate of 4% per annum from date of the award to date of satisfaction (see paras 31.1 – 31.14 of the award). 40. The arbitrator ordered Far East to return the certificates for 22,096,868 shares for cancellation and the company secretary to restore the issued share capital of KAOP to the proportion of 67.61% (16,836,715 shares) to Far East and 32.39% (8,066,417 shares) to Majlis. The arbitrator declared that the allotment of 22,096,868 shares was unlawful and contrary to the terms and spirit of the agreement and that Majlis had exercised the 1st and 2nd options in accordance with the agreement. The arbitrator ordered Far East to transfer 3,984,501 shares (16%) to Majlis. The arbitrator also ordered Far East (i) to transfer 2,739344 shares (11%) to Majlis at RM5.3244 per share; (ii) to pay damages in the 21 sum of RM77,808,207.80 (RM97,692,957.00 minus RM19,884,749.20); (iii) to pay damages to Majlis for loss of dividends from 2002 to date of the award and interest thereon at 4% per annum from 1.1.2011 to date of the award, both on the basis that Far East had 10,112,870 shares and Majlis had 14,790,262 shares; and (iv) to pay costs of RM150,000.00 to Majlis. At the High Court 41. In relation to the capitalisation of the loans, Far East and KAOP referred the following 5 “questions of law arising out of the award” to the High Court: (1) Whether the Arbitrator was correct in law in striking down the allotment of the additional shares of 22,096,868 from the increase in the paid up capital in the 2nd Plaintiff when such decision was made by the directors and shareholders of [KAOP] without regard to the fact that [Far East] and [KAOP] are separate legal entities? (2) Whether the Arbitrator was correct in law in failing to conclude that [Majlis’] nominee directors on the Board of [KAOP] could validly bind [Majlis] in the stand they took in failing to object to the new allotment of shares? (3) Whether the Arbitrator was correct in law in holding that the failure of [Far East and KAOP] to plead limitation deprived [Far East and KAOP] of its defense that [Majlis’] objection on the allocation of 22 22,096,868 additional shares to [Far East] is an afterthought? (4) Whether the Arbitrator was correct in law in holding that the burden lies on [Far East] to call [Majlis’] nominees as witnesses and consequently, drawing an adverse inference against [Far East and KAOP] for not calling them? (5) Whether the Arbitrator in deciding if there was a breach of the Agreement ought to specifically construe the Agreement based on its written terms and within the four corners of the Agreement without basing it on extraneous factors? 42. The High Court noted that the findings of the arbitrator were (i) that the agreement stated that the initial share capital of KAOP was fixed at 24,903,132 shares to be held by Far East (16,685,099 shares) and Majlis (8,218,033 shares); (ii) that Majlis was entitled to exercise 2 options to ultimately own 60% equity; (iii) that after execution of the agreement, any change of the capital of KAOP required the consent of Majlis which could only be given by Majlis or a committee or person authorised by Majlis pursuant to the Enactment; (iv) that 22,096,868 shares were allotted to Far East without the consent of Majlis; and (iv) that the said allotment was a fundamental breach of the agreement. 43. On those findings of the arbitrator, the High Court held (i) that the arbitrator did not dispute the fact that KAOP could increase its paid up capital; and (ii) that the approach taken by the arbitrator in finding the intention of the parties, to wit that Majlis 23 would ultimately own 60% equity, was supported by Berjaya Times Square v M-Concept Sdn Bhd [2012] 1 MLJ 597, where it was held by the Federal Court that in interpreting a private contract, one must look at the factual matrix. 44. On the finding of the arbitrator that Dato Abdul Mutalib and Dato Wan Ahmad were appointed by Far East and not Majlis, the High Court agreed that both Dato Abdul Mutalib and Dato Wan Ahmad were appointed by the board of directors of KAOP on 20.1.1993, that is, when KAOP was still wholly owned by Far East, and therefore not by Majlis. 45. On the invocation of the adverse inference against Far East and KAOP for failure to call Dato Abdul Mutalib and or Dato Wan Ahmad to testify, the High Court held that since it was the case of Far East and KAOP that Dato Abdul Mutalib and or Dato Wan Ahmad were authorised to act on behalf of Majlis, the adverse inference was “countenanced by law”. 46. The High Court also agreed with the finding that the said allotment in 1998 was without the consent of Majlis, as Dato Abdul Mutalib and Dato Wan Ahmad were not appointed by Majlis, and as consent was not given by Majlis in accordance with the Enactment. 47. In relation to the exercise of the 1st option, Far East and KAOP referred the following 4 “questions of law arising out of the award” to the High Court: 24 (6) Whether the Arbitrator was correct in law in failing to hold that timeliness for exercise of an option in a purely commercial contract must be construed strictly? (7) Whether the Arbitrator should not in law have held, as regard to the imposition of time limit for exercise of the option, that an exercise of the option outside the stipulated time period is invalid in law? (8) Whether the Arbitrator was correct in law in not holding that the exercise of an option to purchase shares in a purely commercial transaction without the tender of the purchase price was invalid or non est in law? (9) Whether the Arbitrator was correct in law in failing to conclude that the burden of acting within the stipulated time to exercise an option fell on the option-holder and not on the option-giver? 48. The High Court held (i) that clause 2.02(c) must be read with clause 2.02(b) which provided that Far East must make an offer to Majlis to exercise the 1st option; (ii) that the required approvals from the shareholders of Far East, FIC, Land Office, were not matters within the knowledge of Majlis, and that Majlis, unless informed, would not know the dates of the approvals; and (iii) that there was no error by the arbitrator in the construction of sub- clauses 2.02(b) and (c). 49. On the 2nd option and the exercise thereof, Far East and KAOP referred the following 6 “questions of law arising out of the award” to the High Court: 25 (10) Whether the Arbitrator was correct in law in failing to conclude that timelines for exercise of an option to purchase shares in a purely commercial contract was strict and the right to exercise the option lapsed once time has run? (11) Whether the Arbitrator should not have held in law that the 2nd Option was void and unenforceable unless price was agreed within the stipulated time? (12) Whether the Arbitrator erred in law in failing to hold that the burden of complying with all the terms for exercise of the option lay with the option-holder and that if the option-holder failed to take the requisite steps within the stipulated time, the option lapsed? (13) The Arbitrator should have held in law that since price was not agreed between the parties within the stipulated time or at all, the option had lapsed? (14) Whether the Arbitrator was correct in law in rejecting the share valuation report presented by the 1st Plaintiff when the option clause envisaged a price based on the current asset value of the assets of the 2nd Plaintiff? (15) Whether the Arbitrator had acted validly in law in treating the option period as still open for exercise when there was no agreement on price and when the terms of the option clause had not been fulfilled by the Defendant? 50. To those questions, the High Court answered (i) that the findings of the arbitrator on the exercise of the 2nd option were findings of fact which should not be disturbed; and (ii) that there 26 was no error of construction of the provisions that pertained to the 2nd option. 51. On the quantum of damages and the award of interest, to which Far East and KAOP had put forward 3 ‘questions of law arising out of the award’, the High Court held that the arbitrator did not err on the award of damages which was premised on breach. But on the interest awarded, the High Court held that the arbitrator had no jurisdiction to award pre-award interest, and that post-award interest, since not pleaded, should not have been awarded. Except on the pre and post award interest, the High Court held that there was no ‘question of law arising out of the award’ that merited judicial intervention. 52. The application of Majlis for recognition and enforcement of the award was granted in terms, minus the pre-award and post award interest. Decision of the Court of Appeal 53. Far East and KAOP submitted that the award was manifestly unlawful, unconscionable and perverse and ought to be set aside. 54. Majlis cited Majlis Amanah Rakyat v Kausar Corporation Sdn Bhd [2009] MLJU 1697; [2009] 1 LNS 1766; [2011] 3 AMR 315) and submitted that a court should take a limited view of its jurisdiction under section 42. Majlis cited Ajwa For Food Industries 27 Co (MIGOP) Egypt v Pacific Inter-Link Sdn Bhd & Another Appeal [2013] 2 CLJ 395, where it was said by Ramly Ali JCA (as he then was) delivering the judgment of the court, that “the court should be slow in interfering with an arbitral award ... Once parties have agreed to arbitration they must be prepared to be bound by the decision of the arbitrator … ”, and submitted that a court should be slow in interfering with an arbitral award. Majlis also cited Exceljade Sdn Bhd v Bauer (Malaysia) Sdn Bhd [2014] 1 AMR 253, where Nallini Pathmanathan J, as she then was, cited Georgas SA v Trammo Gas Ltd (The ‘Baleares’) [1993] 1 Lloyd’s Rep 215, where Steyn J said that parties who submit disputes to arbitration bind themselves to honour the arbitrator’s award on the facts and that the principle of party autonomy decrees that a court ought not to question the arbitrators’ findings of fact. 55. The Court of Appeal, per Aziah Ali JCA, as she then was, delivering the judgment of the court, agreed that Baleares as well as Soh Beng Tee & Co Pte Ltd v Fairmont Development Pte Ltd [2007] 3 SLR 86 reflected the policy of minimal intervention by the court: “[38] Thus on the authorities, it is clear that in applications made under s 42 of the Act, errors by an arbitrator such as drawing wrong inferences of fact from the evidence before him, be it oral or documentary, is in itself not sufficient for the setting aside of an award (Intelek Timur Sdn Bhd v Future Heritage Sdn Bhd [2004] 1 MLJ 401; [2004] 1 CLJ 743). Likewise, the suggestion that the arbitrator has misapprehended and 28 misunderstood the evidence presented is also not a sufficient ground to set aside an arbitral award (Sharikat Pemborong Pertanian & Perumahan v Federal Land Development Authority [1971] 2 MLJ 210; [1969] 1 LNS 172). The court also does not and should not sit in appeal and examine the correctness of the award on merits (Hartela Contractors Ltd v Hartecon JV Sdn Bhd & Anor [1999] 2 MLJ 481; [1999] 2 CLJ 788 (CA). The instances we state here are not in the least intended to be exhaustive.” 56. Aziah Ali JCA though added “that it is a fundamental principle of law that an arbitral award that is tainted with illegality can be challenged and may be set aside by the courts on the ground that an error of law has been committed, and that the question of construction of a document is a question of law”: “In the case of The Government of India v Cairn Energy India Pty Ltd & Anor [2011] 6 MLJ 441; [2012] 3 CLJ 423, the Federal Court said, amongst others, that all matters regarding the construction of a document is a question of law and is thus a specific reference. Therefore it is necessary for the appellant to show illegality. The Federal Court said as follows (para 33): ‘In our view the Supreme Court in Ganda Edible and the Federal Court in Intelek Timur did not introduce any new ground for challenge. Both cases merely reiterated a fundamental principle of law, to wit, that if a decision of an arbitrator is tainted with illegality, it is always open for challenge. Thus, even where a specific reference has been made to the arbitrator, if the award subsequently made is tainted with illegality, it can be set aside by the courts on the ground that an error of law had been committed. It must be 29 stressed here that the award must be tainted with some sort of illegality. It must also be emphasised that the word ‘may’ is used here, in that the award may be set aside. Discretion still lies with the court as to whether to respect the award of the arbitral tribunal or to reverse it.’ Further in para 34, the court said: ‘ … the Supreme Court in Ganda Edibile did state that construction is, generally speaking, a question of law. In our view all matters regarding the construction of a document is a question of law. It may very well be that in some cases, other matters are brought up for consideration which may involve questions of fact, but where the matter solely referred to is the construction of a document, it must be said to be solely a question of law … ’ And in para 44 of the judgment, the court also said: ‘In this case it is not in dispute that the matter referred for arbitration is one of construction of the terms in the PSC, a question of law and thus a specific reference. Therefore it is necessary for the appellant to show illegality.’ ” 57. In the opinion of the Court of Appeal, “the matter that was referred for arbitration relates to the construction of the agreement and is thus a question of law and a specific reference, although in the course of interpreting the terms of the agreement, the arbitrator was required to make findings of fact” and “a final award must be seen in its entirety and the entire facts of the case leading to the award must be taken into account to decide if there 30 is error of law on the face of the award (Sanlaiman Sdn Bhd v Kerajaan Malaysia [2013] 3 MLJ 755; [2013] 2 AMR 523)”. 58. As to whether there was an error of law in the construction of the agreement by the arbitrator, the Court of Appeal held that “the approach adopted by the arbitrator in construing the agreement is proper as it is consonant with case law … is appropriate since the dispute between the parties arose out of a commercial contract”. 59. On the substantive issues before the Arbitrator and his findings, the Court of Appeal first critically examined the issues and evidence and held that the findings of the arbitrator on the allotment of 22,096,868 shares to Far East, on the presence of the two supposed directors of Majlis at KAOP board meetings, on the absence of the consent of Majlis, on the source and manner of funding, on the absence of provision for the allotment of additional shares, on the invocation of the adverse inference, on the impossibility of Majlis ever controlling KAOP, on breach of the agreement, on the options, on the value of the shares, on loss of dividends and damages, indeed on each finding of the arbitrator, were “based on findings of fact from the evidence, oral and documentary, that were produced before him”. 60. But on the interest awarded, the Court of Appeal agreed with the High Court that there is no provision in AA 2005 for pre- 31 award interest, and that post-award interest, which was not pleaded, should not have been awarded. 61. All three appeals were dismissed by the Court of Appeal. Submissions before this Court in 02-19-04/2016 and 02-20- 04/2016 (Appeals by Far East and KAOP). 62. Long submissions (106 pages by Far East and KAOP, 217 pages by Majlis) were filed by the parties and by the Malaysian Bar Council who appeared as “amicus curae”. Much of what were submitted by the parties were but a different twist to the same arguments before the arbitrator with respect to the issues, findings of fact and evidence which we have already alluded to and or narrated in our summary of the arbitral proceedings. As such, we would only summarise the legal submissions and mention the authorities cited by learned counsel, interspersed, where necessary, with some of the facts and factual arguments. Far East and KAOP’s submissions 63. In relation to leave questions 1 and 2, Far East and KAOP submitted as follows. Section 42 is unique to Malaysia; the right to challenge an award is not subject to leave being granted. Under section 42, a challenge may be brought without the leave of court on any question of law arising out of an award which substantially affects the rights of one or more of the parties. Notwithstanding the wording of section 42, the Court of Appeal in 32 numerous cases, including the instant, adopted the restriction in case law decided under the former Arbitration Act 1952 (AA 1952), where a distinction was made between a specific reference of an issue to arbitration and a general reference. Under AA 1952, there could not be a review at all if the arbitrator’s error of law was made under a specific reference (King v Duveen & ors [1913] 2 KB 32 relying on Timpson v Emmerson (1847) 9 L.T. (O.S.) 199, Absalom Limited v Great Western (London) Garden Village Society, Limited [1933] AC 592, Chain Cycle Sdn Bhd v Kerajaan Malaysia [2016] 1 CLJ 218, Sharikat Pemborong Pertanian Perumahaan v Federal Land Development Authority [1971] 2 MLJ 210, The Government of India v Cairns Energy Pty Ltd & anor [2012] 3 CLJ 423). 64. The distinction between a specific and a general reference was still applied (Sanlaiman Sdn Bhd v Kerajaan Malaysia [2013] 2 AMR 523, Chain Cycle, Petronas Penapisan (Melaka) Sdn Bhd v Ahmani Sdn Bhd [2016] 2 MLJ 697). Where not stated, the Court of Appeal should not read restrictions into section 42. Unlike the UK provision, the 2nd Schedule clause 5 of the New Zealand Arbitration 1996 or section 49 of the Singapore Arbitration Act 2002, AA 2005 does not require leave to be obtained to challenge an award. Section 8 of AA 2005 maintains a balance between the finality of awards and the right of review. It is not warranted to impose “a further restriction derived from case law of the Absalom exception on the basis of the flood-gates 33 argument and the like”, as was done in Chain Cycle. The restriction militates against the express wording of section 42. The word ‘any’ is of the widest amplitude. There is no justification to read “any question of law” as applicable to some questions of law but not to others (Schiffahrtsagentur Hanburg Middle East Line GmbH v Virtue Shipping Corpn; The Qinoussian Virtue [1981] 2 All ER 887 at 893-894). “Any question of law” is wide enough to cover all questions of law arising out of an award, whether made pursuant to a general reference of a dispute or a specific reference of an issue. “Arising out of an award” means that the question of law must arise from the award and not from the proceedings (Majlis Amanah Rakyat v Kausar Corporation [2009] MLJU 1697, Exceljade, Kerajaan Malaysia v Perwira Bintang Holdings Sdn Bhd [2015] 1 CLJ 617 at [57c]). It should not matter whether the award is the product of arbitration pursuant to a general reference or a specific reference. 65. The construction of a contract is a question of law (Bahamas International Trust Co Ltd v Threadgold [1974] 1 WLR 1514 at 1525, Pioneer Shipping Ltd & ors v B.T.P. Tioxide Ltd (The Nema) [1982] AC 724 at 736B, Lesotho Highlands Development Authority v Impregilo SpA [2006] AC 221 at [31], Cairns Energy at [36]). In the context of questions of law arising out of arbitration awards, Lord Steyn said in Lesotho that “a mistake in interpreting the contract is the paradigm of a question of law which may in the circumstances of section 69 be appealed ... ”. Given the 34 similarities between the UK provision and section 42, no other limitation should be read into section 42 apart from the restriction in the provision itself. 66. The proper test is “substantially affects the rights of one or more of the parties”. The test of illegality stated in Cairns Energy, of patent injustice stated in Ajwa Food Industries and of manifestly unlawful and or unconscionable or perverse in Kerajaan Malaysia v Perwira Bintang, do not conform to section 42 which should be read as it stands. The language of a statute should not be substituted with other words (Brutues v Cozens [1972] 2 All ER 1297 at 1299), Murray and another v Foyle Meats Ltd [1999] 3 All ER 769 at 733). The phrase “substantially affects the rights” was the only restriction taken from section 69(3)(c) of the UK Act. The raft of restrictions in section 69(3)(c) of the UK Act has not been adopted in AA 2005. Section 42 takes a more liberal approach in comparison to the UK section 69. For purposes of section 42, only the phrase “substantially affects the right of the parties” falls to be construed and applied as a test. A party’s legal rights could be substantially affected even without ‘patent injustice’, ‘substantial injustice’ or ‘manifestly unlawful’ and the like (SDA Architects v Metro Millenium Sdn Bhd [2014] 2 MLJ 627 at 35). The approach taken by the High Court in Lembaga Kemajuan Ikan Malaysia v WJ Construction Sdn Bhd [2013] 8 CLJ 655 and Tune Insurance Malaysia Bhd & Anor v Messrs K Sila Dass & Partners [2015] 9 CLJ 35 93, without resort to the label of ‘patent injustice’, ‘substantial injustice’ or ‘manifestly unlawful’, is the correct approach. 67. A mistake in the construction of a contract or misapplication of its terms would substantially affect rights. Pursuant to section 30(5) of AA 2005, an arbitral tribunal is obliged to decide in accordance with the terms of the contract. In a review, the court is to determine if the arbitrator decided the question rightly and not to defer to his interpretation. 68. The Court of Appeal took the wrong approach when it followed Cairns Energy at 448, which was decided under AA 1952. In the Lembaga Kemajuan Ikan case, Mary Lim J, as she then was, observed that section 42(1) approximates to an error of law on the face of the award. If the arbitrator proceeded illegally as understood in the old cases, then he has committed an error of law that is reviewable under section 42. “The phrase originates from Government of Kelantan v Duff Development [1923] AC 395 and has been adopted in Halsbury’s Laws 4th Edn. Vol. 2 para 623. An arbitrator would have proceeded illegally if he applied ‘principles of construction that the law does not countenance’ or deciding on evidence which was not admissible: see application of the principle in Intelek Timur Sdn Bhd v Future Heritage Sdn Bhd [2004] 1 CLJ 743; Sami Mousawi v Kerajaan Negeri Sarawak [2004] 2 CLJ 186.” A clear case would be where the arbitrator failed to consider the relevant law or omitted consideration of relevant causes in the contract in arriving at his decision (Maimunah Deraman v Majlis 36 Perbandaran Kemaman [2011] 3 CLJ 689 at [27-28]). A further area of review under the “question of law” principles decided wrongly is the illogical or perverse award that no arbitrator acting reasonably could have made (learned counsel cited Perwira Bintang at [35] and Sikkim Subba Association v State of Sikkim AIR 2001 SC 2062). In all such cases, rights were substantially affected. In the seminal case of The Nema under section 1(4) of the UK Arbitration Act 1979 which bore similarity to section 42, Lord Diplock included the category of where a question of law would arise under Edward v Bairstow [1956] AC 14. ‘Questions of law’ should not be restricted to ‘patent injustice’ or ‘manifestly unjust’ and the like. It should apply to every legal issue decided by the arbitrator that substantially affected the parties. 69. On the capital increase, options, and damages issues, apart from the arguments that pertained to the construction of the agreement, the evidence and the factual findings of the arbitrator, Far East and KAOP submitted as follows. The legality of the capital increase must be determined solely by reference to the Companies Act and the Articles of Association (Tung Ah Leek v Perunding DJA Sdn Bhd (2005) 3 MLJ 667 at [13]). The agreement was a joint venture agreement. In striking down the allotment, the arbitrator failed to appreciate that Far East and KAOP were separate legal entities and separate in law from their shareholders. Shareholders could not preclude a company or its shareholders from exercising rights under the articles or under the Company Act (Exeter City 37 AFC v Football Conference Ltd [2004] 4 All ER 1179, Union Music Ltd V Watson [2003] 1 BCLC 453, Russell v Northern Development Bank (1992) BCLC 1016 HL). Rights of shareholders, inter se, are only enforceable between them. In Jet-Tech Materials Sdn Bhd & anor v Yushiro Chemical Industry Co. Ltd & ors and another appeal [2013] 2 CLJ 277 at [37], the Federal Court made a distinction between matters that concerned the company and breaches of a shareholders’ agreement. The arbitrator made a fundamental mistake when he struck down the allotment without any determination as to whether the proper remedy was damages. A company is not governed by a shareholders’ agreement. Unless an understanding in a shareholders’ agreement is incorporated in the Articles, it does not bind the company (Tung Ah Leek and Beh Chun Chuan v Paloh Medical Centre Sdn Bhd & ors [1999] 3 MLJ 262). 70. In relation to the consent of Majlis and the authority of Dato’ Abdul Mutalib or Dato’ Wan Ahmad Tajuddin, the arbitrator failed to appreciate that the Enactment governed only Majlis and not Far East or KAOP. The mistake was not to understand where the responsibilities of a director lie in company law. Upon appointment, a director’s fiduciary duties and loyalties are owed to the company (Scottish Co-operative Wholesale Society Ltd. V. Meyer (1959) AC 324 at 341, 363 and Boulting v. A.C.T.A. (1963) 2 QB 606). The arbitrator failed to apply the rule of ostensible authority. The Appellants were entitled to assume that everything 38 was regular when the representatives of Majlis consented to the capital increase. There could be no safety if internal irregularities could be allowed to defeat transactions validly entered into (Pekan Nenas Industries Sdn Bhd v Chang Ching Chuen [1998] 1 MLJ 465). The rule was firmly established in Penang Development Corporation v Teoh Eng Huat (1992) 1 MLJ 749 and First Energy (U) Ltd. v Hungarian International Bank Ltd. (1993) BCLC 1409 that if the relevant officer who participated in the transaction is a high official, it is ostensible authority that matters and not actual authority. In Hubah Sdn Bhd & Ors v Koperasi Pusaka (Penampang) Bhd [2013] 6 CLJ 837, it was held that the rule in Turquand’s case applies to bodies other than corporations. In all these cases, internal irregularity did not vitiate the transaction because of the doctrine of ostensible authority. The arbitrator failed to appreciate the rule in Turquand which was recently applied in Bumiputra Commerce Bank v Augusto Romei (2014) 3 MLJ 672. Far East and KAOP were not concerned with the internal management of Majlis. Far East and KAOP were entitled to assume that all matters of indoor management required to be done were done. The alleged absence of mandate did not affect the decisions consensually made. If Dato Abdul Mutalib chose not to object to the capitalisation of the loans, it was logical for the board to proceed on the basis that there was consensus. Majlis was bound by the consent of Dato Abdul Mutalib and Dato Wan Ahmad Tajuddin. 39 71. It was unreasonable to impose the burden on Far East and KAOP to call Dato Abdul Mutalib and Dato Wan Ahmad Tajuddin. Majlis, who pleaded that the presence of the two Datos at the meeting did not constitute consent, had to prove that defence. Dato Abdul Mutalib and Dato Wan Ahmad Tajuddin were Majlis representatives even before Majlis was a shareholder of KAOP. Majlis should explain why they were not called. It was wrong to invoke the adverse inference against Far East and KOAP. 72. On the option clauses, the arbitrator failed to consider that time ran from the last of the approvals (Sanlaiman). On 19.4.1999, Majlis was allotted its shares. By then, Majlis should know that approval for transfer had been granted. The consent for transfer, given on 5.10.1998, must have been in Majlis’ knowledge, as the consent letter was addressed to the solicitors for Majlis. Time started to run on 19.4.1999. The contention that there should be an offer to exercise the 1st option was erroneous. Clause 2.02(b) and (c) contained the offer itself. “If it were otherwise, it would lead to the absurdity that the making of the offer was left to the discretion of Far East who could delay the increase in stakeholding by Majlis”. The 1st Option was conferred by the agreement itself. The price and option period were specified. There was nothing more to be done by Far East, other than for Majlis to exercise the option and tender the price. 73. The terms of an option must be strictly construed, both as to time and manner for its exercise (United Scientific Holdings 40 Ltd v Burnley Borough Council (1976) AC 904, Tan Chee Hoe v Ram (1983) 2 MLJ 31, Chin Kim & anor v Loh Boon Siew [1970] 1 MLJ 197, McLachlan Troup v Peters & anor [1983] 1 VR 53, Bressen v Squires [1974] 2 NSWLR 460, Lewes Nominees Pty Ltd v Strang (1983) 49 ALR 328). The arbitrator failed to strictly apply the timelines in the option clauses. The arbitrator’s reliance on Berjaya Times Square was erroneous. 74. The arbitrator held that the letter dated 14.10.2002 was an offer by Far East to Majlis to exercise the 1st option and was a waiver of its right to insist on time being of the essence. But that letter was a nullity, for it was issued 2 years after the dateline for exercise of the 1st option had expired. If that letter were an offer, then it was a new offer upon the terms set out therein. A new offer is an offer to create a new contract (Mintye Properties Sdn Bhd v Yayasan Melaka (2006) 4 CLJ 267). The arbitrator failed to appreciate the terms of the letter dated 14.10.2002. That letter dated 14.10.2002, which was not an offer under the option clause, was revoked. 75. The arbitrator failed to consider that clause 2.02(h) required payment for transfer of shares. There must be consideration (Macon Works & Trading Sdn Bhd v Phang Hon Chin & anor [1976] 2 MLJ 177). It is for the option-holder to exercise the option (Laybutt v Amoco Australia Pty Ltd (1974) 132 CLR 57 at 76). To complete a purchase, an option-holder gives notice of intention so to do and tenders the whole purchase price (learned 41 counsel cited Chin Kim at 198 which cited Fry on Specific Performance 6th Edition at 515). In his construction of the 1st option, the arbitrator applied the wrong principles of law that substantially affected the rights of Far East who was not obligated to transfer the option shares to Majlis. 76. At para 27.4 of the award, the arbitrator acknowledged that Far East had, by letter dated 22.10.2003, informed Majlis that the 2nd option could be exercised at any time from 5.10.2003 to 5.10.2006. Time for exercise of the 2nd option ran from 22.10.2003. At para 27.5 of the award, the arbitrator acknowledged that the value of the 2nd option shares had to be determined through negotiations. Even after expiry of the 2nd option, the parties could not agree on the value of the 2nd option shares. However, the arbitrator dismissed the contention that the 2nd option was not exercised within time. Instead, the arbitrator ruled that the right of Majlis to exercise the 2nd option was valid and in subsistence. The arbitrator accepted the valuation of Adam & Co and proceeded to determine the value of the 2nd option shares. But the arbitrator failed to appreciate that the value of the 2nd option shares, pursuant to clause 2.02(e), had to be determined through negotiations. The arbitrator failed to appreciate that when parties failed to agree on the value of the 2nd option shares within the time specified, the 2nd option was void and unenforceable (Sik Hong Photo Sdn Bhd v Ch’ng Beng Choo [2010] 3 MLJ 633). In ruling that Far East delayed exercise of the 2nd 42 option by not appointing a valuer with the consent of Majlis, the arbitrator failed to observe that the burden lay on the option- holder to insist on negotiations to settle the price. The provisions of clause 2.02(e) were ignored. Majlis had the burden to initiate negotiations. Majlis failed to take the requisite steps within the option period. The price was to be decided by the parties through negotiations. The price was not for the arbitrator to decide. The arbitrator should have declared that the 2nd option had lapsed. In Wisma Sime Darby Bhd Wilson Parking (M) Sdn Bhd [1996] 2 MLJ 81, it was held that the phrase “a rent to be agreed” was void for uncertainty, as the agreement did not provide a machinery or formula which the court could utilise to ascertain what was otherwise unascertainable without the agreement of the parties. 77. The wrong formula was used to value the shares. Clause 2.02(e) provided that the price “shall be based on the current value”. Adam & Co relied on the NTA method which was contrary to clause 2.02(e). Net tangible value, which was not stipulated in the agreement, was more favourable to Majlis. A valuation contrary to agreement is not valid (Jones v Sherwood (1992) 2 All ER 170 at 179). 78. The wrong principles of assessment of damages were applied. The sum payable on the options was deducted from the RM97,692,957.00 awarded for the shortfall in dividends. The arbitrator failed to appreciate that dividends are paid from the funds of a company which could not be used to buy its own shares 43 (learned counsel cited section 67 of the Companies Act 1965 and Belmont Finance Corporation v Williams Furniture (No. 2) (1980) 1 All ER 393). The technique by the arbitrator, for to find that the options shares had been paid, was prohibited by law. 79. Majlis claimed the dividends it could have received from 2002 to 2010. By 2002, Majlis had 33% equity. Clause 2.02(k) provided that the final say on dividends lay with Majlis. Therefore, all dividends declared had the consent of Majlis. Yet the arbitrator re-allocated the dividends which had the consent of Majlis. Failure of the arbitrator to refer to clause 2.02(k) was a serious misconstruction of a material clause, as in Intelek Timur. 80. When it was ruled that the capital increase was unlawful and should be cancelled, the arbitrator should have ordered Far East to return the dividends (Re Cleveland Trust Plc Ltd (1991) BCLC 424 and Re Exchange Banking Co (1882) 21 Ch.D. 519). The re-allocation was on the assumption that the options had been exercised. But that assumption was wrong, as it was open to Majlis to take up a part of the option shares. Contrary to company law, the arbitrator ordered the funds of the company (KAOP) to pay for its own shares. Dividends are paid according to the amount paid by the shareholder (learned counsel cited section 56(1)(c) of the Companies Act 1965). As the consideration had not been paid, the order to transfer the option shares was an error that substantially affected Far East. 44 81. Assessment of damages on wrong principles is always a ground to set aside and re-assess an award of damages, if liability is sustained (Davies v Powell Duffryn Collieries (1942) AC 601). Misapplication of law in the assessment of damages had substantially affected the rights of Far East and KAOP. Majlis’ submissions 82. The principle of minimal interference by the court, which is an ingrained aspect of the UNCITRAL Model Law on International Commercial Arbitration, is reflected in section 8. That principle was accepted in Perwira Bintang, Government of the Lao People’s Democratic Republic v Thai-Lao Lignite Co Ltd & anor [2014] 2 AMR 375, Ajwa For Food Industries, Taman Bandar Baru Masai Sdn Bhd v Dindings Corporations Sdn Bhd [2010] 5 CLJ 83, Rmarine Engineering (M) Sdn Bhd v Bank Islam Malaysia Bhd [2012] 7 CLJ 540, and Chain Cycle. The Model law requires recognition of the principles of party autonomy, minimal court intervention and international harmonisation of laws. In the context of the Model law regime, the better view would be against the old “error on the face of the award” rule. That was the position in Exceljade and Perwira Bintang. The non-interventionist approach was captured in Government of India v Cairns Energy. It is settled that an arbitration award is final and can only be challenged in exceptional circumstances (Intelek Timur, Far East Holdings Bhd & anor v Majlis Ugama Islam dan Adat Resam Melayu Pahang [2015] 4 MLJ 766). A wrong inference of fact is not sufficient to set aside an 45 award. Courts do not exercise appellate jurisdiction over arbitration awards (Pembinaan LCL Sdn Bhd v SK Styrofoam (M) Sdn Bhd [2007] 4 MLJ 113). The jurisdiction to set aside or remit an arbitrator’s award is one that should be exercised with care (Hartela Contractors Ltd v Hartecon JV Sdn Bhd [1999] 2 MLJ 481). Lack of appraisal of the law is not a legitimate ground to set aside or remit an award. There must be a serious failure to analyse and appraise material and relevant evidence which affected the award (Sami Mousawi Utama Sdn Bhd v Kerajaan Negeri Sarawak [2004] 2 CLJ 186, Sharikat Pemborong Pertanian & Perumahan). The arbitral tribunal should be the master of the facts and procedure (Majlis Amanah Rakyat v Kausar Corporation). A court can intervene when the award is tainted with illegality (Government of India v Cairns Energy). Findings of fact by an arbitral tribunal, which are not illogical, unconscionable or perverse, have not been interfered with. 83. Section 42 calls for further judicial comment. As to what amounts to a question of law, Tune Insurance Malaysia had it (i) that the question must be identified with sufficient precision (Taman Bandar Baru Masai Sdn Bhd v Dindings Corporations Sdn Bhd [2010] 5 CLJ 83), (ii) that the question must arise from the award (Majlis Amanah Rakyat v Kausar Corporation), (iii) that the party referring the question must satisfy the court that a determination of the question will substantially affect his rights, (v) that the question of law must be a legitimate question of law and 46 not a question of fact dressed up as a question of law (Georges SA v Trammo Gas Ltd (The Belarus) [1993] 1 Lloyd’s Reports 2015), (vi) that a reference must be dismissed if a determination of the question of law will not have a substantial effect on the right of the parties (Exceljade), (vii) that jurisdiction should be exercised only in clear and exceptional circumstances, or where the decision is perverse (Lembaga Kemajuan Ikan), (viii) that intervention by the court must be only if the award is manifestly unlawful and unconscionable, and (ix) that the arbitral tribunal remains the sole arbiter of fact and evidence (Gold and Resource Developments (NZ) Ltd v Doug Hood Ltd [2000] 3 NZLR 318). 84. Exceljade decided that the test for setting aside awards under section 24 of AA 1952 is no longer applicable to section 42 which is completely different. Exceljade lay down the correct approach. Perwira Bintang held that the approach in Exceljade should be preferred. The old jurisprudence on ‘error of law on the face of the award’ had been rejected. 85. The rule in Turquand was not raised in the arbitral proceedings, because Far East and KAOP took the stand that the allotment was in accordance with the memorandum and articles. Hubah was not relevant to the instant case. In Penang Development v Teoh Eng Huat & anor [1992] 1 MLJ 749, the rule in Turquand was invoked because of the conduct and action taken by the corporation. In the instant case, there was not an iota of evidence that Majlis consented to the allotment. It was 47 unchallenged evidence (of witness CW1) that the allotment was never discussed at any of the meetings of Majlis. It was the finding of the arbitrator that Majlis had no knowledge of the allotment until much later. There were no facts to apply the rule in Turquand. 86. Majlis, being a creature of statute, must act in accordance with the Enactment (Malaysia Shipyard and Engineering Sdn Bhd v Bank Kerjasama Rakyat Malaysia Bhd [1985] 2 MLJ 359, Chase Manhattan Bank NA v Mercantile Co- operative Thrift & Loan Society Ltd [1992] 2 MLJ 168). 87. The rule in Turquand could also not apply for the following reasons: (i) the actions by Far East and KAOP were not in good faith, (ii) Far East and KAOP were aware of the provisions of the Enactment, (iii) it was the finding of the arbitrator that Far East had all intention to renege on the agreement. 88. The adverse inference was rightly invoked. The issue on the allotment was not resolved by invocation of the adverse inference. Section 2 of the Evidence Act 1950 provides that the strict rules of evidence do not apply to arbitration proceedings. In Russell v Northern Bank Development Corp Ltd, the House of Lords decided that the undertaking of the company was enforceable by the shareholders inter se as a personal agreement. In construing an agreement, a court is not confined to the four corners of the document. The court is entitled to look at the factual matrix 48 (Attorney-General of Bellize & ors v Bellize Telecom Ltd [2009] 2 All ER 1127; Berjaya Times Square, Hotel Anika Sdn Bhd v Majlis Daerah Kluang Utara [2007] 1 MLJ 248). A contract must be interpreted which would avoid absurdity, inconsistency or repugnancy (Malaysian Newsprint Industries Sdn Bhd v Perdama Cigna Insurance Bhd & ors [2008] 2 MLJ 256), and which would make commercial sense (Damansara Realty Bhd v Bangsar Hill Holdings Sdn Bhd & anor [2011] 9 CLJ 257) and business logic (Bon Chong Hing @ Chong Hing & anor v Gama Trading Co (Hong Kong) Ltd [2011] 4 MLJ 52). 89. Limitation was not pleaded by Far East and KAOP. The arbitrator was correct to hold that the challenge to the impugned allotment was not barred by limitation. The rule in Turquand was also applicable to the letter dated 24.12.2002. Far East could not say that the letter dated 24.12.2002 was written without the authority of the board. Whether time was intended to be truly of the essence must be determine by reference to the other provisions of the agreement (Berjaya Times Square at 704) and the conduct and dealings of the parties (Damansara Realty Bhd v Bungsar Hill Holdings at 271). Once time for completion was allowed to pass and parties went on to negotiate, then the conduct amounted to a waiver on time being of the essence (Wong Kup Sing v Jeram Rubber Estates Ltd [1969] 1 MLJ 245 and Berjaya Times Square). It was a synallagmatic contract, where there were mutual obligations and time was therefore not of the essence 49 (United Scientific Holdings Ltd v Burnley Borough Council [1978] AC 904 and Sime Hok Sdn Bhd v Soh Poh Seng [2013] 2 MLJ 149). 90. The 2nd option was not void for uncertainty. It was not raised before the arbitrator that the 2nd option was void. Since the machinery for valuation was provided, the court could substitute other machinery to ascertain the price (Sudbrook Trading Estate Ltd v Eggleton & ors [1983] AC 444 and Pacific Forest Industries Sdn Bhd & anor v Lin Wen Chih & anor [2009] 6 MLJ 293). Submission by the Bar Council 91. In essence, the Bar Council was of the view that court intervention should be at a minimal, that the point of reference would be whether the award or any part of it is obviously wrong, that the question of law to be decided cannot be anything else, that Chain Cycle indicated that the Absalom principle should be retained, that an application under section 42 is not an appeal, that a question of law must be a pure question of law, and that ‘patent injustice’, ‘manifestly unlawful’, ‘unconscionable’, ‘perverse decision’, and ‘illegality’, are instances or circumstances where the court found the decisions of the arbitrator as being outside the ‘range of correct answers’ to warrant the setting aside or variation of the award, but are not applicable tests under section 42. Our decision Historical Background 50 92. Before AA 1952, arbitration in the states of Malaya was governed by the Arbitration Ordinance 1950 which was based on the English Arbitration Act 1889. The UK Arbitration Act 1950, which consolidated and amended arbitration law in England and Wales, was followed in British North Borneo and Sarawak in their respective ordinances of 1952 but was not applied in Malaya until 1972. On 1.11.1972, the Sarawak Ordinance 5 of 1952, which was a carbon copy of the UK Arbitration 1950, was revised as AA 1952 and extended to West Malaysia. The UK Arbitration Act 1979, which amended the UK Arbitration Act 1950, was not followed. AA 2005 93. In 1985, the Model Law on International Commercial Arbitration (Model Law) was passed by the United Nations Commission on International Trade Law (UNCITRAL). AA 2005 “was based on the ... Model Law ... The Arbitration Act 2005 (Act 646) repealed and replaced the Arbitration Act 1952 (Act 93) and the Convention on the Recognition and Enforcement of Foreign Arbitral Awards Act 1985 (Act 320) ...” (Albilt Resources Sdn Bhd v Casaria Construction Sdn Bhd [2010] 3 MLJ 656 per Low Hop Bing JCA, delivering the judgment of the court; see also Malaysian Newsprint Industries Sdn Bhd v Bechtel International, Inc & Anor [2008] 5 MLJ 254). But more than just repealed and replaced, AA 2005 reformed the law relating to domestic arbitration and provided for international arbitration, the recognition and 51 enforcement of awards and for related matters. Wholesale changes were brought about. 94. Before AA 2005, in relation to the setting aside of an award, section 24 of AA 1952 provided: “(1) Where an arbitrator or umpire has misconducted himself or the proceedings, the High Court may remove him. (2) Where an arbitrator or umpire has misconducted himself or the proceedings, or an arbitration or award has been improperly procured, the High Court may set the award aside. (3) Where an application is made to set aside an award, the High Court may order that any money made payable by the award shall be brought into court or otherwise secured pending the determination of the application.” 95. Under AA 1952, the ground to set aside an award was provided in the aforesaid section 24(2). But the law came to accept that the common law ground of error on the face of the award/record was also available. In Shanmugan Paramsothy v Thiagarajah Pooinpatarsam & ors [2001] 6 MLJ 305, KC Vohrah J, as he then was, imparted the following historical development: “Nowhere in the Act has the remedy of 'error of law on the face of the award' been provided. In 1971, in Sharikat Pemborong Pertanian & Perumahan v Federal Land Development Authority [1971] 2 MLJ 210, an arbitration matter came up before the High Court and obviously, although the legislation under which the 52 matter was brought up before the court was not mentioned in the judgment, the legislation under which the court took cognizance of the matter was the Arbitration Ordinance 1950 (now repealed). Under that Ordinance, there was also no provision made in regard to the remedy of error of law on the face of the record. Nevertheless, Raja Azlan Shah J (as he then was) had this to say at p 211: ‘It is essential to keep the distinction between a case where a dispute is referred to an arbitrator in the decision of which a question of law becomes material from the case in which a specific question of law has been referred to him. The wealth of authorities make a clear distinction between these two classes of cases and they decide that in the former case the court can interfere if and when any error appears on the face of the award but in the latter case no such interference is possible upon the ground that the decision upon the question of law is an erroneous one. Instances of the former are afforded by Absalom Ltd v Great Western (London) Garden Village Society Ltd [1933] AC 592, British Westinghouse Electric & Manufacturing Co Ltd v Underground Railways Co of London Ltd [1912] AC 673, Hodgkinson v Fernie 3 CB (NS) 189; 140 ER 712, and Attorney General for Manitoba v Kelly and Ors [1922] 1 AC 268 at p 281 (PC), Government of Kelantan v Duff Development Co Ltd [1923] AC 395 at p 411 and Re King & Duveen [1913] 2 KB 32 are instances of the latter. In the present case, I have on consideration come to the conclusion that no question of law was referred. What was submitted to the arbitrator was a question of law which incidentally, and indeed necessarily, arose in applying ascertained facts. The reference involved both composite questions of law 53 and fact. The court can therefore review the award if and when there is error apparent on the face of the award.’ It is implicit that his Lordship was of the view that the remedy of error of law may be resorted to notwithstanding an absence of a provision for that remedy in the Arbitration Ordinance 1950. It has to be borne in mind that the relevant English cases before the coming into force of the English Arbitration Act 1979 ('the 1979 Act') were decided on the basis of common law although there was existing legislation and there was no provision therein for this common law remedy. The 1979 Act abolished this remedy (more about this later). The Supreme Court in 1972, in Pacific & Orient Insurance Co Sdn Bhd v Woon Shee Min [1980] 1 MLJ 291 considered an arbitration matter where obviously the Act was considered. The Federal Court was fully aware that the Act does not provide for the remedy of error of law on the face of the award but the court, nevertheless, considered the case on the basis that the remedy is available under our law. The court did not allow the appeal against the judgment of the High Court, Johore Bahru dismissing an application by the appellant company to set aside the award of the arbitrator. This is what Wan Sulaiman FJ stated: ‘After hearing evidence from both sides the arbitrator Mr Chelliah Paramjothy, a senior lawyer, gave his award on 20 July 1976. Upon the basis that the respondent has a right to be indemnified by the appellant company for the damage to motor vehicle his award was that the appellants should pay to the respondent the sum of RM8,000 'on a total loss basis' for the motor vehicle. Section 24(2) of the Arbitration Act reads 54 'where an arbitrator … has misconducted himself or the proceedings, or an arbitration or award has been improperly procured, the High Court may set the award aside'. This subsection is almost identical in wording with the English s 23(2). However, it appears from Mr Ball's opening words that it is not on this ground that the appellants depended to have the award set aside but on the inherent power of the court to set aside an award which is bad on the face of it, as involving an apparent error in fact or in law. (See Russell on Arbitration (18th Ed) p 349). At p 357 of the same volume appears this passage: An award which, on its face, fails to comply with the requirements of a valid award, will be remitted or set aside. By a somewhat anomalous extension of this rule, notwithstanding that an arbitrator's decision is in general final, if an error either of fact or law is allowed to happen on the face of the award, this is a ground for setting it aside …' Over the years, the courts in Malaysia have regularly considered arbitration applications on the basis that the remedy of error on the face of the award is available for consideration under our law. In Ganda Edible Oils Sdn Bhd v Transgrain BV [1988] 1 MLJ 428, the Supreme Court referred to Sharikat Pemborong Pertanian & Perumahan and accepted that the remedy of error of law on the face of the award is available to be considered. In a more recent case, Hartela Contractors Ltd v Hartecon JV Sdn Bhd & Anor [1999] 2 MLJ 481 at p 488, the Court of Appeal recognized that the jurisdiction of the ordinary courts in the environment of private arbitration stems from statute and common law.” 55 96. Thus, under AA 1952, “there are two grounds for the court’s intervention namely, under the common law where there is an error of law on the face of an award and for misconduct by an arbitrator under s 24(2) of the Act” (Federal Flour Mills Bhd v FIMA Palmbulk Service Sdn Bhd [2005] 6 MLJ 525, per Arifin Zakaria FCJ, as he then was, delivering the judgment of the court). That jurisdiction to set aside an award on the ground of ‘error of law on the face of the award’ “exists at common law independently of statute” (Halsbury's Laws of England (4th Ed) Volume 2 para 623). 97. “The general rule at common law is that, absent a contrary intention in the agreement to arbitrate entered into between the parties to a controversy, the award of an arbitrator is final, binding and conclusive. It may not be challenged merely on the ground that it is erroneous … So jealously did the common law guard against curial interference with private arbitrations that it was most reluctant to create exceptions to the general rule ... the common law as a very limited exception grudgingly allowed a court to intervene and set aside an award on the face of which there appeared an error of law” (Hartela at 488 per Gopal Sri Ram JCA, as he then was, delivering the judgment of the court) AA 2005 and ‘error of law on the face of the award’ 98. But under AA 2005, the grounds for setting aside an award could not be more different. 2 provisions provide for the 56 setting aside of domestic awards. Section 37(1) of AA 2005 provides: “(1) An award may be set aside by the High Court only if- (a) the party making the application provides proof that- (i) a party to the arbitration agreement was under any incapacity; (ii) the arbitration agreement is not valid under the law to which the parties have subjected it, or, failing any indication thereon, under the laws of Malaysia; (iii) the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present that party's case; (iv) the award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration; (v) subject to subsection (3), the award contains decisions on matters beyond the scope of the submission to arbitration; or (vi) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of this Act from which the parties cannot derogate, or, failing such agreement, was not in accordance with this Act; or 57 (b) the High Court finds that- (i) the subject-matter of the dispute is not capable of settlement by arbitration under the laws of Malaysia; or (ii) the award is in conflict with the public policy of Malaysia.” 99. Section 42(1) – (4) of AA 2005 (Part III of AA 2005 applies to all domestic arbitration unless the parties agree otherwise in writing) provide: “(1) Any party may refer to the High Court any question of law arising out of an award. (1A) The High Court shall dismiss a reference made under subsection (1) unless the question of law substantially affects the rights of one or more of the parties. (2) A reference shall be filed within forty-two days of the publication and receipt of the award, and shall identify the question of law to be determined and state the grounds on which the reference is sought. (3) The High Court may order the arbitral tribunal to state the reasons for its award where the award- (a) does not contain the arbitral tribunal's reasons; or (b) does not set out the arbitral tribunal's reasons in sufficient detail. (4) The High Court may, on the determination of a reference- 58 (a) confirm the award; (b) vary the award; (c) remit the award in whole or in part, together with the High Court's determination on the question of law to the arbitral tribunal for reconsideration; or (d) set aside the award, in whole or in part.” AA 2005 and the law developed under AA 1952 100. Given the radical change, The Arbitration Act 2005 by Sundra Rajoo and WSW Davidson at page 5 thus matter-of-factly commented that the substantial body of case law developed under AA 1952 is no longer relevant: “In the past, because of the close identity between the English Act of 1950 and the 1952 Act, the Malaysian courts have tended to rely upon English case law for guidance, although over the years there has developed a substantial body of local case law. A good deal of this body of case law is now no longer relevant. We should stress however that the English 1996 Act, although not following the Model Law format, does follow many of the broad principles which are embodied in the Model Law and many decisions of the English courts under the 1996 remain relevant and persuasive for the interpretation of the Act. Before relying on any such decisions, a necessary step should always be to compare the wording of the section in which the decision was based and assess the relevance in the light of the similarities and differences. The same applies to authorities from other Commonwealth jurisdictions.” 59 101. In support of its view that the substantial body of case law developed under AA 1952 is no longer relevant, The Arbitration Act 2005 supra at page 5 cited Sundram Finance Ltd v NEPC India Ltd [1999] 1 LRI 69, where faced with a similar radical change of statutory regime the India Supreme Court commented that the provisions of the Indian Arbitration Act 1996 have to be interpreted and construed independently, quite without reference to the Indian Arbitration Act 1940: “ ... the 1996 Act [equivalent of the Act] is very different from the Arbitration Act 1940 [equivalent of the 1952 Act]. The provisions of this Act have, therefore, to be interpreted and construed independently and in fact reference to 1940 may actually lead to misconstruction. In other words, the provisions of the 1996 Act have to be interpreted being uninfluenced by the principles underlying the 1940 Act. In order to get help in construing these provisions, it is more relevant to refer to the UNCITRAL Model Law rather than the 1940 Act.” 102. Local courts took a bit longer to form the view that the test previously applied for the setting aside awards no longer applied. In Majlis Amanah Rakyat v Kausar Corporation, Mohamad Ariff J, as he then was, held that the jurisdiction under section 42 is in line with the jurisprudence on error of law on the face of the record: “In my view, the emphasis on the words ‘arising out of an award’ is a pertinent one. A question of law must arise out of an award, and not out of the arbitration. As such, the jurisdiction conferred on the court should be a 60 limited one, more in line with the jurisprudence on error of law on the face of the award.” 103. In Maimunah bt Deraman, Mohamad Ariff J repeated “that the principles applicable to error of law on the face of the award should continue to apply in the context of Section 42”. 104. In Lembaga Kemajuan Ikan, Mary Lim J, as she then was, agreed with Mohamad Ariff J and said that the jurisdiction under section 42 “ought to be applied only in clear and exceptional cases. The principles envisaged are akin to error on the face of the award”. 105. But a very different view was expressed in Exceljade, where Nallini J, as she then was, held that the test for the setting aside awards under AA 1952 could not be extended to AA 2005: “Under the previous s 24 of the repealed Arbitration Act 1952, the test for setting aside awards under the section was whether an error of law on the face of the record arose … That section being repealed, it would follow that the test previously applied in respect of the repealed s 24 ought not logically be extended or utilised in respect of the new s 42 … A comparison of the two sections, namely s 24 of the repealed Arbitration Act 1952 and the present s 42 are quite evidently different and distinct. Section 42 allows ‘any question of law arising out of an award’ to be brought by ‘any party’ by way of a reference to the High Court. Given the clearly wider ambit of this section, as compared to the prior s 24 of the repealed Arbitration Act, it is evident that the question that a court needs to 61 ask itself is whether the question framed before it is indeed a question of law.” 106. Mohamad Ariff, by then JCA, in Perwira Bintang conceded that the view in Exceljade on section 42 should be preferred and that the jurisprudence on ‘error of law on the face of the award’ should be rejected. “Since this case was decided, Parliament has inserted sub-s (1A) to s 42, such that as a matter of statutory interpretation, the court is now cautioned against setting aside or varying an award unless the error of law substantially affects the rights of parties … … The statutory wording mandates the court to dismiss (‘shall dismiss’) the reference on the question of law unless the question of law affects in a substantial way the rights of the party or parties … With the amendment, and reading the provision in its overall context, the views expressed in Exceljade, should perhaps now be preferred. However, on the special facts of a particular appeal, the previous jurisprudence and the new law may just overlap. This is the position taken by the appellant. Counsel for the appellant submits: ‘It is submitted that regardless of whether the test for section 42 of the AA 2005 is error of law arising out of an award or question of law arising out of the award, the Malaysian authorities recognizes that the arbitrator is the master of facts.’ Nevertheless, the Exceljade approach will align our law with that of other jurisdictions where the old 62 jurisprudence on ‘error of law on the face of the award’ has been rejected.” 107. Exceljade was also endorsed in Chain Cycle, where Varghese George JCA, delivering the judgment of the court, held that what amounts to a question of law under section 42 was settled by Exceljade, and in Tune Insurance Malaysia, where Hasnah Hashim J, as she then was, cited with approval the statement of law in Exceljade that the test for setting aside awards under AA 1952 could not be extended to AA 2005. 108. The Federal Court also accepted that AA 2005 must be interpreted and construed independently. In Press Metal Sarawak Sdn Bhd v Etiqa Takaful Bhd [2016] 5 MLJ 417, it was held by Ramly Ali FCJ, delivering the judgment of the court, that section 10(1) of AA 2005 is not tied to section 6 of AA 1952: “Prior to the 2005 Act, the applicable law was the Arbitration Act 1952 (‘the 1952 Act’). The issue of stay of proceedings in the 1952 Act was dealt with under s 6 thereof which reads: ‘If any party to an arbitration agreement or any person claiming through or under him commences any legal proceedings against any other party to the arbitration, or any person claiming through or under him, in respect of any matter agreed to be referred to arbitration, any party to the legal proceedings may, before taking any other steps in the proceedings, apply to the court to stay the proceedings, and the court, if satisfied that there is no sufficient reason why the matter should not be referred in accordance with the arbitration 63 agreement, and that the applicant was at the time when the proceedings were commenced and still remains ready and willing to do all things necessary to the proper conduct of the arbitration, may make an order staying the proceedings.’ The clear effect of the present s 10(1) of the 2005 Act is to render a stay mandatory if the court finds that all the relevant requirements have been fulfilled; while under s 6 of the repealed 1952 Act, the court had a discretion whether to order a stay or otherwise. 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 performed. The court is no longer required to delve into the details of the dispute or difference (see TNB Fuel Services Sdn Bhd). In fact the question as to whether there is a dispute in existence or not is no longer a requirement to be considered in granting a stay under s 10(1). It is an issue to be decided by the arbitral tribunal.” 109. That the provisions of AA 1952 are not applicable under AA 2005 was also impliedly said in TNB Fuel Services Sdn Bhd v China National Coal Group Corp [2013] 4 MLJ 857, where Anantham Kasinather JCA, delivering the judgment of the court, said: “With respect, the learned High Court judge, in our judgment, considered the merits of the respondent's application for the injunction on the basis of the Arbitration Act 1952 and not the Arbitration Act 2005, which ought to have been the case. 64 … the learned trial judge erred in not considering the application for the injunction on the basis of sub-s 9(5) of the Arbitration Act 2005 ... if the learned trial judge had applied s 9(5) of the Act to these facts, we are of the considered opinion that Her Ladyship would have come to the conclusion that the 'arbitration agreement' was binding on the parties.” 110. With respect, we could not agree with the statement in Exceljade that “under the previous s 24 of the repealed Arbitration Act 1952, the test for setting aside awards under the section was whether an error of law on the face of the record arose”. ‘Error of law on the face of the award’ was the common law ground to set aside an award (see Halsbury’s Law of England 4th Edition, Volume 2 at paras 621 & 623). “Where an arbitrator or umpire has misconducted himself or the proceedings” was the statutory ground to set aside an award. Those two grounds, one under common law the other under AA 1952, as different as chalk and cheese, could not be equated as the one and the same. But we share the view that with the radical change to the statutory regime, that section 24 of AA 1952 and the law developed thereunder are not relevant under section 42. It would only follow that all decisions made under section 42 but yet applied the law developed under section 24 of AA 1952 and the decisions that followed them were wrongly decided on law and should not be followed. AA 2005 and ‘error of law on the face of the award” 65 111. Section 8 provides that “No court shall intervene in matters governed by this Act, except where so provided in this Act”. That was read to mean “minimal intervention consistent with the policy underlying the UNCITRAL Model Law” (Perwira Bintang). In MMC Engineering Group Bhd & Anor v Wayss & Freytag (M) Sdn Bhd [2015] 10 MLJ 689, Mary Lim J, as she then was, held that “there is still room left for the continued application of the error of law on the face of the award test”: “In any case, there is still room left for the continued application of the error of law on the face of the award test. The test has its roots under common law. The preponderance of the test led to deliberate legislative intervention in other jurisdictions while that is not the case here. I do not find any express statutory provision excluding that test quite unlike the position in the United Kingdom. For example, in the UK 1979 Arbitration Act, s 1 deals with ‘judicial review of arbitration awards’, and sub-s 1(1) expressly states: ‘1(1) In the Arbitration Act 1950 (in this Act referred to as ‘the principal Act’) section 21 (statement of case for a decision of the High Court) shall cease to have effect and, without prejudice to the right of appeal conferred by subsection (2) below, the High Court shall not have jurisdiction to set aside or remit an award on an arbitration agreement on the ground of errors of fact or law on the face of the award.’ This statutory policy is maintained in the UK 1996 Arbitration Act in sub-s 81(2) which reads as follow: ‘Nothing in this Act shall be construed as reviving any jurisdiction of the Court to set aside or remit an 66 award on the ground of errors of fact or law on the face of the award.’ There are no comparable provisions in our Act 646 that either mirrors or comes close to the clear express language of sub-s 1(1) in the 1979 Act or sub-s 81(2) in the 1996 Act. I do not believe there is any room for making any necessary inference either. Although this court may be prepared to bring this area of law alongside the mainstream approaches under model law, I am reminded that the courts are only interpreters and not legislators of the law. Even in the case of the United Kingdom, the court’s practice and approach changed because of legislative intervention.” 112. In the United Kingdom, ‘error of fact or law’ is no longer a ground to set aside an award (see Halsbury’s Laws of England 4th Edition (Reissue) Vol 2 at para 692 footnote 3). Until rendered ineffective by section 1(1) of the UK Arbitration Act 1979, section 21(1) of the UK Arbitration Act 1950 provided that “An arbitrator or umpire may, and shall if so directed by the High Court, state - (a) any question of law arising in the course of the reference; or (b) an award or any part of an award, in the form of a special case for the decision of the High Court”. Section 1(1) of the UK 1979 Arbitration Act provided that “the High Court shall not have jurisdiction to set aside or remit an award on an arbitration agreement on the ground of errors of fact or law on the face of the award”. When the UK Arbitration Act 1950 was repealed, section 81(2) of the UK Arbitration 1996 affirmed that “Nothing in this Act shall be construed as reviving any jurisdiction of the Court to set aside or remit an award on the ground of errors of fact or law on 67 the face of the award”. There is an equipollent provision in Singapore, Australia, and Canada. 113. Section 81(2) of the UK Arbitration Act 1996 ousted the jurisdiction of the court “to set aside or remit an award on the ground of errors of fact or law on the face of the award”. In the United Kingdom, “appeal to the court on a question of law arising out of an award made in the proceedings” (section 69(1) of the UK Arbitration Act 1996) could not be allowed on the ground of errors of fact or law on the face of the award. 114. AA 2005 is devoid of a provision in the words of section 81(2) of the UK Arbitration Act 1996. But AA 2005 is nonetheless clear that “No court shall intervene in matters governed by this Act, except where so provided in this Act”. Pertinent to “where so provided in this Act”, AA 2005 provides for court intervention in the matters stated in sections 10, 11, 13(7), 15(3), 18(8), 29, 37, 41, 42, 44(1), 44(4), 45, and 46 of AA 2005. “Where a party seeks intervention is one of those situations, the court is permitted to intervene only in the manner prescribed by the model law, and in the absence of any express provision the court must not intervene at all. By contrast, where the situation is not of a type to which the model law is addressed, the court may intervene or decline to intervene in accordance with the provisions of the relevant domestic arbitration law” (A Guide to the UNCITRAL Model Law on International Commercial Arbitration: Legislative History and Commentary by Howard M. Holtzmann & Joseph E. Neuhaus, 68 published 1994 at 224). Accordingly, section 8 “would … not exclude court intervention in any matter not regulated by [AA 2005]” (The Arbitration Act 2005 supra at 8.17); matters which are not governed by the Model Law include the following areas: the inherent jurisdiction in the court to grant an injunction to stay arbitral proceedings; and the whole topic of confidentiality of arbitral proceedings (for a non-exhaustive list of matters not governed by the Model Law, see A Guide to the UNCITRAL Model Law on International Commercial Arbitration supra at 218). 115. But “ … in situations expressly regulated by the Act, the courts should only intervene where so provided in the Act … ” (L W Infrastructure Pte Ltd v Lim Chin San Contractors Pte [2012] SGCA 57 per Sundaresh Menon JA, as he then was, delivering the judgment of the court). Since the setting aside of an award is a matter governed by AA 2005, the court is permitted to set aside an award only in manner prescribed by AA 2005. The court is not permitted to set aside an award in manner not prescribed by AA 2005. ‘Error of fact or law on the face of the award’ is not prescribed as a ground for court intervention. Hence, under AA 2005, there is no jurisdiction to set aside an award on the ground of ‘error of fact or law on the face of the award’. It is accepted that under AA 1952, the jurisdiction for court intervention stemmed from both common law and statute. But under AA 2005, “the common law ground of setting aside an award for ‘error on 69 the face of the award’ no longer exists” [The Arbitration Act supra at 8.23(b)]. General Reference and specific reference 116. With the common law jurisdiction of setting aside an award for ‘error on the face of the award’ gone, the distinction between a general reference and a specific reference, though pertinent under AA 1952 (see The Government of India v Cairn Energy at [29] and [33]), is not relevant. Test under section 42 117. Under section 42(1), any party may refer to the High Court “any question of law arising out of an award”. And under section 42(1A), “The High Court shall dismiss a reference made under subsection (1) unless the question of law substantially affects the rights of one or more of the parties”. The question of law must not only arise out of the award, but must substantially affect the rights of one or more of the parties. Short of one and the reference shall be dismissed. 118. An award might or might not be perverse, unconscionable, unreasonable, and the like. But it only matters whether there is a question of law arising out of the award that substantially affects the rights of one or more of the parties. Under section 42, that is the only ground for the court to intervene. Perverse, unconscionable, unreasonable, and the like 70 are not tests for the setting aside of an award. The so-called guidelines (g) “This jurisdiction under s. 42 is not to be lightly exercised, and should be exercised only in clear and exceptional cases”; (h) “Nevertheless, the court should intervene if the award is manifestly unlawful and unconscionable”; and (j) “While the findings of facts and the application of legal principles by the arbitral tribunal may be wrong (in instances of findings of mixed fact and law), the court should not intervene unless the decision is perverse”, stated in Perwira Bintang are not in line with section 42 and should not be followed. ‘Question of law’ 119. There is no local authority on what is a ‘question of law’ in the context of section 42. Foreign authorities are at hand. But before we delve into those foreign authorities, we should first underscore that in Singapore, United Kingdom, Australia, New Zealand, and Canada, an appeal on a question of law arising out of an award could not be brought except with the agreement of the parties to the proceedings, or with leave of the court. 120. In the United Kingdom, an appeal on a question of law arising out of an award made in the proceedings “shall not be brought except (a) with the agreement of all the other parties to the proceedings, or (b) with the leave of the court” (section 69(2) of the UK Arbitration Act 1996). The right to appeal is also subject to the restrictions in section 70(2) and (3) of the UK Arbitration Act 71 1996. Even when it was under the UK Arbitration Act 1950 as amended by the UK Arbitration Act 1979, an appeal on a question of law arising out of an award made on an arbitration agreement could only be brought “(a) with the consent of all the other parties to the reference, or (b) ... with the leave of the court” (section 1(3) of the UK Arbitration Act 1979). 121. The position in Singapore, Australia, New Zealand and Canada is no different. A party may appeal to the court on a question of law arising out of an award only with the agreement of the parties to the proceedings or with leave of the court (see section 49(1) and (3) of the Singapore Arbitration Act 2001; section 34A(1) of the uniform Commercial Arbitration Acts of New South Wales, Queensland, South Australia, Tasmania, Victoria, West Australia, Australian Capital Territory; clause 5(1) of Schedule 2 of the New Zealand Arbitration Act 1996; section 31(1) of the Canada Commercial Arbitration Act 1996). 122. In all those jurisdictions, an appeal, unless filed with the agreement of the parties, is preceded by an application for leave to appeal. Different considerations apply at the leave stage and at the appeal. That was drawn attention to in Vinava Shipping Co Ltd v Finelvet AG “The Chrysalis” [1983] 2 All ER 658 at 662, where Mustill J thus imparted: “In the first place, it must be kept in mind that quite different considerations apply to the question whether, in the exercise of its discretion, the court should grant 72 leave to appeal under s 3 of the 1979 Act from those which are material when the court comes to hear the appeal itself. The first stage is a filtering process, at which the court gives effect to the policy embodied in the 1979 Act and enunciated in The Nema, whereby the interests of finality are placed ahead of the desire to ensure that the arbitrator's decision is strictly in accordance with the law. Some examination of the merits takes place at this stage ... But the examination of the law is summary in nature, and does not lead to any definite conclusion. The exercise is discretionary throughout ... ” 123. But under section 42, “any party may refer to the High Court any question of law arising out of an award”. Leave of the court is not a prerequisite. Given that leave is not required, a section 42 reference on ‘any question of law arising out of an award’ is akin to an appeal on ‘a question of law arising out of an award’ in the United Kingdom, Singapore, Australia, New Zealand or Canada. The label of the application to court might be different. But both ‘reference’ and ‘appeal’ pertain to “question of law arising out of the award”. In truth, a section 42 reference is indistinguishable from an ‘appeal on a question of law arising out of an award’ under the UK Arbitration Acts of 1979 and 1996, the Singapore Arbitration Act 2001, the Australian uniform Commercial Arbitration Acts, the New Zealand Arbitration Act 1996, or the Canadian Commercial Arbitration Act 1996. Given the similarity in substance between the two, appeals in those jurisdictions, as opposed to applications for leave, are clearly persuasive on the 73 interpretation of ‘question of law’ and ‘arising out of an award’ in section 42. 124. The Chrysalis was an appeal under the UK Arbitration Act 1950 as amended by the UK Arbitration Act 1979. And in The Chrysalis at 662 – 663, Mustill J thus expounded on ‘question of law’: “The position when the appeal itself is heard is quite different. Here there is no discretion. The only issue is whether it can be shown that the decision of the arbitrator was wrong in law. The court must answer this question yes or no, and, if the answer is yes, the appeal must be allowed however finely balanced the issue may be. It is not only unhelpful but positively misleading to introduce at this stage the questions of degree raised by the Nema guidelines, such as whether the award is clearly or obviously wrong, for these are material only to the discretionary process of finding out whether the award should be allowed to come before the court for challenge.” (Boldness added) 125. Mustill J then set out a three stage test to determine whether the award was wrong in law: “Starting therefore with the proposition that the court is concerned to decide, on the hearing of the appeal, whether the award can be shown to be wrong in law, how is this question to be tackled? In a case such as the present, the answer is to be found by dividing the arbitrator's process of reasoning into three stages. (1) The arbitrator ascertains the facts. This process includes the making of findings on any facts which are in dispute. (2) The arbitrator ascertains the law. This process comprises not only the identification of all material rules of statute and common law, but also the identification 74 and interpretation of the relevant parts of the contract, and the identification of those facts which must be taken into account when the decision is reached. (3) In the light of the facts and the law so ascertained, the arbitrator reaches his decision.” 126. Mustill J explained that only stage (2) is the proper matter of an appeal under the 1979 Act: “In some cases, the third stage will be purely mechanical. Once the law is correctly ascertained, the decision follows inevitably from the application of it to the facts found. In other instances, however, the third stage involves an element of judgment on the part of the arbitrator. There is no uniquely 'right' answer to be derived from marrying the facts and the law, merely a choice of answers, none of which can be described as wrong. The second stage of the process is the proper subject matter of an appeal under the 1979 Act. In some cases an error of law can be demonstrated by studying the way in which the arbitrator has stated the law in his reasons. It is, however, also possible to infer an error of law in those cases where a correct application of the law to the facts found would lead inevitably to one answer, whereas the arbitrator has arrived at another; and this can be so even if the arbitrator has stated the law in his reasons in a manner which appears to be correct: for the court is then driven to assume that he did not properly understand the principles which he had stated.” 127. Russell on Arbitration 24th Edition at 8-137 agreed that “An appeal on a point of law is possible only in relation to matters falling within (2)”. 75 128. The Chrysalis was applied in appeals under the UK Arbitration Act 1996 [see Covington Marine Corp and others v Xiamen Shipbuilding Industry Co Ltd [2005] EWHC 2912 (Comm), Kershaw Mechanical Services Ltd v Kendrick Construction Ltd [2006] All ER (D) 21 (Mar), Wuhan Ocean Economic & Technical Cooperation Co Ltd and another v Schiffahrts-Gesellschaft “Hansa Murcia” MBH & Co KG [2012] EWHC 3104 (Comm), Geden Operations Ltd v Dry Bulk Handy Holdings Inc M/V “Bulk Uruguay” [2014] EWHC 885 (Comm)]. 129. The Chrysalis was also applied in the following appeals under the UK Arbitration Act 1996, where ‘question of law’ was further expounded. 130. In Micoperi SrL v Shipowners' Mutual Protection & Indemnity Association (Luxembourg) [2011] EWHC 2686 (Comm), Burton J said that “ ... in order for there to be a successful appeal against an Arbitration Award, there must be an error of law, and not an error of fact, however egregious”. 131. In MRI Trading AG v Erdenet Mining Corporation LLC [2012] EWHC 1988 (Comm) (affirmed in [2013] EWCA Civ 156), Eder J agreed with Moriarty QC who submitted that when approaching the question of whether an arbitration award reveals an error of law which calls for the award to be set aside, varied or remitted, there are four principles which a court needs to keep carefully in mind: 76 “a. First, as a matter of general approach, the courts strive to uphold awards. This means that, when looking at an award, it has to be read in a reasonable and commercial way, rather than with a view to picking holes, or finding inconsistencies or faults, in a tribunal's reasoning: see, for example, General Feeds Imc. Panama v Slobodna Plovidba Yugoslavia [1999] 1 Lloyd's Rep 688, at 695; Kershaw Mechanical Services Ltd v Kendrick Construction Ltd [2006] 4 All ER 79, at 57. This is particularly so when the tribunal comprises market men, since one is not entitled to expect from trade arbitrators the accuracy of wording, or cogency of expression, which is required of a judge: General Feeds Imc Panama v Slobodna Plovidba Yugoslavia [1999] 1 Lloyd's Rep 688, at 695. b. Secondly, where a tribunal's experience assists it in determining a question of law, such as the interpretation of contractual documents, the court will accord some deference to the tribunal's decision on that question. It will reverse the decision only if satisfied that, despite the benefit of that experience, the tribunal has still come to the wrong answer: Kershaw Mechanical Services Ltd v Kendrick Construction Ltd [2006] 4 All ER 79, at 57. c. Thirdly, it is for the tribunal to make the findings of fact in relation to any dispute and any question of law arising from an Award must be decided on the basis of a full and unqualified acceptance of the findings of fact of the arbitrators: see The 'Baleares' [1993] 1 Lloyd's Rep 215 at 228 which makes clear this is so regardless of whether the court thinks a finding of fact was right or wrong. d. Fourthly, when a tribunal has reached a conclusion of mixed fact and law, the court cannot interfere with that conclusion just because it would not have reached the same conclusion itself. It can interfere only when convinced that no reasonable person, applying the 77 correct legal test, could have reached the conclusion which the tribunal did: or, to put it another way, it has to be shown that the tribunal's conclusion was necessarily inconsistent with the application of the right test: The 'Sylvia' [2010] 2 Lloyd's Rep 81 at 54-55. The same extremely circumscribed power of intervention applies when it is complained that a tribunal has incorrectly applied the law to the facts. It is only if the correct application of the law leads inevitably to one answer, and the tribunal has given another, that the court can interfere. Once a court has concluded that a tribunal which correctly understood the law could have arrived at the same answer as the one reached by the arbitrator, the fact that the individual judge himself would have come to a different conclusion is no ground for disturbing the Award: The Chrysalis [1983] 1 Lloyd's Rep 503 at 507.” 132. In White Rosebay Shipping SA v Hong Kong Chain Glory Shipping Ltd [2013] EWHC 1355 (Comm), where it was argued “that no reasonable tribunal, properly directed as to the law, could have reached the conclusion that the owners had affirmed the charterparty and therefore the tribunal must have erred in law; see The Chrysalis”, Teare J held that “To make good this argument the owners must show that a correct application of the law would inevitably lead to only one answer, namely, that there had been no affirmation”. 133. The Chrysalis was not cited in Lesotho Highlands Development Authority v Impreglio SpA and others [2005] UKHL 43. In Lesotho, Lord Steyn (Lord Hoffmann, Lord Phillips, Lord 78 Scott and Lord Rodger in agreement) said that a mistake in interpreting the contract is the paradigm of a question of law: “This view is reinforced if one takes into account that a mistake in interpreting the contract is the paradigm of a “question of law” which may in the circumstances specified in section 69 be appealed unless the parties have excluded that right by agreement.” 134. Years earlier, in Geogas SA v Tramno Gas Ltd (The “Baleares”) [1993] 1 Lloyd's Rep 215 at 231, Steyn LJ, as he then was, made the following distinction between a question of law in a judicial review and in arbitrations: “what is a question of law in a judicial review case may not necessarily be a question of law in the field of consensual arbitrations.” 135. In an appeal on a question of law arising out of an award, “the only issue is whether it can be shown that the decision of the arbitrator was wrong in law” (The Chrysalis). The following Canadian authorities also approached ‘question of law’ from the angle of the correctness of the award: 136. In Canada (Director of Investigation and Research) v Southam Inc., [1997] 1 S.C.R. 748 at para 35, the Supreme Court of Canada stated that questions of law are questions about what the correct legal test is: “Briefly stated, questions of law are questions about what the correct legal test is; questions of fact are questions about what actually took place between the 79 parties; and questions of mixed law and fact are questions about whether the facts satisfy the legal tests. A simple example will illustrate these concepts. In the law of tort, the question what "negligence" means is a question of law. The question whether the defendant did this or that is a question of fact. And, once it has been decided that the applicable standard is one of negligence, the question whether the defendant satisfied the appropriate standard of care is a question of mixed law and fact.” 137. In Carrier Lumber Ltd. v. Joe Martin & Sons Ltd. [2003] B.C.J. No. 1602, Chamberlist J enunciated that a ‘question of law’ is a question concerning legal effect to be given to an undisputed set of facts: “A ‘question of law’ has been defined as a ‘question concerning legal effect’ to be given an undisputed set of facts. An issue which involves the application or interpretation of a law would fall within this meaning. In Canada v. Southam Inc. (1997), 144 D.L.R. (4th) 1 (S.C.C.), the Court stated at para. 35: ‘Briefly stated, questions of law are questions about what the correct legal test is ... ’ Thus, whether the Arbitrators have jurisdiction to potentially award punitive damages is clearly a pure issue of law. Similarly, a finding by an arbitration board that it would not dismiss a claim for abuse of process is also a question of law because of the nature of the award that would be granted on such a finding being made as such an award would not be compensatory in nature, and would ultimately go to the jurisdiction of the tribunal to make such an award. As I have already 80 indicated, I have concluded that the standard of review by this Court is one of ‘correctness’.” 138. In Premium Brands Operating GP Inc. v. Turner Distribution Systems Ltd. [2010] B.C.J. No. 349, P.J. Pearlman J. said: “The question of whether a decision-maker has jurisdiction to determine a particular matter is usually considered to be a question of law reviewable by a court on a standard or correctness: Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190 at para. 50; Davies v. Canada, 2005 FCA 41, 25 Admin. L.R. (4th) 74 at para. 16. 139. In Southam at [39], the Court said that the application of the wrong law is an error law: “ ... if a decision-maker says that the correct test requires him or her to consider A, B, C, and D, but in fact the decision-maker considers only A, B, and C, then the outcome is as if he or she had applied a law that required consideration of only A, B, and C. If the correct test requires him or her to consider D as well, then the decision-maker has in effect applied the wrong law, and so has made an error of law.” 140. In I-Netlink Inc. v Broadband Communications North Inc. [2017] MBQB 146, Edmond J held that a finding of fact in complete absence of any evidence, constitutes an error of law: “This finding by the arbitrator was based on his review of the evidence given by a number of witnesses. Determining whether a party knew or ought to have known a fact necessarily requires a consideration of the 81 evidence which is a question of fact. The application of a legal principle in the context of the relevant facts is a question of mixed fact and law. In my view, this finding by the arbitrator is a question of fact. A finding of fact in the complete absence of any evidence, constitutes an error of law. (see Domo Gasoline Corp. Ltd. v. 2129752 Manitoba Ltd., 2014 MBQB 87, 305 Man.R. (2d) 177; Society of Specialist Physicians and Surgeons of British Columbia v. The Society of General Practitioners of British Columbia, 2007 BCSC 1385, 161 A.C.W.S. (3d) 812, at paras 19- 21 and 40-41).” 141. In Singapore, since repeal and re-enactment of section 28 of the Arbitration Act 1953, “the court shall not have jurisdiction to set aside or remit an award on an arbitration agreement on the grounds of errors of law of fact or law on the face of the award” (section 28(1) of the Singapore Arbitration Act Revised 1985). “The Arbitration (Amendment) Act 1980 introduced into the law of Singapore the provisions of the English Arbitration Act 1979. This amendment abolished the previous jurisdiction of the High Court to set aside or remit an award on an arbitration agreement for errors of fact or law on the face of the award … ” (Invar Realty Pte Ltd v JDC Corp [1988] 1 SLR 444 per Chao Hick Tin JC, as he then was). 142. Only the common law ground to set aside or remit an award on the ground of ‘errors of fact or law on the face of the award’ was abolished. But courts in Singapore took it a step 82 further - “An error in law or failure to act judicially by itself does not confer a right of appeal”; “When an arbitrator does not apply a principle of law correctly, that failure is a mere ‘error of law’ (but more explicitly, an erroneous application of law) which does not entitle an aggrieved party to appeal”. 143. In Ahong Construction (S) Pte Ltd v United Boulevard Pte Ltd [2000] 1 SLR 749, an application for leave to appeal, GP Selvam JC (as he then was) said at [7]: “Under the present law the court has no jurisdiction to set aside or remit an award on the ground of errors of fact or law on the face of the award. An appeal to the High Court from an arbitration award is possible provided a question of law arises out of the award. A question of law means a point of law in controversy which has to be resolved after opposing views and arguments have been considered. It is matter of substance the determination of which will decide the rights between the parties. The point of law must substantially affect the rights of one or more of the parties to the arbitration. If the point of law is settled and not something novel and it is contended that the arbitrator made an error in the application of the law there lies no appeal against that error for there is no question of law which calls for an opinion of the court. An application for leave to appeal on the ground that the appeal invokes a question of law must therefore clearly present the question of law on which the court's opinion is sought and should also show that it concerns a term of the contract or an event which is not a one-off term or event: see The Nema; Pioneer Shipping v BTP Tioxide [1982] AC 724. 83 An error in law or failure to act judicially by itself does not confer a right of appeal. The contractors accordingly failed to show that a question of law arose out of the rejection of the claim for interest. I therefore refused to give leave to appeal.” 144. In Seino Merchants Singapore Pte Ltd v Porcupine Pte Ltd [2000] 1 SLR 99, GP Selvam J expressed an identical view but in a redacted form without “An error in law or failure to act judicially by itself does not confer a right of appeal”. 145. Ahong Construction was considered in Northern Elevator Manufacturing Sdn Bhd v United Engineers (Singapore) Pte Ltd (No 2) [2004] 2 SLR 494, an appeal against the grant of leave to appeal, where the Court of Appeal per Choo Han Teck J, delivering the judgment of the court, said that “an erroneous application of law does not entitle an aggrieved party to appeal”: “Section 28 of the Act confers upon the High Court a power to grant leave to appeal against an arbitration award if there is a "question of law", arising from the award, to be determined. As a preliminary point, it is essential to delineate between a "question of law" and an "error of law", for the former confers jurisdiction on a court to grant leave to appeal against an arbitration award while the latter, in itself, does not. An opportunity arose for comment in Ahong Construction (S) Pte Ltd v United Boulevard Pte Ltd [2000] 1 SLR 749. In that case, G P Selvam JC (as he then was) stated at [7]: ‘A question of law means a point of law in controversy which has to be resolved after opposing 84 views and arguments have been considered. It is a matter of substance the determination of which will decide the rights between the parties. If the point of law is settled and not something novel and it is contended that the arbitrator made an error in the application of the law there lies no appeal against that error for there is no question of law which calls for an opinion of the court.’ To our mind, a ‘question of law’ must necessarily be a finding of law which the parties dispute, that requires the guidance of the court to resolve. When an arbitrator does not apply a principle of law correctly, that failure is a mere ‘error of law’ (but more explicitly, an erroneous application of law) which does not entitle an aggrieved party to appeal.” 146. Ahong and Northern Elevator were followed in Permarsteelisa Pacific Holdings Lyd v Hyundai Engineering & Construction Co Ltd [2005] 2 SLR 270, Progen Engineering Pte Ltd v Chua Aik Kia [2006] 4 SLR 419, Dynamic Investments Pte Ltd v Lee Chee Kian Silas and ors [2008] 5 SLR 729, Tay Eng Chuan v United Overseas Insurance Ltd [2009] 4 SLR 1043, and Prestige Marine Services Pte Ltd v Marubeni International Petroleum (S) Pte Ltd [2011] SGHC 270. 147. But in Ng Eng Ghee and ors v Mamata Kapildev Dave and ors [2009] 3 SLR 109, the Court of Appeal per VK Rajah JA, delivering the judgment, declined to apply Ahong and Northern Elevator to an appeal on a point of law under section 98(1) of the Building Maintenance and Strata Management Act. 85 148. Locally, in SDA Architects (sued as a firm) v Metro Millenium Sdn Bhd [2014] 2 MLJ 627, where 3 separate opinions were delivered, Mohd Hishamudin JCA said that “a proper and valid question of law … [is determined by a consideration of] the propriety of the question that is proposed in the context of the facts of the case as a whole, including the issues that have to be dealt with by the arbitrator. Aziah Ali JCA, said that “an error of law … may give rise to a question of law that may be referred to the court under s 42 of the Act. I find support from the case of President of India v Jadranska Sobodna Plovidba [1992] 2 Lloyd's Rep 274, QBD which shows that a question of law may be formulated on the basis that an error of law has been occasioned when the arbitrator failed to exercise his discretion judicially in making an award of costs”. Hamid Sultan JCA was however of the view that “the exercise of discretion per se cannot be posed as a question of law”. 149. In Magna Prima Construction Sdn Bhd v Bina BMK Sdn Bhd and another case [2015] 11 MLJ 841, Mary Lim J, as she then was, referred to clause 5(10) of Schedule 2 of the New Zealand Arbitration Act 1996, Ahong and Northern Elevator, and said that “from these cases and legislation, it may therefore be said that a question of law refers to ‘a point of law in controversy’ which requires the opinion or determination of this court. Such question will include one where there is an incorrect interpretation of the applicable law. It, however, will not include any question as to 86 whether the award or any part of the award was supported by any evidence or any sufficient or substantial evidence; or whether the arbitral tribunal drew the correct factual inferences from the relevant primary facts” (Mary Lim J expressed an identical view in MMC Engineering Group Bhd & Anor v Wayss & Freytag (M) Sdn Bhd [2015] 10 MLJ 689). 150. “The question of law must be one of law and not fact” (The Arbitration Act 2005 supra at page 198). “An error of fact alone is insufficient” (Dept of Education v Azmitia [2015] WASCA 246 per Mazza JA). But there is no universal definition of ‘question of law’. Nonetheless, from our survey of the authorities, we would conclude that one of the following, which is not an exhaustive list, would meet the paradigm of ‘any question of law’ in section 42: (a) a question of law in relation to matters falling within (2) of Mustill J’s three-stage test; (b) a question as to whether the decision of the tribunal was wrong (The Chrysalis); (c) a question as to whether there was an error of law, and not an error of fact (Micoperi): error of law in the sense of an erroneous application of law; (d) a question as to whether the correct application of the law inevitably leads to one answer and the tribunal has given another (MRI Trading); (e) a question as to the correctness of the law applied; (f) a question as to the correctness of the tests applied (Canada v Southam); 87 (g) a question concerning the legal effect to be given to an undisputed set of facts (Carrier Lumber); (h) a question as to whether the tribunal has jurisdiction to determine a particular matter (Premiums Brands): this may also come under section 37 of AA 2005; (i) a question of construction of a document (Intelek). 151. Given that AA 2005 does not say so, we could not hold that a ‘question of law’ must be the same one which the arbitral tribunal was asked to determine (for the UK position, see section 69(3)(b)) of the UK Arbitration Act 1996). 152. Section 42 allows any question of law arising from the award. ‘Any question of law’ is wider than ‘a question of law’. Since so, it would seem that section 42 contemplates a less narrow interpretation of ‘question of law’. Unless opted in, section 42 only applies to domestic arbitration. A less narrow interpretation of ‘question of law’ in section 42, as we might have given it, would not widen court intervention in international arbitration. But ‘a point of law in controversy which has to be resolved after opposing views and arguments have been considered’ is not a ‘question of law’ within the meaning of section 42. There would surely be ‘a point of law in controversy’ in every case. If ‘a point of law in controversy’ were a question of law, then there would be a ‘question of law’ arising in every award. And that, with respect, could not be right. 88 Question of fact 153. Where it is a question of fact, “The arbitrators [remain] the masters of the facts. On an appeal the court must decide any questions of law arising from the award on the basis of full and unqualified acceptance of the findings of fact of the arbitrators. It is irrelevant whether the court considers these findings to be right or wrong. It also does not matter how obvious a mistake by the arbitrators on issues of fact might be or what the scale of the financial correspondences of the mistake of fact might be. That is, of course, an unsurprising position. After all, the very reason why parties conclude an arbitration agreement is because they do not wish to litigate in the courts. Parties who submit their disputes to arbitration bind themselves by agreement to honour the arbitrators’ award on the facts. The principle of party autonomy decrees that a court ought never to question the arbitrators’ findings of fact.” (the ‘Baleares’ at 228). “ … on findings of facts an arbitrator is the sole judge. Further, whether he drew the wrong inferences of facts from the evidence itself is not sufficient as a ground to warrant setting aside his award (see GKN Centrax Gears Ltd v Matbro Ltd [1976] 2 Lloyd's Rep 555)” (Future Heritage Sdn Bhd v Intelek Timur Sdn Bhd [2003] 1 MLJ 49 per Richard Malunjum JCA, as he then was). “ … if an arbitrator had erred by drawing wrong inferences of fact from the evidence before him, be it oral or documentary, that in itself is not sufficient to warrant setting aside of his award. It would be contrary to all the 89 established legal principles relating to arbitration if an award based upon the evidence presented were liable to be reopened on the suggestion that some of the evidence had been 'misapprehended and misunderstood' per Raja Azlan Shah J (as he then was) in Syarikat Pemborong Pertanian & Perumahan v Federal Law Development [1971] 2 MLJ 210” (Intelek Timur Sdn Bhd v Future Heritage Sdn Bhd [2004] 1 MLJ 401 per Siti Norma Yaakob FCJ, as she then was, delivering the judgment of the court). 154. “It is essential therefore to understand the basic difference between appeals in the court system from subordinate courts, where issues of ‘weight of evidence’ are routinely addressed, and references under section 42 of the Act, where the court has no jurisdiction to entertain arguments based on weight of evidence ... ‘the parties will not be allowed to circumvent the rule that the tribunal’s findings of fact are conclusive by alleging that they are inconsistent or they constitute a serious irregularity or an excess of jurisdiction, or on the basis that there was insufficient evidence to support the findings in question. The argument that it is a question of law whether there is material to support a finding of fact is no longer available’ (Russell on Arbitration (1997) at 8- 057)” (The Arbitration Act 2005 supra at pages 198 - 199). 155. At any rate, section 42 only permits a reference on a discrete question of law. Under section 42, there is no jurisdiction to deal with questions of fact. As Steyn LJ put it in The 'Baleares, “on an appeal the court must decide any question of law arising 90 from the award based on a full and unqualified acceptance of the findings of fact of the arbitrators”. The question of law must accept the findings of facts. Hence, all argument or debate on the findings of fact of the arbitrator, on the inferences drawn by the arbitrator from his findings of fact and or from the evidence could not and would not be entertained. Is the construction of a document a question of law? 156. It must be more than settled that the construction of a document is a question of law. In Munusamy v Public Services Commission [1964] 1 MLJ 239, where on the construction of an article of the Constitution which forbids the dismissal or reduction in rank of certain persons unless a certain condition is complied with, that is that the person concerned be given a reasonable opportunity of being heard, Thomson LJ said “That question of construction is a question of law ... ”. In Citicorp Investment Bank (Singapore) Ltd v Wee Ah Kee [1997] 2 SLR 759, Yong Pung How CJ said “we must approach the construction of the document, which is a question of law, untrammelled by any concession as to the meaning of the agreement that might have been given by the court below”. “It is trite that a question of construction is a question of law and not fact (see Bahamas International Trust Co Ltd & Anor v Threadgold [1974] 1 WLR 1514 (HL)” (Bintulu Development Authority v Pilecon Engineering Bhd [2007] 2 MLJ 610 per Nik Hashim JCA, as he then was, delivering the judgment of the court). In Bahamas International Trust Co Ltd v Threadgold, 91 Lord Diplock said “that the construction of a written document is a question of law”, which was followed in Tan Suan Heoh v Lim Teck Ming & ors [1987] 2 MLJ 466, NVJ Menon v The Great Eastern Life Assurance Co Ltd [2004] 3 MLJ 38, Silver Concept Sdn Bhd v Brisdale Rasa Development Sdn Bhd [2005] 4 MLJ 101, Padiberas Nasional Bhd v Kontena Nasional Bhd [2010] 3 MLJ 134, and The Government of India v Cairn Energy India Pty Ltd & Anor [2011] 6 MLJ 441 and Tun Dr Mahathir bin Mohamad & Ors v Datuk Seri Mohd Najib bin Tun Hj Abdul Razak [2017] 9 MLJ 1). In Desa Teck Guan Koko Sdn Bhd v Sykt Hap Foh Hing [1994] 2 MLJ 246, Ian Chin J opined that “ ... a question of construction is (generally speaking) a question of law”. In Intelek Timur Sdn Bhd v Future Heritage [2004] 1 MLJ 401, the Federal Court followed Ganda Edible Oils Sdn Bhd v Transgrain BV [1988] 1 MLJ 428, where the Supreme Court adopted the following passage in Halsbury's Laws of England (4th Ed) Vol 2, p 334 para 623, which stated that a question of construction is a question of law: “ … and where the question referred for arbitration is a question of construction, which is, generally speaking, a question of law … ” ‘Arising out of an award’ 157. The scope of the words ‘arising out of an award’ in section 42 was first enunciated in Majlis Amanah Rakyat v Kausar Corporation, citing Universal Petroleum Co v Handels und Transport GmbH [1987] 1 WLR 1178, where Mohamad Ariff J, as 92 he then was, said that “A question of law must arise out of an award and not out of the arbitration” (followed by Rmarine Engineering (M) Sdn Bhd v Bank Islam Malaysia Bhd [2012] 10 MLJ 453, Sanlaiman, and Tune Insurance; see also The Arbitration Act 2005 supra at pages 200 - 201). The 18 ‘questions of law arising out of the award’ 158. Even under AA 2005, the arbitrator is the master of the facts. There could not be any argument or debate on the findings of fact by the arbitrator or on the inferences drawn by the arbitrator from his findings of facts and from the evidence. Far East and KAOP must live with the findings of fact of the arbitrator. But that was not accepted by Far East and KAOP who referred, for example, the following questions of mixed fact and law to the High Court: (1) Whether the Arbitrator was correct in law in failing to conclude that [Majlis’] nominee directors on the Board of [KAOP] could validly bind [Majlis] in the stand they took in failing to object to the new allotment of shares? (2) Whether the Arbitrator was correct in law in holding that the failure of [Far East and KAOP] to plead limitation deprived [Far East and KAOP] of its defense that [Majlis’] objection on the allocation of 22,096,868 additional shares to [Far East] is an afterthought? 159. The finding of the arbitrator that Majlis did not consent to the said allotment was a finding of fact. Far East and KAOP 93 could not refer a question of law that was wholly reliant on a reversal of the fact found by the arbitrator. The finding of the arbitrator that limitation was not pleaded was also a finding of fact. Both questions were rightly rejected by the courts below. Construction of the agreement 160. Of the other 9 questions referred to the High Court, 8 pertained to the construction of the agreement. 161. It was submitted that the agreement must be strictly construed. Yes, the agreement should be strictly construed “ ... as a whole, in order to ascertain the true meaning of its several clauses, and also, so far as practicable, to give effect to every part of it ... [to interpret] each clause ... as to bring them into harmony with the other clauses of the contract” (Lucy Wong Nyuk King (F) & Anor v Hwang Mee Hiong (F) [2016] 3 MLJ 689 per Azahar Mohamed FCJ, delivering the judgment of the court; for the canons of construction of an agreement, see Hotel Anika at [20] to [35]) “ ... in their grammatical and ordinary sense, unless that would lead to some absurdity, or some repugnance or inconsistence with the rest of the instrument, in which case the grammatical and ordinary sense may be modified, so as to avoid that absurdity and inconsistency, but no further (see Grey v Pearson (1857) 6 HL Cas 61 per Lord Wensleydale); the ordinary meaning of a word is its meaning in its plain, ordinary and popular sense, unless the context points out some special and particular 94 sense (see Robertson v French (1803) 4 East 130). In the case of a word with both an ordinary and a specialised meaning, the popular meaning will prevail unless it is proved first that the parties intended to use the word in the specialised sense” (Hotel Anika at [27]). 162. The introduction to the agreement read: “WHEREAS:- 1. The State Government of Pahang Darul Makmur (hereinafter referred to as the “Pahang Government”) had approved a piece of land with the estimated size of 4,481.3 hectares (or 11,073 acres) in Mukim Keratong/Rompin District of Rompin Pahang and specifically marked and shaded in RED in the plan annexed in Schedule I herein (hereinafter referred to as the “said Land”) to Majlis to be developed. The documents for the approval of the alienation of the said Land to Majlis are annexed in Schedule I hereafter. 2. FEH through its fully owned company KAOP intends to develop the said Land pursuant to the terms of this agreement. 3. KAOP is a subsidiary company fully owned by FEH and its share capital on the 31st December 1990 together with its audited accounts report is as follows:- M$ Share Capital 1,800,529 Capital Reserve 14,884,570 Replanting Reserve 53,000 Accumulated Profits _4,367,100 95 21,105,199 ======= Hereafter FEH intends to manage in order for KAOP to produce bonus shares from its capital reserve so that the structure of its share capital is as follows:- M $ Share Capital 16,685,099 Re planting Reserve 53,000 Accumulated Profits _4,367,100 Total 21,105,199 ======== 4. This agreement is subject to completion and registration of the document of title of the said Land in the name of Majlis together and also its conditions stipulated in the said Document of Title and Majlis is responsible to ensure the issuance of the document of title of the said Land from the Authorities within one (1) year from the date of this Agreement and should it be unable to be issued within the said time, Majlis will be given additional time in which the duration of the time will have to be agreed upon by all the three parties herein. 5. All the three parties intend to develop the said Land with the oil palm plantation or other plantations that have commercial values (hereinafter referred to as the “said Project”) according to the terms and conditions provided for in this Agreement. 6. The involvement of the three parties in the said Project in terms of capital, contributions, management and finance and matters arising are as provided herein below.” 96 163. The pertinent clauses of the agreement read: “CONDITIONS AND WARRANTIES Clause 2.01 The Said Land a. All the three parties in the agreement agree and accept that the value of the said Land is Ringgit: TWO THOUSAND FOUR HUNDRED AND THIRTY NINE AND SEVEN CENTS (M$2,439.07) only per acre, and the total price of the said land with an area of 4,481.3 hectares or 11,073 acres is Ringgit: TEN MILLION NINE HUNDRED TWENTY NINE THOUSAND NINE HUNDRED AND EIGHTY THREE (M$10,929,983-00) only and if the area of the said Land according to the Document of Title is more or less of the area designated therefore the total value of the said Land being provided for herein with the additional/deductible rate according to the final area of the said Land. b. KAOP will set up a Developer Company wholly owned by KAOP for the purpose of accepting the transfer of the said Land when document of title is issued and developing it according to this agreement; or c. In the event that Majlis get the State Government of Pahang Darul Makmur, to approve the said Land directly to the Developer Company, and therefore Majlis has the following options:- i. Pay the related authorities all costs and registrations including the costs and land premium as well as all the other taxes being imposed relating to the said Land; or 97 ii. Allow KAOP to pay all costs and registrations including the costs and land premium as well as all the other taxes being imposed on the said Land directly to the authorities involved through the value of the said Land as stated in Clause 2.01(a) above. d. If Majlis chooses to pay according to Clause 2.01(c)(ii) above, therefore the transfer and registration of issuance of new share to Majlis under Clause 2.02(a) in this agreement have to be based on the residual value of the said Land (which is the net total after the subtraction of all the payments under Clause 2.01(c)(ii) above) divided by Ringgit: One and thirty three cents (M$1-33) only per share. Clause 2.02 KOAP Equity a. When the said Land is transferred and registered under the name of the Developer Company or anyone or any receiver named by FEH, KAOP will allot new shares in the value of Ringgit: ONE AND THIRTY THREE CENT (M$1-33) only per share and base on the value of the said Land under clause 2.01(a) above therefore the share units allotted by KAOP for Majlis are 8,218,033 units. M$10,929,983-00 = 8,218,033 units M$1-33 and will be registered and transferred to Majlis as considerations for the said Land and the structure of shareholding within KAOP after the allotment of the new shares is as follows:- Names Total Shares Percentages FEH 16,685,099 67.00 98 Majlis 8,218,033 33.00 Total 24,903,132 100.00 ======= ===== b. When the said Land is transferred to the Developer Company or anyone or any receiver named by FEH as an additional condition FEH hereby agrees and undertakes to offer to Majlis or anyone named a choice (option) to buy the shares of KAOP owned by FEH amounting to 3,984,501 units at the price of M$1-33 per unit that is the total price of M$5,299,386-33. c. The said choice (option) is opened to Majlis or anyone named (hereinafter referred to as the “Option Holder”) and binding on FEH for two (2) years starting and being effective from the date of the receipt of the approvals by the shareholders of FEH through Extraordinary Meeting, Foreign Investment Committee (FIC) relating to this joint venture and the Majlis Mesyuarat Kerajaan Negeri relating to the approval of transfer of the said Land to the Developer Company (whichever the later). To determine the computation of one (1) year herein, it will be calculated as three hundred and sixty five (365) days from the date of the receipt of the approvals as mentioned in this Clause. d. If the said choice (option) is enforced by the Option Holder, the equity of the shareholding in KAOP is as follows:- Names Total Shares Percentages FEH 12,700,598 51% Majlis 8,218,033 33% 99 Names Under Majlis 3,984,501 16% __________ ______ Total 24,903,132 100.00 ======== ===== e. Majlis is hereby given an additional choice (option) to purchase 2,739,344 units of the share which is equivalent to eleven percent (11%) of FEH’s shares with the price to be determined by all parties mentioned herein through negotiations; nevertheless the price to be agreed upon shall be based on the current evaluation of assets owned by KAOP and the Developer Company on the date the additional choice (option) is used. f. The additional choice (option) binds FEH for three (3) years starting and effective from the fifth year after the approvals mentioned in clause 2.02(c) above are obtained. g. When Majlis employs the additional choice (option) mentioned above, Majlis has to immediately release any kinds of assurance that has been given by FEH to any parties related to KAOP and the Developer Company. h. FEH will only transfer and register the shares of KAOP in the name of the Option Holder based on the percentage of shares paid by the Option Holders to FEH. i. All the new shares allotted by FEH in KAOP company are equivalent “pari passu” with the existing shares. j. It is hereby agreed that all appointments by KAOP Board of Directors have to reflect the equity of the shareholding at all times. Any nomination for 100 termination and discontinuation of directors have to be done by written notice and be sent to the KAOP Secretary and all the parties have to make sure that the nomination, termination and discontinuation of any directors are enforced in accordance with the equity of the shareholding of KAOP at all times. k. KAOP Board of Directors from time to time if finds appropriate shall propose dividends declaration to its shareholders. If there are conflicting opinions, then the opinion proposed by the members of the board of directors that representing Majlis has to be accepted and it has to be KAOP Board of Directors’ proposal basis to all the shareholders.” 164. Only ordinary words were used. Thus, “ ... plain and ordinary meaning should be adopted” (Kee Keng Mow v Setapak Garden Estate Ltd [1975] 2 MLJ 102 per Hashim Yeop A Sani J, as he then was). The “plain and ordinary meaning must be given” (The Pacific Bank Bhd (sued as guarantor) v Kerajaan Negeri Sarawak [2014] 6 MLJ 153 per Zainun Ali FCJ, delivering the judgment of the court). 165. And when given its plain and ordinary meaning, the agreement was clear and unambiguous. The individual clauses, which the agreement described as “warranties and conditions”, provided as follows. The value of the said land was agreed at RM10,929,983-00 [clause 2.01(a)]. KAOP would incorporate a wholly owned subsidiary to develop the said land [clause 2.01(b)]. Majlis would pay all cost and premium for the alienation of the said land or allow KAOP to pay the same [clause 2.01(c)]. If KAOP 101 should pay the cost and premium for the alienation of the said land, then the same would be deducted from the value of the said land [clause 2.01(d)]. With transfer of the said land to the subsidiary of KAOP, KAOP would allot 8,218,033 shares to Majlis; the 8,218,033 shares would represent 33% of the equity of KAOP [clause 2.02(a)]. 166. Together, clauses 2.01(a) to 2.02(a) warranted that Majlis would be allotted 33% of the equity of KAOP, in exchange for the said land. But clauses 2.01(a) to 2.02(a) could not be performed by Far East and KAOP, well, even before the said land could be transferred to Madah Perkasa. 167. When the agreement was executed in 1992, Far East held 16,685,099 shares. But in 1998, Far East was allotted 22,096,868 shares that enlarged its holding to 38,781,967 shares. By reason of its payment of the premium and quit rent, Far East secured a further 151,616 shares, while Majlis was allotted less 201,650 shares pursuant to clause 2.01(d). Clause 2.01(a) warranted that KAOP would allot 8,218,033 shares, which would represent 33% equity of KAOP, to Majlis. But 8,218,033 shares would only represent 33% equity of KAOP only if the holding of Far East in KAOP were to remain at 16,685,099 shares. Clause 2.01(a) warranted that “the structure of shareholding ... would be Far East - 16,685,099 and Majlis - 8,218,033”. Clause 2.01(a) further warranted that when the said land was transferred to the subsidiary of KAOP, “the structure of shareholding ... would be Far 102 East - 67%, and Majlis - 33%”. But those warranties on the share structure and the respective holdings could not be honoured, when Far East was allotted those 22,096,868 shares in 1998. For with that 1998 allotment which enlarged the shareholding of Far East to 38,781,967 shares (plus 151,616), the 8,218,033 (less 201,650) shares to be allotted to Majlis would only amount to about 17.5% equity of KAOP. The warranty of 33% equity could not be honoured, well, even before transfer of the said land to Madah Perkasa in 1999. 168. But it was not just the warranty of 33% equity that could not be honoured. All other warranties in clauses 2.02(b), 2.02(d) and 2.02(e) could also not be honoured as a direct consequence of the allotment of 22,096,868 shares to Far East in 1998. 169. Clause 2.01(b) warranted that Far East would “offer to Majlis ... an option to buy the shares of KAOP owned by FEH amounting to 3,984,501 units at the price of M$1-33 per unit that is the total price of M$5,299,386-33”. Clause 2.02(c) warranted that the option to Majlis to purchase 3,984,501 shares from Far East would be “binding on FEH for two (2) years starting and being effective from the date of the receipt of the approvals by the shareholders of FEH through Extraordinary Meeting, Foreign Investment Committee (FIC) relating to this joint venture and the Majlis Mesyuarat Kerajaan Negeri relating to the approval of transfer of the said Land to the Developer Company (whichever the later)”. Clause 2.02(d) further warranted that “if the said choice 103 (option) is enforced by the Option Holder, the equity of the shareholding in KAOP” would be “FEH - 12,700,598 (51%), Majlis - 8,218,033 (33%) and “Names Under Majlis” - 3,984,501 (16%)” out of the issued share capital of 24,903,132 shares. Clause 2.02(d) warranted that after exercise of the 1st option, the issued share capital of KAOP would remain at 24,903,132 shares. 170. Clause 2.02(e) provided that Majlis had “an additional choice (option) to purchase 2,739,344 units of the share which is equivalent to eleven percent (11%) of FEH’s shares with the price to be determined by all parties mentioned herein through negotiations; nevertheless the price to be agreed upon shall be based on the current evaluation of assets owned by KAOP and the Developer Company on the date the additional choice (option) is used”. 171. Together, clauses 2.02(b), 2.02(d) and 2.02(e) warranted that Majlis would be allotted 33% equity of KAOP and could purchase 27% equity of KAOP from Far East. Together, clauses 2.02(b), 2.02(d) and 2.02(e) provided that Majlis would hold 33% of the equity of KAOP and could hold up to 60% equity of KAOP. The agreement warranted that Majlis would be allotted 33% equity of KAOP. But after transfer of the said land to Madah Perkasa in 1999, Majlis was only allotted about 17.5% equity of KAOP. The correct number of shares was allotted to Majlis. But the correct number of shares allotted (8,218,033 less 201,650) gave not the agreed 33% equity to Majlis. Exercise of the options 104 to purchase the stated number of shares would also not acquire for Majlis the stated 16% and 11% equity. 172. It was argued that KAOP had the right to capitalise the loans. But it was conveniently forgotten that KAOP was not at liberty, not after execution of the agreement, to capitalise whatever loans. KAOP and Far East warranted that the issue share capital of KAOP would stay put at 24,903,132 shares. The issued share capital of KAOP would not stay put at 24,903,132 shares if loans were capitalised. It was argued that the agreement did not expressly state that KAOP could not capitalise loans. But any capitalisation of loans would offend the warranty on the issued share capital of KAOP. Capitalisation of loans was implicitly not permitted by the agreement. It was argued that Majlis consented to the capitalisation and allotment in 1998. But the finding of fact of the arbitrator was that there was no such consent from Majlis. Given that that was the finding of fact, we agree with the arbitrator that the 1998 allotment was in blatant breach and in total disregard of clauses 2.02(a), 2.02(b), 2012(d) and 2.02(e). 173. Clearly, exercise of the options to purchase the stated number of shares would not acquire for Majlis the said 16% and 11%. For even before the said land could be transferred to Madah Perkasa and therefore even before Majlis could exercise the options, Far East and KAOP had upended clauses 2.02(b), 2.02(d), and 2.02(e), and rendered those clauses ineffectual to give control to Majlis. It was argued that the options were not exercised within 105 time. But with respect, we fail to see how Majlis could exercise the options in accordance with the agreed terms and time. For once the loans were capitalised in 1998, Majlis could no longer acquire the said 16% and 11% from Far East. Once the loans were capitalised in 1998, Far East could no longer honour sale of 16% and 11% to Majlis. Given that the options could not be honoured, it was most unfair to argue that the options were not exercised within time. In any event, it was futile to argue against the finding of fact of the arbitrator that the options were exercised within time. 174. There was no error of law by the arbitrator in his construction of the agreement. The 1998 allotment contravened clauses 2.02(a), 2.02(d) and 2.02(e). The failure to sell the said 16% and 11% breached clauses 2.02(b), 2.02(c), 2.02(d), and 2.02(e). To enforce the agreement, the arbitrator was correct in law to strike down the 1998 allotment. That answers the first of the ‘questions of law arising out the award’ put to the High Court. Questions put to the High Court 175. As for the rest of the ‘questions of law arising out the award’ put to the High Court, question 2 was not a discrete question of law. Questions 3 and 4 were not questions that could substantially affect the rights of one or more of the parties. As for question 5, we need only to repeat that there was no error of law by the arbitrator in the construction of the agreement. Questions 106 6 – 13 and 15 which sought to challenge the finding of fact that the options were exercised in time could not be entertained. And question 14, besides it being a question of fact, could not substantially affect the rights of one or more of the parties, as the difference between the net asset value and the current asset value, about RM0.17 per share, was relatively insubstantial. Both courts below were right to conclude that the aforesaid ‘questions of law arising out of the award’ did not merit intervention under section 42. The award of damages 176. With cancellation of the 1998 allotment, Far East was put back to the share structure of 16,685,099 (Far East) and 8,218,033 (Majlis). Or rather, Far East was put back to the share structure of 16,685,099 + 151,616 (Far East) and 8,218,033 less 201,650 (Majlis). Cancellation of the 1998 allotment put the total issued shares capital of KAOP back to 24,853,098 shares. 177. Section 56(1)(c) of the Companies Act 1965 (since repealed by the Companies Act 2016) provided that a company may “pay dividends in proportion to the amount paid up on each share where a larger amount is paid up on some shares than on others”. KAOP could only pay dividends in proportion to the amount of its issued share capital. But KAOP would have paid dividends in proportion to the then issued share capital of Far East - 38,933,583 (16,685,099 + 22,096,868 +151,616) and Majlis - 107 8,016,383 (8,218,033 less 201,650). But with cancellation of the 1998 allotment, only the dividends paid in proportion to 24,853,098 shares would have been validly paid. That was not discerned by the arbitrator who only perceived that dividends were not paid to Majlis in accordance with its rightful equity. The arbitrator attempted to put that right. 178. But in his attempt to put things right, the arbitrator failed to appreciate that all dividends were paid from profits of KAOP (see section 365 of the Companies Act 1965). With cancellation of the 1998 allotment, Far East could not retain the dividends paid to 22,096,868 shares (1998 allotment). In Re Cleveland Trust plc, Cleveland Trust plc (Cleveland) had a wholly- owned subsidiary (Gunnergate) which in turn had a wholly-owned subsidiary (McInnes). McInnes, as a result of its sale of property on which realised a substantial capital profit, declared a dividend which was ultimately passed on to Cleveland. As a result of the receipt of the money, Cleveland made a bonus issue of fully paid shares to be capitalised out of its profit and loss account. McInnes was not empowered to use its capital surplus from the sale of assets to declare a dividend. It was claimed that since McInnes had no capacity to so declare a dividend, Gunnergate was liable as a constructive trustee to repay to McInnes the dividend which it had received and Cleveland in turn was liable to account to Gunnergate. On the consequences of an ultra vires dividend 108 payment, Scott J referred to Precision Dippings Ltd v Precision Dippings Marketing Ltd [1985] BCLC 385, where Dillon LJ said: “The payment of the dividend of £60,000 was therefore an ultra vires act by the company, just as if it had been paid out of capital or in any other circumstances in which under any of the other provisions of s 39 and the following sections there were not profits available for dividend. In those circumstances, can Marketing have any defence to the company's claim for repayment of the £60,000 with interest? I would put the position quite shortly. The payment of the £60,000 dividend to Marketing was an ultra vires act on the part of the company. Marketing when it received the money had notice of the facts and was a volunteer in the sense that it did not give valuable consideration for the money. Marketing accordingly held the £60,000 as a constructive trustee for the company: see Rolled Steel Products (Holdings) Ltd v British Steel Corp [1985] 3 All ER 52 at 87–88, 91, [1984] BCLC 466 at 509–510, 514 per Slade and Browne-Wilkinson LJJ.” 179. Scott J held that McInnes lacked capacity to pay a dividend out of capital surpluses arising out of the sale of its assets, and that Gunnergate, to the extent that the dividend was unauthorised, was a constructive trustee to hand back the dividend. 180. The arbitrator should order Far East to return all ultra vires dividends to KAOP. But the arbitrator did not order Far East to return the ultra vires dividends to KAOP. Instead, the arbitrator ordered Far East to pay damages to Majlis. The arbitrator held 109 that Majlis lost total dividends of RM97,692,957.00 as a direct consequence of failure by Far East to transfer the said 16% and 11% to Majlis. The arbitrator ordered Far East to pay RM97,692,957.00 to Majlis as damages. Computation of the ultra dividends 181. All dividends would have been paid in proportion to the then issued share capital of Far East - 38,933,583 shares (16,685,099 + 22,096,868 + 151,616) and Majlis - 8,016,383 shares. Our computation is that Majlis would have received 17.074% of the dividends paid in proportion to the then issued share capital of 46,949,966 shares (38,933,583 + 8,016,383). The arbitrator held that Majlis had 17.1% of the equity (see order 8 of the award) and that Majlis lost dividends of RM97,692,957.00 as a direct consequence of failure by Far East to transfer the said 16% and 11% equity to Majlis. In other words, according to the arbitrator, Majlis would have received additional dividends of RM97,692,957.00, if Majlis had 32.39% (see order 2 of the award) and 27% of the equity. The arbitrator “re-allocated” the total dividends paid in proportion to 46,949,966 shares, on the basis Majlis should have had 59.39% of the equity. Also according to the arbitrator, RM97,692,957.00 was the shortfall between what Majlis would have received in proportion to 59.39% equity and what Majlis actually received in proportion to 17.1% equity. That is the same as to say that Majlis would have received additional dividends of RM97,692,957.00, if Majlis had that additional 110 42.27% (59.39% less 17.1%) of the then issued share capital of 46,949,966 shares. 182. Since RM97,692,957.00 was proportionate to 42.27% of 46,949,966 shares, then RM97,692,957.00 would have been the total dividends paid in proportion to 19,834,952 shares (46,949,966 X 42.27%). One single share would have received a total dividend of RM4.774 (RM97,692,957.00 ÷ 19,834,952). 22,096,868 shares (1998 allotment) would have received a total dividend of RM105,490,448.00 (4.774 X 22,096,868). Far East would have received ultra vires dividends of RM105,490,448.00. The arbitrator should order Far East to give back RM105,490,448.00 to KAOP. But instead, the arbitrator ordered Far East to pay RM77,808,207.80 (RM97,692,957.00 less RM19,884,749.20) to Majlis as damages. By that latter devise, the ultra vires dividends that belonged to KAOP were “re-allocated” to Far East and Majlis. Computation of the intra vires dividends 183. Cancellation of the 1998 allotment and return of the ultra vires dividends should align it to the position where dividends would not have been paid to any of the 22,096,868 shares (1998 allotment). That should resolve all issue that pertained to the 1998 allotment. However, we still need to resolve the division of the legitimate dividends paid to the 24,853,098 shares. The legitimate dividends would have been paid to Far East – 67.61% 111 and Majlis – 32.39% (see order (2) of the award), and not Far East – 40.61% and Majlis – 59.39%. Being entitled to only 40.61% of 24,853,098 shares, Far East should give back all dividends received, beyond its 40.61%, to Majlis. Majlis was entitled to 59.39% but would have been paid only 32.39% of the dividends paid to 24,853,098 shares. Majlis should be paid a further 27% of the dividends paid to 24,853,098 shares. 27% of 24,853,098 shares equates to 6,710,336 shares. One single share would have received a total dividend of RM4.774. 6,710,336 shares would have received RM32,035,144.10 (4.774 X 6,710,336). Far East received that sum. Far East should restore that RM32,035,144.10 to Majlis. Set-off 184. Conversely, Majlis should be ordered to pay the consideration payable on exercise of the options. A set-off would not offend section 67(1) of the Companies Act 1965, as the dividends paid in proportion to those 6,723,845 shares were not ultra vires dividends that should be returned to KAOP, but were dividends that should have been received by Majlis. Our answers to leave questions 185. In our summary of the law, we indicated that our answers to leave questions 1 and 2 in Civil Appeals 02-19-04/2016 and 02-20-04/2016 would be, now are, the following: 112 (a) Both the distinction between a general reference and a specific reference, and the ‘rule’ that there could not be a reference to court over an error of law under a specific reference to the arbitrator, are no longer relevant or applicable under AA 2005. We must however add that leave questions 1 and 2 were not questions of law arising out of the award. ‘General reference’ and ‘specific reference’ were raised by the Court of Appeal below. (b) Under section 42, the only test is whether there is a question of law arising from the award that substantially affects one or more of the parties; ‘illegality’, ‘manifestly unlawful and unconscionable’, ‘perverse’, ‘patent injustice’ are not applicable tests. 186. In relation to the leave questions in Civil Appeal 02-21- 04/2016, we observe that section 21 of AA 1952, which provided that “A sum directed to be paid by an award shall, unless the award otherwise directs, carry interest as from the date of the award at the same rate as a judgment debt”, gave latitude to an arbitrator to award interest. Under AA 1952, an arbitrator was not constrained to award interest only from the date of the award. But under AA 2005, an arbitrator has not that room to manoeuvre. Section 33(6) of AA 2005 provides: (6) Unless otherwise provided in the arbitration agreement, the arbitral tribunal may- (a) award interest on any sum of money ordered to be paid by the award from the date of the award to the date of realisation; and 113 (b) determine the rate of interest.” 187. Unless otherwise provided in the arbitration agreement, an arbitrator could only award post-award interest. AA 2005 does not contemplate the award of pre-award interest, unless so provided in the arbitration agreement. There was no indication that pre-award interest was provided in the arbitration agreement. Pre-award interest could not be awarded. Post-award interest may be granted. But since post-award interest was not pleaded, it would not seem fair that the discretion to award interest should be exercised in favour of post-award interest. Orders 188. For the above reasons, we unanimously dismiss all 3 appeals with costs and upon the following terms. We affirm the cancellation of the 1998 allotment. However, we need to vary the award. We do so on the basis of the available data found by the arbitrator (see Fence Gate Limited v NEL Construction Limited (2001) 82 Con LR 41 at [93]), by the following orders: (a) the award of damages is set aside; (b) Far East to return RM105,490,448.00 to KAOP within one month from the date of this judgment; the loan of RM22,096,868 shall be deemed as part return; (c) Far East to pay RM32,035,144.10 to Majlis; 114 (d) Majlis to pay RM19,884,749.20 to Far East; (e) The sum payable under order (d) to be set-off against the sum payable under order (c); in the result, Far East to pay RM12,150,394.90 to Majlis within one month from date of this order; (f) Far East to transfer 6,723,845 KAOP shares to Majlis, together with delivery of the pertinent share certificates, within one month from the date of this order; in default, the secretary of KAOP is to register Majlis as holder of the said 6,723,845 KAOP shares and issue replacement share certificates. 189. In the course of our discussion of the law, we mentioned local decisions that might be still under appeal. Prudence dictates that we make clear that we only cited those decisions for completeness in our discussion of the law, and not because we agree or disagree with any one of them. Dated this 15th day of November 2017. Tan Sri Jeffrey Tan Hakim Mahkamah Persekutuan Malaysia 115 C O U N S E L 02(f)-19-04/2016(W) & 02(f)-20-04/2016(W) For the Appellants : Cyrus Das (Lam Ko Luen, Lee Lyn-Ni and Nina Lai with him) Solicitors: Tetuan Shook Lin & Bok For the Respondent : Cecil Abraham (B Thangaraj, Syed Nasarudin, Sharifah Nurul Atiqah, R Archana and Syukran Syafiq with him) Solicitors: Tetuan Radzi & Abdullah 02(f)-21-04/2016(W) For the Appellant : Cecil Abraham (B Thangaraj, Syed Nasarudin, Sharifah Nurul Atiqah, R Archana and Syukran Syafiq with him) Solicitors: Tetuan Radzi & Abdullah For the Respondents : Cyrus Das (Lam Ko Luen, Lee Lyn-Ni and Nina Lai with him) Solicitors: Tetuan Shook Lin & Bok

Tika 2.6.0

22-156-2008

PLAINTIF NIK RUSDI BIN NIK SALLEH (Pemilik Tunggal Anura Hane) DEFENDAN SHELL MALAYSIA TRADING SDN BHD

Prosedur Sivil - Taksiran gantirugi - Timbalan Pendaftar telah mengawarkan Plaintif beberapa gantirugi bagi pemecahan kontrak secara salah selepas perbicaraan taksiran diadakan - Defendan merayu terhadap keputusan Hakim Dalam Kamar yang telah menolak permohonan Defendan untuk melanjutkan masa bagi memfailkan Notis Rayuan Kepada Hakim Dalam Kamar - Sama ada permohonan Defendan mempunyai merit - Sama ada Defendan mengemukakan kepada Mahkamah alasan yang munasabah atas kelewatan memfailkan Notis Rayuan - Permohonan Defendan ditolak kerana alasan kelewatan yang disebabkan oleh Bahagian Pendaftaran Mahkamah Tinggi adalah tidak munasabah - Kaedah-Kaedah Mahkamah 2012, Aturan 3 kaedah 5, Aturan 56.

15/11/2017

YA DATO' AHMAD BIN BACHE

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=a06f5e49-e2ba-4167-885c-3bf441fcefef&Inline=true

DALAM MAHKAMAH TINGGI MALAYA DI KOTA BHARU DALAM NEGERI KELANTAN, MALAYSIA GUAMAN SIVIL NO: 22-156-2008 ANTARA NIK RUSDI BIN NIK SALLEH (Pemilik Tunggal Anura Hane) .... PLAINTIF DAN SHELL MALAYSIA TRADING SDN BHD …. DEFENDAN ALASAN PENGHAKIMAN (Interlokutari – Kandungan 169 dan Kandungan 152) A. LATAR BELAKANG [1] Ekoran daripada keputusan mahkamah ini di dalam kes pecah kontrak yang melibatkan pihak-pihak di kandungan (1) di mana sebahagian tuntutan Plaintif dibenarkan dan untuk ditaksirkan oleh Timbalan Pendaftar, Timbalan Pendaftar telah membuat taksiran sewajarnya dan telah memberikan keputusannya pada 7/3/2017. [2] Tidak berpuas hati dengan keputusan tersebut, Defendan telah memfailkan satu Notis Rayuan kepada Hakim Dalam Kamar di kandungan (152). [Plaintif juga ada memfailkan satu Notis Rayuan kepada Hakim Dalam Kamar di kandungan (150) tetapi di atas persetujuan pihak-pihak di kandungan (181) pendengaran kandungan (150) ini ditangguhkan]. [3] Namun demikian, oleh kerana Notis Rayuan yang hendak dimasukkan Defendan di kandungan (152) tersebut adalah difailkan diluar masa, maka Plaintif telah membuat bantahan awal. Justeru itu Defendan telah memfailkan kandungan (169) untuk perlanjutan masa untuk memfailkan Notis Rayuan (kandungan 152) tersebut. Pada 20hb Ogos 2017, setelah mendengar hujahan kedua-dua pihak, mahkamah ini telah memutuskan untuk menolak kandungan (169) tersebut, sekaligus menyebabkan kandungan (152) terbatal. [4] Tidak berpuas hati dengan keputusan tersebut, Defendan telah memfailkan rayuan ke Mahkamah Rayuan terhadap keputusan tersebut dan kandungan (152) terbatal secara otomatis. [5] Ini merupakan alasan terhadap keputusan mahkamah untuk menolak permohonan Defendan di kandungan (169) tersebut. B. FAKTA KES [6] Plaintif adalah pada sepanjang masa yang material merupakan seorang pemilik tunggal “Anura Hane”, sebuah perniagaan yang memperolehi lesen dan kebenaran daripada Defendan untuk mengendalikan Stesen Minyak Shell, Guchil yang terletak di Lot 2066-2069 Bandar Baru Kuala Krai, Lebuhraya Gua Musang, 18000 Kuala Krai, Kelantan. [7] Defendan adalah pada sepanjang masa merupakan sebuah syarikat yang mengendalikan jualan dan melesenkan stesen minyak Shell di stesen-stesen minyak Shell seluruh Malaysia. [8] Akibat daripada pecah kontrak secara salah, Plaintif telah membawa tindakan terhadap Defendan dan mahkamah ini (melalui Y.A Dato’ Ahmad Zaidi) setelah perbicaraan penuh, telah pada 25/4/2011 memutuskan untuk mengawardkan beberapa gantirugi am, untuk ditaksirkan oleh Timbalan Pendaftar. [9] Setelah mengadakan perbicaraan taksiran, Timbalan Pendaftar pada 7/3/2017 telah mengawardkan Plaintif beberapa gantirugi bagi pemecahan kontrak secara salah tersebut. [10] Defendan yang tidak berpuas hati dengan keputusan tersebut telah memasukkan Notis Rayuan bertarikh 20hb Mac 2017 kepada Hakim Dalam Kamar (kandungan 152) tetapi mengikut rekod mahkamah, ianya difailkan pada 27hb Mac 2017, iaitu di luar tempoh masa yang dibenarkan. [Plaintif juga memfailkan rayuan mereka di kandungan (150)]. [11] Melalui kandungan (169), Defendan telah membuat permohonan untuk melanjutkan masa bagi memfailkan Notis Rayuan berkenaan i.e. (kandungan 152). [12] Setelah mendengar hujahan kedua-dua pihak, pada 20/8/2017 mahkamah (Hakim Dalam Kamar) telah memutuskan untuk menolak permohonan Defendan di (kandungan 169) ini. Maka inilah rayuan pihak Defendan terhadap kandungan (169) dan (152). C. HUJAHAN PIHAK-PIHAK [13] Pihak Defendan antara lain menghujahkan bahawa mereka telah memfailkan rayuan di dalam tempoh yang ditetapkan iaitu sebelum tamatnya tempoh pemfailan Notis Rayuan pada 21/3/2017. [14] Menurut Defendan, pihak mereka telah menghantar Notis Rayuan (kandungan 152) yang bertarikh 20/3/2017 melalui kurier ke Mahkamah Tinggi Kota Bharu melalui surat iringan yang mengepilkan 5 salinan Notis Rayuan bertarikh 21/3/2017 dan 1 keping cek CIMB 179163 bertarikh 20/3/2017 berjumlah RM40.00 sebagai fee pemfailan tersebut. [15] Menurut Defendan lagi, Mahkamah Tinggi Kota Bharu hanya memproseskan pemfailan dan/atau mengendorsekan tarikh Notis Rayuan tersebut pada 27/3/2017. [16] Pihak Defendan hanya mengetahui wujudnya bantahan apabila semasa pengurusan kes pada 3/7/2017, di mana Peguamcara Plaintif, Tetuan Shaharuddin Hidayu & Marwaliz (“Tetuan SHM”) telah membangkitkan isu kelewatan pemfailan Notis Rayuan tersebut di dalam Hujahan bertulis Plaintif. [17] Pihak Plaintif pula menghujahkan bahawa permohonan Defendan adalah tidak teratur dan cacat kerana Defendan sepatutnya memohon kebenaran Mahkamah menfailkan Notis Rayuan Kepada Hakim Dalam Kamar (NRKHDK) di luar tempoh masa tetapi permohonan Defendan (kandungan 169) ini hanyalah untuk diberikan lanjutan masa untuk memfailkan suatu Rayuan terhadap keputusan Timbalan Pendaftar (TP) Mahkamah Tinggi. [18] Pihak Defendan sepatutnya mengambil serius berhubung tempoh masa menfailkan NRKHDK yang mana mestilah DIFAILKAN dalam masa 14 hari dari tarikh keputusan Timbalan Pendaftar pada 07/03/2017 iaitu tamat pada 21/03/2017. [19] Menurut Plaintif lagi, Defendan sepatutnya membuat tindakan susulan dengan pihak Mahkamah pada 21/03/2017 sama ada cek yang dibekalkan tersebut telah ditunaikan, bukannya hantar ke Mahkamah cek tersebut tanpa membuat tindakan susulan. [20] Defendan juga mengetahui bahawa bagi maksud penunaian cek, ianya akan mengambil masa yang lama dan sepatutnya Defendan kemukakan cek pembayaran seminggu lebih awal sebelum tamat tempoh penfailan NRKHDK. [21] Plaintif pula berhujah bahawa walaupun tidak ada bantahan sekalipun daripada pihak Plaintif, NRKHDK yang difailkan oleh Defendan pada 27/3/2017 tetap di luar tempoh masa, dan ianya tidak sah dan tidak teratur, cacat dan adalah sewajarnya ditolak mahkamah. D. PENGANALISAAN DAN DAPATAN MAHKAMAH [22] Mahkamah telah meneliti kertas-kertas kausa dan telah juga meneliti hujahan kedua-dua pihak. Mahkamah berpendapat bahawa permohonan Defendan tidak bermerit di atas alasan-alasan di bawah ini. [23] Sebelum itu, mahkamah telah meneliti permohonan Defendan dan mahkamah mendapati ianya adalah teratur i.e. permohonan ialah untuk mendapatkan kebenaran untuk memfailkan rayuan terhadap keputusan Timbalan Pendaftar di luar masa. [24] Mahkamah ini merujuk kepada Aturan 3 kaedah 5 di bawah Kaedah-kaedah Mahkamah 2012 yang mana ia memperuntukkan mengenai perlanjutan tempoh “extension of time”: 5. Extension of time (O. 3 r. 5) (1) The Court may, on such terms as it thinks just, by order extend or abridge the period within which a person is required or authorized by these Rules or by any judgment, order or direction, to do any act in any proceedings. (2) The Court may extend any such period as referred to in paragraph (1) although the application for extension is not made until after the expiration of that period. (3) The period within which a person is required by these Rules, or by any order or direction, to serve, file or amend any pleading or other document may be extended by consent in writing without an order of the Court being made for that purpose. Discretion of the court will depend on the circumstances of each cases in granting extension of time. [25] Mahkamah Persekutuan di dalam kes Mohamed Suboh v. Devadas [1980] 1 LNS 201; [1981] 1 MLJ 136 telah merujuk kepada keputusan yang diberikan oleh Thomson CJ di dalam Veerasingham v. PP [1957] 1 LNS 93; [1958] MLJ 76: Clearly, to exercise his discretion properly the judge must apply his mind to all the relevant material. He must consider the circumstances of the original trial. He must consider the original Petition of Appeal. And he must consider the circumstances which are now urged upon him to induce him to allow any departure from or addition to that original Petition of Appeal. He must consider his own powers as to such matters as the granting of adjournment and the requiring of Notice to be given. And then he must exercise his discretion as he sees fit in order that substantial justice may be done in the matter. It may be that he may find it helpful to look at what has been done in some other case by some other judge but if he does he must be careful to look at what that other judge has done merely as an illustration and not as laying down any judicial precedent. [26] Undang-undang adalah mantap bahawa apa-apa rayuan daripada Timbalan Pendaftar perlu difailkan dalam tempoh 14 hari dari tarikh keputusan pendengaran dibuat. Aturan 56 Kaedah-Kaedah Mahkamah 2012 menyatakan seperti berikut: “ORDER 56 APPEALS FROM REGISTRAR OF THE HIGH COURT TO A JUDGE IN CHAMBERS Appeals from certain decisions of Registrar of the High Court to a Judge in Chambers (0. 56, r. 1) 1. (1) An appeal shall lie to a Judge in Chambers from any judgment, order or decision of the Registrar of the High Court. (2) The appeal shall be brought by serving on every other party to the proceedings in which the judgment, order or decision was given or made a notice in Form 114 to attend before the Judge on a day specified in the notice. (3) Unless the Court otherwise orders, the notice shall be filed within fourteen days after the judgment, order or decision appealed against was given or made, and shall be served not less than five days before the date fixed for the hearing of the appeal.” [27] Mahkamah ini berpendapat sekiranya perkataan “shall” digunakan di dalam sebarang peruntukkan undang-undang maka ianya membawa maksud mandatory. Oleh yang demikian, Notis Rayuan tersebut hendaklah difailkan dalam tempoh 14 hari selepas perintah dikeluarkan oleh Timbalan Pendaftar. Mahkamah ini merujuk kes Chong Su Kong & 6 Ors v. Sia Hong Tee & 4 Ors [2014] 10 CLJ 245; [2013] 1 LNS 1357 yang mana Mahkamah menekankan bahawa: "O. 56 r. 1(3) is no doubt a mandatory provision when it uses the word "shall be filed within fourteen days...". [28] Ini bermakna jika tidak ada bantahan sekalipun sesuatu Notis Rayuan adalah tetap tidak sah dan tidak teratur jika ianya difailkan di luar tempoh masa 14 hari tersebut. [29] Dari penelitian mahkamah, mahkamah mendapati bahawa pihak Defendan telah menyerahkan NRKHDK tersebut pada 20/3/2017 melalui kurier. NRKHDK tersebut diterima oleh Bahagian Pendaftaran Mahkamah Tinggi pada 21/3/2017. NRHDK juga terus diproses oleh Bahagian Pendaftaran namun disebabkan bayaran dibuat adalah melalui cek dan bukannya tunai telah menyebabkan terdapat kelewatan mengenai bayaran tersebut. Atas kelewatan tersebut, NRHDK tersebut hanya boleh difailkan di Mahkamah ini pada 27/3/2017 selepas cek tersebut ditunaikan. Mahkamah ini berpendapat bahawa pihak Peguam sedia maklum mengenai proses bayaran melalui cek. Pihak Peguam sepatutnya menghantar NRHDK kepada Mahkamah ini sejurus selepas Perintah dikeluarkan oleh Timbalan Pendaftar untuk mengelak sebarang kelewatan. Namun, peguam perlu sedia maklum bahawa serahan bukan bermaksud pemfailan. Mahkamah bersetuju dengan hujahan Peguam Plaintif bahawa Peguam Defendan perlu bertindak secara proaktif contohnya perlu membuat susulan terhadap permohonan tersebut dengan mengikuti perkembangan samada serahan tersebut telah diterima. Selain daripada itu, pihak Defendan perlu memastikan cek yang dikirimkan telah pun berjaya ditunaikan segera. Pihak Defendan perlu mengetahui bahawa penunaian cek akan mengambil masa begitu lama. [30] Mahkamah juga mengambil kira bahawa kelewatan yang wujud ialah selama 6 hari dan kelewatan memfailkan permohonan untuk memfailkan Rayuan (kandungan 152) telah mengambil masa 131 hari. [31] Mahkamah juga telah mengambil maklum dengan autoriti yang dirujuk oleh Defendan di mana di dalam kes Development & Commercial Bank Bhd v Tang Ong Hwa & Anor [1992] 2 MLJ 764, dalam menimbangkan sama ada permohonan untuk lanjutan masa untuk memfailkan Notis Rayuan harus dibenarkan, Mahkamah Tinggi yang bijaksana menyatakan bahawa: “The aforesaid cases only relate to isolated situations, but what are the main guiding principles for this court to consider whether to grant or refuse an application of this nature? In this respect, I find the principles enunciated in the case of Pearson v Chen Chien Wen Edwin, a Court of Appeal decision of Singapore adopting the views of Chan Sek Keong I in Hau Khee Wee & Anor v Chu() Klan Tong & Anor 6, to be sound for adoption in deciding these type of cases. The factors are as follows: (a) the length of the delay; (b) the reasons for the delay; (c) the chances of the appeal succeeding if time for appealing is extended; and (d) the degree of prejudice to the respondent if the application is granted.” [32] Setelah meneliti Affidavit Sokongan Defendan dan hujahan Peguam Defendan, mahkamah tidak berpuas hati dengan alasan yang diberikan mengenai kelewatan ini samada untuk memfailkan rayuan (kandungan 152) dan permohonan ini (kandungan 169). [33] Defendan gagal mengemukakan kepada Mahkamah ini alasan yang munasabah atas kelewatan memfailkan NRHDK. Mahkamah ini berpendapat bahawa alasan kelewatan yang disebabkan oleh Bahagian Pendaftaran Mahkamah Tinggi adalah tidak munasabah. [34] Merujuk kepada kes Khor Cheng Wah v. Sungai Way Leasing Sdn Bhd [1997] 1 CLJ 396: "(1) It is a cardinal principle of law, that when a litigant seeks the intervention of the Court in a matter that affects his right, he must do so timeously". [35] Pada Pandangan Mahkamah ini, NRHDK tersebut boleh dihantar lebih awal dan sebagai Peguam kepada Defendan, beliau hendaklah bertanggungjawab dengan menasihati anak guam untuk memfailkan NRHDK dengan lebih awal dan bukannya “last minute”. [36] Hashim Yeop A Sani J di dalam Ong Guan Teck & Ors v. Hijjas Kasturi [1982] CLJ 31; [1982] CLJ (Rep) 616; [1982] 1 MLJ 105 memutuskan bahawa: “In practice, an application to extend time is generally allowed provided no injustice is caused and the other party can be compensated by costs. However, there must always be before the court cogent material to satisfactorily explain the delay before the court will exercise its discretion to extend time: Thamboo Ratnam v. Thamboo Cumarasamy & Anor [1965] 1 WLR 8. Thus, when an applicant failed to advance any reason as to why the writ was not served during the period of its validity, the court would not readily exercise its discretion in favour of extending time to renew the writ: Lloyd Triestino Societa v. Chocolate Products (M) Sdn Bhd [1976] 2 MLJ 27, FC. From the authorities both foreign and local, two distinct principles can be garnered. The first principle is the time honoured principle that the rules of court and the associated rules of practice, devised by the Rules Committee and developed by the courts over the years to promote the expeditious despatch of litigation, must be rigidly observed. The prescribed time limits are not targets to be aimed at or expressions of pious hope but rather requirements set which should be met rigidly by the parties thereto. This time honoured principle is reflected in a series of rules giving the court a discretion to dismiss on failure to comply with a time limit. Thus, O. 19 r. 1 of the RHC (default in service of statement of claim), O. 24 r. 16(1) of the RHC (failure to comply with requirement for discovery etc), O. 25 r. 1(4) of the RHC (failure of plaintiff to take out summons for directions, then the defendant may apply to dismiss the action), O. 28 r 10(1) of the RHC (failure to prosecute proceedings with despatch), and O. 34 r. 2(2) of the RHC (failure of the plaintiff to set down action for trial, the defendant may set down the action for trial or may apply to the court to dismiss the action for want of prosecution) are some examples set by the Rules Committee. This principle is also reflected in the court's inherent jurisdiction to dismiss for want of prosecution. The second principle is that a plaintiff should not in the ordinary way be denied an adjudication of his claim on its merits because of procedural default, unless the default causes prejudice to his opponent for which an award of costs cannot compensate. This principle is clearly reflected in the general discretion to extend time conferred by O. 3 r. 5(1) of the RHC as reproduced earlier on, and this discretion is to be exercised in accordance with the requirements of justice in the particular case. Broadly stated this principle is also reflected in the liberal approach generally adopted in relation to the amendment of pleadings.” [37] Peguam Defendan perlu ambil maklum bahawa tindakan tuntutan ini dibuat Plaintif pada tahun 2008 lagi iaitu pada 30hb Oktober 2008 dan setelah menunggu begitu lama akhirnya Plaintif telah berjaya walaupun ianya melibatkan sebahagian sahaja dari tuntutannya. Kini beliau ingin menikmati “the fruits of his litigation”. [38] Malangnya, niat Plaintif masih lagi tidak kesampaian. Justeru mahkamah ini berpendapat, jika permohonan Defendan ini dibenarkan ianya amat memprejudiskan Plaintif lagi yang telah menanggung kerugian sekian lama. Tambah-tambah lagi dengan permohonan Defendan ini, pendengaran rayuan Plaintif di kandungan (150) terpaksa ditangguhkan sehingga rayuan kandungan (169) ini di Mahkamah Rayuan dimuktamadkan. Ini sekali lagi telah memprejudiskan Plaintif. [39] Mahkamah juga berhati-hati supaya tidak menyentuh mengenai merit rayuan terhadap keputusan Timbalan Pendaftar tersebut. Namun demikian, mahkamah telah melihat hujahan pihak-pihak dan Alasan Penghakiman Timbalan Pendaftar. Memadai mahkamah ini di peringkat ini memutuskan bahawa peluang untuk Defendan berjaya di dalam rayuan terhadap keputusan Timbalan Pendaftar tersebut adalah tipis. Diteliti Alasan Penghakiman Timbalan Pendaftar, mahkamah mendapati bahawa keputusan beliau itu telah mengambil kira segala faktor. Malahan keputusan beliau itu kebanyakannya berlandaskan kepada hujahan yang telah diutarakan oleh pihak Defendan yang memihak kepada Defendan yang mengurangkan tuntutan Plaintif, sekaligus menyebabkan Plaintif memfailkan Notis Rayuan di kandungan (150) yang terpaksa ditangguh sehinggalah Mahkamah Rayuan memuktamadkan pendengaran kandungan (169) ini. E. KESIMPULAN [40] Di atas alasan-alasan yang diberikan di atas, permohonan interlokutari ini di kandungan (169) ditolak dengan kos sebanyak RM500.00 sahaja. Dengan keputusan ini kandungan (152) secara otomatisnya terbatal. Tarikh: 15 November 2017 (DATO’ AHMAD BIN BACHE) Pesuruhjaya Kehakiman Mahkamah Tinggi Malaya Kota Bharu Peguam Plaintif: Tn. Haji Marwaliz bin Mahmud Tetuan Saharuddin Hidayu & Marwaliz, No. 5578- Lot 347, Tingkat Satu, Wisma SHM, Seksyen 23, Taman Desa Telipot, 15150 Kota Bharu, Kelantan. Peguam Defendan: En. B. Balakumar & En. Koh Pei Siah Tetuan Azim Tunku Farik & Wong, Unit 5-03, Tingkat 5, Straits Trading Building, No. 2, Lebuh Pasar Besar, 50050 Kuala Lumpur. 15

Tika 2.6.0

22-156-2008

PLAINTIF NIK RUSDI BIN NIK SALLEH (Pemilik Tunggal Anura Hane) DEFENDAN SHELL MALAYSIA TRADING SDN BHD

Prosedur Sivil - Taksiran gantirugi - Timbalan Pendaftar telah mengawarkan Plaintif beberapa gantirugi bagi pemecahan kontrak secara salah selepas perbicaraan taksiran diadakan - Defendan merayu terhadap keputusan Hakim Dalam Kamar yang telah menolak permohonan Defendan untuk melanjutkan masa bagi memfailkan Notis Rayuan Kepada Hakim Dalam Kamar - Sama ada permohonan Defendan mempunyai merit - Sama ada Defendan mengemukakan kepada Mahkamah alasan yang munasabah atas kelewatan memfailkan Notis Rayuan - Permohonan Defendan ditolak kerana alasan kelewatan yang disebabkan oleh Bahagian Pendaftaran Mahkamah Tinggi adalah tidak munasabah - Kaedah-Kaedah Mahkamah 2012, Aturan 3 kaedah 5, Aturan 56.

15/11/2017

YA DATO' AHMAD BIN BACHE

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=a06f5e49-e2ba-4167-885c-3bf441fcefef&Inline=true

DALAM MAHKAMAH TINGGI MALAYA DI KOTA BHARU DALAM NEGERI KELANTAN, MALAYSIA GUAMAN SIVIL NO: 22-156-2008 ANTARA NIK RUSDI BIN NIK SALLEH (Pemilik Tunggal Anura Hane) .... PLAINTIF DAN SHELL MALAYSIA TRADING SDN BHD …. DEFENDAN ALASAN PENGHAKIMAN (Interlokutari – Kandungan 169 dan Kandungan 152) A. LATAR BELAKANG [1] Ekoran daripada keputusan mahkamah ini di dalam kes pecah kontrak yang melibatkan pihak-pihak di kandungan (1) di mana sebahagian tuntutan Plaintif dibenarkan dan untuk ditaksirkan oleh Timbalan Pendaftar, Timbalan Pendaftar telah membuat taksiran sewajarnya dan telah memberikan keputusannya pada 7/3/2017. [2] Tidak berpuas hati dengan keputusan tersebut, Defendan telah memfailkan satu Notis Rayuan kepada Hakim Dalam Kamar di kandungan (152). [Plaintif juga ada memfailkan satu Notis Rayuan kepada Hakim Dalam Kamar di kandungan (150) tetapi di atas persetujuan pihak-pihak di kandungan (181) pendengaran kandungan (150) ini ditangguhkan]. [3] Namun demikian, oleh kerana Notis Rayuan yang hendak dimasukkan Defendan di kandungan (152) tersebut adalah difailkan diluar masa, maka Plaintif telah membuat bantahan awal. Justeru itu Defendan telah memfailkan kandungan (169) untuk perlanjutan masa untuk memfailkan Notis Rayuan (kandungan 152) tersebut. Pada 20hb Ogos 2017, setelah mendengar hujahan kedua-dua pihak, mahkamah ini telah memutuskan untuk menolak kandungan (169) tersebut, sekaligus menyebabkan kandungan (152) terbatal. [4] Tidak berpuas hati dengan keputusan tersebut, Defendan telah memfailkan rayuan ke Mahkamah Rayuan terhadap keputusan tersebut dan kandungan (152) terbatal secara otomatis. [5] Ini merupakan alasan terhadap keputusan mahkamah untuk menolak permohonan Defendan di kandungan (169) tersebut. B. FAKTA KES [6] Plaintif adalah pada sepanjang masa yang material merupakan seorang pemilik tunggal “Anura Hane”, sebuah perniagaan yang memperolehi lesen dan kebenaran daripada Defendan untuk mengendalikan Stesen Minyak Shell, Guchil yang terletak di Lot 2066-2069 Bandar Baru Kuala Krai, Lebuhraya Gua Musang, 18000 Kuala Krai, Kelantan. [7] Defendan adalah pada sepanjang masa merupakan sebuah syarikat yang mengendalikan jualan dan melesenkan stesen minyak Shell di stesen-stesen minyak Shell seluruh Malaysia. [8] Akibat daripada pecah kontrak secara salah, Plaintif telah membawa tindakan terhadap Defendan dan mahkamah ini (melalui Y.A Dato’ Ahmad Zaidi) setelah perbicaraan penuh, telah pada 25/4/2011 memutuskan untuk mengawardkan beberapa gantirugi am, untuk ditaksirkan oleh Timbalan Pendaftar. [9] Setelah mengadakan perbicaraan taksiran, Timbalan Pendaftar pada 7/3/2017 telah mengawardkan Plaintif beberapa gantirugi bagi pemecahan kontrak secara salah tersebut. [10] Defendan yang tidak berpuas hati dengan keputusan tersebut telah memasukkan Notis Rayuan bertarikh 20hb Mac 2017 kepada Hakim Dalam Kamar (kandungan 152) tetapi mengikut rekod mahkamah, ianya difailkan pada 27hb Mac 2017, iaitu di luar tempoh masa yang dibenarkan. [Plaintif juga memfailkan rayuan mereka di kandungan (150)]. [11] Melalui kandungan (169), Defendan telah membuat permohonan untuk melanjutkan masa bagi memfailkan Notis Rayuan berkenaan i.e. (kandungan 152). [12] Setelah mendengar hujahan kedua-dua pihak, pada 20/8/2017 mahkamah (Hakim Dalam Kamar) telah memutuskan untuk menolak permohonan Defendan di (kandungan 169) ini. Maka inilah rayuan pihak Defendan terhadap kandungan (169) dan (152). C. HUJAHAN PIHAK-PIHAK [13] Pihak Defendan antara lain menghujahkan bahawa mereka telah memfailkan rayuan di dalam tempoh yang ditetapkan iaitu sebelum tamatnya tempoh pemfailan Notis Rayuan pada 21/3/2017. [14] Menurut Defendan, pihak mereka telah menghantar Notis Rayuan (kandungan 152) yang bertarikh 20/3/2017 melalui kurier ke Mahkamah Tinggi Kota Bharu melalui surat iringan yang mengepilkan 5 salinan Notis Rayuan bertarikh 21/3/2017 dan 1 keping cek CIMB 179163 bertarikh 20/3/2017 berjumlah RM40.00 sebagai fee pemfailan tersebut. [15] Menurut Defendan lagi, Mahkamah Tinggi Kota Bharu hanya memproseskan pemfailan dan/atau mengendorsekan tarikh Notis Rayuan tersebut pada 27/3/2017. [16] Pihak Defendan hanya mengetahui wujudnya bantahan apabila semasa pengurusan kes pada 3/7/2017, di mana Peguamcara Plaintif, Tetuan Shaharuddin Hidayu & Marwaliz (“Tetuan SHM”) telah membangkitkan isu kelewatan pemfailan Notis Rayuan tersebut di dalam Hujahan bertulis Plaintif. [17] Pihak Plaintif pula menghujahkan bahawa permohonan Defendan adalah tidak teratur dan cacat kerana Defendan sepatutnya memohon kebenaran Mahkamah menfailkan Notis Rayuan Kepada Hakim Dalam Kamar (NRKHDK) di luar tempoh masa tetapi permohonan Defendan (kandungan 169) ini hanyalah untuk diberikan lanjutan masa untuk memfailkan suatu Rayuan terhadap keputusan Timbalan Pendaftar (TP) Mahkamah Tinggi. [18] Pihak Defendan sepatutnya mengambil serius berhubung tempoh masa menfailkan NRKHDK yang mana mestilah DIFAILKAN dalam masa 14 hari dari tarikh keputusan Timbalan Pendaftar pada 07/03/2017 iaitu tamat pada 21/03/2017. [19] Menurut Plaintif lagi, Defendan sepatutnya membuat tindakan susulan dengan pihak Mahkamah pada 21/03/2017 sama ada cek yang dibekalkan tersebut telah ditunaikan, bukannya hantar ke Mahkamah cek tersebut tanpa membuat tindakan susulan. [20] Defendan juga mengetahui bahawa bagi maksud penunaian cek, ianya akan mengambil masa yang lama dan sepatutnya Defendan kemukakan cek pembayaran seminggu lebih awal sebelum tamat tempoh penfailan NRKHDK. [21] Plaintif pula berhujah bahawa walaupun tidak ada bantahan sekalipun daripada pihak Plaintif, NRKHDK yang difailkan oleh Defendan pada 27/3/2017 tetap di luar tempoh masa, dan ianya tidak sah dan tidak teratur, cacat dan adalah sewajarnya ditolak mahkamah. D. PENGANALISAAN DAN DAPATAN MAHKAMAH [22] Mahkamah telah meneliti kertas-kertas kausa dan telah juga meneliti hujahan kedua-dua pihak. Mahkamah berpendapat bahawa permohonan Defendan tidak bermerit di atas alasan-alasan di bawah ini. [23] Sebelum itu, mahkamah telah meneliti permohonan Defendan dan mahkamah mendapati ianya adalah teratur i.e. permohonan ialah untuk mendapatkan kebenaran untuk memfailkan rayuan terhadap keputusan Timbalan Pendaftar di luar masa. [24] Mahkamah ini merujuk kepada Aturan 3 kaedah 5 di bawah Kaedah-kaedah Mahkamah 2012 yang mana ia memperuntukkan mengenai perlanjutan tempoh “extension of time”: 5. Extension of time (O. 3 r. 5) (1) The Court may, on such terms as it thinks just, by order extend or abridge the period within which a person is required or authorized by these Rules or by any judgment, order or direction, to do any act in any proceedings. (2) The Court may extend any such period as referred to in paragraph (1) although the application for extension is not made until after the expiration of that period. (3) The period within which a person is required by these Rules, or by any order or direction, to serve, file or amend any pleading or other document may be extended by consent in writing without an order of the Court being made for that purpose. Discretion of the court will depend on the circumstances of each cases in granting extension of time. [25] Mahkamah Persekutuan di dalam kes Mohamed Suboh v. Devadas [1980] 1 LNS 201; [1981] 1 MLJ 136 telah merujuk kepada keputusan yang diberikan oleh Thomson CJ di dalam Veerasingham v. PP [1957] 1 LNS 93; [1958] MLJ 76: Clearly, to exercise his discretion properly the judge must apply his mind to all the relevant material. He must consider the circumstances of the original trial. He must consider the original Petition of Appeal. And he must consider the circumstances which are now urged upon him to induce him to allow any departure from or addition to that original Petition of Appeal. He must consider his own powers as to such matters as the granting of adjournment and the requiring of Notice to be given. And then he must exercise his discretion as he sees fit in order that substantial justice may be done in the matter. It may be that he may find it helpful to look at what has been done in some other case by some other judge but if he does he must be careful to look at what that other judge has done merely as an illustration and not as laying down any judicial precedent. [26] Undang-undang adalah mantap bahawa apa-apa rayuan daripada Timbalan Pendaftar perlu difailkan dalam tempoh 14 hari dari tarikh keputusan pendengaran dibuat. Aturan 56 Kaedah-Kaedah Mahkamah 2012 menyatakan seperti berikut: “ORDER 56 APPEALS FROM REGISTRAR OF THE HIGH COURT TO A JUDGE IN CHAMBERS Appeals from certain decisions of Registrar of the High Court to a Judge in Chambers (0. 56, r. 1) 1. (1) An appeal shall lie to a Judge in Chambers from any judgment, order or decision of the Registrar of the High Court. (2) The appeal shall be brought by serving on every other party to the proceedings in which the judgment, order or decision was given or made a notice in Form 114 to attend before the Judge on a day specified in the notice. (3) Unless the Court otherwise orders, the notice shall be filed within fourteen days after the judgment, order or decision appealed against was given or made, and shall be served not less than five days before the date fixed for the hearing of the appeal.” [27] Mahkamah ini berpendapat sekiranya perkataan “shall” digunakan di dalam sebarang peruntukkan undang-undang maka ianya membawa maksud mandatory. Oleh yang demikian, Notis Rayuan tersebut hendaklah difailkan dalam tempoh 14 hari selepas perintah dikeluarkan oleh Timbalan Pendaftar. Mahkamah ini merujuk kes Chong Su Kong & 6 Ors v. Sia Hong Tee & 4 Ors [2014] 10 CLJ 245; [2013] 1 LNS 1357 yang mana Mahkamah menekankan bahawa: "O. 56 r. 1(3) is no doubt a mandatory provision when it uses the word "shall be filed within fourteen days...". [28] Ini bermakna jika tidak ada bantahan sekalipun sesuatu Notis Rayuan adalah tetap tidak sah dan tidak teratur jika ianya difailkan di luar tempoh masa 14 hari tersebut. [29] Dari penelitian mahkamah, mahkamah mendapati bahawa pihak Defendan telah menyerahkan NRKHDK tersebut pada 20/3/2017 melalui kurier. NRKHDK tersebut diterima oleh Bahagian Pendaftaran Mahkamah Tinggi pada 21/3/2017. NRHDK juga terus diproses oleh Bahagian Pendaftaran namun disebabkan bayaran dibuat adalah melalui cek dan bukannya tunai telah menyebabkan terdapat kelewatan mengenai bayaran tersebut. Atas kelewatan tersebut, NRHDK tersebut hanya boleh difailkan di Mahkamah ini pada 27/3/2017 selepas cek tersebut ditunaikan. Mahkamah ini berpendapat bahawa pihak Peguam sedia maklum mengenai proses bayaran melalui cek. Pihak Peguam sepatutnya menghantar NRHDK kepada Mahkamah ini sejurus selepas Perintah dikeluarkan oleh Timbalan Pendaftar untuk mengelak sebarang kelewatan. Namun, peguam perlu sedia maklum bahawa serahan bukan bermaksud pemfailan. Mahkamah bersetuju dengan hujahan Peguam Plaintif bahawa Peguam Defendan perlu bertindak secara proaktif contohnya perlu membuat susulan terhadap permohonan tersebut dengan mengikuti perkembangan samada serahan tersebut telah diterima. Selain daripada itu, pihak Defendan perlu memastikan cek yang dikirimkan telah pun berjaya ditunaikan segera. Pihak Defendan perlu mengetahui bahawa penunaian cek akan mengambil masa begitu lama. [30] Mahkamah juga mengambil kira bahawa kelewatan yang wujud ialah selama 6 hari dan kelewatan memfailkan permohonan untuk memfailkan Rayuan (kandungan 152) telah mengambil masa 131 hari. [31] Mahkamah juga telah mengambil maklum dengan autoriti yang dirujuk oleh Defendan di mana di dalam kes Development & Commercial Bank Bhd v Tang Ong Hwa & Anor [1992] 2 MLJ 764, dalam menimbangkan sama ada permohonan untuk lanjutan masa untuk memfailkan Notis Rayuan harus dibenarkan, Mahkamah Tinggi yang bijaksana menyatakan bahawa: “The aforesaid cases only relate to isolated situations, but what are the main guiding principles for this court to consider whether to grant or refuse an application of this nature? In this respect, I find the principles enunciated in the case of Pearson v Chen Chien Wen Edwin, a Court of Appeal decision of Singapore adopting the views of Chan Sek Keong I in Hau Khee Wee & Anor v Chu() Klan Tong & Anor 6, to be sound for adoption in deciding these type of cases. The factors are as follows: (a) the length of the delay; (b) the reasons for the delay; (c) the chances of the appeal succeeding if time for appealing is extended; and (d) the degree of prejudice to the respondent if the application is granted.” [32] Setelah meneliti Affidavit Sokongan Defendan dan hujahan Peguam Defendan, mahkamah tidak berpuas hati dengan alasan yang diberikan mengenai kelewatan ini samada untuk memfailkan rayuan (kandungan 152) dan permohonan ini (kandungan 169). [33] Defendan gagal mengemukakan kepada Mahkamah ini alasan yang munasabah atas kelewatan memfailkan NRHDK. Mahkamah ini berpendapat bahawa alasan kelewatan yang disebabkan oleh Bahagian Pendaftaran Mahkamah Tinggi adalah tidak munasabah. [34] Merujuk kepada kes Khor Cheng Wah v. Sungai Way Leasing Sdn Bhd [1997] 1 CLJ 396: "(1) It is a cardinal principle of law, that when a litigant seeks the intervention of the Court in a matter that affects his right, he must do so timeously". [35] Pada Pandangan Mahkamah ini, NRHDK tersebut boleh dihantar lebih awal dan sebagai Peguam kepada Defendan, beliau hendaklah bertanggungjawab dengan menasihati anak guam untuk memfailkan NRHDK dengan lebih awal dan bukannya “last minute”. [36] Hashim Yeop A Sani J di dalam Ong Guan Teck & Ors v. Hijjas Kasturi [1982] CLJ 31; [1982] CLJ (Rep) 616; [1982] 1 MLJ 105 memutuskan bahawa: “In practice, an application to extend time is generally allowed provided no injustice is caused and the other party can be compensated by costs. However, there must always be before the court cogent material to satisfactorily explain the delay before the court will exercise its discretion to extend time: Thamboo Ratnam v. Thamboo Cumarasamy & Anor [1965] 1 WLR 8. Thus, when an applicant failed to advance any reason as to why the writ was not served during the period of its validity, the court would not readily exercise its discretion in favour of extending time to renew the writ: Lloyd Triestino Societa v. Chocolate Products (M) Sdn Bhd [1976] 2 MLJ 27, FC. From the authorities both foreign and local, two distinct principles can be garnered. The first principle is the time honoured principle that the rules of court and the associated rules of practice, devised by the Rules Committee and developed by the courts over the years to promote the expeditious despatch of litigation, must be rigidly observed. The prescribed time limits are not targets to be aimed at or expressions of pious hope but rather requirements set which should be met rigidly by the parties thereto. This time honoured principle is reflected in a series of rules giving the court a discretion to dismiss on failure to comply with a time limit. Thus, O. 19 r. 1 of the RHC (default in service of statement of claim), O. 24 r. 16(1) of the RHC (failure to comply with requirement for discovery etc), O. 25 r. 1(4) of the RHC (failure of plaintiff to take out summons for directions, then the defendant may apply to dismiss the action), O. 28 r 10(1) of the RHC (failure to prosecute proceedings with despatch), and O. 34 r. 2(2) of the RHC (failure of the plaintiff to set down action for trial, the defendant may set down the action for trial or may apply to the court to dismiss the action for want of prosecution) are some examples set by the Rules Committee. This principle is also reflected in the court's inherent jurisdiction to dismiss for want of prosecution. The second principle is that a plaintiff should not in the ordinary way be denied an adjudication of his claim on its merits because of procedural default, unless the default causes prejudice to his opponent for which an award of costs cannot compensate. This principle is clearly reflected in the general discretion to extend time conferred by O. 3 r. 5(1) of the RHC as reproduced earlier on, and this discretion is to be exercised in accordance with the requirements of justice in the particular case. Broadly stated this principle is also reflected in the liberal approach generally adopted in relation to the amendment of pleadings.” [37] Peguam Defendan perlu ambil maklum bahawa tindakan tuntutan ini dibuat Plaintif pada tahun 2008 lagi iaitu pada 30hb Oktober 2008 dan setelah menunggu begitu lama akhirnya Plaintif telah berjaya walaupun ianya melibatkan sebahagian sahaja dari tuntutannya. Kini beliau ingin menikmati “the fruits of his litigation”. [38] Malangnya, niat Plaintif masih lagi tidak kesampaian. Justeru mahkamah ini berpendapat, jika permohonan Defendan ini dibenarkan ianya amat memprejudiskan Plaintif lagi yang telah menanggung kerugian sekian lama. Tambah-tambah lagi dengan permohonan Defendan ini, pendengaran rayuan Plaintif di kandungan (150) terpaksa ditangguhkan sehingga rayuan kandungan (169) ini di Mahkamah Rayuan dimuktamadkan. Ini sekali lagi telah memprejudiskan Plaintif. [39] Mahkamah juga berhati-hati supaya tidak menyentuh mengenai merit rayuan terhadap keputusan Timbalan Pendaftar tersebut. Namun demikian, mahkamah telah melihat hujahan pihak-pihak dan Alasan Penghakiman Timbalan Pendaftar. Memadai mahkamah ini di peringkat ini memutuskan bahawa peluang untuk Defendan berjaya di dalam rayuan terhadap keputusan Timbalan Pendaftar tersebut adalah tipis. Diteliti Alasan Penghakiman Timbalan Pendaftar, mahkamah mendapati bahawa keputusan beliau itu telah mengambil kira segala faktor. Malahan keputusan beliau itu kebanyakannya berlandaskan kepada hujahan yang telah diutarakan oleh pihak Defendan yang memihak kepada Defendan yang mengurangkan tuntutan Plaintif, sekaligus menyebabkan Plaintif memfailkan Notis Rayuan di kandungan (150) yang terpaksa ditangguh sehinggalah Mahkamah Rayuan memuktamadkan pendengaran kandungan (169) ini. E. KESIMPULAN [40] Di atas alasan-alasan yang diberikan di atas, permohonan interlokutari ini di kandungan (169) ditolak dengan kos sebanyak RM500.00 sahaja. Dengan keputusan ini kandungan (152) secara otomatisnya terbatal. Tarikh: 15 November 2017 (DATO’ AHMAD BIN BACHE) Pesuruhjaya Kehakiman Mahkamah Tinggi Malaya Kota Bharu Peguam Plaintif: Tn. Haji Marwaliz bin Mahmud Tetuan Saharuddin Hidayu & Marwaliz, No. 5578- Lot 347, Tingkat Satu, Wisma SHM, Seksyen 23, Taman Desa Telipot, 15150 Kota Bharu, Kelantan. Peguam Defendan: En. B. Balakumar & En. Koh Pei Siah Tetuan Azim Tunku Farik & Wong, Unit 5-03, Tingkat 5, Straits Trading Building, No. 2, Lebuh Pasar Besar, 50050 Kuala Lumpur. 15

Tika 2.6.0

BA-24NCVC-174-10/2019

PLAINTIF SUAN LEONG HANG (M) SDN BHD (No. Syarikat: 445940-H) DEFENDAN 1. GOH LEONG WOI (NO. K/P : 620716-07-5591) 2. TEOH GAIK LAN (NO. K/P : 621018-07-5548)

14/11/2017

YA DATUK AZIMAH BINTI OMAR

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=3ed06fc1-1660-47a1-a2a7-d204782ef6dd&Inline=true

DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN SAMAN PEMULA NO: BA-24NCVC-174-10/2016 Dalam perkara Seksyen 27, Peraturan 27, 28 dan/ atau peruntukan-peruntukan yang relevan dalam Akta Reka Bentuk Perindustrian 1996 dan Peraturan-Peraturan Reka Bentuk Perindustrian 1999; Dalam Perkara Reka Bentuk Perindustrian berdaftar Nombor MY 12-01260-0101; Dan Dalam perkara Reka Bentuk Perindustrian berdaftar Nombor MY 13-01869-0101; Dan Dalam perkara Reka Bentuk 2 Perindustrian berdaftar Nombor MY 13-01870-0101; BETWEEN SUAN LEONG HANG (M) SDN BHD (No. Syarikat: 445940-H) …PLAINTIFF AND 1. GOH LEONG WOI (NO. K/P : 620716-07-5591) 2. TEOH GAIK LAN (NO. K/P : 621018-07-5548) …DEFENDANTS GROUNDS OF JUDGMENT (Enclosure 1) A. INTRODUCTION [1] The Plaintiff in its Originating Summons (Enclosure 1) sought inter alia for the following order : 3 i. An order for the registered Industrial Design Nos. MY 12- 01260-0101, MY 13-01869-0101 and MY 13-01870-0101 in the name of the First Defendant and/or Second Defendant and/or Defendants be revoked immediately and expunged from the Registry’s Record Industrial Designs, Malaysia which is stored in a relevant government registrations or government corporations in Malaysia; ii. A copy of the sealed order shall be served on the Registrar of the Industrial Design pursuant to section 24 (1) (d) of the Industrial Design Act 1996 and the registration record of Industrial Design shall be altered, amended, revoked and/or updated and/or fixed by revoking or expunging the registered Industrial Design Nos. MY 12-01260-0101, MY 13-01869-0101 and MY 13-01870-0101 in the name of the First Defendant and/or Second Defendant and/or Defendants from the Registry’s Record Industrial Design in Malaysia and subsequently the cancellation is published in the gazettes and/or relevant government gazette. [2] This Court had earlier dismissed the Defendants’ application in Enclosure 6 to convert Enclosure 1 to a writ action pursuant to 4 Order 28 Rule 8 of the Rules of Court 2012. In dismissing the Defendants’ Enclosure 6, the Court has also ordered the Defendants to pay the Plaintiff RM4000 in costs. B. BACKGROUND FACTS [3] The background facts which have led to the filing of Enclosure 1 by the Plaintiff are as follows: 3.1 The Plaintiff is a company running its business under the name of Suan Leong Hang (M) Sdn Bhd). The Plaintiff is involved in the business of designing, manufacturing, and distributing Chinese prayer products since 2000. 3.2 The Defendants (i. Goh Leong Woi ii. Teoh Gaik Lan) in the present case are husband and wife. This husband and wife team is also involved in the business of praying materials and paper products. 5 3.3 The subject matter of this present case relates to six industrial designs (IDs) in respect of prayer products which had been registered with the Registrar of Industrial Designs, Malaysia wherein three IDs were registered by the Plaintiff and the other three were by the Defendants. 3.4 The three IDs registered by the Plaintiff are as follows: a) Incense Stick (Registration No.MY 12-01337-0101) - Date of registration is on 25.9.2012. b) Pineapple Lamp (Registration No.MY 07-00576-0101) - Date of registration is on 24.4.2007. c) Gold Bar Lamp (Registration No.MY 07-01549-0102) - Date of registration is on 18.10.2007. 3.5 Since the registration of the Plaintiff’s IDs namely; in 2007 and 2012 respectively, the Plaintiff has manufactured, assembled, provided and distributed product based on its IDs extensively in Malaysia and outside Malaysia. 6 3.6 However in 2016, the Plaintiff claimed that it discovered that the Defendants had also registered their IDs in respect of the similar poducts which are as follows: a) Joss Stick (Registration No.MY 12-01260-0101) - Date of registration is on 12.9.2012. b) Pineapple Lamp (Registration No.MY 13-01869-0101) - Date of registration is on 24.12.2013. c) Gold Bar Lamp (Registration No.MY 13-01870-0101) - Date of registration is on 24.12.2013. 3.7 The Plaintif had alleged that the Defendants’ IDs are indentical to and/or a fraudulent or obvious imitation of its IDs that were registered very much earlier. 3.8 On the premise of protecting its exclusive rights over its registered industrial designs, the Plaintiff had commenced this action (Enclosure 1) against the Defendants seeking for an order that the Defendants’ IDs be revoked and/or 7 expunged pursuant to section 27 of the Industrial Designs Act 1966 (ID Act). 3.9 The Plaintiff’s application was strenously opposed by the Defendants and the Defendants are counter claiming for the following reliefs: a) An order that the Industrial Design MY 12-01337-0101, MY 07-00576-0101, and MY 07-01549-0102 all registered under the name of the Plaintiff be expunged or revoked immediately form the register and/or records of the (ID) Registration Office and its branch office; b) An order to rectify and/or vary the statement of novelty of the Defendants’ Industrial Design MY 07-00576-0101, MY 07-01549-0102 to “The novelty of the design resides in the pattern and ornamentation applied to the article as shown in the representations”; c) Alternative to (a) and (b), an order that the Industrial Design MY 12-01337-0101, MY 07-00576, and MY 07- 8 01549-0102 all registered under the name of the Plaintiff and the Industrial Design MY 07-00576-0101, MY 07- 01549-0102 all registered under the Defendants’ name be expunged or revoked immediately from the register and/or records of the Industrial Design Registration Office and it branch office; d) An injunction to restrain the Plaintiff from infringing the Defendants’ Industrial Design MY 12-01337-0101 and/or any Industrial Design which is substantially similar to the Defendants’ Industrial Design MY 12-01337-0101 in the course of trade; e) An order for delivery up within 7 days form the date of Judgment, all infringing reproductions of the Defendants’ Industrial Design MY 12-01337-0101, all documents and records connected to the manufacture, storage, supply, distribution, sale, offer for sale or disposal of the infringing reproductions of the Defendants’ Industrial Design MY-12-01337-0101; and f) Damages to be assessed for the infringement againts the Defendants’ Industrial Design MY 12-01337-0101. 9 C. RELEVANT PROVISIONS PERTAINING TO THE REGISTRATION OF INDUSTRIAL DESIGNS AND THE LEGAL PRINCIPLES GOVERNING ITS REGISTRATION / REVOCATION OF SUCH REGISTRATION. [4] In the present case, it is not in dispute that both the Plaintiff and the Defendants had their IDs registered with the Registrar of Industrial Designs Malaysia under the ID Act. [5] The Plaintiff’s Incense Stick was registered thirteen days after the Defendants’ Joss Stick was registered. While the Plaintiff’s Pineapple Lamp and the Gold Bar Lamp were registered six years earlier before the Defendants’ Pineapple Lamp and the Gold Bar Lamp were registered. [6] Before this Court proceeds to determine the merits of both the Plaintiff’s and the Defendants’ case, it is only apt for this Court to set out the relevant provisions under the ID Act pertaining to the registration of industrial designs in Malaysia as well as the 10 the legal principles governing its registration and revocation of such registration. [7] Now, what is exactly “industrial design”? Section 3(1) of the ID Act set out the definition of “industrial design” as follows: “Industrial designs” means features of shape, configuration, pattern or ornament applied to an article by any industrial process or means, being features which in the finished article appeal to and are judged by the eye, but does not include- (a) a method or principle of construction; or (b) features of shape or configuration of an article which- (i) are dictated solely by the function which the article has to perform; or (ii) are dependent upon the appearance of another article of which the article is intended by the author of the design to form an integral part 11 [8] The ID Act provides an avenue for the registration of industrial designs in the Register of Industrial Designs kept under the Act. It is provided under its section 12 that: “12. Registrable industrial design (1) Subject to this Act, an industrial design shall not be registered unless it is new. (2) An industrial design for which an application for registration is made shall not be considered to be new if, before the priority date of that application, it or an industrial design differing from it only in immaterial details or in features commonly used in the relevant trade: (a) was disclosed to the public anywhere in Malaysia; or (b) was the subject matter of another application for registration of an industrial design filed in Malaysia but having an earlier priority date made by a different applicant in so far as that subject matter was included in a 12 registration granted on the basis of that order application.” [9] What constitutes new and/or novel industrial design under section 12 of the ID Act has been discussed and decided in several case authorities. Suffice for this Court to cite a few. i. In the case of F&N Dairies (Malaysia) Sdn Bhd v Tropicana Products, Inc And Other Appeals (2013) MLJU, the Court of Appeal at paragraphs [21], [22], [23], [24] and [25] of its judgment had stated as follows: “[21] An industrial design can only be registered and enjoy the protection under the IDA 1996 if it satisfies the two - fold requirements under section 12 of the IDA 1996 i.e. it must be new or novel (section 12(1)) and it is an “industrial design” as defined under section 3(1) of the IDA 1996. A design which fails to fulfill these requirements is clearly not registrable under the IDA 1996 and cannot qualify for any protection under the Act. [22] Section 12 of the IDA 1996 provides: http://www.lexisnexis.com/my/legal/search/runRemoteLink.do?A=0.1814372650131012&bct=A&service=citation&risb=21_T26914143783&langcountry=MY&linkInfo=F%23MY%23USM_PA%23act%25552%25section%2512%25 http://www.lexisnexis.com/my/legal/search/runRemoteLink.do?A=0.8282306280182523&bct=A&service=citation&risb=21_T26914143783&langcountry=MY&linkInfo=F%23MY%23USM_PA%23act%25552%25 http://www.lexisnexis.com/my/legal/search/runRemoteLink.do?A=0.5340902280168464&bct=A&service=citation&risb=21_T26914143783&langcountry=MY&linkInfo=F%23MY%23USM_PA%23act%25552%25section%2512%25 http://www.lexisnexis.com/my/legal/search/runRemoteLink.do?A=0.5025461668275907&bct=A&service=citation&risb=21_T26914143783&langcountry=MY&linkInfo=F%23MY%23USM_PA%23act%25552%25section%253%25 http://www.lexisnexis.com/my/legal/search/runRemoteLink.do?A=0.5599607946312923&bct=A&service=citation&risb=21_T26914143783&langcountry=MY&linkInfo=F%23MY%23USM_PA%23act%25552%25 http://www.lexisnexis.com/my/legal/search/runRemoteLink.do?A=0.7167118669084249&bct=A&service=citation&risb=21_T26914143783&langcountry=MY&linkInfo=F%23MY%23USM_PA%23act%25552%25section%2512%25 http://www.lexisnexis.com/my/legal/search/runRemoteLink.do?A=0.04408545448975154&bct=A&service=citation&risb=21_T26914143783&langcountry=MY&linkInfo=F%23MY%23USM_PA%23act%25552%25 13 “12. Registrable industrial design (1) Subject to this Act, an industrial design shall not be registered unless it is new. (2) An industrial design for which an application for registration is made shall not be considered to be new if, before the priority date of that application, it or an industrial design differing from it only in immaterial details or in features commonly used in the relevant trade: (a) was disclosed to the public anywhere in Malaysia; or (b) was the subject matter of another application for registration of an industrial design filed in Malaysia but having an earlier priority date made by a different applicant in so far as that subject matter was included in a registration granted on the basis of that order application. ” 14 [23] Reading both the provisions of section 12(1) together with section 12(2)(a) of the Act, the clear conclusion one can arrive at is this: if there is a disclosure or publication in Malaysia of an industrial design which is similar or substantially similar or differs only in immaterial details or in features commonly used in the relevant trade prior to the priority date of the Respondent’s 624 Design, then the Respondent’s 624 Design would be rendered invalid for registration under the Act. Definition of “industrial design” Section 3(1) of the IDA 1996 [24] First and foremost, a registrable industrial design under the IDA 1996, particularly section 12, specifically refers to an “industrial design” as defined under section 3(1) of the IDA. [25] Section 3(1) of the IDA defines an “industrial design” as “features of shape” configuration, pattern or ornament applied to an article by any industrial process or means, being features which in the finished article appeal to and are judged by the eye, but does not include- http://www.lexisnexis.com/my/legal/search/runRemoteLink.do?A=0.17267459057312107&bct=A&service=citation&risb=21_T26914143783&langcountry=MY&linkInfo=F%23MY%23USM_PA%23act%25552%25section%2512%25 http://www.lexisnexis.com/my/legal/search/runRemoteLink.do?A=0.6681093859102653&bct=A&service=citation&risb=21_T26914143783&langcountry=MY&linkInfo=F%23MY%23USM_PA%23act%25552%25section%2512%25 http://www.lexisnexis.com/my/legal/search/runRemoteLink.do?A=0.4607417182589001&bct=A&service=citation&risb=21_T26914143783&langcountry=MY&linkInfo=F%23MY%23USM_PA%23act%25552%25 http://www.lexisnexis.com/my/legal/search/runRemoteLink.do?A=0.4607417182589001&bct=A&service=citation&risb=21_T26914143783&langcountry=MY&linkInfo=F%23MY%23USM_PA%23act%25552%25 http://www.lexisnexis.com/my/legal/search/runRemoteLink.do?A=0.2774902706149468&bct=A&service=citation&risb=21_T26914143783&langcountry=MY&linkInfo=F%23MY%23USM_PA%23act%25552%25section%2512%25 http://www.lexisnexis.com/my/legal/search/runRemoteLink.do?A=0.8823012285893507&bct=A&service=citation&risb=21_T26914143783&langcountry=MY&linkInfo=F%23MY%23USM_PA%23act%25552%25section%253%25 http://www.lexisnexis.com/my/legal/search/runRemoteLink.do?A=0.8823012285893507&bct=A&service=citation&risb=21_T26914143783&langcountry=MY&linkInfo=F%23MY%23USM_PA%23act%25552%25section%253%25 http://www.lexisnexis.com/my/legal/search/runRemoteLink.do?A=0.5143213188461722&bct=A&service=citation&risb=21_T26914143783&langcountry=MY&linkInfo=F%23MY%23USM_PA%23act%25552%25 http://www.lexisnexis.com/my/legal/search/runRemoteLink.do?A=0.7414529483999206&bct=A&service=citation&risb=21_T26914143783&langcountry=MY&linkInfo=F%23MY%23USM_PA%23act%25552%25section%253%25 http://www.lexisnexis.com/my/legal/search/runRemoteLink.do?A=0.9425322153708356&bct=A&service=citation&risb=21_T26914143783&langcountry=MY&linkInfo=F%23MY%23USM_PA%23act%25552%25 15 (a) a method or principle of construction; or (b) features of shape or configuration of an article which- (i) are dictated solely by the function which the article has to perform; or (ii) are dependent upon the appearance of another article of which the article is intended by the author of the design to form an integral part. ” ii. Hamid Sultan Abu Backer JC (as he then was) in the case of Buncho (M) Sdn Bhd v Q-Stationers Sdn Bhd (2010) 7 CLJ 359, has held inter alia: “[6] …. (i) An industrial design cannot be registered unless it is new and it shall not be considered as new if, before the priority date of its application, it or an industrial design differing from it only in immaterial details or in features commonly used in the relevant trade: 16 (i) Has already been disclosed to the public anywhere in Malaysia; and Public disclosure would cover all actions of sales, use, publication, publicity, exhibiting or such similar activities (see s. 12(1) and (2)(a) of IDA 1996); (j) A registered industrial design is valid for an initial term of five years computed as of its filing date and may be extended up to a maximum of fifteen years at five yearly intervals (see s. 25 of IDA 1996); …… (q) An industrial design is not new if before its priority date, it or an industrial design differing from it only in immaterial respects was disclosed to the Malaysian public (see s. 12(2) of IDA 1996). iii. In the case of Three V Marketing Sdn Bhd v Heng Capital Industries (M) Sdn Bhd; The Registrar Of (ID)(Interested Party) the court held that: javascript:DispAct=window.open('/Members/DisplayAct.aspx?CaseActCode=MY_FS_ACT_1996_552&ActSectionNo=12.&SearchId=8perpm12A','_DisplayAct','');DispAct.focus() javascript:DispAct=window.open('/Members/DisplayAct.aspx?CaseActCode=MY_FS_ACT_1996_552&ActSectionNo=25.&SearchId=8perpm12A','_DisplayAct','');DispAct.focus() javascript:DispAct=window.open('/Members/DisplayAct.aspx?CaseActCode=MY_FS_ACT_1996_552&ActSectionNo=12.&SearchId=8perpm12A','_DisplayAct','');DispAct.focus() 17 “[21] Now, there are two ways in which the requirements of s. 12(2)(a) of the Act for "disclosure to the public anywhere in Malaysia" are fulfilled and they are namely: (i) by prior use of the design, by selling or displaying to the public an article to which the design has been applied; and (ii) by prior publication in documents. [22] I find it useful to reproduce the principles as summarized in Russell-Clarke and Howe on Industrial Design (7th edn): “Prior publication of a design by prior use can be said to take place when the design has been applied to articles, and those articles have been used in such a way that the design becomes disclosed to the public before the date of application for registration of the design in suit. It should be noted that it is sufficient if the design is used on any kind of article, and it need not be the same article, or even in the same category, as the article in respect of which the design is registered or sought to be registered. In general there will be publication if articles to which the design is applied are manufactured, displayed or javascript:DispAct=window.open('/Members/DisplayAct.aspx?CaseActCode=MY_FS_ACT_1996_552&ActSectionNo=12.&SearchId=7perpm12A','_DisplayAct','');DispAct.focus() javascript:DispAct=window.open('/Members/DisplayAct.aspx?CaseActCode=MY_FS_ACT_1996_552&ActSectionNo=12.&SearchId=7perpm12A','_DisplayAct','');DispAct.focus() 18 used in such a way that members of the public will or might see them. It is not necessary that the articles should been sold. Prior use thus means not use by the public, but use in public as opposed to use in private”. [10] Section 17 (1) of the ID Act defines priority date as follows: “(1) Subject to this section, the priority date of an application for the registration of an industrial design is the filing date of the application.” [11] Be that as it may, section 27 of the ID Act confers the Court the power to revoke registration of industrial design. The power conferred under section 27 of the ID Act reads as follows: “Revocation of registration and grant of compulsory licence 27. (1) At any time after the registration of an industrial design, any person may apply to the Court- (a) for the revocation of the registration of the industrial design on the ground, subject to section 12, that the industrial design has been 19 disclosed to the public prior to the priority date of the application for registration of the industrial design; (b) for the cancellation of the registration of the industrial design on the ground that the registration of the industrial design has been procured by unlawful means; or (c) for the grant of a compulsory licence in respect of the industrial design on the ground that the industrial design is not applied in Malaysia by any industrial process or means to the article in respect of which it is registered to such an extent as is reasonable in the circumstances of the case, and the Court may make such order on the application as it considers just. (2) The provisions of paragraphs (1)(a) and (1)(b) shall be without prejudice to the right of the owner of an industrial design to request the Registrar for the revocation of a registered industrial design of which he is owner, or to the power of the Registrar to order the 20 revocation of the registration of an industrial design on any other ground as he thinks fit.’’ [12] In relation to revocation of registration of industrial design, Regulation 27 and 28 of (ID) Regulation 1999 are also relevant. [13] Regulation 27 of (ID) Regulation 1999 provides as follows: “(1) An application to the Registrar for rectification of the Register pursuant to subsection 24(3) or a request for revocation of registration of the industrial design under subsection 27(2) shall be made on ID Form 6 accompanied by the prescribed fee and a statement setting out fully the applicant's interest and the facts upon which he relies. (2) Where the applicant is other than the owner of the industrial design, a copy of the application and the statement referred to in subregulation (1) shall be given to the owner. (3) If the owner desires to oppose the application for rectification of the Register or revocation of registration of the industrial design he shall within three months from the date of receipt of the application file a notice of opposition which shall include a statement of the grounds upon which the owner objects to the application and shall give a copy to the applicant. 21 (4) An owner who does not file a notice of opposition shall be deemed to have no objection. (5) Within two months from the date of receipt of the notice of opposition filed in accordance with subregulation (3), the applicant may file a counter-statement setting out the grounds on which he relies as supporting his application and the facts, if any, alleged in the notice of opposition which he admits, and shall at the same time give a copy to the owner. (6) If no counter-statement is filed in accordance with subregulation (5), the application shall be deemed abandoned. (7) If a counter-statement is filed in accordance with subregulation (5), the Registrar shall, after giving the owner and the applicant an opportunity to be heard by filing in written submissions within a specified time, decide on the matter. [14] While Regulation 28 reads as follows: (1) An application to the Court under paragraph 24(1)(a), subsection 24(3) or paragraph 27(1)(a), (b) or (c) may be made by originating summons. (2) …….. 22 (3) …….. (4) …….. (a) was disclosed to the public anywhere in Malaysia; or (b) was the subject matter of another application for registration of an industrial design filed in Malaysia but having an earlier priority date made by a different applicant in so far as that subject matter was included in a registration granted on the basis of that order application. ” [15] With regards to Court’s power to revoke or expunge registration of industrial design under section 27 of the ID Act, Hamid Sultan Abu Backer JC in the case of Buncho had inter alia stated the following: [6] …. 23 (k) At any time after the registration of an industrial design, any person may apply to the court: (i) For the revocation of the registration of the industrial design, on the ground that the industrial design has been disclosed to the public prior to the priority date of the application for registration of the industrial design (see s. 27(1)(a) of IDA 1996); or (ii) For the cancellation of the registered industrial design on the ground that the registration of the industrial design has been procured by unlawful means (see s. 27(1)(b) of IDA 1996); (l) The Registrar of Industrial Design must be notified of any revocation proceeding by filing with him Form ID7 (see s. 27(2) of IDA 1996); (m) The owner of a registered design shall have the exclusive right to make or import for sale or hire, or for use for the purposes of any trade or business, or to sell, hire or to offer or expose for sale or hire, any article to javascript:DispAct=window.open('/Members/DisplayAct.aspx?CaseActCode=MY_FS_ACT_1996_552&ActSectionNo=27.&SearchId=8perpm12A','_DisplayAct','');DispAct.focus() javascript:DispAct=window.open('/Members/DisplayAct.aspx?CaseActCode=MY_FS_ACT_1996_552&ActSectionNo=27.&SearchId=8perpm12A','_DisplayAct','');DispAct.focus() javascript:DispAct=window.open('/Members/DisplayAct.aspx?CaseActCode=MY_FS_ACT_1996_552&ActSectionNo=27.&SearchId=8perpm12A','_DisplayAct','');DispAct.focus() javascript:DispAct=window.open('/Members/DisplayAct.aspx?CaseActCode=MY_FS_ACT_1996_552&ActSectionNo=27.&SearchId=8perpm12A','_DisplayAct','');DispAct.focus() 24 which the registered industrial design has been applied (see s. 32(1) of IDA 1996); (n) A person infringes the rights conferred by the registration of an industrial design if he, without the license or consent of the owner of the industrial design, does any of the following things while the registration is still in force (see s.32(2) of IDA 1996): (i) Applies the industrial design or any fraudulent or obvious imitation of it to any article in respect of which the industrial design is registered (see s. 32(2)(a) of IDA 1996); and (ii) Sells, or offers or keeps for sale, or hire, or offers or keeps for hire, any of the [infringing] articles (see s. 32(2)(c) of IDA 1996); (o) The owner of a registered industrial design shall have the right to institute legal proceedings against any person who has infringed or is infringing any of the rights conferred by the registration of the industrial design. A similar right is available against any person who has performed acts that make it likely that an infringement will occur (see s. 33(1) and (2) of IDA 1996); javascript:DispAct=window.open('/Members/DisplayAct.aspx?CaseActCode=MY_FS_ACT_1996_552&ActSectionNo=32.&SearchId=8perpm12A','_DisplayAct','');DispAct.focus() javascript:DispAct=window.open('/Members/DisplayAct.aspx?CaseActCode=MY_FS_ACT_1996_552&ActSectionNo=32.&SearchId=8perpm12A','_DisplayAct','');DispAct.focus() javascript:DispAct=window.open('/Members/DisplayAct.aspx?CaseActCode=MY_FS_ACT_1996_552&ActSectionNo=32.&SearchId=8perpm12A','_DisplayAct','');DispAct.focus() javascript:DispAct=window.open('/Members/DisplayAct.aspx?CaseActCode=MY_FS_ACT_1996_552&ActSectionNo=32.&SearchId=8perpm12A','_DisplayAct','');DispAct.focus() javascript:DispAct=window.open('/Members/DisplayAct.aspx?CaseActCode=MY_FS_ACT_1996_552&ActSectionNo=33.&SearchId=8perpm12A','_DisplayAct','');DispAct.focus() 25 (p) The (ID) Act 1996 says that the industrial design must be new. A design only needs to be new in Malaysia as its priority date to qualify for registration (see s. 12 of IDA 1996); (q) An industrial design is not new if before its priority date, it or an industrial design differing from it only in immaterial respects was disclosed to the Malaysian public (see s. 12(2) of IDA 1996). (r) In the High Court case of Golden Cresent Trading Sdn Bhd v. Alpine Auto Access Sdn Bhd; Pendaftar Rekabentuk Perindustrian (Interested Party) [2008] 9 CLJ 317, Ramly J (as he then was) stated this at p. 325, para. 25: Under section 12 of the IDA, an industrial design shall not be registered unless it is new. An industrial design shall not be considered to be new if before the priority date of [its] application for registration, it or an industrial design differing from it only in immaterial details or in features commonly used in the relevant trade was disclosed to the public anywhere in Malaysia. javascript:DispAct=window.open('/Members/DisplayAct.aspx?CaseActCode=MY_FS_ACT_1996_552&SearchId=8perpm12A','_DisplayAct','');DispAct.focus() javascript:DispAct=window.open('/Members/DisplayAct.aspx?CaseActCode=MY_FS_ACT_1996_552&ActSectionNo=12.&SearchId=8perpm12A','_DisplayAct','');DispAct.focus() javascript:DispAct=window.open('/Members/DisplayAct.aspx?CaseActCode=MY_FS_ACT_1996_552&ActSectionNo=12.&SearchId=8perpm12A','_DisplayAct','');DispAct.focus() javascript:DispAct=window.open('/Members/DisplayAct.aspx?CaseActCode=MY_FS_ACT_1996_552&ActSectionNo=12.&SearchId=8perpm12A','_DisplayAct','');DispAct.focus() javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2830633474&SearchId=8perpm12A','_DisplayCase','');DispCase.focus() javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2830633474&SearchId=8perpm12A','_DisplayCase','');DispCase.focus() javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2830633474&SearchId=8perpm12A','_DisplayCase','');DispCase.focus() javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2830633474&SearchId=8perpm12A','_DisplayCase','');DispCase.focus() javascript:DispAct=window.open('/Members/DisplayAct.aspx?CaseActCode=MY_FS_ACT_1996_552&ActSectionNo=12.&SearchId=8perpm12A','_DisplayAct','');DispAct.focus() 26 (s) The learned judge in the same case further elaborated on what amounts to publication. At p. 325, para. 26, he made reference to the unreported case of Teh Teik Boay v. Chuah Siak Loo [1961] 1 LNS 136 where Hepworth J said the following: Broadly speaking, there is publication if the design has been disclosed to the public as opposed to being kept secret. The question which has to be decided is, therefore, has the public been put in possession of the design? Has it knowledge of the design? It is not necessary that the design should have been actually used. There will just as much be a publication if it is shown that it was known to the public, without ever having been actually out to use. Thus, publication may be of two types, (a) publication in prior documents; (b) publication by prior user. (t) The definition of 'prior use' by Russell-Clarke was adopted by Besalon International Limited & Ors v. South Strong Industries Sdn Bhd [1997] 1 CLJ Supp 335 where the learned judge said the following: Prior use according to Russell-Clarke (page 50): javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=1722097153&SearchId=8perpm12A','_DisplayCase','');DispCase.focus() javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=1722097153&SearchId=8perpm12A','_DisplayCase','');DispCase.focus() javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2558462465&SearchId=8perpm12A','_DisplayCase','');DispCase.focus() javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2558462465&SearchId=8perpm12A','_DisplayCase','');DispCase.focus() 27 Occurs where the design has been actually applied to articles before the date of registration of the design, and those articles have been used in such a way that the design becomes disclosed to the public.” [16] Hence, an industrial design which has been registered under the ID Act can only seek protection under the Act if the requirements set out under section 12 of the Act are satisfied. This position has been clearly envisaged in the decided cases which this Court had mentioned earlier. D. ISSUES FOR DETERMINATION THE PLAINTIFF’S IDs VERSUS THE DEFENDANTS’ IDs [17] The Plaintiff in its attempt to have the registration of the Defendants’ IDs expunged /revoked had alleged the followings: (i) the Defendants’ IDs are identical to and/or a fraudulent or obvious imitation of the Plaintiff’s Industrial Designs. 28 (ii) any differences between the Plaintiff’s IDs and the Defendants’ IDs are merely immaterial details or features commonly used in the relevant trade. (iii) the Chinese Character that has been referred by the Defendants in the Pineapple and Gold Bar Lamp are completely irrelevant and that those characters are clearly not a valid subject matter to be protected as registered Industrial Designs. (iv) the Defendants’ IDs were not new at the material times because of the registrations and the sale of products of the Plaintiff’s IDs were done much earlier than Defendants since 2007 and 2012 respectively whereas the Defendants’ IDs registered on 2012 and 2013. (v) the novelty of Plaintiff’s Incense Stick resides in the three dimensional Chinese Coin shape embossed out of the surface linking each other to make up the spiral design around the upper portion of Plaintiff’s Incense Stick and the resultant shape and configuration of Plaintiff’s Incense Stick as a whole. 29 (vi) the Defendants had no right to apply for the registration of the Defendants’ IDs because they were not the original owners of the aforesaid industrial designs. [18] On other hand, the Defendants in defending their IDs and in attempting to invalidate the Plaintiff’s IDs had contended the following: a) the Plaintiff started to sell products based on the Plaintiff’s Designs and/or similar designs before the Plaintiff registered the Plaintiff’s Designs. b) the Defendants have produced and sold products based on the Defendants’ Designs without infringing the Plaintiff’s Designs. c) in respect of the Plaintiff’s Incense Stick and Defendants’ Joss Stick, the Certificates of Registration shows that the Defendants’ Joss Stick has been registered on 12.9.2012 prior to the Plaintiff’s Incense Stick wherein the Plaintiff’s Incense Stick was only registered on 25.9.2012. 30 d) the novelty claimed in the Defendants’ registration of Joss Stick is different from the novelty claimed in the Plaintiff’s registration of Incense Stick. e) the Plaintiff’s Incense Stick cannot be new as the shape and configuration has been widely used in the public. f) the Plaintiff’s Pineapple and Gold Bar Lamps are not new as lamps in the same shape and/or similar design have been sold by others manufacturers in the same the industry to the public prior to the date of application of the Plaintiff’s Pineapple and Gold Bar Lamp. g) the Plaintiff’s Pineapple Lamp and Gold Bar Lamp no additional features, pattern and/or ornamentation be added. h) on the other hand, the Defendants’ Pineapple and Gold Bar Lamp have been added with 2D gold bar engraved with Chinese character “zao cai jing bao” (the meaning being bringing in wealth and treasure) and the red candle also be engraved with Chinese characters “cai yuan guang jing” (the meaning being may wealth come generously to you). 31 i) the additional features in the Defendants’ Pineapple and Gold Bar Lamps have made the Defendants’ Designs appear to be distinct in the eyes of the Chinese community as Chinese have strong affection for these suspicious words. j) by an affidavit affirmed by one Leong Wing Fui, he has stated that his company Soon Fatt Hung Enterprise Sdn Bhd (“SFH”) has been selling lamps identical to the Plaintiff’s Pineapple and Gold Bar Lamps prior to the Plaintiff’s Pineapple and Gold Bar Lamp’s priority date. [19] In the present case, in view of the allegations and the counter allegations by the Plaintiffs and the Defendants against each other’s IDs, the primary grounds on which both the Plaintiff and Defendants sought to revoke each other party IDs are these: i. the designs were not new as at the priority date; ii. the designs were not new because there has already been prior disclosure of such designs to the public; 32 iii. the Defendants’ IDs is a fraudulent or obvious imitation of the Plaintiff’s IDs iv. any difference in the designs are merely immaterial details or features commonly used in the relevant trade E. THE COURT”S DECISION Novelty/New The Plaintiff’s Insence Stick v the Defendants’ Joss Stick [20] For ease of reference, this Court has set out below the two IDs of the Plaintiff and the Defendants with regard to the joss stick / incense sticks. Plaintiff’s Industrial Design Defendants’ Industrial Design IDs Representation IDs Representation Incense st ick Reg. Date: 25 September 2007 Incense st ick Reg. Date: 12 September 2012 33 [21] It was the contention of the Defendants that their joss stick’s IDs was registered on 12.9.2012 which was thirteen days earlier from the registration of the Plaintiff’s incense stick. Hence, the priority date of the the Defendants’ joss stick is 12.9.2012. [22] It was also contended by the Defendants that the Plaintiff’s incense stick is neither a new design nor is new in shape as such design and shape have been commonly used in trade as the design for joss sticks and incense sticks. The Defendants further contended that such design can be seen for hundreds if not thousand years in praying materials in Chinese temple or ceremony. [23] The counsel for the Defendants had urged this Court to take judicial notice that joss sticks have existed long time ago in the market prior to the Plaintiff’s registration of its incense stick on 25.9.2012. 34 [24] The Plaintiff on the contrary had contended that even though the Defendants’ joss stick was registered prior to its incense stick, the Plaintiff has been selling the incense stick prior to the prority date of the Defendants’ joss stick. To prove its contention, the Plaintiff has adduced evidence in Exhibit “P-6” (Enclosure 7) namely; invoices issued by the Plaintiff dated 11.9.2012. [25] Now, although the invoices were issued one day before the Defendant’s priority date, this Court is in agreement with the counsel for the Plaintiff that P6 is sufficient evidence to prove that the Plaintiff has been selling and distributing its own incense stick while applying its registered IDs in Malaysia prior to the Defendants’ registration date of their joss stick. [26] On the contention by the Defendants that there is no novelty in the Plaintiff’s incense stick as joss sticks have been used as praying product from time in memorial, this Court must emphasize here that the incense sticks produced by the Plaintiff is not the normal and ordinary joss stick which have been used 35 from time in memorial. It is this Court’s judgment that the incense sticks produced and manufactured by the Plaintiff is entirely different from the normal joss sticks used for praying. [27] The novelty in the Plaintiff’s incense stick lies in its shape and configuration of the design of the joss stick. This can be seen in Exhibit “P-2” (Enclosure 2) where in the Statement of Novelty appearing in the MYIPO’s gazette Batch 14/2013 October 21, 2013. The statement of novelty in respect of the incense stick is this: The Novelty of the design in the features of shape and configuration of the article as shown in the representations. It can be clearly seen that the article covers not only the long stick shape but also the Chinese Traditional Coin form figure “1.4 REFERENCE VIEW” as the “shape and configuration of the article”. [28] The Defendants on the other hand, had claimed novelty in their Joss Stick in the feature namely; in the pattern of Chinese coins spiraling around the stick. 36 [29] This Court agrees with the counsel for the Plaintiff that images of Chinese coins (which is a sign of prosperity within the Chinese community) are images which are commonly used in the trade as well as on Chinese prayer products. [30] Hence, this Court is of the view that the Plaintiff’s Incense Stick has satisfied the requirements envisaged under section 12 of the ID Act and protection under the ID Act must be accordingly accorded to the Plaintiff in respect of its IDs. [31] In view of the finding above, an order revoking or expunging the Defendants’ IDs in respect of the joss stick is inevitable for lack of novelty. The Plaintiff’s Pineapple and Gold Bar Lamps v the Defendants’ Pineapple and Gold Bar Lamps [32] This Court must emphasise here that it cannot be disputed that the Plaintiff’s Pineapple and Gold Bar Lamps were filed and were registered in 2007, which is at least six years earlier than 37 the Defendants‘s registration of their Pineapple and Gold Bar Lamps i.e in 2013. Here, it is crystal clear that prior to the Defendants’ registration of their Pineapple and Gold Bar Lamp there has already been disclosure of similar IDs to the public. [33] It is pertinent to be highlighted that in the Defendants’ attempt to discredit the Plaintiff’s novelty in its Pineapple and Gold Bar Lamp, the Defendants had contended that there are prior disclosures of the IDs prior to the application date of the Plaintiff’s Registered IDs. [34] To this contention, the Defendants had furnished an affidavit affirmed by a person by the name of Leong Wing Fui (Enclosure 4). Leong Wing Fun (Leong) had claimed that he runs a business under the name of Soon Fatt Hung Enterprise Sdn Bhd (Soong Fatt Hung). Leong in his affidavit had averred that Soon Fatt Hung’s business is producing and selling Chinese praying material including prayer lamps. According to Leong, Soon Fatt Hung had started producing Pineaple and Gold Bar Lamp since year 2006. Leong had alleged that the 38 Plaintiff had used its Gold Bar prayer lamp in the Plaintiff’s catalogue printed in year 2007. [35] In support of this allegation, Leong has enclosed in his affidavit the following exhibits: i. purported photos of his Gold Bar Prayer Lamp and Pineapple Prayer Lamp (Exhibit “LWF-1”); ii invoices that he had issued to his customers for sale in July and August 2007 Lamp (Exhibit “LWF-1”); iii. the receipt issued by Tai Chin Plastic Moulding Factoring who purportedly made the mould for his Pineapple Prayer Lamp and Gold Bar Prayer Lamp at his request in the year 2006 (Exhibit “LWF-1”); iv. the design of his packaging from the printing company in July 2007 (Exhibit “LWF-1”); v. the Plaintiff’s catalogue printed in year 2007 using his Gold Bar prayer lamp (Exhibit “LWF-2”) [36] With greatest respect, this Court agrees with the counsel for the Plaintiff that Leong’s affidavit did not carry any weight and 39 was no aid to the Defendants’ case. This Court finds so on the following reasons: i. firstly; the photographs are undated. ii. secondly; the invoices and receipts issued are not accompanied by pictures and/ or other documents which show that the items in relation to them are substantially similar to Plaintff’s Pineapple Lamp, in particular invoices issued by Soon Fatt Hung were all dated after Plaintiff’s Pineapple Lamp’s registration date. iii. thirdly; all the documents exhibited in Exhibit “LWF- 1” by Leong in his affidavit do not in any manner show any of the design were Leong’s lamps nor does it show that there was prior disclosure of his (Leong) lamps to the public. 40 iv. fourthly; Exhibit “LWF-2” does not in any manner show that the catalogue was actually printed in 2007. v. finally; this Court must also be mindful of the undisputed fact that Soon Fatt Hung Enterprise Sdn Bhd has a track record of infringing the Plaintiff’s intellectual property rights. The Plaintiff had in fact on 3.6.2013 obtained a judgment in the High Court of Ipoh against Soon Fatt namely; an injunction order restraining Soon Fatt Hung from infringing one of the Plaintiff’s other registered IDs. [37] For both the pineapple and the gold lamps, since the Plaintiff’s registrations of its designs were undisputably very much earlier than the the Defendants, then the question to be determine by this Court is whether the appearances of the Defendants’ pineapple and gold lamps are substantially the same as the Plaintiff’s pineapple and gold lamps. 41 [38] This Court takes note that the crux of the Plaintiff’s allegation against the Defendants apart from the Defendants’ IDs are not new or novel is that; the Defendants’ Pineaple and Gold Lamps are clearly identical and/or a fraudulent or obvious imitation of the Plaintiff’s Pineapple and Gold Bar Lamps and if there are any differences between the two, the difference in designs are merely immaterial details and/or features common to the trade. [39] The Defendants in refuting the Plaintiff’s contention had contended that the novelty claimed in the Plaintiff’s Pineapple and Gold Bar Lamps are in shape and in configuration whereas the novelty claimed in the Defendants’ Pineapple and the Gold Bar Lamps are the shape and configuration and the pattern and ornamentation applied to the article. [40] It was contended by the Defendants that their Pineapple and Gold Bar Lamps have additional features namely; the 2D gold bar artwork and Chinese characters which make the Defendants’ Designs appear to be distinct in the eyes of the 42 Chinese community as the Chinese community have strong affection for these auspicious words. [41] Thereto, the question that must be determined by this Court has been clearly stated in Russell-Clarke and Howe on Industrial Designs (7th Edn) para. 3-152 as follows: The question which has to be decided is whether the two appearances are substantially the same or not. That the eye, and the eye alone, is to be the judge of identify, and is to decide whether one design is or is not an antipacipation of another, has been consistently laid down. [42] This Court also refers to the case of Amp Incorporated v Utilux Pty Limited [1970] RPC 397 where the English Court of Appeal at page 430 has held: “There is a long line of authorities from Le May v. Welch [1883] 28 Ch.D. 24 at 34 onwards, including such a case as Allen 43 West v. British Westinghouse Electric & Manufacturing [1916] 33 RPC 157 at 165, which have laid down that to qualify as new or original a design must, when compared with the design must, when compared with the design of prior articles and other registered designs and published matter, show a substantial difference. Novelty or originality must be substantial, that is, must be present as a matter of substance, having regard to the nature of the article.” (emphasis given) [43] For clearer comparison of the four articles and its designs, this Court reproduces the pineapple and the gold lamps registered by both the Plaintiff and the Defendants in the table below: Plaintiff’s Industrial Designs Defendants’ Industrial Designs IDs Representation IDs Representation Gold Lamp Reg. Date: 18 October 2007 Gold Lamp Reg. Date: 24 December 2013 Pineapple Lamp Reg. Date: 24 April 2007 Pineapple Lamp Reg. Date: 24 December 2007 44 [44] Looking at the four articles and comparing the the designs of both the pineapple and the gold lamps, this Court must emphasise here without any hesitation, that the appearance of the Defendants’ pineapple and gold lamp are mostly similar and identical to the Plaintiff’s articles. [45] This Court is in agreement with the counsel for the Plaintiff that the novelty claimed by he Defendants in their articles (pineapple and gold lamps) namely; the 2D gold bar artwork and Chinese characters obviously is unsustainable. [46] It is this Court’s finding that the 2D gold bar artwork and Chinese characters in the Defendants’ IDs are clearly immaterial details and/or not substantial enough so as to confer registrability upon the design. The same immaterial details are also commonly used in the trade as the 2D gold bar artwork and Chinese characters are generic and/or common signals of properity within the Chinese community. 45 [47] Hence, undoubtedly the Defendants’ Pineapple and Gold Bar Lamps designs were not new/ novel designs within the meaning of section 12 of the (ID) Act 1996. [48] Upon the power conferred under section 27(1)(a) of (ID) Act 1996, this Court hereby revokes the registrations of the Defendants’ Pineapple and Gold Bar Lamps (IDs) and thus, the same infringing IDs are to be removed from the register. [49] In view of the aforemention deliberations, this Court hereby allows the Plaintiff’s application in Enclosure 1 and dismisses the Defendants’ counterclaim in paragraph 34 in their Affidavit in Reply (Enclosure 3) with costs. [50] This Court further orders that the Defendants pay the Plaintiff RM10,000.00 in costs. javascript:DispAct=window.open('/Members/DisplayAct.aspx?CaseActCode=MY_FS_ACT_1996_552&ActSectionNo=27.&SearchId=8perpm12A','_DisplayAct','');DispAct.focus() 46 t.t. ………………………………………….. (DATUK AZIMAH BINTI OMAR) Judge High Court Shah Alam Selangor Darul Ehsan Dated 14th November, 2017 Peguam Plaintif - Tetuan Chung Chambers Encik Bahari Yeow Cik Patricia Encik Ong Wei Shen Peguam Defendan - Tetuan Gan Partnership Encik Gan Khong Aik Cik Kang Mei Yee

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W-02(NCVC)(W)-1605-09/2015

PERAYU YAP KHAY CHEONG SDN BHD ... APPELLANT (NO. SYARIKAT: 775173-H) [Tetuan Justin Voon Chooi & Wing] RESPONDEN SUSAN GEORGE A/P T.M. GEORGE (NO. K/P.: 570923-11-5266) ... RESPONDEN T [Tetuan Mohd Latip & Associate]

Civil Procedure — Appeal — Sale and Purchase agreement (SPA) — Claim for specific performance of a Sale and Purchase Agreement of a property — Alternative claim for the return of the monies paid — Avoidance of SPA — Defendant opposes on the basis that her consent to enter the Second SPA is caused by undue influence — Burden of proving undue influence — Whether subsequent Second SPA voidable at the option of the Defendant — Whether Defendant entitled to avoid SPA when she has received payment for earnest deposit and balance of purchase price — Contracts Act 1950 [Act 136], section 16(1), section 19(1), section 20

13/11/2017

YAA TAN SRI ROHANA BINTI YUSUFKorumYAA TAN SRI ROHANA BINTI YUSUFYA TAN SRI IDRUS BIN HARUNYA DATO' MARY LIM THIAM SUAN

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17 IN THE COURT OF APPEAL OF MALAYSIA (APPELLATE JURISDICTION) CIVIL APPEAL NO: W-02(NCVC)(W)-1605-09/2015 BETWEEN YAP KHAY CHEONG SDN BHD … APPELLANT (NO. SYARIKAT: 775173-H) AND SUSAN GEORGE A/P T.M. GEORGE (NO. K/P.: 570923-11-5266) … RESPONDENT [In the matter of the High Court of Malaya at Kuala Lumpur Civil Suit No: 22NCVC-1458-12/2012 Between Yap Khay Cheong Sdn Bhd … Plaintiff (No. Syarikat: 775173-H) And Susan George a/p T.M. George (No. K/P.: 570923-11-5266) … Defendant) An appeal against the decision of YA Tuan Vazeer Alam Bin Mydin Meera, Judge, High Court at Kuala Lumpur made on 4th September 2015] CORAM ROHANA YUSUF, JCA IDRUS HARUN, JCA MARY LIM THIAM SUAN, JCA JUDGMENT OF THE COURT [1] The Plaintiff’s appeal before us is against the High Court decision which dismissed both the Plaintiff’s claim for specific performance of a Sale and Purchase Agreement of a property, and the alternative claim for the return of the monies paid pursuant to the said agreement. [2] We had allowed the appeal of the Plaintiff in part. We affirmed the decision of the learned High Court Judge on the dismissal of the prayer for specific relief. We however, allowed the alternative claim of the Plaintiff for the refund of the monies made pursuant to the agreement. Consequently the Defendant was ordered to repay the sum of RM285,000.00 to the Plaintiff. [3] The factual background to this appeal were these. The Defendant was at the material time a registered proprietor of a two storey terrace house property known as HSD 73153, PT 21991, Mukim Sungai Buloh, Daerah Petaling, Negeri Selangor, having a postal address at No. 11, Jalan Margosa SD 10/5E, Bandar Sri Damansara 52200 Kuala Lumpur (the Property). The Property was charged to OCBC. [4] Tharvinder Jeet Kaur a/p Jagjit Singh (Tharvinder) was on and off living with the Defendant at that Property. In evidence it was disclosed that the Defendant has a close, unusually intimate relationship with Tharvinder. The Defendant knew Tharvinder through Datuk DJ Dave, who is Tharvinder’s brother and a friend of the Defendant. [5] The Plaintiff is a private limited company. Around July 2011, the Plaintiff saw an advertisement of an auction by OCBC Bank (OCBC) with regard to the Property. The Plaintiff was interested to purchase the Property. An agreement for the sale and purchase of the Property was prepared by the Plaintiff’s solicitors and executed on 01.09.2011 (the First SPA) at an agreed price of RM550,000.00. Pursuant to the First SPA the Plaintiff paid an earnest deposit of RM38,000.00, out of which RM33,896.47 was paid to OCBC to regularise the Defendant’s mortgage account and the balance of the earnest deposit in the sum of RM4,103.53 was paid in cash. The balance purchase price of RM247,000.00 was paid into the Defendant’s Maybank account. [6] The First SPA was purportedly executed by the Defendant but as it turned out later, it was in fact executed by Tharvinder, who impersonated and represented herself as the Defendant to the Plaintiff, as well as to the solicitors acting for the Plaintiff preparing the First SPA, Encik Lim Kean Sheng (PW3) from Messrs. K.S Lim and Ong. [7] It was only in the process of inquiring for the redemption statement that OCBC detected the signature of the letter of authorisation by the Defendant differed from that in its records. OCBC requested the parties to come for verification through the thumb print of the Defendant. On 28.06.2012, all parties were present at OCBC including Tharvinder and the Defendant. Also present were the solicitors who had prepared and witnessed the execution of the First SPA PW3, the Plaintiff’s representative Encik Yap Han Hem (PW1) together with three Chinese men. It was then that the fraudulent scheme of Tharvinder was discovered. Tharvinder had admitted impersonating the Defendant in executing the First SPA and had held herself out as the Defendant throughout the deal. [8] The Defendant said after leaving OCBC that day, she was brought to the office of Messrs. K.S Lim and Ong, together with Tharvinder and PW1 and the three Chinese men. At Messrs. K.S Lim and Ong, the Defendant executed the Deed of Rescission of the First SPA and also a new Sale and Purchase Agreement (the Second SPA). It was the Plaintiff’s case that even though it was fraudulently misled by Tharvinder, all parties had come to an agreement to rescind the First SPA and the Defendant had agreed to enter into the Second SPA on similar terms as the First SPA. The differences were only regarding the length of time and dates. The claim of the Plaintiff is premised on the Second SPA where all payments made pursuant to the First SPA were deemed to be performed under the Second SPA. [9] On 22.08.2012 the Plaintiff however, received a letter from the Defendant’s solicitors informing that the Defendant did not want to proceed to complete the Second SPA, because she claimed she did not sign the Second SPA voluntarily. According to the Defendant she was threatened, forced and fraudulently misled by the Plaintiff and also by Tharvinder into doing so. [10] The Defendant said she never intended to sell her only property and it was Tharvinder who had all along acted on her behalf without her knowledge or consent. When she executed the Second SPA the Defendant claimed that she was not in a clear state of mind and was being intimidated, threatened and forced by the Plaintiff and Tharvinder to execute both the Deed of Rescission of the First SPA and the Second SPA. [11] The learned Judge having heard the evidence of the witnesses before him, found the circumstances surrounding the execution of the Second SPA very suspicious. It was the observation of the learned Judge that the Second SPA was executed by the Defendant rather hurriedly right after the meeting at OCBC where parties adjourned to the office of Messrs. K.S Lim and Ong, the conveyancing solicitors who acted for the Plaintiff. The learned Judge accepted the evidence of the Defendant who said she was in a state of confusion, not in a proper state of mind, and was overwhelmed by the presence of the Plaintiff’s representative Yap Han Kem (PW1) and the other three Chinese men who took her to the lawyer’s office. At the office, the Deed of Rescission to rescind the First SPA and the Second SPA were all ready for her execution. The Defendant testified that PW3 and Tharvinder had demanded her to execute both the documents in rough, loud and threatening voice that she was forced to sign them. [12] After the execution of the Second SPA, another meeting was held at Messrs. K.S Lim and Ong. This time the Defendant sought the help of Datuk DJ Dave to resolve the matter. The meeting was held in the presence of the Defendant, Tharvinder, Datuk DJ Dave, PW1 and PW3, where Tharvinder owned up that she was the one who orchestrated the First SPA. There was a recording of that meeting which was tendered in evidence where Tharvinder also admitted receiving and collecting the sum of RM247,000.00 on behalf of the Defendant. Tharvinder agreed to pay back the amount to the Plaintiff. Also in that recorded transcript the Defendant told PW3 that she was not in her proper state of mind when she signed the Deed of Rescission and the Second SPA. [13] Having analysed all these evidence, the learned Judge concluded that the Second SPA can be vitiated as it was procured by undue influence within the meaning of section 16(1) of the Contracts Act 1950. The learned Judge opined that the Defendant being a single lady was confused and frightened by the presence of 4 or 5 men unknown to her, including Tharvinder directing her to execute the Deed of Rescission and the Second SPA. In the words of the learned trial Judge he found “… without a doubt that the Defendant was placed in a position of helplessness, where any decision made at the behest of the Plaintiff’s representative and Tharvinder would be vitiated by reason of undue influence. It is clear that parties were not dealing at arms length.” [14] We have properly scrutinised the finding of facts made by the learned Judge in concluding that the Second SPA was not signed voluntarily by the Defendant. Having read the submissions and after hearing the oral submissions of both parties before us, we were in agreement with that finding as it was a finding of fact based on the oral testimonies of witnesses before him. We have no reason to disturb a finding made upon the evidence at trial, where the trial Judge being a trier of facts has a better advantage than us. The finding was made on assessing the relevant testimonies and substantiated by good and sound reasons which we have no reason to differ from or interfere with. [15] It is a long established principle that generally, an appellate court will not intervene with the findings of facts made by a trial Judge. Only when a trial Judge has so manifestly failed to derive proper benefit from the undoubted advantage of seeing and hearing witnesses at the trial and in reaching his conclusion; has not properly analysed the entirety of the evidence and relevancy of contemporary documents which were given before him; has misapprehended the facts and blindly applied wrong principles of law, then it is the plain duty of an appellate court to intervene and correct the error, lest otherwise the error result in serious injustice (see Eastern & Oriental Hotel (1951) Sdn Bhd v Ellarious George Fernandez & Anor [1989] 1 MLJ 35 (SC) Choo Kok Beng v Choo Kok Hoe & Ors [1984] 2 MLJ 165 (PC),Yoong Sze Fatt v Pengkalan Securities Sdn Bhd [2010] 1 MLJ 85, Lee Chor Ching & Anor v Idris bin Abdul Karim and Anor Appeal [1998] 3 CLJ Supp 145) [16] The Second SPA, since it was found by the learned trial Judge to have been executed without free consent and by undue influence, is voidable at the option of the Defendant, as provided under section 19(1) of the Contracts Act 1950. The Defendant had correctly exercised her right to vitiate the Second SPA, hence there was no valid contract to enforce any specific relief sought by the Plaintiff. It was for this reason that we agreed with the learned Judge that, no specific relief is available to the Plaintiff. [17] The learned Judge had also dismissed the alternative prayer by the Plaintiff for the refund of the monies paid pursuant to the First SPA and deemed made under the Second SPA. The learned Judge has ruled that the right party to refund would be Tharvinder. Hence the proper claim of the Plaintiff had to be directed to Tharvinder. We however were not able to discern from the grounds of judgment of the learned trial Judge as to his reason for holding so. [18] In its Statement of Claim the Plaintiff sought for an alternative relief for the refund of the monies paid pursuant to the First SPA which was to be treated as payment made under the Second SPA. The Plaintiff’s alternative prayer was for the return of the sum of RM38,000.00 paid as earnest deposit, the balance purchase price of RM247,000.00, and the pre-agreed liquidated damages of RM55,000.00 pursuant to clause 11 of the Second SPA. [19] The payment of earnest deposit totalling RM38,000.00 was not in dispute. Out of this sum, RM33,896.47 was paid to OCBC to regularise the mortgage account of the Defendant and the balance of RM4,103.53 was paid in cash to Tharvinder. There was also no dispute that a sum of RM247,000.00 was paid into the account of the Defendant at Maybank. The cheque payable to the account of the Defendant was passed to Tharvinder, who acknowledged receipt of the same. The Defendant in fact admitted that RM247,000.00 was credited into her account but pleaded ignorance on what the payment was for. In her testimonies she said, Tharvinder had informed her that, it was some payment for the church and so she allowed Tharvinder to withdraw them from her account at Maybank. Tharvinder had confirmed what the Defendant said and had also admitted that she had eventually withdrawn the monies from the Defendant’s account. [20] This brought us to section 20 of the Contracts Act which deals with monies received under a voidable contract, caused by undue influence. It provides: 20. When consent to an agreement is caused by undue influence, the agreement is a contract voidable at the option of the party whose consent was so caused. Any such contract may be set aside either absolutely or, if the party who was entitled to avoid it has received any benefit thereunder, upon such terms and conditions as to the court may seem just. Illustration (b) to the above section further clarifies the legal position on monies received under such a contract: Illustration (b) A, a money lender advances RM100 to B, an agriculturist, and, by undue influence, induces B to execute a bond for RM200 with interest at 6 per cent per month. The court may set the bond aside, ordering B to repay the RM100 with such interest as may seem just. [21] Section 20 states the legal position and the implication of avoiding a contract for reason of undue influence. It says, a party who is entitled to set aside a contract due to undue influence, may be ordered by the Court to return the benefit obtained under such a contract, upon terms that the Court deems fit. Illustration (b) to section 20 amplifies further the implication of section 20, that a person who receives benefit under such a contract may be ordered by the Court to return it on terms. [22] On the facts of the present case, it is without a doubt that the Plaintiff had paid an earnest deposit of RM38,000.00 for the benefit of the Defendant when her mortgage account was regularised by that payment. The sum of RM247,000.00 was deposited into the bank account of the Defendant. The Defendant as an account holder, has sole legal control and custody of her own bank account. It is accepted that no person can have any access to another person’s account unless consented to. In this case the Defendant had allowed Tharvinder free access to her account and she should be held responsible for the outcome of her action. Since she had allowed Tharvinder to meddle with her account, in our view she cannot absolve her responsibility by just feigning ignorance about what went on in her account. We all know that under the normal order of the day, her bank would have contacted her about an unusually large transaction or an out of the ordinary transaction such as this. She would have been alerted and would have been aware of the transaction with the Plaintiff. While saying that the monies was drawn out by Tharvinder, the Defendant had not shown any shred of documentary proof to support her version. It was also in evidence that due to their close relationship, there was a history of events between them where the Defendant had on many occasions advanced monies to Tharvinder. In a police report lodged by the Defendant against Tharvinder, there were occasions where Tharvinder had taken her important documents, her valuable including jewellery. Thavinder had destroyed the Defendant’s documents and took her passport etc. In relation to this withdrawal of the sum of RM247,000.00 the Defendant said Tharvinder took her identification card to withdraw the money at the Bank. Quite obviously, she had also allowed her identification card be kept and used by Tharvinder. [23] We found it clear that the monies paid by the Plaintiff was for the benefit of the Defendant as envisaged by section 20 of the Contracts Act. The payment to OCBC had regularised the outstanding mortgage account of the Defendant. The Defendant did not deny that RM247,000.00 was paid into her account by the Plaintiff. In our view that is good enough to constitute a payment made for the benefit of the Defendant pursuant to a voidable contract. The testimonies of the Defendant that she had allowed Tharvinder to take out that money from her account, cannot absolve her liability to return the money which was paid for her benefit under a contract which she had avoided for reason of undue influence. [24] In relation to authorising the use of account, the decision of this Court in Teh Poh Wah v Seremban Securities Sdn Bhd [1996] 1 MLJ 701 would provide a useful guidance. In that case, the wife who had given a blanket authority for her husband to transact shares in her trading account was held to be responsible for the loss in that account. Likewise, in the present case, since the Defendant had given Tharvinder the authority to access her account without limitation, she cannot now say she was not the one benefitting from that payment and need not return that money to the Plaintiff. The Defendant may have a right to claim back the monies from Tharvinder, either by bringing her as a third party to the suit by the Plaintiff or to directly claim indemnity from her. In this regard, we took note that the Defendant initially had brought Tharvinder as a third party in the proceedings. Tharvinder however had successfully set aside the third party order against her at the Court of Appeal. The setting aside of the third party order was made by the Court with liberty to file afresh. No step however, was taken by the Defendant to bring Tharvinder as a third party till the end of the trial. [25] There was no privity of contract between the Plaintiff with Tharvinder to enable any direct recourse against her by the Plaintiff. The learned Judge did not make clear on his reason when he said the Plaintiff’s recourse was against Tharvinder. We are not in agreement with the learned Judge on this point. [26] Premised on all the above reasons it is our considered view that the Plaintiff is entitled to be refunded by the Defendant because the monies paid pursuant to the agreement was in effect paid for the benefit of the Defendant. The Defendant cannot deny this. The Defendant cannot absolve liability by blaming Tharvinder, because she had given blanket authority to Tharvinder and was quite happy to let Tharvinder take out the monies paid by the Plaintiff without investigating properly the status of her account. Since the Second SPA had been vitiated by her, the Defendant cannot benefit from any payment under the Second SPA. The earnest deposit of RM38,000.00 was obviously paid for the benefit of the Defendant, out of which RM33,869.47 was paid to regularise the mortgage account of the Defendant at OCBC. The other RM4,103.53 was paid to Tharvinder in cash pursuant to the First SPA. [27] We therefore were not in agreement with the learned trial Judge on this issue. In our view the learned Judge had erred in law in ruling that the Plaintiff’s recourse is to make a claim against Tharvinder. The learned Judge did not consider the clear provision of section 20 of the Contracts Act. The Defendant should not be allowed to keep the monies or to benefit under an agreement which she had vitiated. For that reason, we allowed this part of the appeal and ordered the Defendant to refund the Plaintiff the earnest deposit of RM38,000.00 and RM247,000.00 totalling RM285,000.00 to be paid within 30 days from the date of this judgment. We did not allow the claim for the pre-agreed liquidated damages of RM55,000.00, since the contract was already avoided by the Defendant. We made no order as to costs. Signed by: ROHANA YUSUF Judge Court of Appeal Malaysia Dated: 13 November 2017 Counsel for the Appellant: Mr. Justin Voon (Miss Lee Chooi Peng and Miss Wong Jyh Ling with him) Messrs. Justin Voon Chooi & Wing D6-5-13A Bangunan Perdagangan D6 801, Jalan Sentul 51000 Kuala Lumpur Counsel for the Respondents: Miss K. Kandiah (Miss M. Indrani with her) Messrs. Mohd Latip & Associate No. 202, Tingkat 1 Jalan Sultan Abdul Samad 42700 Banting, Selangor

Tika 2.6.0

W-02(NCVC)(W)-1605-09/2015

PERAYU YAP KHAY CHEONG SDN BHD ... APPELLANT (NO. SYARIKAT: 775173-H) [Tetuan Justin Voon Chooi & Wing] RESPONDEN SUSAN GEORGE A/P T.M. GEORGE (NO. K/P.: 570923-11-5266) ... RESPONDEN T [Tetuan Mohd Latip & Associate]

Civil Procedure — Appeal — Sale and Purchase agreement (SPA) — Claim for specific performance of a Sale and Purchase Agreement of a property — Alternative claim for the return of the monies paid — Avoidance of SPA — Defendant opposes on the basis that her consent to enter the Second SPA is caused by undue influence — Burden of proving undue influence — Whether subsequent Second SPA voidable at the option of the Defendant — Whether Defendant entitled to avoid SPA when she has received payment for earnest deposit and balance of purchase price — Contracts Act 1950 [Act 136], section 16(1), section 19(1), section 20

13/11/2017

YAA TAN SRI ROHANA BINTI YUSUFKorumYAA TAN SRI ROHANA BINTI YUSUFYA TAN SRI IDRUS BIN HARUNYA DATO' MARY LIM THIAM SUAN

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17 IN THE COURT OF APPEAL OF MALAYSIA (APPELLATE JURISDICTION) CIVIL APPEAL NO: W-02(NCVC)(W)-1605-09/2015 BETWEEN YAP KHAY CHEONG SDN BHD … APPELLANT (NO. SYARIKAT: 775173-H) AND SUSAN GEORGE A/P T.M. GEORGE (NO. K/P.: 570923-11-5266) … RESPONDENT [In the matter of the High Court of Malaya at Kuala Lumpur Civil Suit No: 22NCVC-1458-12/2012 Between Yap Khay Cheong Sdn Bhd … Plaintiff (No. Syarikat: 775173-H) And Susan George a/p T.M. George (No. K/P.: 570923-11-5266) … Defendant) An appeal against the decision of YA Tuan Vazeer Alam Bin Mydin Meera, Judge, High Court at Kuala Lumpur made on 4th September 2015] CORAM ROHANA YUSUF, JCA IDRUS HARUN, JCA MARY LIM THIAM SUAN, JCA JUDGMENT OF THE COURT [1] The Plaintiff’s appeal before us is against the High Court decision which dismissed both the Plaintiff’s claim for specific performance of a Sale and Purchase Agreement of a property, and the alternative claim for the return of the monies paid pursuant to the said agreement. [2] We had allowed the appeal of the Plaintiff in part. We affirmed the decision of the learned High Court Judge on the dismissal of the prayer for specific relief. We however, allowed the alternative claim of the Plaintiff for the refund of the monies made pursuant to the agreement. Consequently the Defendant was ordered to repay the sum of RM285,000.00 to the Plaintiff. [3] The factual background to this appeal were these. The Defendant was at the material time a registered proprietor of a two storey terrace house property known as HSD 73153, PT 21991, Mukim Sungai Buloh, Daerah Petaling, Negeri Selangor, having a postal address at No. 11, Jalan Margosa SD 10/5E, Bandar Sri Damansara 52200 Kuala Lumpur (the Property). The Property was charged to OCBC. [4] Tharvinder Jeet Kaur a/p Jagjit Singh (Tharvinder) was on and off living with the Defendant at that Property. In evidence it was disclosed that the Defendant has a close, unusually intimate relationship with Tharvinder. The Defendant knew Tharvinder through Datuk DJ Dave, who is Tharvinder’s brother and a friend of the Defendant. [5] The Plaintiff is a private limited company. Around July 2011, the Plaintiff saw an advertisement of an auction by OCBC Bank (OCBC) with regard to the Property. The Plaintiff was interested to purchase the Property. An agreement for the sale and purchase of the Property was prepared by the Plaintiff’s solicitors and executed on 01.09.2011 (the First SPA) at an agreed price of RM550,000.00. Pursuant to the First SPA the Plaintiff paid an earnest deposit of RM38,000.00, out of which RM33,896.47 was paid to OCBC to regularise the Defendant’s mortgage account and the balance of the earnest deposit in the sum of RM4,103.53 was paid in cash. The balance purchase price of RM247,000.00 was paid into the Defendant’s Maybank account. [6] The First SPA was purportedly executed by the Defendant but as it turned out later, it was in fact executed by Tharvinder, who impersonated and represented herself as the Defendant to the Plaintiff, as well as to the solicitors acting for the Plaintiff preparing the First SPA, Encik Lim Kean Sheng (PW3) from Messrs. K.S Lim and Ong. [7] It was only in the process of inquiring for the redemption statement that OCBC detected the signature of the letter of authorisation by the Defendant differed from that in its records. OCBC requested the parties to come for verification through the thumb print of the Defendant. On 28.06.2012, all parties were present at OCBC including Tharvinder and the Defendant. Also present were the solicitors who had prepared and witnessed the execution of the First SPA PW3, the Plaintiff’s representative Encik Yap Han Hem (PW1) together with three Chinese men. It was then that the fraudulent scheme of Tharvinder was discovered. Tharvinder had admitted impersonating the Defendant in executing the First SPA and had held herself out as the Defendant throughout the deal. [8] The Defendant said after leaving OCBC that day, she was brought to the office of Messrs. K.S Lim and Ong, together with Tharvinder and PW1 and the three Chinese men. At Messrs. K.S Lim and Ong, the Defendant executed the Deed of Rescission of the First SPA and also a new Sale and Purchase Agreement (the Second SPA). It was the Plaintiff’s case that even though it was fraudulently misled by Tharvinder, all parties had come to an agreement to rescind the First SPA and the Defendant had agreed to enter into the Second SPA on similar terms as the First SPA. The differences were only regarding the length of time and dates. The claim of the Plaintiff is premised on the Second SPA where all payments made pursuant to the First SPA were deemed to be performed under the Second SPA. [9] On 22.08.2012 the Plaintiff however, received a letter from the Defendant’s solicitors informing that the Defendant did not want to proceed to complete the Second SPA, because she claimed she did not sign the Second SPA voluntarily. According to the Defendant she was threatened, forced and fraudulently misled by the Plaintiff and also by Tharvinder into doing so. [10] The Defendant said she never intended to sell her only property and it was Tharvinder who had all along acted on her behalf without her knowledge or consent. When she executed the Second SPA the Defendant claimed that she was not in a clear state of mind and was being intimidated, threatened and forced by the Plaintiff and Tharvinder to execute both the Deed of Rescission of the First SPA and the Second SPA. [11] The learned Judge having heard the evidence of the witnesses before him, found the circumstances surrounding the execution of the Second SPA very suspicious. It was the observation of the learned Judge that the Second SPA was executed by the Defendant rather hurriedly right after the meeting at OCBC where parties adjourned to the office of Messrs. K.S Lim and Ong, the conveyancing solicitors who acted for the Plaintiff. The learned Judge accepted the evidence of the Defendant who said she was in a state of confusion, not in a proper state of mind, and was overwhelmed by the presence of the Plaintiff’s representative Yap Han Kem (PW1) and the other three Chinese men who took her to the lawyer’s office. At the office, the Deed of Rescission to rescind the First SPA and the Second SPA were all ready for her execution. The Defendant testified that PW3 and Tharvinder had demanded her to execute both the documents in rough, loud and threatening voice that she was forced to sign them. [12] After the execution of the Second SPA, another meeting was held at Messrs. K.S Lim and Ong. This time the Defendant sought the help of Datuk DJ Dave to resolve the matter. The meeting was held in the presence of the Defendant, Tharvinder, Datuk DJ Dave, PW1 and PW3, where Tharvinder owned up that she was the one who orchestrated the First SPA. There was a recording of that meeting which was tendered in evidence where Tharvinder also admitted receiving and collecting the sum of RM247,000.00 on behalf of the Defendant. Tharvinder agreed to pay back the amount to the Plaintiff. Also in that recorded transcript the Defendant told PW3 that she was not in her proper state of mind when she signed the Deed of Rescission and the Second SPA. [13] Having analysed all these evidence, the learned Judge concluded that the Second SPA can be vitiated as it was procured by undue influence within the meaning of section 16(1) of the Contracts Act 1950. The learned Judge opined that the Defendant being a single lady was confused and frightened by the presence of 4 or 5 men unknown to her, including Tharvinder directing her to execute the Deed of Rescission and the Second SPA. In the words of the learned trial Judge he found “… without a doubt that the Defendant was placed in a position of helplessness, where any decision made at the behest of the Plaintiff’s representative and Tharvinder would be vitiated by reason of undue influence. It is clear that parties were not dealing at arms length.” [14] We have properly scrutinised the finding of facts made by the learned Judge in concluding that the Second SPA was not signed voluntarily by the Defendant. Having read the submissions and after hearing the oral submissions of both parties before us, we were in agreement with that finding as it was a finding of fact based on the oral testimonies of witnesses before him. We have no reason to disturb a finding made upon the evidence at trial, where the trial Judge being a trier of facts has a better advantage than us. The finding was made on assessing the relevant testimonies and substantiated by good and sound reasons which we have no reason to differ from or interfere with. [15] It is a long established principle that generally, an appellate court will not intervene with the findings of facts made by a trial Judge. Only when a trial Judge has so manifestly failed to derive proper benefit from the undoubted advantage of seeing and hearing witnesses at the trial and in reaching his conclusion; has not properly analysed the entirety of the evidence and relevancy of contemporary documents which were given before him; has misapprehended the facts and blindly applied wrong principles of law, then it is the plain duty of an appellate court to intervene and correct the error, lest otherwise the error result in serious injustice (see Eastern & Oriental Hotel (1951) Sdn Bhd v Ellarious George Fernandez & Anor [1989] 1 MLJ 35 (SC) Choo Kok Beng v Choo Kok Hoe & Ors [1984] 2 MLJ 165 (PC),Yoong Sze Fatt v Pengkalan Securities Sdn Bhd [2010] 1 MLJ 85, Lee Chor Ching & Anor v Idris bin Abdul Karim and Anor Appeal [1998] 3 CLJ Supp 145) [16] The Second SPA, since it was found by the learned trial Judge to have been executed without free consent and by undue influence, is voidable at the option of the Defendant, as provided under section 19(1) of the Contracts Act 1950. The Defendant had correctly exercised her right to vitiate the Second SPA, hence there was no valid contract to enforce any specific relief sought by the Plaintiff. It was for this reason that we agreed with the learned Judge that, no specific relief is available to the Plaintiff. [17] The learned Judge had also dismissed the alternative prayer by the Plaintiff for the refund of the monies paid pursuant to the First SPA and deemed made under the Second SPA. The learned Judge has ruled that the right party to refund would be Tharvinder. Hence the proper claim of the Plaintiff had to be directed to Tharvinder. We however were not able to discern from the grounds of judgment of the learned trial Judge as to his reason for holding so. [18] In its Statement of Claim the Plaintiff sought for an alternative relief for the refund of the monies paid pursuant to the First SPA which was to be treated as payment made under the Second SPA. The Plaintiff’s alternative prayer was for the return of the sum of RM38,000.00 paid as earnest deposit, the balance purchase price of RM247,000.00, and the pre-agreed liquidated damages of RM55,000.00 pursuant to clause 11 of the Second SPA. [19] The payment of earnest deposit totalling RM38,000.00 was not in dispute. Out of this sum, RM33,896.47 was paid to OCBC to regularise the mortgage account of the Defendant and the balance of RM4,103.53 was paid in cash to Tharvinder. There was also no dispute that a sum of RM247,000.00 was paid into the account of the Defendant at Maybank. The cheque payable to the account of the Defendant was passed to Tharvinder, who acknowledged receipt of the same. The Defendant in fact admitted that RM247,000.00 was credited into her account but pleaded ignorance on what the payment was for. In her testimonies she said, Tharvinder had informed her that, it was some payment for the church and so she allowed Tharvinder to withdraw them from her account at Maybank. Tharvinder had confirmed what the Defendant said and had also admitted that she had eventually withdrawn the monies from the Defendant’s account. [20] This brought us to section 20 of the Contracts Act which deals with monies received under a voidable contract, caused by undue influence. It provides: 20. When consent to an agreement is caused by undue influence, the agreement is a contract voidable at the option of the party whose consent was so caused. Any such contract may be set aside either absolutely or, if the party who was entitled to avoid it has received any benefit thereunder, upon such terms and conditions as to the court may seem just. Illustration (b) to the above section further clarifies the legal position on monies received under such a contract: Illustration (b) A, a money lender advances RM100 to B, an agriculturist, and, by undue influence, induces B to execute a bond for RM200 with interest at 6 per cent per month. The court may set the bond aside, ordering B to repay the RM100 with such interest as may seem just. [21] Section 20 states the legal position and the implication of avoiding a contract for reason of undue influence. It says, a party who is entitled to set aside a contract due to undue influence, may be ordered by the Court to return the benefit obtained under such a contract, upon terms that the Court deems fit. Illustration (b) to section 20 amplifies further the implication of section 20, that a person who receives benefit under such a contract may be ordered by the Court to return it on terms. [22] On the facts of the present case, it is without a doubt that the Plaintiff had paid an earnest deposit of RM38,000.00 for the benefit of the Defendant when her mortgage account was regularised by that payment. The sum of RM247,000.00 was deposited into the bank account of the Defendant. The Defendant as an account holder, has sole legal control and custody of her own bank account. It is accepted that no person can have any access to another person’s account unless consented to. In this case the Defendant had allowed Tharvinder free access to her account and she should be held responsible for the outcome of her action. Since she had allowed Tharvinder to meddle with her account, in our view she cannot absolve her responsibility by just feigning ignorance about what went on in her account. We all know that under the normal order of the day, her bank would have contacted her about an unusually large transaction or an out of the ordinary transaction such as this. She would have been alerted and would have been aware of the transaction with the Plaintiff. While saying that the monies was drawn out by Tharvinder, the Defendant had not shown any shred of documentary proof to support her version. It was also in evidence that due to their close relationship, there was a history of events between them where the Defendant had on many occasions advanced monies to Tharvinder. In a police report lodged by the Defendant against Tharvinder, there were occasions where Tharvinder had taken her important documents, her valuable including jewellery. Thavinder had destroyed the Defendant’s documents and took her passport etc. In relation to this withdrawal of the sum of RM247,000.00 the Defendant said Tharvinder took her identification card to withdraw the money at the Bank. Quite obviously, she had also allowed her identification card be kept and used by Tharvinder. [23] We found it clear that the monies paid by the Plaintiff was for the benefit of the Defendant as envisaged by section 20 of the Contracts Act. The payment to OCBC had regularised the outstanding mortgage account of the Defendant. The Defendant did not deny that RM247,000.00 was paid into her account by the Plaintiff. In our view that is good enough to constitute a payment made for the benefit of the Defendant pursuant to a voidable contract. The testimonies of the Defendant that she had allowed Tharvinder to take out that money from her account, cannot absolve her liability to return the money which was paid for her benefit under a contract which she had avoided for reason of undue influence. [24] In relation to authorising the use of account, the decision of this Court in Teh Poh Wah v Seremban Securities Sdn Bhd [1996] 1 MLJ 701 would provide a useful guidance. In that case, the wife who had given a blanket authority for her husband to transact shares in her trading account was held to be responsible for the loss in that account. Likewise, in the present case, since the Defendant had given Tharvinder the authority to access her account without limitation, she cannot now say she was not the one benefitting from that payment and need not return that money to the Plaintiff. The Defendant may have a right to claim back the monies from Tharvinder, either by bringing her as a third party to the suit by the Plaintiff or to directly claim indemnity from her. In this regard, we took note that the Defendant initially had brought Tharvinder as a third party in the proceedings. Tharvinder however had successfully set aside the third party order against her at the Court of Appeal. The setting aside of the third party order was made by the Court with liberty to file afresh. No step however, was taken by the Defendant to bring Tharvinder as a third party till the end of the trial. [25] There was no privity of contract between the Plaintiff with Tharvinder to enable any direct recourse against her by the Plaintiff. The learned Judge did not make clear on his reason when he said the Plaintiff’s recourse was against Tharvinder. We are not in agreement with the learned Judge on this point. [26] Premised on all the above reasons it is our considered view that the Plaintiff is entitled to be refunded by the Defendant because the monies paid pursuant to the agreement was in effect paid for the benefit of the Defendant. The Defendant cannot deny this. The Defendant cannot absolve liability by blaming Tharvinder, because she had given blanket authority to Tharvinder and was quite happy to let Tharvinder take out the monies paid by the Plaintiff without investigating properly the status of her account. Since the Second SPA had been vitiated by her, the Defendant cannot benefit from any payment under the Second SPA. The earnest deposit of RM38,000.00 was obviously paid for the benefit of the Defendant, out of which RM33,869.47 was paid to regularise the mortgage account of the Defendant at OCBC. The other RM4,103.53 was paid to Tharvinder in cash pursuant to the First SPA. [27] We therefore were not in agreement with the learned trial Judge on this issue. In our view the learned Judge had erred in law in ruling that the Plaintiff’s recourse is to make a claim against Tharvinder. The learned Judge did not consider the clear provision of section 20 of the Contracts Act. The Defendant should not be allowed to keep the monies or to benefit under an agreement which she had vitiated. For that reason, we allowed this part of the appeal and ordered the Defendant to refund the Plaintiff the earnest deposit of RM38,000.00 and RM247,000.00 totalling RM285,000.00 to be paid within 30 days from the date of this judgment. We did not allow the claim for the pre-agreed liquidated damages of RM55,000.00, since the contract was already avoided by the Defendant. We made no order as to costs. Signed by: ROHANA YUSUF Judge Court of Appeal Malaysia Dated: 13 November 2017 Counsel for the Appellant: Mr. Justin Voon (Miss Lee Chooi Peng and Miss Wong Jyh Ling with him) Messrs. Justin Voon Chooi & Wing D6-5-13A Bangunan Perdagangan D6 801, Jalan Sentul 51000 Kuala Lumpur Counsel for the Respondents: Miss K. Kandiah (Miss M. Indrani with her) Messrs. Mohd Latip & Associate No. 202, Tingkat 1 Jalan Sultan Abdul Samad 42700 Banting, Selangor

Tika 2.6.0

WA-24FC-1016-10/2016

PLAINTIF UNITED OVERSEAS BANK (MALAYSIA) BHD DEFENDAN SHINING CREST SDN BHD

13/11/2017

YA DATUK S. NANTHA BALAN

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=da733db1-049b-494e-b7fd-c65830d36956&Inline=true

DAI,A.\I M.\HI<Aw\H TKNGGI VIM Y:\DI Kl?‘-\I.A I.Lh\XPUR DALAM \V< II AYAH PERSFK L’ XN KUM_\ LUMPUR N0 SAMAN PEMULA W 16 Tlnlnm pexkari ynng dlperuntukkan 4. hmh Szksym 22:» Kmn Tmh Ne_gau19(:5 Dun Da.L1m pnkam mengenan Gadzmn yang dxdzfmzkzn mr_Iz.Iu| No l’crsuahun 42301/201:». 4: won. 424ox,2ms «Inn 4ZJ99,'20Ia hmanxh ang d.|pegang 4. lmml-A v_\')\w) 35352. 1=.\r(\n-V; 35357, Lot 63097 dun Lot mo-)5, Muknm Batu, Dacmh Km. Lulnpux, Nzgcn W yz.h"cnch1n|nnKI. Dnlnm perknm yang dxpcnlnlukkan ‘I. bawnh Arunn as Kzedzh 1. K:udah— Kacdah Mahkzmzh 2012 ANTAR \ UNITED OVERSEAS BANK (MALAYSIA) mm ...l'LAlNTlF DJ\.\I SHINING CREST SDN BHD ...DEl-‘ENDAN ENI 1 Tbs: are my grounds of 1udg;n:n( m mspect of an npphczuon by rh: defendant (Enclosux: 9) rm me fnllowmg orders» !’)|;( mu b) That km nf zouvr be granted in: an nlcnsxnn of ume for the defendant m file an apphcaflnn m :51 aslde me om“ (Enclosure 1) dmd 7 Nnvtmber 2015 pulsuznt m Urdu 3 Rule 5 of ma Ruks of Court 21112: Thu 2 dcclunuun be gum. am the Older (Enclunke 1) dared 7 Nmzrnbet 2DI6 u null and voxd: ‘n-m an Ordzx m m nslde the Order (cnclosuz: 1) dated 7 Novembcx 2016 be gxamcdi Thu xi uh: Cuuu zllows um zpplltauon m pnym (a) my (1,) of mg n|>n\'e, Ieav: of cnurl be g\V=n m the «(mam m file In Afidafil m Reply ma me ougnmng Summons (‘the osn pnxsnnm to Urdu 32 Rule 13(2)(:) om: Rulzs of Ooun 2012, Cosxs; Such {mum and/or other I:l1:fS am rhts Honounbl: Court may dcan fir. I «an sun um um mm... (acts and me, an as (alum A company knmnu ., KCT Enkupns: Sdn mm mm box-zvwzr"), hm rnken fimmcul (mum wxrh the plzunuff by way of: combxnnnon or fund loans. bmms acceptance md ovczdrafl f7ad.I.|!3' fox . sum mmuy m2,925,vm.oo (“the {mu-ms’). Pzgrlnlll 11. The plamnii ..« m file and scrvc a rm: »\ffidz\1: 1.. «P1, (m zcapund m zlm dc[cnLhnr'< nvcuncnli mud n) pmvldc the Cuuzt \v|Lh the amount ouLsv.1nd.Ing as 2. 13 Dnvccmbur 2:717), an at before 30 November 2017. Paxues are to Ill:/sen: um. wnncn submusqon. (m:><u1\u.m rm (5) pagzs) on at before 11 Dwembat 2017. om" accordingly, Dam. 13 .\Io\'u-nLver 2017 / Wm s. Nznll-m Balan judge lhgh Conn Kualn Lumpur Caumnl: Encxk Mohd H.|s\'m-n H.I.\rm Em ;\bd Rahman (Mum. ow ¢- I’ur1urr.v) an the plmluuff Ms. ()0) She Y: (zvlum. om Cbumbmj for the deiendznl. Slamlez Ordn 33 Rule 2(2) Rulzs of Court 2012. Order 3 ma: 3<4).(5) Rules nr Cnuu 2012 Psgt 11 m2 Calu: Jam Em Ana Amt A\/Ialmgtuml smut I’ Laluhaaunan A/L Itnnakannaa [2017] l\.‘fl.jU 533 Ham: Bmm Dmlopmcnt Id» BM u K/Ialmddm Bm I-9 Mmtapa (KLHC Sun No: 22Ncvc—-mws/2015) (umcponed). P1g<‘IZm'IZ As mumy rm rhc fncxlmas, pmpums Owned by the defendant wrrc zhzrgcd m uh: plmndif In -hm rexptcl nu: dcrchdmh charged us pmpuun held undc: PN (\x1=9 35353, La: MUV7, Muknn Batu, mmh Kuhn Luxnput, Ncgau Wdsyah nmhumn Kuala Lumpur and PN (W?) 33357, Lot 630%, Muknm Em Dunk Kuzln Lurnpur, Ncgen xwmh Pusckutunn Kuzla L\Imp\I1, (0 ch: plnmdffi The borrower dmumd in mlklng payrnml undu nu: fncxlllies On 1 Septcmber 2016.111: plmarrmu 10 ch: ckfendanl . Noun: ofnemand rm «h: sum of R.\(1.S55,l30.15 which .5 Said to he dun‘ ma mung pursuant to a defauli by the lmrmwcr “mm the faclljues. P110: to um. um pmhuir had xssnzd ms smutory Form ms \vbu;h .5 mandatory undu (ha Nam:-nal Land Cod: was 111: pmnufrs case m so in .5 an 0515 conoemcd my ha gleannd Emm Lh: nifidavxt of one Chen: Wu zifirmcd on 31 Ocmbzi 2016 (Endnsulc 2) which (in 13:11:51 hxhuam) {ends as:— "/1 mm» yang msahul d1 mm khhylm dxpdukan um. Dcfmdnn kcvulx Pllhnhfstblfiil <&kunu umuk ptmbayarxn bahk puuulun-rllvlmln yin: mm olch w.--mr kcptdl KCT Emrmnyz Sdn Ehd ("Pemm}II'\"7 dzugan bmix-huimya mum sqruubmkul ha) Hmmmtmxhul I w M») 5515:. mama, Muknn nun. Dwain Km L\|mynur. Ncgen Mumyah P:n:kLIuan KL 2 PN uvp» 35357. La! 53096, Muhm am, mmh x....h. Lumpur. Ntgen vnh.y.h Faseklnuan KL 1bDBn\vr—BuurCvw.hmnI No Venzrlhau Aunmau Bemnkhl).II10|3 No r...=.m.. mu:-20:: Bmunkh u :1 mm FAg:3oII2 2. N» Paxmahan Amman Den-nkh Ill I 2a :3 No Pnstnhnn mm}: luau mwzols |c)J=msPiruumnn 1 ri..,......n ‘I-Ixed Lean I um‘ squmm xmmnoonn 2 mam... -rm Law 2 nu)" wumm. RMJSO.u01wv 3 r...;....... “Banker! Acrzplarmf sejumlnh KM usmooo on : nun-nan "Unrdnfi" srulmlnh RMxnu,mu0o .1...» mm us |oo.n| Sazluun dnkumm hzlunillk kellumn um...» mrsehnl. umm. Iusebm mm. dcnnm wrnl mm." nmr mm. dxllxnpnrkm a. sun dun mu\rIg~lnLnIlgdIu|\dlsel7lg:I=ksh1\m"U0B-I‘ dan“UOB-2" 5 Del<vdzn’Pem|nJnm mm. memmgar psnunmkmrptnlnlukan on .. lmnbnn dun mu. ewgyn .:w..... mi mm .......w.. mm kayndz P1:mn|' u....|.:. yang dvpmjam 4... dwpdawlmn .1. bnwlhfisdnimlnswul. Plamulxzizh melaluz noux Iunnlun ucmnmanlw: sewn. benknn m....m. .a.m..a.. Dcfendnn/l'cmIn:nm pemhmmn mm Jlunlnh yang dthmxng :1. mm. Gadalan I:rs:b|l. bum: faedah am km an bunr—buumyumh\nh sewn b:n|.u| «xx T:nkhNnns'lumman an JumIaV\YunmIAn m mom m:.sss,nn.2s Sc>uhMn nuns ummun Plunufduw ks-um pumvpnsln adulnh au.mp.:k... as slmdan mu Iwlekufnyadnlamda gem eksmbil -uurw -r Nzmlm Aermknn‘ Drfendan/l‘:m '.... mm. pgal. mggan dun/llnu my unmk m=mluhI nnllsmnlmnn lznchul. Bmknmn um, Plninuflclnh melnlnu pcgmmulznw ma\ge|uarkM| dnu mmynmpnlun mu. Baring um xrpcni yang .1. uurminn as mm m. kzplda Defudzn Noni) Bmnng mn mam mlah msampuun um. Dckndm mu pox bmmnnr helbnyu dIhu|IId1IIImlID:TrndIn locnkhurnnxdxkcvzhm my TnikhNnIwBnv-nglfiD. onoznus Page I 0H2 55.11.... ahum nmnun own Eywl wnym Bm Mnmuu hzrktnaan dmgun pznyxmpnull Nmis Ewing nan Imehnl mum a.1u..p1mn 4. <1!" a.na.1m1. :dv:wnIrkxh1h1I“|'()B-O" 9 Dgfemmn 1.111. ungaIun1uxm:maMuNm1; 11.11."; mu 1m~.m * 1.. so far M mg Ileanng ofll-1: as 15 conccmcd, .1 nppears mm by may on :u\c11nglL-ucr dnzcd 31 Omaha: 2016, mu m zcyncxcd pun by me plnnuffs sohzunzs, 11:11.; Chua 5: Pmncrs, mg plamuff mu served on me defendant. a copy of us and Affidavxx m bnpport cans") on 7 Noncrnbcx 2016. an order for sale (as per Endonue 1) (“Ihe Order") was granrcd m m: absent: of me defcndanl. .r\A:coxd.1ng to ma d:fcndanl,zhc1 ma no knuwlzdg: of m: proceedings on 7 Nuvrmber 2016 ma wexe not m possessmn of mg cnux: papers beforr m: hazing dam on 7 Novrmbu 2015 4\¢cmdmg m me dufcndzmn rhcy wcxc not awn: of lhc Order‘ Upon muvmg me am paptm, me 11:1;-1.11:1-1: had w1*1lu.-11 : lcucz datzd so November 201.5 [0 me plamnff lequcsung for 1. slay or pzoccedmgs The defendant allgges mu they recuved Lh: muse papns afiel me hesmng am 5 1 mm now m11m.<.<u¢ orsmm or mc 05.011 [he Issue ofscxncr arm: 03. 1. is clear am under Order 85 Rule 1(2) of me mm; of Court 2012 rnocn, me 05 must be ucrved fun! (0) cm: day: bcfor: Lhr heanng uftl-1c 03. Vzgrlofll My vIe\\'s on this nspccl of lhr; zdjsrnvnl 1.“ are HS srmcd m Jam Em: -am /hm .\1um1gMmAt En/uni L umwmmn A/L Xmmikn/nma [2017] MLJU 553 whcxcm I had occnslon to deal mm due xcquucmzn: for snnrlcr. of mg cause paptls as per om“ as me 2(2) ROC. Urdu 33 Ilulc 2(2) ROC reads as: "Z.C|:'lnilI1r drlhrr) of .mm.i.... or pavmum ufmuIl)1l0 as 1 21 An mwm um |hIn Iuur clur am Iwforv m. a ,» r 1-1 [hr an. fin! L...-mg nflhe uliglullng xulnnmlu am pm. yr xenc M um ammm ».< «.ium.m-.2 xulvumum and n can ur IM nlhdavu in .mm arm summuns ~ [nnphails addcd] In Lhxs use, {hue .5 no doubt um um OS/AIS mm mvea on me defendant by way ofa covenng lenu dated 31 Ocmbar 2016 sent m npystexed post (set Exhxbn smncxrd :0 me affidnvn of Nnnulukln Bum r\bul\'a«InLI':nc1r>sux: 3)‘ Eur. the Butt nF.Vcn1c: 17? an Os/Ms u yun ant zspcct nf rh: xvsqulrcmem under me R0(. The nLhu unpurunl and nnpcuuve apart 15 am :1 mus: I3: snrvtd no less mm fou1(-3) am days before Lhe heznng arm: as In my v1e\v,|n mm .0 comply \\1Lh Ordu 23 mg 2(2) noc, them must 2. uh: m, mxmmum be an mlcrvemng peuod of [our den days hcrwtm senict oi the OS/AIS and me hmung a: me 05. Thus. 1: follows am xf ma provisions flhung to service before me hcanng of mg as a.~ pct Urdu as Rule 2(2) of (ht me has nm been compllcd wnh. lhcn (hr: (we: must be m nsidc, nv Imm P1g<6nfIZ Thrrefnr: -he imptmnre question is whether me os/ms wen served nn me defendant four 44) clam am bcforc 7 Nnvcmbcr 2010? According .0 me dcfcndznt, they 4.4 not mm: (he us on um: and bncunc awmr. of ma Oxdcx only “mm my n;:cx\'cd an cause papers pexmuung (O exbcution pxocendmgs. Although sh: plzmziffhzs csublished mu m: lcnu dated 31 Octobtt 2016 was paslnd on 31 Ocxobn zcms, Lh: plamuff has nol d.\sclL:-std my proof of strvxcc 1n msptci of III: soL\cx(oz's covenng mm dmnd 11 own” 2015 .0 show mm the 05 and ms was srrved four (4) clcu thy: bcfulc the hcnnng of um 05 on 7 Nnvembu zom. There ,5 no cvnkncc .s m when cxacdy Lhe mm (\nLl1 Lhc us mm as enclosed Ihextm) were served on me deftndanl The dcfcndant mzlmuns um me mm ma leached ma defendant aka 7 Nova-nb:r 2016 But cmlnusly me defendant did not sure mm prztismn 2; m whm exactly they recuvcd mg plmuirs lem dalcd 31 October 2015 (set: pang-mph no (2.), (=) of Yap Set hung’: "mam affinncd nn 20 Mm); 2(717(F.nc1nsum no). In Lhxs mgud, 11 1; Ampcuuvc m keep in mind an: pumum m one: 31 mag 2(2) Roc, me plmnziifhzs Io cnsun: ma: me aux: papexs 1:: served no 1:5: mm four (4) clear days before the hunng of Lhe os And me buzden is Iherzforc on the plannuff :0 damnsum m the sazisfacuon of the Couu am they luv: zomphed mm Order 83 Ruk 2(2) RUC. Pz;z7m’IZ 10) 11. In :11: pmem me, xxncc the anus: pnpcrs was sencd on the defendant um mm dated 31 Omaha 2011. (lcglaluul post), It .5 |m.I.Lkcly or unpmbzble um d-1: cause papcrs could have {cached Lhe defendant [aux (4) am days before 7 Novambtr zum In (ms regard. .1 1; sxgmfican: .1: note um 31 October 2016 15 1 Monday and 7 Novrmbex 2015 .5 also 2 Monday Accmd.|ng to Order 33 Rule 2(2) ms mm an mung ufxhz 05. In nus k:ga1d.0rder 3 Rule 3(4) and . lhe must pzpus must be saved ("our (4) clcar days (5) of 11.. ROE are rclcunt and msmmwc. Thry {cad is [allows . «z. Rczkonlnl luriadx onhne 101 3 r. 1» m Any perioda ime nm by M: Rules at by any judgment. unit! or dueclmn ronnomg my 221 mu be reckoned m uwmnnc: wtlh lhr Iolluwlllfl Dvvvisurns ufllux ml: (2. Whrrc an ncl vs rcqlmcd w M dun: v~i\Yun . spfirvfird I-mud nlhzf or rm n wecllied dam, Ihc pcflnd hcguu a...ma.m1, afier 11.1 dam on Whzre .1 m .5 xwnnrd 1° 1»; dam: wnhm ur ml Ins: lh.In . svecmtd re ad brfmc 1 sum «.1 data. In: vznnd gm; nmmcdmuly lxfove Ihal am: (a) Whew an m u mqmred m Dt .49». wuhm A rpeufimi numbrr 9/ c/em -lay: 09/0’: 1. mm .1 wulfiml «Ma .11 1.11): mm "MW «:7 dfiyv -um trvenvrw btvuwvr (M an mt which 1114 ac! mm and mm 1.111 (5) mm «amp». mu parlqmyh .1. ,,.,1m.. quarry»; benign ,..,,1.:,,/.41." .11» 1.. 1.,“ Wuuhl 1.111;, M: mm mm 1». mm) holrdaynryinhlu huhday. 1».m.,ma::mxc:u.a" Hence. me weekends (5 and 6 Novcmbu 2016) axe to be excluded [tom me sompumuon. And. Lh: hcamlg dale. (7 November 2016) and the am of posnng (31 October 2015) axe aim to he zxcluded from me cumpnrsutian of rum: vvrm W! are 1251 mm Is four (4) clear duyx, 1. 2. 3 and 4 Nmcrnber 2016 Page x at 12 12111 in nrdcx m give 11.: dcfcndnm four clear am, 11.1 0: .11.»- mu)! 11¢ .m=d an 11.: d:[:ndim before 1 Nn\':m|1cx 201:1, 11.11 wouJt.l be Amposmble gwen am can dnz :11: lent: was pun:-i on 31 0:101»: 2016 111; 111.15 not possnble or probable um ~11: os/.415 were suvcd an 31 Omaha 2011 which 15 [hr dz} 111.1 Lhe documtms wen mm: 1115 1150 no! probable Lhaz me OS/AIS would hav: bun servtd on the ma dm/,1.e 1 Novembu zom. 131.1 even .1 we msume (ha! .11: OS/AIS were servsd on 1 Nm-emlm 2011.. (here would 11111 bc nnn-cnmpllancc W12]! Onick as 1111: 2(2) mm. 1.. my new, four (4) deal days mun mean (ouv (4) wollung dms. Hue, even 11 (1.. me highly unlikely evznt) an ()5/AIS 20:11:11 11,: 1111111111111 on an next day wluch .5 Tuesday, 1 Novcmbu 2016, an cause. papels cannot be defined 1.1 have been servzd four (4) am days befom me hzanng of the 05. In 111: cxxcnmsrzncts, 111: and 1:51.11 15 am 111: dtfcndam had ban dzpnved of hls 1-1.3.: m 1): 11:41.1 .<:nct]y1n accaldancc mm Order 113 111.1: 2(2) nor. due In am being 1117 cxethblc cfldencc 11111111.: os/1115 were served rm clan: 4.1,; bcfmc .11: hcnnng .71 11.: 05. A1 slnnzd a::rlIz1',(11c burdm 15 on 11.: plamuif 1° smsiy 111.; Conn 11.11 (hzy had comphcd With Order as 1111: 2(2) ROC and 1.1 ms mgird, 111; P11111111; has faded to pwve sacisfacmuly mm m: OS/A15 was saved no 1:5; than four (4) clear days 17:10:: an hearing om: os Plg:‘JuA'I2 14. 15. us Cnunstl rm .1‘: planrifl referrod to an unxrpnncd dccman nr Ihxx Court In mm. Br/am Dmpmm SJ/1 EM n I(InurmIdm Rm :1, fvlmlupn (KLHC Sun No: 22NcVc—4¢.0—uE/M15) for an pkopounon am an: plnnufi does not have me buzdzn of proving am an defendant am xecclve an mus: papa: Hu: me xssue 15 dlffucnt and an plamnff cannot my on nu: ms: to sansr, me nblxgznon under many 33 Rule 2(2) me which requvrcs Lhak an OS/A18 be carved on less am four (4) clear days bcfaxc the hearing nf Lhe 05‘ In my Wrw, kh: pxnnum buzdcn in the context ufonlcr 35 Ru]: 2(2) noc dun not uld \Il|!lI pwor nr posting, If challcngtd, n. - nm to :how rim they am son’: Ihr; Lausc pipers no less um. Four (4; our days bcfoue Lhc mum; of an os Hczc, me pmnnr; has not d.Isdnrg=d um burden. In an result. I find um Oxdn 83 Rulg 2(2) ROC 11.; not 1-men comphtd wnh and [1115 renders an suns: of Lhe 0s and .-us to be megulax. The dtfendmfs zppllcndon .5 therefore allowrd. The Ozdu is hereby sekasndt. Th: plamliff n to pay costs of ru\13.om.no (whim to 4% allncnrur). Consequently. the 05 n now fix:d rm hearing an 15 Dzccmbcr 20:7 The defendant n to filc and sent um. zffidavn in mp1, :1: oppose mg 05, nn or bdoxe 20 Novcmbcx 2017 Fngtiflufll

Pytesseract-0.3.10

P-05(M)-184-05/2016 didengar bersama P-05(M)-186-05/2016

PENDAKWARAYA1. ) Jabatan Peguam Negara Malaysia 2. ) TPR Kwan Li Sa PERAYU 1. ) Veeran A/L Veerian 2. ) Sasitharan A/L Sangaralingam

Murder — Appeal against conviction and sentence — Appellants were charged, with common intention to commit murder — Both appellants were convicted and sentenced to death — Whether evidence showed common intention to murder deceased — Whether learned judge correctly evaluate and appreciate the evidence of PW12 — Whether PW12 a credible witness — Whether learned judge had judicially appreciated the evidence very carefully in a way that leaves no margin of doubt that the conviction of the appellants is safe — Whether appellants’ story in connection with the entire incident was a bare denial — Penal Code[Act 574], section 34, section 300, section 302

13/11/2017

YA TAN SRI IDRUS BIN HARUNKorumYA DATUK SERI HAJI MOHD ZAWAWI BIN SALLEHYA TAN SRI IDRUS BIN HARUNYA DATUK KAMARDIN BIN HASHIM

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=13319596-e374-4af4-84d8-4fd83012c2ec&Inline=true

Microsoft Word - AP - (61) VERAN AL VEERIAH IN THE COURT OF APPEAL OF MALAYSIA AT PUTRAJAYA (APPELLATE JURISDICTION) CRIMINAL APPEAL NO : P-05(M)-184-05/2016 BETWEEN VEERAN A/L VEERIAH … APPELLANT AND PUBLIC PROSECUTOR … RESPONDENT (heard together with) IN THE COURT OF APPEAL OF MALAYSIA AT PUTRAJAYA (APPELLATE JURISDICTION) CRIMINAL APPEAL NO : P-05(M)-186-05/2016 BETWEEN SASITHARAN A/L M. SANGARALINGAM … APPELLANT AND PUBLIC PROSECUTOR … RESPONDENT 2 [In The Matter Of The High Court Of Malaya At Pulau Pinang Criminal Trial No: 45B-33-11/2014 Between Public Prosecutor And 1. Veeran a/l Veeriah 2. Sasitharan a/l M. Sangaralingam] CORAM MOHD. ZAWAWI BIN SALLEH, JCA IDRUS BIN HARUN, JCA KAMARDIN BIN HASHIM, JCA GROUNDS OF JUDGMENT INTRODUCTION [1] This appeal and Criminal Appeal No. P-05(M)-186-05/2016 were heard together as they arose from the same criminal trial in the Penang High Court under Criminal Trial No. 45B-33-11/2014. The appeals, therefore, were related whilst undeniably involving the same accused persons besides the same common core of facts and issues. We propose to give reasons for our decisions with respect to these appeals in one common judgment. We shall, in this judgment, refer to the appellant in this appeal as the first appellant and the appellant in appeal number 186 as the second appellant. Before proceeding further, we may 3 necessarily mention that both appellants were convicted of an offence of murder under section 302 of the Penal Code and consequently sentenced to death by the High Court. The appeals before this Court were against the order of such conviction and sentence. We shall now set out the charge upon which the appellants were convicted and sentenced as aforementioned – “Bahawa kamu bersama-sama dengan seorang lagi yang telah dituduh, seorang lagi yang masih bebas dan seorang lagi yang telah meninggal dunia, pada 4/6/2011 jam lebih kurang 11.00 malam, di kaki lima di antara kedai nombor 24 dan 26, Jalan Tasek SS/1, Bandar Tasek Mutiara, di dalam Daerah Seberang Perai Selatan, di dalam Negeri Pulau Pinang telah membunuh Vijaindran a/l Sivanathan (No. K/P: 870925-35-5591) dan dengan ini kamu telah melakukan kesalahan yang boleh dihukum di bawah Seksyen 302 Kanun Keseksaan dan dibaca bersama dengan Seksyen 34 Kanun yang sama.” [2] It might be apposite to begin with an emphasis on a preliminary matter. As can be seen from the charge, both appellants were alleged to have committed the offence together with 3 other persons who, for the reasons stated in the charge, were not charged and tried in the instant case before the court of first instance. One of them, namely Arumugam a/l Shanmugam, also known as Alleycat, had already been charged with the offence separately in 2014 whilst the second person who was still at large, was Kalaimogan a/l Chelamuthu also known as Sassi or Taukley. The third person was Yogaran a/l Veeriah who apparently passed away before the appellants were charged. Yogaran a/l Veeriah was also known as Kuthai. Arumugam a/l Shanmugam was convicted by the High Court but was on appeal acquitted by the Court of Appeal [Arumugam a/l Shanmugam lawan Pendakwa Raya [2014] 5 MLJ 443]. 4 CASE FOR THE PROSECUTION [3] With that preliminary observation, we shall proceed to state the material facts which we have garnered from the evidence led by the prosecution. On that fateful night, to be exact, on 4.6.2011 circa 8.30 p.m, before the murder, Kamalraj a/l Muniandy (PW10) was outside Mahen’s house at Taman Enggang Indah, Pulau Pinang chatting to Mahen whilst seated on a motorcycle. At that time, the first appellant and his younger siblings namely the second appellant and Sassidaran came on a motorcycle. The first appellant told Mahen that Sassidaran was beaten up by Mahen’s father in law. In the event which soon transpired, the first appellant slapped PW10 accusing him of telling Mahen’s father in law to beat up Sassidaran. In the meantime, PW10 also saw the second appellant hid a machete under a flower pot in front of Mahen’s house. As they were arguing, PW10 left the place and returned home. Upon his return, PW10 telephoned and informed the deceased that he was slapped by the first appellant. [4] At about 9.30 pm, the deceased came to PW10’s house after which they went to sit on a concrete TM Box to drink alcohol. Around 11 pm, Alleycat and Kuthai came. Kuthai wanted to talk to PW10 but PW10 told Kuthai that they should talk tomorrow. PW10’s response prompted Kuthai to accuse him of being rude (kurang ajar) and in the ensuing moment, Kuthai slashed PW10’s right thigh with a machete. Upon seeing the incident, the deceased left the place on a motorcycle with Kuthai in close pursuit. PW10 in the meanwhile went to the house of the deceased’s employer by the name Sri and informed him that Kuthai had slashed his right thigh and that Kuthai was hot on the deceased’s heels. Just a moment after that, Sri received a telephone call from a volunteer 5 (sukarelawan) who informed him that the deceased was slashed near the place where the deceased worked. Both of them then went to the place in question and there PW10 saw the deceased sprawled in a pool of blood on a mosaic floor outside a shop with slash wounds on his body. The deceased was brought to the hospital in an ambulance. [5] Sundareson a/l Muniandy (PW12) in his evidence told the court that on 4.6.2011, he lived at No. 18A located on the first floor and worked at No. 18, Sri Future Auto on the ground floor of a shophouse at Jalan Tasek SS/1, Bandar Tasik Mutiara, Pulau Pinang. Whilst he was resting after coming home from work, PW12 heard the deceased calling his name and asked him to come downstairs. The deceased looked worried. When PW12 asked him the deceased said Kuthai had slashed PW10 and the deceased fled on a motorcycle as he was scared. The deceased also told PW12 that Kuthai was chasing him. PW12 met the deceased at the five foot way of the shop where both of them worked. They were talking for about 10 minutes when the appellants, Sassi, Kuthai and Alleycat, came on 3 motorcycles. On seeing them, the deceased pushed his motorcycle and parked it at the next shop. The deceased thereafter was surrounded by the appellants, Sassi, Kuthai and Alleycat. Each of them carried a machete. They tried to slash the deceased but the deceased used a helmet to ward off the blows. The second appellant then kicked the deceased and slashed his back. PW12 shouted at the second appellant saying why did he slash the deceased who had helped him many times. The second appellant moved back. At that time the deceased tried to flee, however, one of the five assailants threw a helmet which hit the deceased causing the deceased to almost fall down. 6 [6] The deceased continued to run with the five assailants in close pursuit until they reached in front of a shop, De’ Sri Enterprise when one of the assailants pulled the deceased’s sling bag until he fell down. PW12 was about 10 feet from them and he could see clearly as the scene of crime was sufficiently lighted by the street light and the light at the five foot way. At that point of time, all the 5 of them started to hack the deceased slashing him until he fell down. They continued to slash the deceased whilst he tried to defend himself using his hands. PW12 approached and told them to stop slashing the deceased. Kuthai then told the second appellant to hack PW12. The second appellant and Alleycat approached PW12 and put the machetes on PW12’s neck. They took PW12 to the shop where he worked but PW12 pushed both of them and ran towards the deceased. In the meantime, the first appellant, Kuthai and Sassi continued to hack the deceased with the machetes. According to PW12, the attack lasted approximately 10 to 15 minutes and he could see the 5 of them slashing the deceased since the scene of crime was sufficiently lighted. He knew all the 5 of them as they lived in the same housing area. The evidence led by the prosecution showed that when members of public who were at a nearby restaurant came to the scene, the 5 assailants fled on their motorcycles. The deceased was subsequently sent to Hospital Sungai Bakap at about 1 am on 5.6.2011 and was pronounced dead at 2.40 am. Based on the postmortem report (Exhibit P29) and the evidence of the pathologist Dato’ Dr. Zahari bin Noor (PW13), the deceased’s death was due to massive loss of blood caused by multiple slash wounds inflicted by sharp weapons. 7 FINDINGS AT THE CLOSE OF CASE FOR THE PROSECUTION [7] At the close of case for the prosecution, the learned judge considered the evidence of PW12 which described in great detail how the appellants and 3 others came to the place where he lived and worked and slashed the deceased repeatedly with long machetes which they carried with them at the time in question. The learned judge was satisfied that PW12’s testimony was not shaken on cross-examination and that there were no reasons for PW12 to make up a story or to victimize both appellants. After watching PW12’s demeanour when he gave his evidence in court, the learned judge found that PW12 was a credible witness whose evidence could be acted upon and indirectly corroborated by PW10 whose testimony showed that the deceased was chased by Kuthai after Kuthai had slashed PW10’s right thigh at TM Box. PW12, according to the learned judge, had witnessed the appellants and their 3 accomplices slashed the deceased repeatedly even though PW12 had tried to stop them from doing so. They chased the deceased until De’ Sri Enterprise and continued to hack the deceased, and the act of the appellant and 3 other accomplices had evinced the common intention to kill the deceased. The postmortem report showed that there were 22 serious slash wounds found on the deceased’s limbs which clearly showed that the appellant’s and their accomplices had the intention to kill the deceased. Upon undertaking a maximum evaluation of the evidence, the learned judge accordingly concluded at the end of the prosecution’s case that the appellants’ act constituted murder which fell under section 300(a) of the Penal Code or otherwise under section 300(b) thereof as such act was done, with the intention to cause bodily injury to the deceased which the appellants knew to be likely to cause the deceased’s death. Besides, it was clear to the learned judge that the injuries caused by the appellants 8 together with the other 3 accomplices were the cause of the deceased’s death. The deceased died in 1 hour and 40 minutes after he was taken to the hospital due to massive bleeding caused by multiple slash wounds inflicted by sharp weapons. THE DEFENCE [8] Both appellants gave their evidence on oath. We lay down the salient facts which we discern from their testimony. The first appellant in his defence testified that on 4.6.2011 at about 11 pm when he was having meals with his girlfriend at Valdor near Jawi, he received a telephone call from his friend informing him that Kuthai brought a knife and he wanted to go to SS1, Tasik Mutiara, to fight. Riding his motorcycle, the first appellant went to the place in question and on arrival there he saw Kuthai and the deceased were involved in a fight. He tried to stop the fight but his attempt was to no avail. He then left the place and as he was leaving, the first appellant saw Kalirajen (DW3), the second appellant and Kalaimogan (Sassi or Taukley) at a tom yam shop near the scene. The first appellant told them that Kuthai and the deceased were involved in a fight and forbade them from going to the scene. He returned to his sister’s house immediately after telling them about the fight. The first appellant explained that he went to the scene in order to stop the fight. [9] The second appellant, when he was called to testify, said that on 4.6.2011 around 11 pm, he was at the tom yam shop, Bandar Tasik Mutiara with DW3 and Kalaimogan. He heard a commotion and the customers at the restaurant rushed out to find out what was the commotion all about. The second appellant saw 2 persons whom he did not know were involved in a fight. At that point of time the first appellant came and 9 told the second appellant to leave the place. The second appellant, DW3 and Kalaimogan therefore left the scene whilst the fight continued. [10] The defence called only one witness namely DW3 to testify. In his evidence, DW3 told the court that he heard a commotion outside the tom yam shop and he went out to see what happened. As with the first and second appellant, DW3 testified that 2 persons were fighting. At that time in question, the first appellant came and told DW3, the second appellant and Kalaimogan to leave. They left the scene and so was the first appellant. DW3 also testified that Kuthai was involved in the fight with another person whom he did not know. DECISION OF THE TRIAL JUDGE AT THE CONCLUSION OF THE TRIAL [11] The learned judge found that the defences of both appellant were bare denials. Their versions were in direct contradiction to the evidence of PW12. But the learned judge accepted the detailed testimony of PW12 and the fact that he was able to relate the chronology of the incident clearly made his evidence more credible. There is, moreover, the evidence that PW12 was involved in trying to stop the fight between the appellants together with the other 3 accomplices and the deceased. The second appellant and Alleycat had also placed the machetes on his neck when the first appellant, Kuthai and Sassi, continued to hack the deceased. His evidence was also supported by the evidence of PW10. On the contrary, the evidence of the appellants, the learned judge found, was a mere denial and although it was supported by DW3’s testimony, it did not mean that it was the truth. Based on the whole evidence, the learned judge rejected the evidence of DW3. The learned judge concluded by holding that the 10 defence failed to raise a reasonable doubt in the prosecution’s case and that the prosecution had succeeded in proving the charge against the appellants beyond reasonable doubt. They were accordingly found guilty as charged and sentenced to death. THE APPEAL [12] The petition of appeal sets out 18 grounds upon which the appellants seek to ventilate their arguments before this Court. However, learned counsel for the appellants at the commencement of the hearing of the appeals informed us that the main plank in his oral submission would be premised on two grounds only. These grounds learned counsel submitted, concerned firstly, the rejection by the learned trial judge of the evidence of the appellants and their only witness, DW3 and secondly, the credibility of PW12 whose evidence learned counsel submitted, was questionable. OUR DELIBERATIONS AND DECISION [13] We think it is legitimate to begin by stating the obvious, that, the long- established and trite principle relating to the onus upon whom an offence is required to be proved against an accused person lies with the prosecution that bears the burden to prove its case beyond reasonable doubt. What that principles entails is that for an offence under section 302 of the Penal Code, it behoves the prosecution to establish all the essential elements of the said offence against an accused person and insofar as this case is concerned, these are – (i) the deceased died; 11 (ii) he died as a result of the bodily injury sustained by him and that such him bodily injury was inflicted by or the result of the act of the appellants and their 3 accomplices; and (iii) the appellants committed such act – (a) with the intention of causing the deceased’s death (section 302(a)); and (b) with the intention of causing such bodily injury as the appellant knew to be likely to cause the deceased’s death (section 302(b)). [14] Since the offence with which the appellants were charged were alleged to have been committed in furtherance of their common intention pursuant to section 34 of the Penal Code, it is incumbent upon the prosecution, in addition to the above requirements, to also prove that the criminal act was done by the appellants in furtherance of their common intention. [15] There was without question, on the irrefragable evidence before us, that the first requisite element of the offence had been proved by the prosecution. It was also not disputed that the deceased’s death was caused by the bodily injuries sustained by him and the act of inflicting such bodily injuries was committed with the intention of causing the deceased’s death or otherwise, the act was committed, as the learned judge correctly put it, with the intention of causing the injuries in question as the appellants knew to be likely to cause the death of the deceased thus bringing their act to fall under section 300(a) and (b) of the Penal Code. It is apparent, therefore, that the critical question which immediately arises is whether it was the appellants and their 3 accomplices or Kuthai who inflicted those bodily injuries by which the deceased succumbed to death. May it be 12 remembered, the appellant’s defence was that they were not involved in the fight involving the use of the deadly weapons, the fight was between Kuthai and the deceased. The blame, based on the defence version, therefore fell squarely on Kuthai. Herein thus lies the pertinent question for our detcemination in this appeal. [16] Taking the first ground, the issue here is whether the learned judge, in convicting the appellants, erroneously rejected the evidence of the appellants and DW3. We had listened to an argument, strongly pressed by learned defence counsel, as we understand it, that the learned judge did not consider the failure on the part of PW10 and PW12 to lodge a police report about the incident in which the deceased was murdered. Learned counsel asserted that although they told the court that the appellants together with several other assailants continuously hacked the deceased in their presence, they did not lodge a police report. What was more puzzling, learned counsel emphasised, was that PW12 was threatened with the machetes by the second appellant and Alleycat. Further, both PW10 and PW12 did not tell the court the motive that had led the appellants to kill the deceased. It was manifestly possible, learned counsel submitted, that based on PW10’s evidence, it was Kuthai who was angry and had the motive to kill the deceased because PW10 saw Kuthai chase the deceased after PW10 was slashed by Kuthai. Based on the evidence of PW10 and PW12, it was clear that Kuthai had a problem with the deceased culminating with the deadly fight between the 2 of them ending in the result with the death of the deceased. [17] PW12 is the witness in whose presence the incident occurred. He described in great details how the deceased met his fate during the fight. His narrative showed that the deceased came to the place where he lived 13 and PW12 met the deceased at the five foot way of the shop where he worked. The deceased told PW12 that PW10 was slashed by Kuthai and PW10 fled on a motorcycle with Kuthai chasing him. As both of them were talking, the appellants and their 3 accomplices came on 3 motorcycles. They started to surround and attack the deceased with the machetes and this was seen by PW12 who testified that all the five of them slashed the deceased. At one stage PW12 approached the assailants and told them to stop. Kuthai was heard by PW12 telling the second appellant and Alleycat to hack PW12. When the second appellant and Alleycat placed the machetes on his neck, PW12 pushed them away and ran towards the deceased. The first appellant, Kuthai and Sassi continued to attack the deceased. The attack lasted between 10 to 15 minutes and the appellants and their accomplices fled on their motorcycles when members of public who were at the nearby restaurant rushed to the scene. PW12 was about 10 feet from the appellants and the rest of the assailants and he could see clearly as the scene of crime was sufficiently lighted by the street light as well as the light at the five foot way. PW12’s evidence that the place was lighted was supported by the evidence of PW14, the investigating officer who testified that the street light was approximately 5 meters away from the scene. PW12’s evidence was also consistent with PW14’s evidence which revealed that the five foot way was also sufficiently lighted. [18] Thus, clearly, the evidence that we could garner from PW12’s testimony showed that the appellants, Alleycat who was already charged separately in 2011, Sassi a.k.a Taukley who was still at large and Kuthai who had already passed away were acting in concert when they were seen by PW12 arriving at the scene of crime together and hacking the deceased. The combined effect of their acts, the weapons used and the multiple injuries inflicted on the deceased clearly evinced an intention on 14 the appellants’ part to cause the deceased to die or sufficiently showed knowledge on the part of the appellants that the injuries inflicted would be likely to cause the death of the deceased thus bringing their act to fall under section 300(a) and (b) of the Penal Code. It is instructive to reproduce a passage from the judgment of this Court in the case of Mohd Bakri bin Belaho v Public Prosecutor [2008] 1 MLJ 190 which we think is relevant to the present appeal – “[68] Combining the effect of the weapons used in the incident, together with the nature of the wounds inflicted, the part of the body on which the injuries were inflicted, with the probability of death resulting being high, everything pointed to an intention to cause death or injury sufficient in the ordinary course of nature to cause death. From the severity of the wounds as caused by that chopper and the other knife for stabbing purposes, the appellant could not now come forward and say that he was unaware that those wounds would in all likelihood have caused death, let alone that they were accidental or unintended.” Their criminal act in actuality was, as it is clear to us, in furtherance of the common intention of all of them to cause the death of the deceased or to cause the injuries which they knew to be likely to cause the death of the deceased to whom such injuries were caused. There is thus not a scintilla of doubt in our minds that section 34 of the Penal Code applies to this case which is provided as follows: “34. When a criminal act is done by several persons, in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if the act were done by him alone.” [19] Each of them, by virture of section 34 of the Penal Code, was liable for the appalling injuries by which the deceased’s death was caused as if 15 the injuries were done by him alone. To express our understanding of the law on the subject of common intention, it must be taken to be well-settled that there is no legal requirement on the part of the prosecution to prove who actually caused the death of the deceased or who exactly the actual doer of the offence in question was. The Court of Appeal in Ahmad Majmi Idris & Anor v. Pendakwa Raya [2014] 1 LNS 148 explained the law on the application of section 34 of the Penal Code in language that merits recollection – “[18]…In our judgment, when section 34 of the Code is invoked, there is no requirement to prove who actually or ultimately caused the death of the deceased as was held in Ong Chee Hoe v PP [1999] 4 SLR 688: “In any case, the effect of invoking section 34 made it unnecessary to determine who exactly the actual doer of the offence in question was. In the Privy Council decision of Barenda Kumar Ghosh v Emperor AIR [1925] PC 1, the court stated: Section 34 deals with the doing of separate acts, similar or diverse, by several persons; but if all are done in furtherance of a common intention, each person is liable for the result of them all, as if he had done them himself.” [20] In addition, this Court in Chandran Paskaran v PP [2011] 2 CLJ 585 said – “[23] PW5 did not see the appellant slashing the deceased. He only saw the appellant who was holding a parang going towards the group that was attacking the deceased. PW5 saw the deceased being attacked but he could not see the faces of the attackers. On the evidence the learned trial judge held that the appellant had acted with the common intention of causing bodily injury to the deceased which was sufficient in the ordinary 16 course of nature to cause death. We agree. The appellant arrived at the crime scene together with the other assailants and were armed with parangs. The other assailants slashed the deceased. The appellant left the crime scene with the group. As such the appellant is responsible for the ultimate criminal act done by several persons in furtherance of the common intention of all irrespective of the role he played in the perpetration of the offence (see Krishna Rao Gurumurthi v PP and Another Appeal [2009] 2 CLJ 603).” [21] Likewise, the appellants in the instant case arrived at the scene of crime together with the other 3 assailants armed with the machetes and after attacking the deceased with the machetes, all the 5 of them left the scene together. We have no hesitation to hold in our judgment that their acts in inflicting the gruesome injuries culminating ultimately in causing the death of the deceased were clearly executed in furtherance of the common intention of all irrespective of the role the appellants played. [22] The appellants and their accomplices did not wear any mask and there was no obstacle that could prevent PW12 from recognizing them. Besides, PW12 stressed that he had known the appellants prior to the gruesome incident as they lived in the same residential area. There was without question, positive evidence about the identity of the appellants which we could glean from PW12’s testimony and the full worth of such material evidence ought significantly to be recognized. In the case of Public Prosecutor v Basar (1965) 1 MLJ 75, Gill J in considering the issue of identification there had this to say at page 76: “…the learned magistrate acquitted the respondent at the end of the case for the prosecution, his ground for such acquittal being that PW1’s evidence could not be relied on in so far as identification alone was concerned. He stated in his grounds of judgment that a court should scrutinise very carefully any evidence 17 relating to the identification of an accused person. I had no reason to quarrel with his general statement on that point but what he, in my opinion, failed to appreciate was that there was positive evidence about the identity of the respondent by PW1 who admittedly had known him for some time and had seen his face by the flashes of lightning.” [23] It is a pertinent point to note that PW12’s evidence that he had known the appellants prior to the incident was not challenged by the defence at all as such the evidence, in our judgment, must be accepted. The fact that PW12 had known the appellants previously and that he was only about 10 feet from them at that material time with the scene of crime sufficiently lighted made this identification more a case of recognition than mere identification [Muharam Bin Anson v Public Prosecutor [1981] 1 MLJ 222 at page 224]. There was no error whatsoever in the directions by the learned judge on the issue of identification of both appellants and their 3 accomplices. This issue of identity of the appellants and their accomplices in this case according to this Court in Tan Kim Hoo v PP & Another Appeal [2007] 6 CLJ 557 (at pages 558 and 567 paragraphs 12 and 13) was a question of fact and must be determined by a trial court. The learned judge whilst accepting the evidence of PW12 which remained unshaken throughout cross-examination did not see any reason why PW12, in the absence of any ill motive on his part, would fabricate evidence to victimize the appellants. We have scrutinized the evidence of PW12 and we could not come to a finding different from the trial court’s finding that it was the appellant’s and the other 3 accomplices who attacked the deceased which resulted in his death. [24] The next point in the submission of learned counsel was that PW10 and PW12 failed to show the motive on the part of the appellants in killing the deceased. It is a long-established principle of law that in a charge for 18 murder under section 302 of the Penal Code, motive is not an essential element of the offence, but the element of the intention or mens rea is. Thus for the offence of murder, for which the appellants are charged, mens rea is proved if it can be shown that the appellants had the intention to cause the deceased’s death or an intention of causing such bodily injury as they knew to be likely to cause the deceased’s death. Motive would probably become relevant if the prosecution’s case essentially is dependent on circumstantial evidence. Nevertheless, motive becomes less significant, is no longer relevant and not an essential feature to drive home the charge where there is an eyewitness such as PW12 or where there is direct evidence as is in the instant case from which the element of mens rea could manifestly be said to be present or existent. And may it be remembered, the evidence of PW10 too unravelled the events leading to the unfortunate yet gruesome incident, hence lends credence to PW12’s testimony. [25] In Aung Thun & Anor v Public Prosecutor and another appeal [2014] 1 MLJ 784 this Court, in the judgment of Hamid JCA, whilst dealing with the issue of motive in murder cases said – “[13] In addition we must say the learned counsel’s argument that the prosecution ought to have shown motive for the murder has no merits on the facts of the case. Motive may be essential if it is a case where the prosecution is relying on circumstantial evidence. Unlike common law offence of murder, the statutory offence of murder or manslaughter based on ss 299 and 300 of the Penal Code strictly does not require motive as an element to be proved. If at all evidence of motive is introduced by the prosecution where direct evidence is available for homicide then it is only meant to strengthen the probative force of the prosecution case and/or to negate the defence of self defence or provocation, etc at the earliest stage.” 19 [26] It ought to be emphasized that the element of intention is to be distinguished from motive. While it can be accepted that motive if shown may bolster the inference that an intention to commit an offence exists, the absence of motive however need not necessarily signify the absence of intention as well. In the case of Public Prosecutor v Oh Laye Koh [1994] 2 SLR 385 the Singapore Court of Appeal explained this position clearly when it said – “[2] The element of “intention” is to be distinguished from ‘motive’, even though the presence of a motive may bolster the inference that an intention to commit the offence was existent. The absence of motive, however, need not necessarily mean that no intention was present.” [27] Another point that was raised by learned counsel concerns the failure on the part of PW12 in not reporting about the offence to the police. Learned counsel referred to the case of Lee Ah Seng & Anor v PP [2007] 5 CLJ 1 to support his contention on this point. But in Lee Ah Seng, supra, it is necessary to mention that Hassan Lee lodged his police report as the first information report but it was lacking in certain details and by his own admission, Hassan Lee deliberately omitted to mention the important second half events that were related to the involvement of the appellants. According to the Federal Court, the veracity of Hassan Lee was brought into question by reason of several discrepancies between his police report and his evidence. The explanation given by Hassan Lee on the omission was found to be inherently improbable and therefore the truth of his evidence became open to at least a reasonable doubt. The Federal Court therefore rejected the report. Lee Ah Seng’s case in our opinion, can be distinguished from the present case. 20 [28] Firstly, in the present case, PW12 did not lodge the first information report. The first information reports (Exhibits P11 and P12) were lodged by a police personnel. There was, moreover, no issue of discrepancies of evidence of PW12 and Exhibits P11 and P12. Secondly, PW12 had explained that his statement was recorded by the police on the night of the incident itself and since he had already given the statement he did not see any necessity to lodge a police report. We are of the opinion that PW12 had given an explanation which was not inherently incredible, he being a layman, had logically thought that since he had already given his statement to the police to assist them in their investigation and being ignorant as he was of the procedure, there was no further necessity to make a police report. The Federal Court in Lee Ah Seng, at paragraph 38, recognized that “…if there was a reasonable explanation for the failure, it should not have any effect on the veracity of Hassan Lee”. [29] The issue in Lee Ah Seng involved the question of discrepancies of the evidence of Hassan Lee and his police report. In the instant case, the learned judge found that the credibility of PW10 and PW12 was unshaken and therefore the failure of PW10 and PW12 to lodge a police report which, in law, is not substantive evidence, would not affect the prosecution’s case. We are satisfied that the learned judge was absolutely right in rejecting this argument. What really matters in this case is the evidence of PW10 and PW12 on what they heard and saw as well as the findings of the learned judge on their credibility and the inherent probability of their evidence. We now quote the decision of this Court in Abdulloh Saofi v. Public Prosecutor [2013] 2 MLJ 640 which considered this point – “[19] Finally, learned counsel complained that the police report (exh P32) lodged by PW7 did not mention the role played by PW11 in this case. We found no merit 21 in this complaint. A police report is not an encyclopedia. It can never be treated as a piece of substantive evidence. It is not the beginning and ending of every case (see Herchun Singh & Ors v Public Prosecutor [1969] 2 MLJ 209; [1969] 1 LNS 52 and Balachandran v Public Prosecutor [2005] 2 MLJ 301; [2005] 1 AMR 321). In the context of the present case, what is most important is the testimony of PW11 in court on what he heard and saw and the findings of the learned trial judge on the credibility of PW11 and the inherent probability of his testimony. [20] We had scrutinised the entire evidence in the appeal record and the judgment of the learned trial judge in the light of the various criticisms made by learned counsel for the appellant. We found that the learned trial judge had not misdirected himself on facts and law. The decision of the learned trial judge was neither perverse nor against the weight of evidence. We found the conviction of the appellant safe.” [30] To illustrate further on the same point, the Federal Court in the case of Wong Thin Yit v Mohamed Ali [1971] 2 MLJ 175 did not treat a police report as a substantive evidence. Accordingly, based on the aforesaid reasons and the case authorities cited above, we do not think that anything material turns upon the argument of learned counsel on this issue and the matter thus admits of no further argument. [31] Learned counsel complained that the learned judge failed to consider that the prosecution omitted to explain what happened to Kuthai and such failure was fatal to the prosecution’s case. The investigating officer, PW14 in his evidence testified that Arumugam a/l Shanmugam (Alleycat) and the first appellant were respectively arrested on 5.6.2011 and 23.6.2014 whereas the second appellant and Kalaimogan a/l Chelamuthu (Sassi or Taukley) surrendered themselves at the police station on 25.6.2014. Apparently, Kuthai could not be found and was later discovered that he had passed away. The appellants were charged with murder that was alleged 22 to have been jointly committed with Kuthai and 2 others. Alleycat was charged in 2011 under section 302 of the Penal Code for the murder of the deceased. Kuthai, so far as the evidence showed, was not a witness, he was one of the accused persons who could have been convicted like the appellants had he been found or alive. The learned judge correctly found that the evidence of the prosecution witnesses in particular PW12 was sufficient to prove the prosecution’s case even if Kuthai was not called as a witness. In our judgment, the overwhelming evidence of PW10 and PW12 was clearly sufficient to prove that the appellants together with the other 3 persons, intentionally caused the death of the deceased under section 302(a) or caused bodily injury which they knew to be likely to cause the deceased’s death under section 302(b) of the Penal Code. The evidence of the pathologist, PW13, confirmed that the deceased died due to massive bleeding caused by multiple slash wounds inflicted by sharp weapon. This evidence was consistent with PW12’s evidence that the 5 assailants repeatedly hacked the deceased on that fateful night. We agree with the learned judge that the absence of Kuthai would not be fatal to the prosecution’s case and His Lordship was right in finding a prima facie case against the appellants. [32] The general tenor of the defence evidence clearly showed a complete denial of the appellants’ culpability in the murder of the deceased. Both appellants completely steered clear of any involvement in the incident. Briefly, the evidence of the appellants and DW3 can be neatly summarized as follows: a. whilst the first appellant was having meals with his girlfriend Shoba at Valdor, he received a telephone call from Raj telling him that his 23 younger brother Kuthai brought a knife on his way to fight at Tasik Mutiara; b. the first appellant went to the scene of the crime to stop the fight, but he was scolded by Kuthai who, whilst trying to slash the first appellant, told the first appellant that this was his problem and warned him not to meddle in his affairs; c. the first appellant left the place and as he was leaving, he met the second appellant, DW3 and Kalaimogan (Sassi) at the tom yam shop. He went home after that; d. the second appellant denied that he was at the crime scene, instead he was at the tom yam shop near the scene of crime; e. as the second appellant was eating with DW3 and Kalaimogan (Sassi), the first appellant came on a motorcycle and told them that there was a fight nearby and told them to leave; f. when the appellants and their friends left the fight still continued; g. DW3 said that when he was having meals at the tom yam shop with the second appellant and Kalaimogan (Sassi), he saw people involved in a fight; h. as he wanted to know what happened, he and his friends went out of the shop and saw the first appellant coming on a motorcycle; i. the first appellant informed DW3 about the fight and told them to leave; and j. DW3 saw Kuthai slashing someone. [33] The first appellant took between 10 to 15 minutes to reach the place where the fight was taking place simply because he wanted to stop the fight. Yet he left the place after Kuthai, his own brother told him not to meddle in his affairs and threatened to harm him. It is hard to believe that the first appellant who purportedly tried to stop his brothers and the deceased from 24 fighting had almost caused him to be slashed by his own brother. It is also equally incredible that the appellant, whilst leaving the place to stop at the tom yam shop to tell the second appellant, Sassi and DW3 to leave as well. A pertinent question was, why was there a need to tell them to leave while they were in the midst of having their meals. They were at the tom yam shop, not at the scene of crime. Next, why did they leave, when they were not involved in the fight at all. We need only say on the aspect of the first appellant’s defence that after we have considered the evidence in its entirety, the correct version, would be that the appellants, Sassi, Kuthai and Alleycat were involved in the fight with the deceased. This was manifestly proved by the evidence of PW12 which renders the appellants’ defences too good to be true and therefore it was right for the learned judge, upon considering the evidence in its entirety, to reject the appellants evidence. [34] As for DW3, he was obviously trying to help both appellants. He knew them long before that but became very close 6 months prior to the incident. He was undoubtedly, an interested witness whose evidence should be treated with caution as he was a witness having a purpose to serve [Deepanraj Subramaniam v PP [2015] CLJ 439 at page 450]. DW3 was not involved at all, but a question must be asked as to why he was in a hurry to leave. The learned judge, in scrutinizing the evidence of the appellants and DW3 pointed out that their evidence was a diametrically opposed version when considered in light of PW12’s testimony. After carefully evaluating the evidence adduced by the defence and at the same time taking into account the prosecution’s evidence, the learned judge held that PW12’s evidence was more detailed and was able to narrate the chronology of the attack against the deceased on the night of the 4.6.2011 in a convincing and credible manner. More so when PW12 was also involved when he tried to stop the five assailants from continuing to hack 25 the deceased and that the second appellant and Alleycat placed the machetes on his neck. His evidence relating to the fact that the deceased was chased by Kuthai was supported by PW10 himself. The learned judge concluded by rejecting the evidence of the appellants and DW3. His Lordship’s reasoning is in our judgment impeccable and the conclusion arrived at by the learned judge is faultless. [35] One pertinent point which we would like to make as well is that PW12 would not have known about the appellants’ culpability together with the 3 accomplices if he did not witness the murder. There was no ill motive shown or suggested to PW12 or there was no basis for suspecting the appellants that prompted PW12 to give their names to the police as suggested by learned counsel during PW12’s cross-examination. The whole incident in truth clearly occurred with the involvement of the appellants and their 3 accomplices. [36] For the above reasons, we are satisfied that the learned judge was correct when in the end His Lordship dismissed the appellant’s defence as mere denials of the evidence connecting them with the offence and rejected DW3’s evidence in consequence. It is trite law that a mere denial without other proof to reasonably dislodge the prosecution’s case is not sufficient [Public Prosecutor v Ling Tee Huah [1982] 2 MLJ 324 at page 325 and 326; D.A. Duncan v Public Prosecutor [1982] 2 MLJ 195]. [37] Moving on, we were pressed with the argument by learned counsel that PW12 was not a credible witness. We were told by learned counsel that in another case wherein Alleycat was charged under section 302 of the Penal Code for the murder of the deceased, the evidence of PW12, who was PW7 in that case, was rejected by the Court of Appeal 26 [Arumugam a/l Shanmugam lawan Pendakwa Raya, supra]. The appellant in that case was consequently acquitted and discharged by this Court. However, in the High Court, PW7’s evidence was accepted by the learned trial judge as credible [Pendakwa Raya lawan Arumugam Shanmugam [2013] 1 LNS 57]. It might be apposite to bear in mind that the law governing the relevancy of judgments of court is governed by the Evidence Act 1950 of which section 43 thereof is applicable to this case. The said section provides – “43. Judgments, orders or decrees other than those mentioned in sections 40, 41 and 42 are irrelevant unless the existence of such judgment, order or decree is a fact in issue or is relevant under some other provisions of this Act.” [38] This section provides a general rule that other than those judgments mentioned in sections 40 to 42, judgments of court are irrelevant unless the existence of such judgments is a fact in issue or is relevant under some other provisions of the Evidence Act 1950. There is nothing in the Evidence Act 1950 which allows statements or finding of fact in another case to be used as evidence in a subsequent case to decide the points which are in issue in the subsequent case [DP Vijandran v Karpal Singh & Ors [2000] 3 MLJ 22 at page 54] What is rendered relevant by the section is the existence of a judgment but its contents is not. The object behind enacting section 43 according to Sarkar, Law of Evidence [16th Edition Reprint 2008 page 952] appears to be two fold – “(1) to treat every case a class by itself so that the judgment delivered in one case may not be availed of by parties to another case; and (2) to maintain the independence of courts by preventing the parties from submitting before the court hearing their case the judgments of other courts 27 …There is no provision in the Act by which the actual decision or the findings arrived at in a previous judgment can be used as evidence to decide the points which are in issue in a particular case. Such a decision may operate as res judicata or be relevant under ss 40-42 to prove assertion of a right, but otherwise it is no better than a mere opinion expressed on the issues in a particular case and opinion is relevant in those cases only in which it is specially referred to in the Act and in no others [Purnima v Nandlal, PLT 528; Ramparekha v Ramjhari, AIR 1933 P 690; Hitendra v Rameswar, AIR 1925 B 625]. Statements of facts in a previous judgment is not admissible under s 43 in a subsequent case to decide any points in issue [Khubnarain v Ram Ch AIR 1951 P 340].” [39] The Evidence Act 1950 does not make a finding of fact arrived at on the evidence before the court in one case evidence of that fact in another case [Kumar Gupika Raman v Atal Singh AIR 1929 PC 99]. Clearly, section 43 does not apply to the instant case as the judgment in Arumugam; supra, is not a fact in issue or relevant under some other provisions of the Evidence Act 1950. Now, section 43 of the Evidence Act 1950 provides an exception to the general rule stipulated therein, that is, where judgements of courts fall within the ambit of sections 40 to 42, such judgments are relevant. However, having examined these sections, we are satisfied that the judgment referred to by learned counsel does not fall within these 3 sections. In our opinion, section 40 does not apply to the instant case as the section deals with the doctrine of res judicata and the plea of autrefois acquit or convict which relate to the existence of a previous judgment which by law prevents any court from taking cognizance of a subsequent suit or proceedings. It renders the previous judgment relevant for that purpose or for determining whether the doctrine of res judicata or the plea of autrefois acquit or convict, as the case maybe, applies. The rule of relevancy of previous judgments under section 40 applies to civil as well as criminal cases [Augustine Paul, 28 Evidence Practice and Procedure, Third Edition page 406]. Section 41 also does not apply to the instant case as it deals with relevancy of certain judgments in the exercise of probate etc jurisdiction and whereas section 42 is inapplicable as it deals with judgments other than those mentioned in section 41 which are relevant if they relate to matters of a public nature relevant to the inquiry. [40] It is evident that the existence of the judgment in Arumugam is not a fact in issue, what learned counsel sought to prove before us was that PW12’s evidence in that case had been rejected by this Court and that by virtue of the rejection he persuaded us to also reject PW12’s evidence. Clearly that judgment is not rendered relevant by section 43 of the Evidence Act 1950. Besides, there is no presumption that a prior judgment is the correct decision on the matter [Augustine Paul, Evidence Practice and Procedure, Third Edition page 424]. What has emerged from a catenation of these authorities is that, despite counsel’s contention, the law is totally against the appellant on this score. [41] That brings us to the remaining question which is whether the learned judge was correct in accepting PW12 as a witness of truth. One thing is extremely clear, that is that, the learned judge had also accepted the evidence of PW10 holding that PW10’s testimony bolstered the evidence of PW12. PW10’s evidence had somewhat provided the motive for the murder when he testified that on the night of the incident he was slapped by the first appellant who accused him of telling Mahen’s father to bash up Sassidaran, the appellants’ brother. PW10 was subsequently slashed by Kuthai who was also the appellants’ brother. PW12, as we have earlier stated, was found by the learned judge to have rendered a detailed narrative of the tragic incident on the night in question. He was 29 the eyewitness and therefore the prosecution’s material witness who gave his evidence consistently and smoothly. He did not falter and neither was he hesitant. He was instead firm when he was under intense cross-examination by learned counsel. The defence, we observe, did not suggest any ill motive on the part of PW12 in implicating the appellants in the murder. There was therefore no reason for PW12 to make up a story or fabricate evidence in order to nail the appellants down to the charge. PW12 in this regard was not an interested witness, instead he was an independent eye witness who gave a full account of the incident credibly. The incident undoubtedly occurred in the presence of PW12 somewhat unexpectedly. There were no reasons for the learned judge to disbelieve PW12. Even if there were discrepancies in his evidence, such discrepancies could not be the basis to reject his testimony or were material as to render his evidence entirely incredible. We now quote from the case of Pie bin Chin v Public Prosecutor [1985] 1 MLJ 234 a relevant excerpt from the judgment of Wan Yahya J to illustrate on this point – “Discrepancies are no doubt present in this case, as they do ostensibly appear in most cases in evidence of witnesses for the prosecution as well as the defence. The transcripts of most evidence, when thoroughly tooth-combed by any able lawyer, never failed to yield some form of inconsistencies, discrepancies or contradictions but these do not necessarily render the witness’s entire evidence incredible. It is only when a witness’s evidence on material and obvious matters in the case is so irreconcilable, ambivalent or negational that his whole evidence is to be disregarded.” [our emphasis] [42] To quote yet another authority, in PP v Datuk Haji Harun bin Haji Idris [No.2] [1977] 1 MLJ 15, Raja Azlan Shah FJ authoritatively said – 30 “…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.” [43] There can be no doubt whatsoever that, after subjecting PW12’s evidence to our anxious and full scrutiny, the learned judge was justified in his finding that PW12 was a credible witness whose evidence could be and was in fact acted upon by the trial court. For the reasons that we have indicated, we could not accede to the argument urged for the appellant that PW12 was not a credible witness and consequently the second ground in the appellant’s contentions which relates to the issue of credibility must fail. CONCLUSION [44] We see no reasons to disturb the factual findings of the learned judge. His Lordship had judicially appreciated the evidence very carefully in a way that leaves no margin of doubt in our minds that the conviction of the appellants is safe. The appellants’ story in connection with the entire incident was a bare denial, highly fictitious and a mere fabrication to which no degree of credence ought to be attached. In all the circumstances, and based on the reasons discussed, we accordingly at the end of the appeals came to the inevitable conclusion that the prosecution case against the appellants based on the charge against them had been proved beyond a reasonable doubt. 31 [45] We dismissed the appeal and affirmed the order of conviction and sentence by the trial court against the appellants on the charge under section 302 of the Penal Code. Signed ( IDRUS BIN HARUN ) Judge Court of Appeal, Malaysia Putrajaya Dated: 13 November 2017 1. Solicitor For The Appellant - RSN Rayer R. Nethaji Rayer & Co. No. 27-A, Jalan Zainal Abidin 10400 Penang 2. Solicitor For The Respondent - Puan Kwan Li Sa Timbalan Pendakwa Raya Unit Perbicaraan Jabatan Peguam Negara No. 45, Persiaran Perdana Presint 4 62100 Putrajaya

Tika 2.6.0

22NCC–215–06/2014

PLAINTIF PAC LEASE BERHAD DEFENDAN 1. PROMPT DYNAMICS (BKHICD) SDN BHD 2. YEE KOOI OON 3. OOI CHYE LENG 4. PROMPT DYNAMICS SDN BHD

13/11/2017

YA TUAN MOHAMED ZAINI BIN MAZLAN

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=9c5874d5-4f96-442f-864c-53cc24f4bf44&Inline=true

1 IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR (COMMERCIAL DIVISION) IN THE STATE OF WILAYAH PERSEKUTUAN, MALAYSIA SUIT NO. 22NCC – 215 – 06/2014 BETWEEN PAC LEASE BERHAD PLAINTIFF AND 1. PROMPT DYNAMICS (BKHICD) SDN BHD 2. YEE KOOI OON 3. OOI CHYE LENG 4. PROMPT DYNAMICS SDN BHD DEFENDANTS JUDGMENT Introduction [1] The plaintiff had filed an application to amend the judgment entered against the defendants. This judgment was entered in default of the defendants’ appearance. The plaintiff had sought to merely amend its name. The defendants opposed it. The application was heard and allowed by the learned Deputy Registrar. Dissatisfied with the decision, the defendants appealed to a Judge in chambers pursuant to O. 56 r. 1 Rules of Court 2012 (‘RC 2012’). 2 [2] I had after considering the application and submissions by learned counsel for both parties, dismissed the appeal. I will now set out the reasons for the decision. Brief facts [3] The plaintiff had on the 17 July 2014 obtained judgment in default against all the defendants. The judgment was duly perfected and sealed. The plaintiff had recently come to realise that its name had been incorrectly stated in the judgment as ‘Pac Lease Sdn Bhd’, when it should have been ‘Pac Lease Berhad’. [4] In its affidavit in support of the application, the plaintiff claimed that it was a mere clerical error, and highlighted that the name that they sought to change to was the same name that was stated in the writ of summons and statement of claim. The plaintiff also highlighted that the hire purchase agreement and guarantee that formed the basis of its claim, were previously between ‘Pac Lease Sdn Bhd’, and that it had changed its name to ‘Pac Lease Berhad’ on the 6 June 2011. Issues raised by the defendants [5] In opposing the application, the defendants relied on the following grounds:- (a) The plaintiff’s contention that it was merely a clerical error is misconceived, as it involved changing the capacity and is a major change; 3 (b) The plaintiff’s contention that the hire purchase agreement and guarantees were between ‘Pac Lease Sdn Bhd’ and the defendants, is contrary to what it pleaded under paragraph 4 of the Statement of Claim, (c) The plaintiff did not plead its change of name, which took effect on 6 June 2011, and that this was an afterthought, (d) The plaintiff should have firstly amend the Statement of Claim, (e) The plaintiff’s name appeared as ‘Pac Lease Sdn Bhd’ in its affidavit of service, and (f) The judgment had been superseded by a scheme of arrangement between the plaintiff and the defendants after the judgment had been entered, and that this scheme had run for two years. [6] The plaintiff had apparently issued to the first defendant, a notice of demand dated 28 February 2017 pursuant to s. 218 Companies Act 1965. This demand was premised on the judgment. The plaintiff had only become aware of the mistake in the name, after the defendants’ solicitors had objected to the notice by highlighting the differences in the name that appeared in the notice and the judgment. [7] In my view, the issues under (a) to (e) can be dealt with simultaneously. 4 Findings The law [8] The general principle is that an order cannot be altered or varied once it has been drawn up and perfected, as the court is deemed functus officio; Scotch Leasing Sdn Bhd v Chee Pok Choy [1997] 2 CLJ 58 (FC). [9] What it means to be functus officio is that the court’s duty or authority has come to a finality. Once a court has pronounced its decision for example, its duty over the case has come to an end. The case cannot be reopened, for there must be finality to litigation. The recourse for a dissatisfied party is to appeal. There are of course some exceptions. [10] One of the exceptions is that a final order may be corrected, if there is an accidental slip or omission. This is commonly known as the ‘slip rule’, and is provided for under O. 20 r. 11 RC 2016, which states as follows:- Amendment of judgment and orders The Court may at any time correct clerical mistakes in judgment or orders, or errors arising therein from any accidental slip or omission, by a notice of application without an appeal. 5 [11] It is important to note that an application to amend under O. 20 r. 11 RC 2012 can only be done through a notice of application. This means the application has to be made by any of the parties to the suit. The accidental slip or omission must arise out of a clerical mistake by officers of the court (In re Gist (A person of Unsound mind) [1904] 1 CH 398), or by the parties to the suit (Armitage v Parsons [1908] 2 KB 410). Similar to the plaintiff in Armitage v Parsons, the plaintiff here has moved the court to amend the judgment. [12] The error or mistake must be accidental or an omission. The amendment sought must be one that the court intended to pronounce, and does not prejudice the other party. [13] The power to amend is not confined to a particular judge, such as the one who pronounced the order or judgment. The Federal Court in Sang Lee Co Sdn Bhd v Munusamy a /l Karuppiah (sole proprietor of MNN Consultancy Services, a firm) [2010] 5 MLJ 285, referred to the English Court of Appeal’s decision in R V Cripps, ex parte Muldoon and others [1984] 1 All ER 705, and held that the power to amend may be exercised by another judge sitting in the same court. A situation where another judge may sit in the court that was previously occupied by another judge is not peculiar, as judges can move from one court to another. The issues raised by the defendants [14] The defendants contend that the proposed amendment will change the capacity of the plaintiff. I fail to see how this is the case. The 6 name that the plaintiff sought to amend to is the same name that it had used in its pleadings. I accept that there was a clerical error on the part of the plaintiff’s solicitors when they drafted the judgment, as they named the plaintiff as ‘Pac Lease Sdn Bhd’ in the judgment, when it should have been ‘Pac Lease Berhad’. The party is the same. There is no change in capacity. The plaintiff is the same entity. It was merely a clerical error on its name. [15] The defendants take issue with the plaintiff’s averment in its affidavit in support, that the hire purchase agreement and guarantees were between the defendants and Pac Lease Sdn Bhd. The defendants highlighted that this averment is contrary to what was pleaded under paragraph 4 of the statement of claim, where it was pleaded that the agreement and guarantees were with Pac Lease Berhad. [16] The defendants must have intended to refer to paragraph 5 of the statement of claim, as paragraph 4 was only in reference to the fourth defendant’s address. Ironically it must have been a clerical error on the defendants’ solicitors’ part. [17] Nonetheless, I find this argument totally devoid of merits too. The plaintiff had clearly stated in its affidavit that it was formerly known as Pac Lease Sdn Bhd, and that it had changed its name to Pac Lease Berhad in 6 June 2011. When the statement of claim was filed, the plaintiff had already changed its name to Pac Lease Berhad. Similar to what I have stated before, the entity remains the same, as only the plaintiff’s name had changed. There is no 7 doubt that the party that had entered into the agreement and guarantees with the defendants were the plaintiff. [18] The defendants’ contention that the plaintiff should have amended its statement of claim is equally without merits. Why would it amend to its previous name, when it has been known by its current name since June 2011. The fact that the plaintiff had erroneously used the name Pac Lease Sdn Bhd in the title to its affidavit of service, is also another clerical error. As I have stated, there is no confusion that irrespective of whether it’s ‘Sdn Bhd’ or ‘Berhad’, the plaintiff is the same entity that had entered into the agreement and guarantees with the defendant. [19] I now come to the issue of the alleged scheme of arrangement between the plaintiff and defendants post judgment. The defendants claimed that the judgment has been superseded by this scheme. The plaintiff did not deny that there was indeed a scheme of payment between the parties post judgment. However, the plaintiff contends that this scheme did not supersede the judgment, and that the defendants had nevertheless defaulted in the payment scheme. The plaintiff contends that it is free to act on the judgment, as there was no agreement for the plaintiff to waive its rights. [20] I accept the plaintiff’s response. The defendants have not presented an iota of evidence that the plaintiff has agreed to waive its rights to the judgment pursuant to the scheme. It is not odd for any party, such as the plaintiff here to allow the defendant to pay what is due under the judgment under a scheme of payment. 8 However, unless parties agree that the plaintiff waived its right to enforce the judgment, there is nothing to stop the plaintiff from acting on the judgment. Conclusion [21] There are simply no merits to the defendants’ objection to the plaintiff’s application. I see no reasons to deny the plaintiff the right to amend the judgment. I therefore dismiss the defendants’ appeal with no order as to costs. Dated: 13 November 2017 -sgd- (Mohamed Zaini Mazlan) Judge Kuala Lumpur High Court (Commercial Division) Counsel for the appellant Ravin Vello [Messrs Vello & Associates] Counsel for the respondent Chandrasegaran Panjacharam [Messrs B.H. Gan, Nor & Kim]

Tika 2.6.0

JA-22NCVC-50-03/2016

PLAINTIF Sinwira Bina Sdn Bhd (No. Syarikat: 408506-K) DEFENDAN Puteri Nusantara Sdn Bhd (No. Syarikat: 966724-T)

12/11/2017

YA DATO' DR. CHOO KAH SING

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=c8daeecb-9127-4ebd-85c1-39c871e21db5&Inline=true

Page 1 of 16 DALAM MAHKAMAH TINGGI MALAYA DI JOHOR BAHRU DALAM NEGERI JOHOR DARUL TAKZIM, MALAYSIA GUAMAN NO. JA-22NCVC-50-03/2016 ANTARA SINWIRA BINA SDN BHD PLAINTIF (No. Syarikat: 408506-K) DAN PUTERI NUSANTARA SDN BHD DEFENDAN (No. Syarikat: 966724-T) JUDGMENT CHOO KAH SING Judicial Commissioner High Court, Johor Bahru Date: 12.11.2017 Page 2 of 16 Introduction [1] This case concerns a construction claim based on a letter of award dated 16.7.2015 which was issued by the defendant to the plaintiff. The letter of award was entitled „Appointment As Sub-Contractor‟ (hereinafter referred to as the „LA‟). [2] The defendant was the main contractor for a project in Langkawi, in the State of Kedah Darul Aman, known as “Cadangan Projek Pembersihan Teluk Dan Pembinaan Breakwater Sempena Langkawi Asean Summit 2015, Bandar Kuah, Daerah Langkawi, Kedah Darul Aman” (hereinafter referred to as „the said Project‟). The defendant appointed the plaintiff as one of the sub-contractors in the said Project. [3] The parties went through a full trial. On 27.9.2017, this Court delivered its decision and allowed the plaintiff‟s claim, inter alia, for a sum of RM1,584,672.50. The reasons for the decision are set down as below. Brief Facts [4] The employer/owner of the said Project was Lembaga Pembangunan Langkawi, in short “LADA”. LADA appointed the defendant as the main contractor of the said Project [5] The defendant appointed the plaintiff as the sub-contractor to undertake, construct and complete part of the works in the said Project, and the scope of works for the plaintiff were (i) to construct fringing reef, (ii) to construct tidal gates and (iii) to lay geotextile and sand in the Page 3 of 16 lagoon (the scope of works shall hereinafter collectively referred to as “the said Works”). The total contract sum for the said Works was RM8,990,000.00. The Plaintiff‟s Claim [6] The plaintiff claimed against the defendant, inter alia, for work-done as follows: Description Total Cost (RM) Work done todate Amount Claimed Mobilization of manpower, machineries and others; provided all necessary equipment to construct temporary access road to reach the construction site; provide all necessary equipment to carry out excavation along the proposed Breakwater section RM690,000.00 100% RM690,000.00 Preparation of Health, Safety and Environment Management Plan; Implementation of Health Safety and Environment Management Plan RM200,000.00 100% RM200,000.00 Provide for contractor‟s Site Agent, Contractor is to engage a competent site agent with minimum requirement a degree holder and must be full time on site RM200,000.00 25% RM50,000.00 Supply and install Class 2 rocks average weight 182 kg rocks according to drawings and specifications: (i) Supply & Delivery to Site (ii) Labour & Machineries for the installation Cost RM120 per m3 RM22.50 per m3 1717 1717 RM206,040.00 RM38,632.50 Supply and install geotextile on the lagoon bed level prior to laying the sand. Hate E800/2 Non-woven geotextile or RM800,000.00 5% RM40,000.00 Page 4 of 16 equivalent Supply only to site Install at site Removal & levelling of unsuitable material in the lagoon RM400,000.00 90% RM360,000.00 TOTAL: RM1,584,672.50 [7] Before the said Works could be completed by the plaintiff, the plaintiff ran into financial constraint because it did not receive payment for the partially completed works as per the above claims. The plaintiff also averred that it could not proceed and complete its scope of works because the defendant had failed to obtain the permit from the relevant authority(ies) or from LADA to transport and deliver the sand and rocks to the site (hereinafter referred to as the „Permit‟). As a result of the absence of the Permit and the non-payment of the partial work done, the plaintiff could not proceed and complete the said Works. The plaintiff had no alternative but to terminate the LA and proceed to file this action against the defendant for payments of work done up to date. The Defendant‟s Case [8] The thrust of the defendant‟s defence was premised on a „back-to- back‟ clause in the LA which states as follows: “The Sub-Contract Sum shall be paid to the Sub- Contractor on the basis of back-to-back payment, as and when received by the Contractor from the Client. Unless a special arrangement is made, the Employer shall not be liable to pay the Sub-Contractor in the Page 5 of 16 event that no corresponding payment is paid by the Client.” (the said „back-to-back clause‟) [9] The defendant averred that the claims made by the plaintiff were not consistent with the Bill of Quantities and were not agreed upon by the parties. The defendant also averred that the plaintiff did not comply and follow the terms of the contract documents in carrying out its works. The defendant further averred and denied that it was its duty and responsibility to obtain the Permit. The duty and responsibility to obtain the Permit was in fact on the plaintiff, instead of the defendant, the defendant submitted. The Findings of this Court [10] The parties had agreed the issues to be tried were as follows: (i) Samada Defendan berhutang terhadap Plaintif wang tunggakan yang berjumlah RM1,584,672.50 yang berdasarkan suatu Surat Perlantikan bertarikh 16.7.2015 untuk kerja-kerja Sub-Kontrak melibatkan kerja-kerja bagi tujuan pembinaan “fringing reef”, “tidal gates” dan “laying of geotextile and sand in lagoon” bagi sebuah projek dikenali sebagai “Cadangan Projek Pembersihan Teluk Sempena Dengan Langkawi ASEAN Summit 2015, Bandar Kuah, Daerah Langkawi, Kedah Darul Aman (“Projek tersebut”) dimana Plaintif telah membekalkan tenaga kerja, bahan- bahan, dan mesin-mesin untuk tujuan kerja-kerja Sub- Kontrak bagi Projek tersebut; Page 6 of 16 (ii) Samada Defendan berkewajipan dalam mendapatkan permit pasir dan batu-bata daripada Jabatan Tanah Langkawi (“permit tersebut”) yang merupakan satu syarat duluan sebelum kerja Projek tersebut dapat disempurnakan oleh Plaintiff. First Issue [11] Based on the contemporaneous documents adduced before this Court, the plaintiff had showed it had sent a total of five letters to the defendant pertaining to its claims for the work done (see exhibit B1, p.17 [dated 29.12.2015], p.18 [dated 27.11.2015], pp.19-20 [dated 27.11.2015], p.24 [dated 6.11.2015], pp.25-26 [5.11.2015]). [12] However, the defendant did not respond or refute the plaintiff‟s claim after it had received all the plaintiff‟s letters. [13] The defendant called only one witness, Mohd Niza Bin Abdul Mubin (DW1), who was the general manager of the defendant company at the material time, to give evidence for the defendant. He was charged with coordinating the said Project and daily operation of the company‟s affairs. [14] In cross-examination, DW1 agreed and admitted that the plaintiff had in fact carried out the works as claimed by the plaintiff. DW1 also admitted that the defendant did not reply to any of the plaintiff‟s letters. [15] DW1 further admitted that the plaintiff had in fact carried out the works as claimed. Based on DW1‟s admission alone, the plaintiff has Page 7 of 16 succeeded in proving its case. Although DW1 thinks that the plaintiff ought not to be paid because of the „back-to-back‟ clause in the LA, this does not preclude the plaintiff from discharging its onus in proving its claim on a balance of probabilities. Whether the „back-to-back‟ clause should prevail over the plaintiff‟s entitlement to immediate payment from the defendant is a separate issue which will be dealt with later in the judgment. [16] The plaintiff had made a positive assertion, i.e. that the defendant owned the plaintiff a sum, such positive assertion would compel the defendant to respond if the defendant denied such claim. Unfortunately, the defendant did not do so. This court is of the considered view that the defendant did not discharge its duty to reply the plaintiff‟s letters because when there is a duty to speak or act imposed on a party, and yet, the party keeps silent, this deliberate inaction or silence could be taken as representation to the other party as acceptance of such assertion. On these present facts, the inaction and silence on the defendant‟s part could be taken as representation to the plaintiff that the defendant was not denying the plaintiff‟s claim (see the proposition in the decision of the Federal Court in Public Textiles Berhad v Lembaga Letrik Negara [1976] 1 MLRA 70, p. 73). [17] The rates or prices quoted have to be agreed by the defendant/Employer before they were binding, this was stated in the LA, the defendant‟s counsel submitted. As explained in the preceding paragraph, the defendant did not refute the rates and prices provided by the plaintiff and that could be construed as a representation to the plaintiff that the defendant accepted the rates or prices quoted. Page 8 of 16 [18] The defendant‟s counsel also submitted that the plaintiff failed to prove its actual loss and expenses incurred, therefore, the plaintiff ought not to obtain judgment for the quantum as claimed even if the plaintiff succeeded in proving liability on the defendant‟s part (which was denied). This Court could not accept this submission because the plaintiff‟s claim was based on work done in the said Project. The plaintiff was not claiming for general or special damages, but for work done as stipulated in the LA and Bill of Quantities. All the plaintiff needs to satisfy the Court that it has executed his works, vis-a-vis work done as specified in its scope of works, (which was admitted by the defendant‟s own witness) for the plaintiff to be entitled to its claim. [19] Based on the above evidence before this Court, this Court will not hesitate to find the plaintiff has proved its claims on a balance of probabilities in that the defendant owes the plaintiff the sum as claimed. Hence, the first issue is answered in the affirmative. The Validity of the „back-to-back‟ Clause [20] I hold that the defendant cannot rely on the said back-to-back clause to defend the plaintiff‟s claim for the following reasons. [21] I am of the view that the LA or sub-subcontract would fall within the definition of a „construction work contract‟ in the Construction Industry Payment And Adjudication Act 2012 which came into force on 15.4.2014. The construction of the fringing reef and tidal gates involves construction of a structure or wall as defined as „construction work‟ in the Act. Hence, the Act would be applicable to the present LA. Page 9 of 16 [22] Section 35 of the Act renders a “conditional payment provision” in a construction contract void. [23] I find the said back-to-back clause is a “conditional payment provision” as provided in s.35 of the Act, and is therefore void. [24] The defendant did not refute the plaintiff‟s assertion that there was a previous agreement between the parties that the said back-to-back clause should not be applicable to the plaintiff‟s payments for work done. The counsel for the defendant submitted that the plaintiff should sue LADA for his work done instead of suing the defendant since the plaintiff insisted for a direct payment to be made from LADA to the plaintiff. [25] This is because following from the LA dated 16.7.2017, the plaintiff wrote a letter dated 20.7.2015 (see exhibit B1, p. 41) to the defendant and stated as follows: “2. It was previously agreed that payment to our company for the works done shall be directly assigned from Lembaga Pembangunan Langkawi (LADA) instead of from your good company as per stated in Cluase 3 of Letter of Appointment.” [26] The defendant‟s submission does not hold water. The sub-contract was entered into between the plaintiff and defendant, it is the defendant who owes a contractual obligation to pay the plaintiff for its works done, not LADA. When the plaintiff presented its claims to the defendant, the defendant did not in any occasion suggest that payment should be from Page 10 of 16 LADA or that it was not liable for the plaintiff‟s claim. The defendant could not now rely on the argument that the plaintiff should sue LADA. Second Issue – Who‟s duty to obtain the Permit? [27] It is in evidence that the plaintiff had written numerous letters to the defendant pertaining to the issue of obtaining the Permit (see exhibit B1, p. 27 [dated 14.9.2015], p.28 [dated 4.9.2015], p.29 [dated 28.8.2015], pp.31-32 [dated 24.8.2015], p.36 [dated 17.8.2015], and p.37 [dated 13.8.2015]). [28] The followings are the excerpts from the said letters concerning the enquiries and requests to the defendant to obtain the Permit: Letter dated 13.8.2015 (p. 37 – Exhibit B1) “Dengan segala hormatnya pihak kami merujuk kepada projek di atas dan mesyuarat LADA yang telah diadakan pada 11.08.2015 di mana pihak LADA telah maklumkan bahawa permit untuk pengangkutan pasir akan diselesaikan sebelum 16.08.2015 [emphasis added]” Letter dated 17.8.2015 (p. 37 – Exhibit B1) “2. Pihak kami ingin memaklumkan bahawa Permit Untuk Pengangkutan Pasir & Batu-bata masih belum diperolehi sehingga tarikh hari ini. Oleh itu, pihak kami tidak boleh menyiapkan kerja-kerja untuk Page 11 of 16 projek yang tersebut di atas pada 31.10.2015 seperti yang dicadangkan sebelum ini. 3. Pihak kami juga ingin memaklumkan bahawa jikalau Permit yang tersebut di atas masih tidak dapat diperolehi pada hari 18.8.2015 pihak kami terpaksa membatalkan penyewaan pantun (iaitu 2 unit) dengan segera. 4. Sekiranya Permit yang tersebut di atas diperolehi selepas tarikh 18.08.2015 untuk kerja-kerja pengangkutan pasir dijalankan, pihak kami akan memerlukan masa tambahan untuk re-mobilize pantun dan mesin-mesin yang diperlukan dengan kos tambahan. Pihak kami berharap hal yang disebut di atas dapat diselesaikan dengan kadar yang segera untuk meyelaraskan kerja-kerja projek di atas.” Letter dated 24.8.2015 (p. 32 – Exhibit B1) “d. Permit Pasir & Batu-Bata Sementara menuggu pengesahan Permit Pasir & Batu-Bata, Jabatan Laut tidak membenarkan pihak kami mengangkut pasir, batu-bata dan unsuitable material dengan alasan pihak kontraktor utama haruslah mendapat Surat Sokongan daripada Pejabat Page 12 of 16 Tanah Langkawi untuk memulakan kerja-kerja yang tersebut di atas. 3. Pihak kami memohon jasa baik supaya boleh mendapatkan Permit Pasir & Batu-bata serta permit lain yang berkenaan secepat mungkin memandangkan Kos Idling telah semakin membebankan pihak kami. Pihak kami ingin menarik perhatian pihak tuan bahawa perolehan Permit Pasir & Batu-Bata serta Permit lain bukanlah kerja dalam skop kontrak pihak kami [emphasis added].” Letter dated 28.8.2015 (p. 29 – Exhibit B1) “2. Mengikut rekod tapak harian, pihak kami telah mobilize mesin-mesin dan pantun-pantun pada 23.07.2015 dan tiba di tapak pada 28.07.2015 sehingga hari ini, pihak kami masih tidak dapat bekerja dengan sepenuhnya semasa tempoh kerja disebabkan Permit Pasir & Batu-bata masih belum dihulurkan kepada pihak kami daripada syarikat tuan [emphasis added] Kos Iding yang terlibat telah meningkat sehingga ke hari ini. 3. Pihak kami ingin menarik pehatian pihak tuan bahawa perolehan Permit Pasir & Batu-bata bukanlah tanggungjawap pihak kami [emphasis added]. Page 13 of 16 4. Pihak kami di sini memohon jasa baik pihak tuan untuk mengadakan satu mesyuarat khas untuk menyelesaikan masalah seperti yang dinyatakan di perenggan 2 & 3 jikalau Permit Pasir & Batu-bata masih tidak dapat diberikan kepada pihak kami [emphasis added] sebelum 05.09.2015.” Letter dated 4.9.2015 (p. 28 – Exhibit B1) “2. Pihak kami berasa agak kecewa bahawa sehingga hari ini (iaitu 04.09.2015), pihak kami masih belum diberitahu tentang perihal Permit Pasir & Batu-bata dan harga pasir untuk pihak tuan yang tidak boleh diselesaikan dengan pihak LADA yang mana kesemuanya perihal ini bukanlah tanggungjawap pihak kami dalam urusan kontrak dengan pihak tuan [emphasis added].” Letter dated 14.9.2015 (p. 27 – Exhibit B1) “2. Pihak kami berasa agak kecewa kerana sehingga hari ini (iaitu 14.09.2015), pihak kami masih belum menerima apa-apa arahan dan jawapan mengenai perihal Permit Pasir & Batu-bata dan harga pasir untuk pihak tuan yang tidak boleh diselesaikan dengan pihak LADA yang mana kesemua perihal ini bukanlah tanggungjawap pihak kami dalam urusan kontrak dengan pihak tuan [emphasis added].” Page 14 of 16 [29] The contents of the above excerpts are self-explanatory and sufficient to show that the plaintiff was at all material times waiting for the defendant and/or LADA to arrange for the Permit in order for the plaintiff to proceed and complete its scope of works. [30] The LA (exhibit B1, pp.65-68) did not mention that the plaintiff was obligated to obtain the Permit. In the Minutes of Meeting held on 28.7.2015 (see exhibit B1 – pp.1-7, particularly p. 6 (or p. 5 of the minutes)), paragraph 4.1 stated: “Permohonan untuk mendapatkan kelulusan pasir di Kuala Muda akan dibantu bersama oleh LADA dan Pejabat Tanah Daerah Langkawi.” In the minutes, it also stated LADA was the party to take action in relation to paragraph 4.1. [31] Exhibit B1, p. 74, an email sent from the defendant to LADA addressed to one Ir Rohaya P. Kamal, Manager of Technical Engineering Department in LADA, contains the following: “Bagi memulakan kerja-kerja pengorekkan pasir di tanah milik LADA di Lot 60002, Padang Matsirat dan bagi memindahkan pasir tersebut ke tapak projek „breakwater‟, pihak sub-kontraktor kami, Sinwira Sdn. Bhd., memerlukan lesen permit pengeluaran pasir dari Pejabat Daerah & Tanah Langkawi. Salinan lesen itu perlu dikemukakan kepada Jabatan Laut Langkawi dan jabatan-jabatan lain yang berkaitan sebelum sub-kontraktor kami dibenarkan memulakan kerja-kerja pengorekkan dan pemindahan pasir. Page 15 of 16 …. Sehubungan dengan itu, kami berharap agar pihak LADA dapat menyegerakan bagi mendapat kelulusan lesen tersebut supaya kerja-kerja tersebut boleh dilaksanakan secepat mungkin. Seperti yang dimaklumkan di dalam „Recovery Proposal‟ yang dikemukakan baru-baru ini, kesinambungan dan kelancaran perlaksanaan projek ini amat bergantung kepada kelulusan-kelulusan pihak-pihak berwajib. Sebarang kelewatan dari segi kelulusan pihak berwajib tidak dapat tidak akan melewatkan tarikh penyiapan projek tersebut.” [32] The above email proffers two relevant facts. First, the defendant was aware at the material time that it was not the plaintiff‟s responsibility to procure the Permit/licence to transport and deliver the sand and rock to the site. Secondly, the party who was responsible to obtain the Permit/licence was the defendant through LADA. [33] Based on the above documentary evidence, this Court is satisfied that the plaintiff was not contractually obligated to obtain the Permit. This Court is also satisfied that without the Permit the plaintiff would not be able to complete its scope of work. The completion of the plaintiff‟s Works depended on the Permit. Therefore, the second issue is answered in the affirmative Page 16 of 16 Conclusion [34] Based on the above findings and reasoning, this Court allowed the plaintiff‟s claim for a sum of RM1,584,672.50, and interest of 5% per annum calculated based on the sum of RM1,584,672.50 from the date of the filing of the Writ to date of settlement, and general damages to be assessed by the Court, and costs of RM10,000.00 to the plaintiff to be paid by the defendant. -Signed- …………………………………. CHOO KAH SING Judicial Commissioner High Court, Johor Bahru Counsel for the plaintiff : Ungku Ahmad Hafis (Tang Pei Xin with him) Tetuan Chiong & Partners Counsel for the defendant : R. Jayasingam Tetuan BH Lawrence & Co.

Tika 2.6.0

CA – 83 – 322 – 07 / 2017

PENDAKWARAYADeputy Public Prosecutor (DPP) Mohamad Shahrizzat bin Amadan TERTUDUH AHMAD ZUKRI BIN MOHD LAZIM

10/11/2017

PN NORDIANA BINTI ABD AZIZ

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=116a5df5-017b-4b9d-b5f1-9240e4693da4&Inline=true

1 PENDAKWA RAYA V. AHMAD ZUKRI BIN MOHD LAZIM [IDENTITY CARD NO.: 791206115457] 5 MAHKAMAH MAJISTRET KUANTAN DALAM NEGERI PAHANG DARUL MAKMUR PERBICARAAN JENAYAH NO: CA – 83 – 322 – 07 / 2017 JUDGMENT 10 NORDIANA BINTI ABD AZIZ INTRODUCTION [ 1 ] The accused person (Ahmad Zukri Bin Mohd Lazim (Ahmad Zukri) who is 39 years old was charged with an offence of voluntarily 15 causing hurt to his wife, Rosni Binti Ab Rahim (Rosni). [ 2 ] I set out below the charge framed against Ahmad Zukri: Bahawa kamu pada 30/06/2017 jam lebih kurang 12.30 tengahari bertempat di rumah alamat Lot 77 Kampung Sungai Soi, 25150 Kuantan, Pahang telah didapati 20 dengan sengaja menyebabkan cedera kepada Rosni Binti Ab Rahim KPT 821128-11-5586 dengan cara 2 menolak, mencekik leher, memukul dan menendang sehingga mangsa jatuh dan mengalami kecederaan. Maka kamu dengan ini telah melakukan suatu kesalahan yang boleh dihukum dibawah seksyen 323 Kanun Keseksaan dan dibaca bersama seksyen 326A 5 Kanun Keseksaan. [ 3 ] Prosecution is conducted by Deputy Public Prosecutor (DPP) Mohamad Shahrizzat bin Amadan. THE FACTS 10 [ 4 ] I shall now set out the facts relating to the charge. The facts are derived from Fakta Kes (P1) and other exhibits tendered by the prosecution which Ahmad Zukri admitted with no qualms. [ 5 ] The victim was Rosni. She is Ahmad Zukri’s wife. They lived at Lot 77 Kampung Sungai Soi, 25150 Kuantan, Pahang together with 15 Rosni’s mother, Rusnah Binti A. Ghani (Rusnah). [ 6 ] On 30 June 2017, Rosni was home with her mother. It was a beatific ‘Eid day, exalted with joy. However luck was not at her side when later that day, she was tormented with an incident that wrung her, both physically and emotionally. 20 [ 7 ] It all started when Ahmad Zukri came home putting the squeeze on Rosni, demanding for some money. As Ahmad Zukri was a drug addict, Rosni knew he needed money for a dope, hence she refused to give him any. Her refusal riled Ahmad Zukri who then viciously punched, kicked and hit Rosni. 25 3 [ 8 ] Rusnah, enfeebled by old age, could only stood still whilst her daughter was ferociously assaulted by Ahmad Zukri. As soon as the beating stopped, Ahmad Zukri rushed toward Rusnah and tried to strangle her. [ 9 ] It was 2 days after the incident that Rosni managed to lodge a 5 police report (refer exhibit P2). Even 2 days has passed, the torment she has to go through was very much in evidence on her body – there were blueish, scratches and soft tissue injuries all over her body as evidenced by the photographs at P5. She was referred to Hospital Tengku Ampuan Afzan (HTAA) for further 10 examination where she was seen by Dr. Shahirah who then recorded medical findings on the injury suffered by Rosni as at P6. [ 10 ] Resulting from the report lodged by Rosni, on 04 July 2017, Insp. Amira went to the house and arrested Ahmad Zukri. [ 11 ] On 11 July 2017, Ahmad Zukri was brought before this Court. The 15 proceeding was conducted in Malay – a language which Ahmad Zukri is conversant with as a Malay. After the charge was read out to Ahmad Zukri, he pleaded guilty to the offence. Both the interpreter and I took great pains in explaining the sentence provided under section 326A of the Penal Code. Ahmad Zukri 20 admitted that he understood the sentence provided under section 326A of the Penal Code. [ 12 ] Taking note to a judgment by the Court in Otokini Charles Dokubo & Anor v. PP [2012] 1 LNS 1462 and applying it to the fact of this case, the Court accepted Ahmad Zukri’s plea of guilt after being 25 satisfied that his plea of guilt was made in accordance to the requirement stipulated under the law and that Ahmad Zukri understood the nature and consequence of his plea of guilt. 4 SUBMISSIONS OF SENTENCING [ 13 ] Initially, Ahmad Zukri in his submission on sentencing prayed that a sentence of fine be imposed against him as he has to care for his children, his mother and 3 foster children. The Court then reminded Ahmad Zukri of the sentence provided under section 5 326A of the Penal Code i.e. imprisonment which may extend twice the maximum sentence of section 323 of the Penal Code. [ 14 ] With an intent to assist Ahmad Zukri, I invited DPP Mohamad Shahrizzat to interpret the sentence provided under section 326A of the Penal Code. In a corresponding manner, DDP Mohamad 10 Shahrizzat stated that section 326A of the Penal Code calls for custodial sentence up to 2 years with no option to a sentence of fine. [ 15 ] From my observation, Ahmad Zukri is very focused and is attentive to the submission by DPP Mohamad Shahrizzat regarding the 15 sentence provided under section 326A of the Penal Code. As he was unrepresented, the Court in making sure that Ahmad Zukri understood the nature and consequence of his plea, has many a time and oft explained to him of the sentence provided under section 326A of the Penal Code i.e. imprisonment which may 20 extend twice the maximum sentence of section 323 of the Penal Code. When asked whether he understood the sentence under section 326A of the Penal Code, Ahmad Zukri answered in affirmative. [ 16 ] In submitting aggravating factors, DPP Mohamad Shahrizzat 25 implored for a custodial sentence that served as a lesson to Ahmad Zukri. Accentuating the facts of the case, DPP Mohamad Shahrizzat pointed out that domestic violence should not be taken 5 lightly for the victim is the accused’s wife. It was submitted that from the facts of the case, Ahmad Zukri has hit, kicked and strangled Rosni after she refused to give him RM10. Just for a small amount of money, Rosni was beaten in cold blood wherein Ahmad Zukri, as a husband, is supposed to be her guardian. Not 5 only has he assaulted his wife, he also tried to strangle Rusnah – his mother in law. [ 17 ] In addition, DPP Mohamad Shahrizzat also brought the Court’s attention to the date of incident on 30 June 2017 i.e. on the third day of ‘Eid. Instead of being a reveled and joyful day, Rosni was 10 quivering with sobs and aggravating pain, under the burning anger of her beloved husband. It was submitted that, this act of violence, if not nailed down, will have a serious aftermath. THE SENTENCE 15 [ 18 ] Having made myself satisfied that Ahmad Zukri understood the nature and consequence of his plea of guilt and upon his admission of the facts and exhibits tendered, Ahmad Zukri was convicted of the offence under section 323/326A of the Penal Code. With that, I now came to the Court’s reasoning for awarding 20 sentence for an offence under which Ahmad Zukri has been convicted. [ 19 ] In history of abuse, women and children by and large are victims. Deputy Women, Family and Community Development Minister Datuk Chew Mei Fun stated that reporting of domestic violence 25 cases continue to rise every year where a total of 23,212 domestic violence cases involving women as victims while 28,365 cases of child abuse were reported to the Welfare Department from 2010 to 6 2016. Thus it is not surprising when Women Aid Organization in its 2017 reports “Perspective On Domestic Violence” disclosed an alarming facts on domestic violence cases in Malaysia where it is estimated that over 800,000 women in Malaysia have likely experienced abuse by partner (based on a study conducted by the 5 Women’s Development Research Centre (KANITA) in Universiti Sains Malaysia). [ 20 ] Despite the disturbing figure of violence against women, most society treats domestic violence as a private matter of the family – a highfalutin reason to shun victims of violence away. Ofttimes, 10 victims were told to keep their lips tight and were left in the lurch, wailing in pain silently whilst the culprits roamed free after slipping through the cracks of the system. According to Falvia Agnes (2017) in her article “Victims of Violence Faced Judicial Bias”, deliberate mistreatment towards victims of violence has become 15 recrudescent strain of plague that permeates the mind of society. [ 21 ] At present, ignorance no longer remain to be the main culprit in domestic violence cases. On 31 December 2014, in response to soaring clamors against domestic violence, the Parliament of Malaysia enacted section 326A of the Penal Code. Now, the once 20 reticent evil is considered as an offence under the federal law. [ 22 ] Coming back to the facts of the case before me, Ahmad Zukri has pleaded guilty to an offence of voluntarily hurting Rosni, an offence under section 323 of the penal Code. As Rosni is Ahmad Zukri’s wife, the charge must be read together with section 326A of the 25 Penal Code. [ 23 ] It is rightful to say that behind closed door, every battered victim cried in pain, longing for help from the society. Section 326A of 7 the Penal Code is a new dawn of hope for every battered victim whose suffering was kept mummed all these while. YB Hajah Nancy binti Shukri in her second reading speech on the Penal Code (Amendment) Bill, asserted strongly before the members of the House of the government’s alacrity in reforming the law to fight 5 domestic violence by stating the following: Kerajaan amat memandang serius perbuatan keganasan yang dilakukan oleh pasangan yang berkahwin terhadap pasangannya. Dua seksyen baru telah dimasukkan bagi meningkatkan penalti yang lebih 10 tinggi sekiranya kecederaan dilakukan oleh pasangan atau sekiranya kekerasan jenayah dilakukan oleh pasangan. Seksyen baru 326A berkenaan kecederaan telah menetapkan bahawa pasangan yang disabitkan di bawah seksyen 323, seksyen 324, seksyen 325, 15 seksyen 326, seksyen 334 atau seksyen 335 akan dihukum dengan pemenjaraan selama dua kali ganda tempoh hukuman maksimum yang ditetapkan di bawah seksyen yang mana dia disabitkan. (Note: The speech can be found in Penyata Rasmi 20 Parlimen Dewan Negara, Parlimen Ketiga Belas, Penggal Pertama, Mesyuarat Ketiga, pp. 24 – 25). [ 24 ] For better understanding on the sentence provided under section 326A of the Penal Code, the said sections are produced as follows: Section 323 of the Penal Code 25 Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment for a 8 term which may extend to one year or with fine which may extend to two thousand ringgit or with both. Section 326A of the Penal Code (1) Whoever causes hurt to his spouse or former spouse, a 5 child, an incapacitated adult or other member of the family and commits an offence under section 323, 324, 325, 326, 334 or 335 shall be punished with imprisonment for a term which may extend to twice of the maximum term for which he would have been liable on conviction for that 10 offence under the relevant section notwithstanding any other punishment provided for that offence. (2) For the purpose of this section, "spouse", "child", "incapacitated adult" and "other member of the family" have the meanings assigned to them in section 2 of the Domestic 15 Violence Act 1994. [ 25 ] It is to be noted that the word “shall be punished with imprisonment” is the spinal column of section 326A of the Penal Code. The fundamental principle in interpreting the word “shall be punished with” goes back much further to a decision made by KC 20 Vohrah J in Public Prosecutor v. Nordin Yusmadi [1996] 2 CLJ 90 where he quoted Federal Court decision in PP v. Agambaran s/o Kane Appeal No. 73 of 1983 withholding the same wisdom on the interpretation of the word “shall be punished with” under section 376 of the Penal Code. 25 [ 26 ] It follows therefore, the word “shall be punished with imprisonment” under section 326A of the Penal Code must be read in the light of 9 the case of PP v. Hassan Ali Abdul Razak [2016] 9 CLJ 584. In the said case, Zulkifli Bakar J has held that the word “shall be punished with” gives no discretion to the Court as it carries mandatory connotation. [ 27 ] The judgment in Mani Maran Athigharee v. PP [2017] 9 CLJ 232 5 soup up my finding for mandatory custodial sentence under section 326A of the Penal. In the said case, the judge states the following: It is clear that the maximum term of imprisonment which may be imposed on the appellant if he is convicted 10 under s. 323 of the Penal Code is one year. It follows therefore by simple mathematical formula that the mandatory term of imprisonment under s. 326A of the Penal Code in respect of offences under s. 323 shall be two years. 15 [ 28 ] In his plea, Ahmad Zukri requested his sentence be marked down as he has to care for his children, mother and 3 foster children. There was no mentioning about him regretting what he has done to Rosni before this nor there was any mentioning about taking care of Rosni who has suffered numerous injury due to his doing. 20 In my point of view, Ahmad Zukri was not remorseful at all. To award lenient sentence in my considered opinion would render the intention of the Parliament a complete otiose. That cannot be the result intended by Parliament when it enacted the provision. [ 29 ] There was no justification to account Ahmad Zukri’s truculent 25 actions against Rosni. Ahmad Zukri is Rosni’s husband, it is befitting for him to be the primary income earner in his family. 10 Instead, he has put an arm on Rosni for his own pleasure. She was viciously assaulted over a small amount of money. [ 30 ] As a supplementary facts to the above findings, Rosni, as the result of the assault by Ahmad Zukri, has suffered numerous injuries all over her body as evidenced from exhibit P5 and medical 5 report at exhibit P6. It is clear that Ahmad Zukri, during the assault, was targeting Rosni’s vital parts i.e. the face, neck and pelvis. Having lived together with the assailant, Rosni must have endured depressing mire of misery and extreme trepidation before she managed to get help. Even when she received treatment on 2 of 10 July 2017 i.e. 2 days after the assault took place, the injuries were still very much in evidence on her body. [ 31 ] On illative perspicacity, domestic violence is a serious offence, so serious even bond of good behavior provided under section 294 of the Criminal Procedure Code is ruled out to any offender who is 15 charged with the commission of an act of violence. [ 32 ] What was done to Rosni undoubtedly was a vile and wanton assault on her rights as a human and as a wife. Apart than violating human rights, Islamic scholars censure violence against women for it goes against the teachings of Islam. Azizah Y. al-Hibri (2003) 20 in her journal “An Islamic Perspective on Domestic Violence”, Vol. 27 Fordham International Law Journal, 212 expressed strongly her disapproval against domestic abuse by saying: “Domestic violence will cause more than a simple discord between spouses. It will cause fear, misery, and oppression”. Principally, domestic 25 violence is considered to be unacceptable act in Islam (Nada Ibrahim (June 13, 2017), “What Islam Actually Says About Domestic Violence”, Sydney Morning Herald). 11 [ 33 ] Ann Veilleux, a psychotherapist in her article: “Why Women Stay: Understanding The Battered Wife” engraved her concern over the absent of awareness among the society over domestic violence by stating: “The injustice of abuse is all the more destructive when society punishes through ignorance”. Thus, the sentence to be 5 awarded must proportionate the crime and must serve as a condign punishment for Ahmad Zukri’s use of brute force against Rosni. [ 34 ] Basing on the facts and law discussed in the above and taking into consideration that domestic violence is a serious offence apart 10 than being satisfied that the conviction is safe, I hereby order Ahmad Zukri to serve 24 months of imprisonment with effect from 04 July 2017. 15 NORDIANA BINTI ABD AZIZ Mahkamah Majistret Kuantan 10 November 2017

Tika 2.6.0

S-01(IM)(NCVC)-291-08/2016

PERAYU SABAH FOREST INDUSTRIES SDN BHD (84330-K) …APPELLANT RESPONDEN THE HONOURABLE MINISTER OF HUMAN RESOURCES MALAYSIA …1st RESPONDEN T KESATUAN PEKERJA-PEKERJA INDUSTRI PERKAYUAN SABAH …2nd RESPONDEN T

Judicial review — Appeal — Trade union — Application for recognition — Fresh claim for recognition to represent the eligible employees — Scope of the 2nd Respondent’s membership —Applicant applied for judicial review of decision of the Minister of Human Resources (the 1st Respondent) dated 26th March 2015 — Whether employees outside scope of 2nd respondent’s representation — Whether Minister had acted unreasonably and therefore the impugned decision was irrational — Whether Minister had failed to take into account the duties and responsibilities of the respective employees as described in their respective job descriptions before coming to the impugned decision — Whether Minister had decided on all the eligibility of all the said employees whose status was disputed — Doctrine of estoppel per rem judicatum — Industrial Relations Act 1967 [Act 177], Section 9 (c), section 9(1A), section 9(1B), Section 9(1D), Section 9(2), Section 9(4), Section 9(4) (a) and (b), section 9(6); Rules of Court 2012, Order 53

10/11/2017

YA DATUK KAMARDIN BIN HASHIMKorumYA DATO' ABDUL RAHMAN BIN SEBLIYA DATUK KAMARDIN BIN HASHIMYA DATUK HARMINDAR SINGH DHALIWAL

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=48ac57aa-ad10-413f-af6d-eaa5d35ea0c8&Inline=true

CivilAppeal No:S-01(IM)(NCVC)-291-08/2016 1 IN THE COURT OF APPEAL OF MALAYSIA AT KOTA KINABALU [APPELLATE JURISDICTION] CIVIL APPEAL NO: S-01(IM)(NCVC)-291-08/2016 BETWEEN SABAH FOREST INDUSTRIES SDN BHD (84330-K) …APPELLANT AND THE HONOURABLE MINISTER OF HUMAN RESOURCES MALAYSIA …1st RESPONDENT KESATUAN PEKERJA-PEKERJA INDUSTRI PERKAYUAN SABAH …2nd RESPONDENT [In the matter of an application for Judicial Review No. BKI-13-NCvC-17/5/2015 in the High Court in Sabah And Sarawak at Kota Kinabalu IN THE MATTER of an application for Judicial Review for leave to apply for an Order of Certiorari AND IN THE MATTER of paragraph 1 of the Schedule to the Courts of Judicature Act, 1964 and/or Order 53 of the Rules of the High Court, 1980 AND IN THE MATTER of the recognition direct to be accorded to Kesatuan Pekerja-Pekerja Industri Perkayuan Sabah under Section 9(5) of the Industrial Relations Act 1967 by the Honourable Minister of Human Resources Malaysia and dated the 26th day of January 2011 Between CivilAppeal No:S-01(IM)(NCVC)-291-08/2016 2 Sabah Forest Industrial Sdn Bhd (84330-K) …Applicant And The Honourable Minister of Human Resources Malaysia …1st Respondent Kesatuan Pekerja-Pekerja Industri Perkayuan Sabah …2nd Respondent As decided by the Honourable Yang Arif Ravinthran N. Paramaguru at the High Court of Sabah and Sarawak at Kota Kinabalu on the 27th day of Jun 2016] CORUM: ABDUL RAHMAN SEBLI, JCA KAMARDIN HASHIM, JCA HARMINDAR SINGH DHALIWAL, JCA JUDGMENT OF THE COURT Introduction [1] This is an appeal by the Appellant/Applicant against the decision of the High Court, Kota Kinabalu, dismissing the Appellant’s Judicial Review Application for an order of certiorari to be issued to quash the decision of the Minister of Human Resources (the 1st Respondent). The decision of the 1st Respondent was made under section 9(1c) of the Industrial Relations Act 1967 (the Act). The decision pertains to the CivilAppeal No:S-01(IM)(NCVC)-291-08/2016 3 categorization of workers for the purpose of eligibility to become Union Members (the impugned decision). [2] We heard the Appellant’s appeal on the 19 th May 2017. After considering the written submissions and the oral arguments from all parties on the issues raised, we dismissed the appeal. We now give our reasons for doing so. [3] For ease of reference the parties will be referred to as they were described in the court below. Brief Background Facts [4] The Applicant sought the following relief as set out in their Application for Judicial Review: (a) That leave granted to Sabah Forest Industries Sdn Bhd, the Applicant herein, to apply for an Order of Certiorari to remove into this Honourable Court for the purpose of quashing in totality the decision dated 26th March 2015 under Section 9(1c) of the Industrial Relations Act 1967 of the Honourable Minister of Human Resources, the 1st Respondent herein, on the capacity of the several workmen who are employees of the Applicant as stated in paragraph (ii) thereto (“the impugned Decision”) (b) That pending the disposal of this application all actions and proceedings there under which may be or have been taken in CivilAppeal No:S-01(IM)(NCVC)-291-08/2016 4 pursuance of the said Decision be stayed. (c) That all necessary and consequential directions and/or other orders be given. (d) That the costs occasioned by this application be taxed. [5] Briefly the salient and undisputed facts of the case are as follows. The 2nd Respondent had for a long time attempted to represent the workers of the Applicant. By letter dated 10 th March 2014, the Director of the Sabah Branch of the Department of Industrial Relations (DIR Sabah) allowed the 2nd Respondent to serve a fresh claim for recognition to represent the eligible employees of the Applicant. Form A dated 17 th March 2014 under Section 9(2) of the Act was served on the Applicant. The Applicant rejected the claim for recognition vide letter dated 2nd April 2014. The 2nd Respondent reported the matter under Section 9(4) of the Act to the Director General for Industrial Relations (DGIR) by letter dated 4th April 2014. [6] The DGIR then proceeded to act under Section 9(4) (a) and (b) of the Act requiring the Applicant to furnish the list of the employees’ names in Form B as at the date of the 2nd Respondent’s claim, for recognition. The Appellant furnished Form B vide latter dated 22nd August 2014. The DGIR then directed the DIR Sabah to conduct the CivilAppeal No:S-01(IM)(NCVC)-291-08/2016 5 secret ballot process. Meetings on the secret ballot were duly held on 22nd September 2014 and 26th September 2014 but a dispute arose as to the scope of the 2nd Respondents’ membership. The Applicant allegedly sought to exclude employees in the categories of Supervisor, Commercial, Sales & Marketing and Administration Divisions. [7] Subsequent to that, vide a letter dated 29th September 2014, the 2nd Respondent referred the matter to the DGIR pursuant to section 9(1A) of the Act to determine whether the Applicant’s employees were employed in a managerial, executive, confidential or security capacity or otherwise. [8] Upon direction by DGIR vide letter dated 17th October 2014, DIR Sabah held several meetings pursuant to section 9(1B) of the Act to discuss the list of the employees’ names in the disputed post and those who were eligible for the secret ballot. The parties could not agree on the eligibility of 154 employees but they agreed that the Department of Industrial Relations should conduct investigations to determine whether the said employees were employed in the managerial, executive, confidential or security capacity or otherwise. The Applicant contended that 139 of the 154 employees were in the Supervisory Category and the balance of 15 employees were from the Human Resource Division CivilAppeal No:S-01(IM)(NCVC)-291-08/2016 6 holding the posts of Paramedic, Assistant Nurse, Clerk, Medical Assistance, Housekeeper/Clinic Attendant, Trained Assistant Nurse, Assistant System Administrator, Administrative Assistant, CCTV Operator and Senior Clerk from Medical, Residence & Facilities and Administration Departments. Therefore, the Applicant argued that all of the 154 employees were not eligible for the Union Membership. [9] Meanwhile, the Applicant and the 2nd Respondent agreed that a sample of 15 employees from the Human Resource & Administration Department (Medical, Residence & Facilities and Administration) and 102 employees from the category of Supervisors shall be interviewed by the DIR Sabah to ascertain their capacity and thereupon apply the result obtained from the interview to determine the capacity to the rest of the 154 employees. For the purpose of investigation, the Applicant forwarded information regarding the job descriptions carried out by those relevant employees to the DIR Sabah for the DIR Sabah to conduct random interviews and/or enquiries on the employees in each post which was disputed. The interview and enquiries were done on numerous dates to identify the job scope, role, responsibility and other information in relation to the job of the employees involved. CivilAppeal No:S-01(IM)(NCVC)-291-08/2016 7 [10] After the investigation was completed, the DIR Sabah forwarded the investigation report to the DGIR and received on 14th January 2015. The DGIR informed and notified the 1st Respondent of the same pursuant to section 9(1c) of the Act. The report was later forwarded to the Minister by the DGIR under the same sub-section. In exercise of his powers under section 9(1D) of the Act, the Minister made a decision in respect of the dispute in Form E on 26th March 2015. [11] The Minister’s decision was in two parts, i.e. in Part (i) he decided that the employees in six (6) posts are not eligible to Union Membership and in Part (ii) he decided that employees in thirty-five (35) posts are eligible for Union Membership (the impugned decision). The relevant part of the Minister’s decision are reproduced below: (i) The positions of Senior Supervisor, Supervisor (Electrical), Supervisor (Logging), Supervisor (Boiler Operator), Assistant Supervisor (ITC Ply Mill), Assistance Supervisor (QC) are paid employees under the managerial , executive, confidential or security capacity; and (ii) The positions of Senior Supervisor (Sales), Supervisor, Supervisor (Predictive Maintenance), Supervisor (Document Control), Supervisor (Sales), Supervisor (Operation), Supervisor (Mechanical), Supervisor (Mechanical Fitter), Supervisor (Ply Mill Product Admin), Supervisor (Logyard), Supervisor (Saw Mill), Supervisor (Warehouse), Supervisor (Nursery), Supervisor (Ril), CivilAppeal No:S-01(IM)(NCVC)-291-08/2016 8 Supervisor (Technical Services), Supervisor (Admin & Account), Administrative Supervisor (Nursery), Community Liaison Supervisor, Supervisor (Field), Supervisor (Shipping & Logistic), Supervisor Camp/Nursery, Supervisor (QC), Assistance Supervisor (Logyard), Assistance Supervisor (Central Material Store), Paramedic, Assistance Nurse, Clerk, Medical Assistance, Housekeeper/Clinic Attendance, Trained Assistance Nurse, Administrative Assistance (Residence), Administrative Assistance, CCTV Operator, Senior Clerk, Assistant System Administrator are not paid employees under the managerial, executive, confidential or security capacity. [12] The DGIR vide letter dated 2nd April 2015 conveyed the Minister’s decision to the Applicant as well as to the 2nd Respondent. At the High Court [13] At the High Court, the Applicant mounted a challenge against the Minister’s decision on three (3) broad grounds as follows: (a) The Minister had acted unreasonably and therefore the impugned decision was irrational; (b) The Minister had failed to take into account the duties and responsibilities of the respective employees as described in their respective job descriptions before coming to the impugned decision; and CivilAppeal No:S-01(IM)(NCVC)-291-08/2016 9 (c) The Minister had left indeterminate the capacities of 57 employees out of the sample of 117 employees who were allegedly interviewed by the DIR Sabah. [14] The findings of the High Court were as follows: (a) There was no merit in the ground of challenge that the Minister had left indeterminate the capacity of 57 employees. The challenge by the Applicant is only on unreasonableness or irrationality as envisaged under Paragraph 25 of the Affidavit In Support affirmed by Susiman A/L Theyan @ Many on behalf of the Applicant. This outside the common accepted grounds to challenge the decision of an administrative authority which are illegality, procedural impropriety and proportionality (see Council of Civil Service Unions and Other Appellants v. Minister for the Civil Service Respondent [1985] A.C. 374 and Ambank (M) Berhad v. Menteri Sumber Manusia & Persatuan Pegawai-Pegawai Bank Semenanjung Malaysia (ABOM) [2014] 1 LNS 686. (b) Based on agreement between the Applicant and the 2nd Respondent, a sample of 15 employees from Human Resource and Administration and 102 employees from the categories of Supervisors was interviewed by the DIR Sabah to ascertain their eligibility to became Union Members and the result applied to the balance of the 154 employees. In the premises, the Minister had decided on all the eligibility of all the said employees whose status was disputed; (c) On the argument that the decision of the Minister was irrational, the learned High Court Judge had considered the employees job CivilAppeal No:S-01(IM)(NCVC)-291-08/2016 10 description and their confidential capacity before deciding that he see no reason to criticize the decision of the Minister on grounds of unreasonableness or irrationality; and (d) There is no impropriety or unreasonableness in the impugned decision and the court should give effect to section 9(6) of the Act in that the decision of the Minister shall be final and shall not be questioned in any court (see Minister of Human Resources, Malaysia v. Diamet Klang (Malaysia) Sdn Bhd & Another Appeal [2015] 6 CLJ 181). [15] Based on the above findings, the learned High Court Judge dismissed the Application with costs. Thus the appeal before us. The Appeal [16] In its Memorandum of Appeal, the Applicant forwarded six (6) grounds of appeal as follows: (a) The 1st Respondent had failed to take into account the detailed job descriptions of each employees in the list provided before deciding that the employees in paragraph (ii) of the impugned decision are in the managerial, executive, confidential or security capacities; (b) The 1st Respondent had acted irrationally when he included in paragraph (ii) of the impugned decision those employees who are eligible for union membership but excluded employees with similar jobs descriptions for union membership in paragraph (i) of the said impugned decision; CivilAppeal No:S-01(IM)(NCVC)-291-08/2016 11 (c) The 1st Respondent had acted irrationally when he excluded an Assistant Supervisor as eligible for union membership and placed him in paragraph (i) of the said impugned decision but included a Supervisor with similar or higher responsibilities as eligible for union membership and placed him in paragraph (ii) of the said impugned decision; (d) The 1st Respondent had acted irrationally when he included the CCTV Operator, whose scope of work is strictly security in nature, as eligible for union membership and placed him in paragraph (ii) of the said impugned decision; (e) The 1st Respondent had acted irrationally when he included the Administration and Accounts Supervisor in the Plantation Division as eligible for union membership and placed her in paragraph (ii) of the said impugned decision whereas all employees in the Finance Department were agreed between the parties to be excluded from union membership; and (f) The 1st Respondent had failed to decide on the capacity of 57 employees thereby leaving their capacities for union membership indeterminate. [17] Before us, learned counsel for the Applicant canvassed only one issue, i.e. that that learned High Court Judge had erred in law and in fact when His Lordship dismissed the Applicant’s Judicial Review Application on the ground that the Minister did not err in fact and law and thereby did not act irrationally as the Minister did not leave the capacity of any employees indeterminate. Learned counsel submitted that even though CivilAppeal No:S-01(IM)(NCVC)-291-08/2016 12 117 employees had been interviewed, nevertheless, the Minister had left the capacities of 57 employees undetermined for eligibility for union membership. [18] Learned counsel argued that the Minister had failed to decide on the eligibility for union membership of the following posts: - Boiler Supervisor (ITC); - Supervisor (Timber Production – Raw Material); - Supervisor (ITC Sawmill); - Supervisor (Clonal Multiplication); - Supervisor (Pulp & Paper); - Senior Supervisor (Pulp & Paper); - Supervisor (Plantation); - Supervisor (Plumbing); - Supervisor (Commercial Procurement); - Supervisor (Integrated Timber Complex); and - 47 employees in the Supervisory Category. [19] Learned counsel further argued that the Minister had left out about 49% of the sample of 117 employees agreed between the Applicant and the 2nd Respondent. Hence, Learned Counsel urged this Court to allow the appeal to quash the decision of the Minister on the ground that the results obtained from the impugned decision were incomplete and as such cannot be applied to the remaining employees in the list to determine their eligibility for union membership. CivilAppeal No:S-01(IM)(NCVC)-291-08/2016 13 [20] Finally, learned counsel argued that the decision of the learned High Court Judge was plainly wrong when His Lordship held that: “Thus the employees only need to refer to the posts referred to on the decision of the Minister to find out their eligibility.” [21] Learned Senior Federal Counsel for the 1st Respondent (learned SFC) submitted that the argument put forth by the learned counsel for the Applicant was an afterthought simply on the ground that the Applicant had abandoned the same argument in the court below. Learned SFC submitted that the Applicant cannot raised the same issue now before this court. They are estopped from raising the same argument. Learned SFC relied on the Federal Court decision in Asia Commercial Finance (M) Berhad v. Kawal Teliti Sdn Bhd [1995] 3 CLJ 783. Our Decision [22] The matter before us concerned with an issue on the eligibility of employees of the Applicant to be members of a Union, Kesatuan Pekerja-Pekerja Industri Perkayuan Sabah, the 2nd Respondent herein. The Applicant contended that 139 employees out of 154 employees were in the Supervisory Category and that 15 employees are from the Human Resource Division and therefore not eligible for union CivilAppeal No:S-01(IM)(NCVC)-291-08/2016 14 membership. It is not disputed that the 2nd Respondent had been registered as a trade union pursuant to the Trade Unions Act 1959 and had been recognized under section 9 of the Act. [23] Section 9 of the Act sets out the statutory procedure before an employee can become eligible or recognized as a member of a trade union. It is pertinent that the views of the employer, in this case, the Applicant, must be obtained and taken into account. Section 9 states: “9. (1) No trade union workmen the majority of whose membership consists of workmen who are not employed in any of the following capacities that is to say – (a) managerial capacity; (b) executive capacity; (c) confidential capacity; or (d) security capacity, May seek recognition or serve an invitation under section 13 in respect of workmen employed in any of the above-mentioned capacities. (1A) Any dispute arising at any time, whether before or after recognition has been accorded, as to whether any workman or workmen are employed in a managerial, executive, confidential or security capacity may be referred to the Director General by a trade union of workmen or by an employer or by a trade union of employers. (1B) The Director General, upon receipt of a reference under subsection (1A), may take such steps or make such enquiries as he may consider necessary or expedient to resolve the matter. CivilAppeal No:S-01(IM)(NCVC)-291-08/2016 15 (1C) Where the matter is not resolved under subsection (1B) the Director General shall notify the Minister. (1D) Upon receipt of the notification under subsection (1C), the Minister shall give his decision as to whether any workman or workmen are employed in a managerial, executive, confidential of security capacity and communicate in writing the decision to the trade union of workmen, to the employer and to the trade union of employers concerned. (2) Subject to subsection (1), a trade union of workmen may serve on an employer or on a trade union of employers in writing in the prescribed form a claim for recognition in respect of the workmen or any class of workmen employed by such employer or by the members of such trade union of employers. (3) An employer or a trade union of employers upon whom a claim for recognition has been served shall, within twenty-one days after the service of the claim – (a) accord recognition; or (b) if recognition is not accorded, notify the trade union of workmen concerned in writing the grounds for not according recognition. (c) (Deleted by Act A1322). (3A) Upon according recognition to the trade union of workmen concerned under paragraph (3)(a), the employer or the trade union of employers concerned shall notify the Director General. (4) Where the trade union of workmen concerned receives a notification under paragraph (3)(b), or where the employer or trade CivilAppeal No:S-01(IM)(NCVC)-291-08/2016 16 union of employers concerned fails to comply with subsection (3), the trade union of workmen may, within fourteen days – (a) of the receipt of the notification; or (b) after the twenty-one day period in subsection (3) has lapsed, report the matter in writing to the Director General, failing which the claim for recognition shall be deemed to have been withdrawn. (4A) Upon receipt of a report under subsection (4), the Director General may take such steps or make such enquires to ascertain - (a) The competence of the trade union of workmen concerned to represent any workmen or class of workmen in respect of whom the recognition is sought to be accorded; and (b) By way of secret ballot, the percentage of the workmen or class of workmen, in respect of whom recognition is being sought, who are members of the trade union of workmen making the claim. (4B) For the purpose of carrying out his functions under subsection (1B) or (4A) the Director General – (a) Shall have the power to require the trade union of workmen, the employer, or the trade union of employers concerned to furnish such information as he may consider necessary or relevant within the period specified in the requirement; (b) May refer to the Director General of Trade Unions for him to ascertain the competence of the trade union of workmen concerned to represent any workmen or class of workmen in respect of whom recognition is CivilAppeal No:S-01(IM)(NCVC)-291-08/2016 17 sought to be accorded, and the performance of duties and functions by the Director General of Trade Unions under this paragraph shall be deemed to be a performance of his duties and functions under the written law relating to the registration of trade unions; and (c) May enter any place of employment where any workmen in respect of whom a claim for recognition is sought to be accorded are being employed to examine any records or documents or to conduct secret ballot. (4C) Upon ascertaining the matter under subsection (4A), the Director General shall notify the Minister. (5) Upon receipt of a notification under subsection (4A) the Minister shall give his decision; where the Minister decides that recognition is to be accorded, such recognition shall be deemed to be accorded by the employer or trade union of employers concerned, as the case may be, as from such date as the Minister may specify. (6) A decision of the Minister under subsection (1D) or (5) shall be final and shall not be questioned in any court.”. [24] The law on judicial review application had been ventilated in a plethora of cases which ruled that judicial review is not an appeal from the decision but a review of the manner in which the decision, in our case the impugned decision by the Minister was made. The High Court CivilAppeal No:S-01(IM)(NCVC)-291-08/2016 18 Judge in hearing the judicial review application is not concerned whether the impugned decision itself was reasonable or fair based on the merits of the facts before him. [25] The approach of this court had been explained at length by Hamid Sultan Abu Backer, JCA in the most recent case of RHB Bank Berhad v. YB Menteri Sumber Manusia Malaysia & Anor [2017] 1 LNS 975 as follows: (i) The traditional view in respect of judicial review, in respect of executive decision which is still good law in the Malaysian context was expounded in the case of Council of Civil Service Unions & Ors v. Minister for the Civil Service [1985] 1 AC 374. That case anchors the point to say judicial review is not an appeal from a decision, but a review of the manner in which the decision was made. In doing so, the court are obliged to consider the jurisprudence related to illegality, irrationality and procedural impropriety and when it relates to sentence or deprivation thereof of the subject then the proportionality principle need to be taken into consideration. [See Menteri Kewangan & Anor v. Wincor Nixdorf (M) Sdn Bhd [2016] 6 CLJ 215]. However, when judicial review is related to a tribunal decision, Malaysian courts have expanded the scope to say that the courts are permitted to scrutinize the decision not only for the process but also for substance. [See R. Rama Chandran v. Industrial Court of Malaysia & Anor [1997] 1 CLJ 147; [1997] 1 MLJ 145; Ranjit Kaur a/p S Gopal Singh v. Hotel Excelsior (M) Sdn Bhd [2010] 8 CLJ 629; [2010] 6 MLJ 1]. CivilAppeal No:S-01(IM)(NCVC)-291-08/2016 19 (ii) When it related to recognition under section 9 of the IRA, the court has been firm to adhere to the strict jurisprudence advocated in the Civil Service Union’s case. The is to say, for the purpose of the instant case, whatever information needed to be furnish, it ought to have been furnished by the relevant parties when the opportunity was given so and very importantly in the instant case by the appellant. Subsequent complaint to the court to accuse the DGIR or the Minister for not taking into consideration the relevant facts according to law will not be entertained. On somewhat similar facts, the Court of Appeal in the case of Minister of Human Resources, Malaysia v. Diamet Klang (Malaysia) Sdn Bhd & Another Appeal [2015] 6 CLJ 181, in dealing with section 9 of the IRA had this to say: “From our reading of s. 9 of the Industrial Relations Act 1967, we are of the view that the scheme of things under the said section is that if an employer is served with a notice of recognition and the employer notifies the Union that it refuses recognition, the Union may report the matter in writing to the DGIR (s. 9(3) and 9(4) of the Act). Upon receiving the report, the DGIR may carry out enquiries to ascertain the competency of the Union to represent the employees and the percentage of employees who want to be represented. The DGIR may resort to secret ballot in order to ascertain this fact. The DGIR may conduct the enquiries himself or he may refer it to the Director General of Trade Union (DGTU) to do it – (s. 9(4A) and 9(4B) of the Act). Upon completion of the enquiries and if the matter cannot be resolved by the DGIR/ DGTU, the latter shall notify the, -Minister and upon receipt of such notification the Minister shall give his decision thereon – (s. 9(4C) and 9(5) of the Act). Under the scheme of things therefore the Minister may rely on CivilAppeal No:S-01(IM)(NCVC)-291-08/2016 20 the report by the DGTU/DGIR as to the competency issue and made his decision thereon. We think there is nothing fanciful or unreasonable for the Minister to do so. In fact we do not think the Act envisages that the Minister himself goes to the ground to conduct the enquiries in order to ascertain the truth of the facts contained in the report that was notified to him by the DGTU/DGIR…. In our view the learned High Court judge should, in the circumstances and facts of the case give effect to s. 9(6) of the Act as to the conclusiveness and finality of the Ministerial decision on competency. The provision was inserted so as to provide some stability in the labour management and organization in this country. Therefore the courts should be slow to find fault with the Minister’s decision in exercising his discretion to accord recognition to a Union of workers. [26] The learned SFC raised the issue of estoppel which we were in agreement with. The facts giving rise to the issue of estoppel had been established before us. We had the opportunity to peruse the Appeal Record and the facts disclosed that in the beginning, the Applicant had disputed the case of 199 employees who according to the Applicant should be excluded from the scope of the 2nd Respondent’s membership. However, through ‘Mesyuarat Rundingan Damai’ conducted on 20th and 31st of October 2014, both the Applicant and the 2nd Respondent agreed that 45 employees were to be included in the scope of the 2nd Respondent’s representations while the rest of the 154 CivilAppeal No:S-01(IM)(NCVC)-291-08/2016 21 employees were still disputed by both the Applicant and the 2nd Respondent. [27] Later, both the Applicant and the 2nd Respondent agreed that a sample of 15 employees from the Human Resource & Administration Department (Medical, Residence & Facilities and Administration) and 102 employees from the Category of Supervisors shall be interviewed by the DIR Sabah to ascertain their capacity and thereupon apply the result obtained from the interview to determine the capacity of the rest of the 154 employees. [28] As a result of the above understanding, learned counsel for the Applicant in the court below had, on 27th June 2016, conceded that the capacity of the 154 employees had been decided and dropped the argument on the issue. We reproduce below the relevant Notes of Proceedings (pages 70 – 71 of the Appeal Record volume 2 Part B and C): “Monday Jun 27, 2016 at 9:13 am Hearing of enclosure (1). For the Applicant S.Vanugopal of S. Vanugopal & Partners CivilAppeal No:S-01(IM)(NCVC)-291-08/2016 22 For the 1st Respondent Rahazlan Affandi of Jabatan Peguam Negara, Malaysia, Sabah (Bahagian Civil) For the 2nd Respondent George Aludah of Aludah & Co Court resumes at 9.25 am Parties as before. Court 154 disputes, 15 from HR, 139 from supervisor. Vanugopal Only 41 were determine. Still a large number left undetermined. Refer to the submission at para 6.10. Refer exhibit SM12 at 2nd page. FC Our position all 154 were determine. The breakdown of 154 has been covered by the Minister. My learned friend only accounted for the senior supervisor – the affidavit of opposition of the 1st Respondent para 14.2 Court Stand down – 9.37 am. Court resumes at 10.25 am. Parties as before. Sukumaran I concede that the capacity of 154 decided. Drop argument in Encl 32. Court Judicial Review application dismissed with no order as to costs. 10.25 AM – 27 June 2016 RAVINTHRAN PARAMAGURU Judge” [Emphasis Added] CivilAppeal No:S-01(IM)(NCVC)-291-08/2016 23 [29] The Applicant in their Affidavit In Reply affirmed by Susiman a/l Theyan @ Many dated 12th January 2016 (pages 89 – 92 of the Appeal Record Volume 2 Part B and C) had not disputed the averment at paragraph 32 of the 1st Respondents’s Affidavit In Opposition. Paragraph 13 of the Applicant’s Affidavit In Reply thus stated: “13. Paragraph 32 of the 1st Respondent Affidavit In Opposition is not disputed.”. [30] Paragraph 32 of the 1st Respondent’s Affidavit In Opposition averred to the issue of understanding and the agreement between the Applicant and the 2nd Respondent to ascertain the capacity of the rest of the 154 employees to be determined by way of an interview. Paragraph 32 of the said Affidavit In Opposition averred that: “32. In response to paragraph 17 of the Applicant’s Affidavit, I shall aver that both the Applicant and 2nd Respondent agreed that a sample of 15 employees from the Human Resource & Administration Department (Medical, Residence & Facilities and Administration) and 102 employees from the category of supervisors shall be interviewed by the Department of Industrial Relation, Sabah to ascertain their capacity and thereupon apply the result obtained from the interview to determine the capacity to the rest of the 154 employees.”. CivilAppeal No:S-01(IM)(NCVC)-291-08/2016 24 [31] The learned trial Judge tackled the same issue in this manner at pages 36 – 37 of the Appeal Record volume 1 Part A as follows: “I shall first consider the second ground of challenge. Counsel for the applicant argued that the Minister left indeterminate the capacity of 57 employees. I find no merit in this ground for the following reason. The total number of the employees that the parties could not agree in respect of their eligibility to become union members was 154. It is not disputed that the applicant and the 2nd respondent agreed that a ‘sample’ of 15 employees from the Human Resource and Administration Department (Medical, Residence & Facilities and Administration) and 102 employees from the category of supervisors shall be interviewed by the Department of Industrial Relation, Sabah to ascertain their eligibility to become union members and that the result be applied to the balance of the 154 employees. The decision of the Minister which was reproduced earlier is in two parts: the first part refers to employees in six different posts that are not eligible for membership and the second part refers to employees in 35 posts who would be eligible for membership. Thus the employees only need to refer the posts referred to in the decision of the Minister to find out their eligibility. In the premises, the Minister had decided on all eligibility of all the said employees whose status was disputed. For sake of completeness, I must mention that in the final oral arguments, this issue was not pursued by counsel for applicant.” [32] It is our judgment that since the Applicant had in the court below abandoned the challenge on the issue as alleged by the Applicant that the Minister had left indeterminate the capacities of 57 employees out of CivilAppeal No:S-01(IM)(NCVC)-291-08/2016 25 the sample of 117 employees who were allegedly interviewed by the DIR Sabah, the learned counsel for the Applicant is barred from ventilating the same issue before us under the doctrine of estoppel per rem judicatum. We found support from the decision of Peh Swee Chin, FCJ in Asia Commercial Finance (M) Berhad v. Kawal Teliti Sdn Bhd, supra, where His Lordship stated: “Thus, in SCF Finance Co. Ltd. v. Masri & Another (No. 3) [1987] QB 1028 the English Court of Appeal held that even a reservation of an issue by a party in a previous proceeding was ineffective to prevent the estoppel from arising against the said party, where the said party had pleaded that issue but elected not to proceed on the issue in the previous proceeding. It was held she was not entitled to assert that issue afresh in subsequent proceedings, even if that issue was not heard and determined and it was even “reserved”. ………. Another source of small confusion is the rule that generally an estoppel, of which an estoppel per rem judicatum is a kind, as the name implies, has to be pleaded. But in Superintendent Pudu Prison v. Sim Kie Chong [1986] 1 MLJ 494, 498, Abdoolcader, SCJ, applying the doctrine of res judicata against a party even if it has not been pleaded. We venture to think the reason for the ratio is that an estoppel or exclusion of evidence is based on a question of public policy ie. in this case, the question of public policy that there should be finality in litigation……..” CivilAppeal No:S-01(IM)(NCVC)-291-08/2016 26 [33] It is trite that the grounds to challenge the decision of an administrative authority are based on illegality, procedural impropriety and proportionality. The challenge by the Applicant in this case before us are based on unreasonableness which is not the common accepted grounds to challenge the decision of an administrative authority. More so, the decision of the Minister shall be final and shall not be questioned in any court as envisaged by section 9(6) should be upheld. We find no material before us and before the court below of any impropriety or unreasonableness in the decision of the Minister. The issue on unreasonableness or irrationality had been answered by the Minister in his Affidavit In Opposition. [34] Learned Counsel for the Applicant argued that the Minister had failed to take into consideration the detailed job description of each of the employees that were deemed eligible for union membership in the Part (ii) of the impugned decision. Learned counsel for the Applicant also complained that the employees in the Medical Services branch such as nurses, medical assistants and medical clerks were included in Part (ii) of the Minister’s decision. The two issues raised had been succinctly answered by the Minister in his Affidavit In Opposition in paragraph 37.4 and 37.7 which we reproduce below: CivilAppeal No:S-01(IM)(NCVC)-291-08/2016 27 “37.4 Though the organization chart supplied by the Applicant showed that the Supervisor and Assistant Supervisor were placed in the same Division (Plywood Mill Production) but both posts were in separate units namely the Assistant Supervisor was in Quality Control Unit, whereas Supervisor was in Ply Mill Prod. Unit. Besides that, investigation found that: 37.4.1 The Assistant Supervisor did not report to the Supervisor, but both posts directly reported to the Superintendent; 37.4.2 The functions, scopes of duty and responsibilities of the Assistant Supervisor and Supervisor were different according to the division or unit to which they were placed; ……. 37.7 The main duty of the employees holding the posts was to only process and monitor the movement of the invoices for the purpose of payment, to manage the petty cash, lorry and machine rentals, to prepare monthly and weekly reports (salvage) and to prepare documents in relation to the plantation to the auditor;” [35] In Minister of Human Resources, Malaysia v. Diamet Klang (Malaysia) Sdn Bhd & Another Appeal [2015] 6 CLJ 181, this court had decided that: “The learned judge should have found that there was no impropriety or unreasonableness in the decision by the Minister to accord recognition to the Union (or the competency of the Union) to represent the company’s employees. In our view the learned High Court judge should, in the circumstances and facts of the case give effect to s. 9(6) CivilAppeal No:S-01(IM)(NCVC)-291-08/2016 28 of the Act as to the conclusiveness and finality of the Ministerial decision on competency. The provision was inserted so as to provide some stability in the labour management and organization in this country. Therefore the courts should be slow to find fault with the Minister’s decision in exercising his discretion to accord recognition to a Union of workers.” [36] Whatever it is, as we alluded to earlier in this judgment, the only issue raised by learned counsel for the Applicant had been abandoned during the proceeding in the court below. Therefore, the learned counsel for the Applicant was estopped from ventilating the same issue before us under the doctrine of estoppel per rem judicatum. Conclusion [37] Having heard the submissions and having examined the Appeal Records and perused the written submissions, we held the view that the learned High Court Judge had rightly dismissed the Applicant’s application. There was no error committed by the learned High Court Judge to warrant an appellate intervention. [38] For reasons stated above, we were of the view that there was no merit in the appeal. Therefore, the appeal was dismissed with cost of RM15,000.00 to be paid by the Applicant/Appellant to the 1st CivilAppeal No:S-01(IM)(NCVC)-291-08/2016 29 Respondent and costs of RM5,000.00 to be paid by the Applicant/Appellant to the 2nd Respondent, both costs subject to the payment of allocator. Deposit was to be refunded. Dated: 10 November 2017 Signed (KAMARDIN BIN HASHIM) Judge Court of Appeal Malaysia Counsel/Solicitors For the Applicant/Appellant: S.Venugopal Messrs S.Vanugopal & Partners Lot B 1113 & Lot B 1115, 11th Floor, Mail Box No. B284, Wisma Merdeka Phase 11, Jalan Tun Razak, 88000 Kota Kinabalu. For the 1st Respondent: Andi Razalijaya Senior Federal Counsel Attorney General’s Chambers Kompleks Pentadbiran Kerajaan Persekutuan Sabah Aras 5, Blok A Jalan UMS, Peti Surat 10855 88809 Kota Kinabalu For the 2nd Respondent: George Aludah Messrs Aludah & Co Lot 27-2, 2nd Floor, Lorong Lintas Plaza, Lintas Plaza, Off Jalan Lintas, Luyang, 88773 Kota Kinabalu

Tika 2.6.0

62ATIP-01-07/2016

PENDAKWARAYASAVINDAR SINGH TERTUDUH HUN KIM THENG

10/11/2017

PRISCILLA HEMAMALINI A/P NADARAJAN

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=29b0d88a-526a-4b7b-8c40-6f4ff49beb1e&Inline=true

PENDAKWA RAYA PAGE - 1 - A. B. C. D. A. B. A. B. C. A. B. C. A. B. C. A. B. A. B. C. A. B. C. D. A. B. C. D. A. B. C. D. A. B. C. D. A. B. C. A. B. C. D. A. B. A. B. C. A. B. C. D. A. B. C. A. B. A. B. C. A. B. C. D. A. B. C. A. B. C. A. B. A. B. C. A. B. C. A. B. C. A. B. NEGERI KEDAH DALAM MAHKAMAH SESYEN JENAYAH (2) DI SUNGAI PETANI KES TANGKAP NO: 62ATIP-01-07/2016 DI ANTARA PENDAKWA RAYA .…... PIHAK MERAYU DAN HUN KIM THENG .... PIHAK MENENTANG ALASAN PENGHAKIMAN Pihak Menentang iaitu OKT telah dituduh dengan pertuduhan seperti berikut: Tuduhan pertama “Bahawa kamu pada 23/6/2016 jam lebih kurang 9.30 malam di alamat Hotel Park Avenue, Tingkat 3E1, Jalan Indah 2, Taman Sejati Indah, di dalam Daerah Kuala Muda, di dalam Negeri Kedah Darul Aman, telah memperdagangkan Miss Waraphon Seemueang, Passport No. AA5420800 bagi maksud eksploitasi seks dan dengan itu kamu telah melakukan satu kesalahan yang boleh dihukum di bawah Seksyen 12 Akta Antipemerdagangan orang dan Antipenyeludupan Migran 2007.” Tuduhan kedua “Bahawa kamu pada 23/6/2016 jam lebih kurang 9.30 malam di alamat Hotel Park Avenue, Tingkat 3E1, Jalan Indah 2, Taman Sejati Indah, di dalam Daerah Kuala Muda, di dalam Negeri Kedah Darul Aman, telah memperdagangkan Miss Orathai Ananchai, Passport No. AA4819767 bagi maksud eksploitasi seks dan dengan itu kamu telah melakukan satu kesalahan yang boleh dihukum di bawah Seksyen 12 Akta Antipemerdagangan orang dan Antipenyeludupan Migran 2007.” Tuduhan ketiga “Bahawa kamu pada 23/6/2016 jam lebih kurang 9.30 malam di alamat Hotel Park Avenue, Tingkat 3E1, Jalan Indah 2, Taman Sejati Indah, di dalam Daerah Kuala Muda, di dalam Negeri Kedah Darul Aman, telah memperdagangkan Miss Bualaung Pongsrapang, Passport No. AA5750814 bagi maksud eksploitasi seks dan dengan itu kamu telah melakukan satu kesalahan yang boleh dihukum di bawah Seksyen 12 Akta Antipemerdagangan orang dan Antipenyeludupan Migran 2007.” Pihak Pendakwaan telah memanggil seramai 10 orang saksi. Pada akhir kes Pendakwaan, setelah mendengar keterangan saksi-saksi Pendakwaan dan setelah meneliti eksibit-eksibit yang dikemukakan serta setelah mendengar hujah kedua-dua pihak, saya mendapati pihak Pendakwaan gagal membuktikan kes prima facie terhadap OKT dibawah Seksyen 12 Akta Antipemerdagangan orang dan Antipenyeludupan Migran 2007 bagi kesemua tuduhan. Oleh yang demikian, OKT telah dilepas dan dibebaskan dari kesemua tuduhan. Pendakwa Raya telah tidak berpuas hati dengan keputusan melepaskan dan membebaskan OKT dan kini merayu ke Mahkamah Tinggi terhadap perintah tersebut. 1. Fakta Kes dan Keterangan 1.1 SP 1, SP 2 dan SP 3 adalah warganegara Thailand yang telah datang ke Malaysia untuk mencari pekerjaan. Mereka telah diberitahu oleh kawan-kawan mereka bahawa ada pekerjaan sebagai tukang urut di Hotel Park Avenue. SP 1 telah telah masuk ke Malaysia pada kali pertama pada bulan Disember 2015, SP 2 pada bulan November 2015 dan SP 3 pada pertengahan tahun 2015. Sampai di Hotel Park Avenue, SP1, SP 2 dan SP 3 masing-masing pada tarikh-tarikh yang berlainan telah berjumpa dengan seorang lelaki. Lelaki tersebut adalah OKT di dalam kes ini. OKT telah membawa mereka pergi ke Kedai Urut yang terletak di Tingkat 3 hotel tersebut. Kedai Urut tersebut bernama Pusat Rawatan Tradisional Theng (selepas ini dikenali sebagai PRTT). OKT telah memperkenalkan mereka ke bahagian-bahagian dalam kedai dan memberitahu cara bekerja dan apa yang perlu dilakukan sebagai tukang urut. OKT memberitahu mereka perlu lakukan urut biasa, urut ping-pong dan urut tambahan seks. Urut ping-pong adalah urut di tempat kemaluan lelaki untuk menaikkan nafsu lelaki. Urut tambahan seks adalah urut dan melakukan seks. Gaji yang dibayar adalah berbeza mengikut kategori urutan. Bagi urutan kategori pertama, mereka akan mendapat RM25/-. Bagi ketegori kedua, mereka akan mendapat RM50/- dan bagi urutan kategori ketiga, mereka akan mendapat RM90/-. Gaji akan dibayar secara tunai kepada mereka sebelum mereka balik ke Thailand. SP 1, SP 2 dan SP 3 telah bekerja di PRTT sehingga mereka ditangkap oleh polis pada 23.6.16. Gambar P 9B adalah gambar Miss Bualang (SP 2, nama panggilan ‘Boo’), P 9C ialah Phorn, P 9D ialah Orathai (SP 3, nama panggilan Bhai) dan P 9E ialah Miss Waraphon (SP 1, nama panggilan ‘New’). OKT dipanggil dengan nama panggilan Ah Hia. OKT yang akan memberi arahan kepada mereka untuk melakukan urut biasa, urut ping-pong atau urut tambahan seks. Urut tambahan seks akan dilakukan di dalam kedai atau di dalam bilik pelanggan di dalam Hotel. Apabila lakukan seks di dalam kedai, pelanggan akan bayar di kaunter. Jika berada di dalam bilik hotel, SP 1, SP 2 dan SP 3 akan naik dan masuk ke dalam bilik itu untuk ambil duit dan turun ke kedai di Tingkat 3 untuk membayar duit. OKT yang menjaga kaunter dan mereka akan membayar duit kepada OKT. Jika OKT tiada di situ, SP 1, SP 2 atau SP 3 akan simpan duit dulu dan bayar dia kemudian. Resit dikeluarkan bagi setiap bayaran. Resit akan dikeluarkan oleh OKT dan semua pekerja di dalam Kedai Urut. Bayaran untuk urutan biasa adalah RM85/-, urutan ping-pong adalah RM169/- jika melakukan dalam kedai, dan RM189/- jika melakukan dalam bilik hotel. Urut tambahan seks adalah RM350/-. Sesiapa sahaja yang berada di kaunter akan serahkan resit kepada pelanggan. Jika pelanggan berada di dalam bilik hotel, resit akan diserahkan kepada pelanggan oleh sesiapa yang melakukan kerja. SP 3 memberi keterangan bahawa dia tidak pernah keluarkan resit kerana dia kurang mahir dalam penulisan. Selain resit, apa yang dilakukan juga direkodkan di dalam sebuah buku (eksibit P18). Butir yang direkodkan adalah masa kerja dilakukan, nombor bilik, harga yang pelanggan bayar, bayaran yang SP 1, SP 2 dan SP 3 dapat dari OKT iaitu sebahagian dari jumlah wang yang dibayar oleh pelanggan. Sekiranya OKT tiada di dalam kedai, catitan di dalam buku akan dibuat oleh setiap orang yang lakukan kerja tersebut / semua pekerja. SP 3 memberi keterangan bahawa dia juga tidak pernah membuat catitan di dalam buku tersebut. Di dalam buku tersebut ada nama ‘New’, ‘Boo’, ‘Bai’ dan ‘Phorn’. Nama SP 1 dicatit sebagai ‘New’, nama SP 2 dicatit sebagai ‘Boo’ dan SP 3 sebagai ‘ Bai’. SP 1, SP 2 dan SP 3 telah bekerja di Kedai Urut bersama seorang lagi bernama ‘Phorn’. Sepanjang mereka kerja di situ, kesemua mereka telah tinggal di dalam kedai tersebut. Keempat-empat mereka memegang kunci bagi Kedai Urut tersebut. Passpot juga disimpan oleh mereka sendiri. SP 1, SP 2 dan SP 3 telah masuk ke Malaysia sebagai pelancong menggunakan passpot dan mereka tiada permit kerja untuk kerja di Malaysia. Selepas tamat pas lawatan, mereka akan balik ke Thailand untuk perbaharui pas lawatan. Pas lawatan adalah untuk 30 hari dan mereka akan balik setiap bulan ke Thailand untuk memperbaharui pas lawatan. Pada 23.6.16, OKT bersama SP 1, SP 2, SP 3 dan seorang lagi perempuan bernama ‘Phorn’ telah ditangkap oleh polis semasa mereka berada di dalam PRTT di Hotel Park Avenue. Pada tahap pemeriksaan balas, SP 1, SP 2 dan SP 3 memberi keterangan bahawa sebelum masuk ke Malaysia, mereka mempunyai pengetahuan bahawa mereka perlu lakukan 3 jenis urutan iaitu urut biasa, urut ping-pong dan urut tambah seks. Tiada sesiapa yang ‘recruit’, mengangkut atau meminta SP 1, SP 2 dan SP 3 untuk kerja sebagai tukang urut di Hotel Park Avenue. SP 1, SP 2 dan SP 3 setuju memandangkan mereka mempunyai kunci kedai tersebut, passpot berada dengan mereka sendiri dan mereka telah balik ke Thailand pada setiap bulan, maka pergerakkan mereka adalah bebas dan tidak terkawal oleh OKT. SP 1, SP 2 dan SP 3 juga setuju mereka boleh mengawal wang yang dikutip dari pelanggan. Sepanjang SP 1, SP 2 dan SP 3 berada di Malaysia, mereka tidak menerima paksaan atau ugutan untuk lakukan kerja ini. 1.2 Saksi seterusnya adalah Insp. Faizul Izuan bin Haron (SP 4) yang bertugas di Cawangan D7, IPK Kedah sebagai Inspektor ATIPSOM. Pada 23.6.16 jam lebih kurang 9.30 malam, beliau bersama pasukannya telah membuat serbuan di Tingkat 3 E1, Jalan Indah 2, Taman Sejati, Hotel Park Avenue, Sg. Petani, Kedah. Sampai di alamat tersebut, beliau masuk di dalam premis dan berjumpa dengan satu lelaki Cina yang berada di kaunter di dalam premis tersebut. SP 4 perkenalkan diri sebagai pegawai polis dan meminta kad pengenalan lelaki Cina tersebut. Nama lelaki Cina itu ialah Hun Kim Theng iaitu OKT di dalam kes ini. Selepas itu dengan dipandu arah oleh OKT, SP 4 membuat pemeriksaan di bilik di belakang kaunter. Beliau menemui 4 perempuan warganegara Thailand. Beliau telah meminta semua perempuan tersebut serahkan dokumen pengenalan diri masing-masing. Mereka serahkan passpot mereka. Nama mereka ialah Miss Waraphorn (SP 1), Miss Bua Luang (SP 2), Miss Paryaporn, dan Miss Orathai (SP 3). Kemudian SP 4 membuat pemeriksaan di dalam premis tersebut dan merampas barang-barang berikut dari meja kaunter : a) 3 rangkai kunci bersama alat kawalan jauh b) 2 set walkie talkie c) 1 alat pengecas walkie talkie d) Wang tunai berjumlah RM320/- Barang lain yang SP 4 rampas dalam rak di belakang bilik kaunter ialah : a) 6 keping kondom b) I gulung tisu c) 4 helai tuala d) 4 botol disyaki minyak urut e) 1 banner tertulis Urut Tradisional Theng f) 1 buku catitan pelanggan g) 1 buku bill Semasa di tempat kejadian, SP 4 telah meminta OKT serahkan lesen urut tetapi dia tidak serahkan. Selepas membuat pemeriksaan dan rampasan, SP 4 membawa balik semua rampasan, OKT dan mangsa ke IPD Kuala Muda. OKT ditangkap dibawah Seksyen 12 Akta Pemerdagangan Manusia dan Anti Penyeledupan Migran 2007. Mangsa diselamatkan dibawah S.44 Akta yang sama. Barang kes yang dirampas diserahkan kepada kepada Pegawai Penyiasat ASP Tee (SP 9) di dalam IPD Kuala Muda. Pada tahap Pemeriksaan Balas, SP 4 menyatakan Tugas Ops dilakukan atas maklumat dan risikan. Beliau diarahkan oleh ASP James, pegawai atasan beliau bahawa ada aktiviti pelacuran di Hotel Park Avenue. SP 4 setuju bahawa Hotel Park Avenue ialah satu hotel yang berdaftar dan berjalan secara sah dan setiap aktiviti adalah dibawah kawalan dan jagaan mereka. Serbuan telah dilakukan di Tingkat 3 iaitu di PRTT yang berada di Hotel Park Avenue. Pada tarikh tersebut, SP 4 tidak memperolehi apa-apa informasi mengenai lesen perniagaan ini daripada Hotel Park Avenue. SP 4 tidak membuat semakan samada PRTT ini mempunyai tenancy agreement dengan Hotel Park Avenue. Risikan telah dibuat oleh L/Kpl Shafik (SP 10) dan L/Kpl Wilson (SP 8) dan hasil risikan dimaklumkan kepada ASP James. SP 4 tidak tahu apa-apa maklumat berkenaan risikan ini. Peguam telah nyatakan bahawa sejak tarikh tahun 2010, sehingga sebelum tarikh 2016, Majlis Perbandaran telah memberi lesen urutan untuk PRTT dan SP 4 jawab dia tidak tahu. SP 4 setuju dengan cadangan peguambela bahawa keempat-empat warngenegara Thailand ditangkap kerana mereka disyaki terlibat dalam kes pelacuran. Apabila ditanya samada sebagai pegawai serbuan adakah keempat-empat warganegara Thailand diberitahu mereka diseludup ke Malaysia, SP 4 jawab dia tidak cakap dengan mereka. SP 4 ditanya maksud seludup dan dia menjawab secara salah membawa migran, cross border. SP 4 setuju keempat-empat warganegara Thailand mempunyai passpot yang sah. Beliau juga setuju tiada penyeludupan. Kesemua mereka telah datang ke Malaysia atas pas lawatan sosial dan mereka mula kerja di Malaysia menggunakan pas lawatan sosial tersebut. SP 4 juga setuju mereka ini melanggari undang-undang Akta Passpot apabila sampai di sini dan kerja di sini. Mereka tidak mempunyai apa-apa permit untuk kerja dan selepas mereka ditangkap, tiada apa-apa tindakan diambil dibawah Akta Imigresen. Peguambela cadangkan kalau mereka terlibat dalam pelacuran, mereka lakukan kesalahan dibawah Akta yang lain dan SP 4 setuju. SP 4 setuju dalam buku catitan yang dirampas (eksibit P18), tidak ada apa-apa butir keempat-empat warganegara Thailand, nama mereka, no. passpot, apa-apa berkenaan urut, ping pong atau ‘seksual offences’ dan nama pelanggan. SP 4 juga tidak tahu siapa yang telah menulis di dalam buku tersebut. Di dalam Buku Resit (P7) tertulis massage, sauna, steam, jacuzzi, dan juga room massage inclusive govt tax tetapi tidak ada apa-apa butir di dalam buku ini yang menunjukkan aktiviti ping-pong, seks dan nama pelanggan. Pusat rawatan ini dijalankan oleh OKT dan dia bertanggungjawab keatas buku resit ini. Bagi kerja-kerja yang dilakukan, nama 4 warganegara Thailand tidak ada di dalam buku ini. Apabila SP 4 jumpa OKT dan 4 warganegara Thailand, mereka ada di tempat tersebut secara sah. Mereka mempunyai paspot. SP 4 setuju sekiranya mereka kerja di sana sebagai tukang urut, dengan tidak ada permit kerja, OKT melakukan satu kesalahan dibawah Akta Imigresen kerana ambil pekerja warganegara asing tanpa permit. Sebelum ini tiada apa-apa aduan dari 4 wanita ini bahawa mereka ini dipaksa oleh sesiapa untuk libat di dalam aktiviti pelacuran di Pusat ini. Semasa SP 4 pergi ke PRTT, tiada apa-apa aktiviti di sana. Keempat-empat wanita ini kerja sebagai tukang urut tanpa apa–apa permit. Tiada apa–apa bekenaan bukti bayaran yang dibayar oleh OKT kepada 4 mangsa ini yang telah dirampas. Kalau seseorang bekerja secara sah di situ, ia bukan merupakan anti pemerdagangan. SP 4 juga setuju sebagai pegawai serbuan, dia tidak tahu apa yang berlaku disana. 1.3 SP 5 adalah Pengurus Sumber Manusia, Hotel Park Avenue. Tanggungjawabnya selain daripada kebajikan pekerja, pihak hotel juga buat penyewaan untuk premis-premis kepunyaan syarikat. Nama syarikat ialah UG Hotel Property Sdn. Bhd. Launder nama Hotel Park Avenue. Di dalam premis ada satu PRTT. Ia mula beroperasi sejak tahun 2010. Perjanjian sewa dibuat setiap 2 tahun. Perjanjian sewa terakhir pusat ini telah tamat pada 31.1.2017. Ada perjanjian sewa diantara UG Hotel Property dan PRTT. En. Hun Kim Theng yang uruskan perjanjian untuk pihak PRTT. Pada tahap pemeriksaan balas, SP 5 menyatakan semasa pihak polis pergi pada 23.6.16 ke tempat ini, perjanjian ini masih sah dan En. Hun Kim Theng menjalankan perniagaan secara sah di situ. SP 5 telah bekerja dengan Hotel Park Avenue sejak tahun 2013 dan dari tahun 2013 sehingga 2017, tiada apa-apa-apa notis dikeluarkan oleh Hotel Park Avenue kepada En. Hun bahawa beliau langgari apa-apa terma perjanjian. Pusat rawatan ini, spa ini dibenarkan oleh Hotel Park Avenue untuk orang dalaman dan juga orang luar. Tiada aduan dibuat kepada pihak pengurusan mengenai pusat ini. 1.4 SP 6 adalah Jurufoto yang telah ambil gambar warganegara Thailand dan SP 7 adalah Jurufoto yang telah ambil gambar premis dan barang kes. 1.5 SP 8 adalah L/Kpl 184707 Wilson Yeo. Pada 12.3.16, beliau dan L/Kpl Syafiq (SP 10) telah menerima arahan daripada ASP Fauzi iaitu Pegawai Turus D7 untuk menjalankan siasatan berkenaan ATIPSOM di Hotel Park Avenue. SP 8 bersama L/Kpl Syafiq telah pergi ke Hotel Park Avenue pada 13.3.2016 pada jam 2.00 petang. Pada masa itu SP 8 telah sampai di lobi Hotel Park Avenue dan beliau melihat satu banner yang bertulis nama Theng dan juga nombor handphone. Banner diletakkan berdekatan lif lobby hotel. Kemudian L/Kpl Syafiq telah mendial nombor yang tertera dan telah menghubungi dan bercakap dalam talian. Setelah selesai bercakap dalam talian, L/KPL Syafiq ajak SP 8 untuk naik ke Tingkat 3, berdekatan kolam renang untuk berjumpa penjaga premis tersebut. SP 8 terus menuju ke premis Theng dan masuk ke dalam premis tersebut. Selepas masuk, SP 8 berjumpa dengan Theng. Beliau ialah seorang lelaki Cina iaitu OKT di dalam kes ini. OKT telah memberitahu pakej-pakej. Dia menawarkan urutan biasa sebanyak RM85/- urutan batin sebanyak RM108/- dan khidmat seks sebanyak RM350/- dengan overnite sebanyak RM600/-. SP 8 telah beritahu OKT bahawa dia akan telefon balik sekiranya beliau ingin pelanggan daripadanya. Kemudian SP 8 telah menempah bilik hotel no. 506 di Hotel Park Avenue. Daripada situ, SP 8 telah menelefon melalui telefon hotel ke Tingkat 3. Semasa itu, SP 8 bercakap dengan satu lelaki Cina dan SP 8 beritahunya bahawa dia ingin dapatkan khidmat seks dan lelaki itu beritahu akan menghantar 1 perempuan ke bilik SP 8. Lelaki yang SP 8 maksudkan ialah Theng. Semasa SP 8 menunggu di dalam bilik, datang seorang perempuan disyaki warganegara Thailand. Dia masuk membawa peralatan mengurut dan juga 1 keping kondom. Selepas itu dia telah mengurut SP 8 lebih kurang dalam ½ jam dan kemudian SP 8 telah melakukan hubungan seks dengan dia. Setelah selesai, perempuan itu menyerahkan sekeping resit. Resit itu adalah resit setelah selesai perkhidmatan seks sebanyak RM350/-. SP 8 mengatakan dia masih boleh cam perempuan yang masuk ke dalam bilik dan adakan hubungan seks dengan beliau. Gambar eksibit P9 A-E dirujuk kepada saksi. SP 8 mengecamkan perempuan seperti di dalam gambar B. Gambar perempuan tersebut adalah SP 2 di dalam kes ini. SP 8 telah turun ke Tingkat 3 untuk membayar wang sebanyak RM350/- kepada OKT setelah selesai diberi perkhidmatan seks. Seterusnya SP 8 terus beredar dari tempat itu dan balik ke IPK dan lapor kepada ASP Fauzi. SP 8 tidak mempunyai resit untuk bayaran RM350/- sekarang. Beliau telah membawa balik resit itu dan letak dalam kereta dan tidak tahu macamana, ia telah hilang. Pada 21.6.16, SP 8 telah membuat risikan semula di Hotel Park Avenue bersama L/Kpl Syafiq. Setelah sampai, SP 8 telah pergi seorang diri ke premis di Tingkat 3. Semasa beliau masuk ke premis tersebut, SP 8 melihat 1 perempuan disyaki warganegara Thailand berada di premis tersebut. Dia berada di meja di dalam premis itu. Perempuan tersebut adalah seperti di dalam gambar P 9E. Gambar perempuan tersebut adalah SP 1 di dalam kes ini. Setelah itu SP 8 melihat perempuan Thailand tersebut menelefon dan bercakap menerusi telefon menggunakan bahasa Siam. Kemudian dia menyerahkan telefon kepada SP 8 untuk bersembang dengan OKT. Dia memperkenalkan diri sebagai Theng. Dalam perbualan tersebut, OKT telah menawarkan 4 pakej kepada SP 8 seperti urutan biasa RM80/-, urutan batin RM108/-, seks RM350/- dan overnite RM600/-. Setelah selesai bercakap, SP 8 terus memberitahu OKT dia akan menelefon OKT kembali sekiranya SP 8 berminat. Selepas itu SP 8 pun beredar daripada situ dan terus menuju ke lobi Hotel Park Avenue menunggu L/Kpl Syafiq turun dari tingkat atas. Selepas membuat risikan, SP 8 balik ke IPK Kedah dan maklum kepada ASP Fauzi. Selepas itu SP 8 telah datang semula ke premis tersebut bersama pasukan serbuan pada 23.6.16. Pegawai serbuan adalah Tuan Faizul (SP 4). Peranan SP 8 pada 23.6.16 adalah untuk menjaga pintu hadapan Tingkat 3, berdekatan dengan pintu lif. 1.6 Saksi seterusnya adalah Pegawai Penyiasat kes ini, ASP Tee Ah Chew (SP 9). Berdasar siasatan, 4 perempuan Thailand ini berada di premis urut PRTT di Tingkat 3, Hotel Park Avenue kerana mereka bekerja di dalam premis tersebut sebagai tukang urut. Majikan mereka ialah Hun Kim Theng (OKT). PRTT menawarkan perkhidmatan urutan badan dan urutan batin dan juga menawarkan perkhidmatan seks. Kesemua 4 perempuan tidak mempunyai permit kerja untuk bekerja sebagai tukang urut di premis tersebut. Semasa pemeriksaan balas, SP 9 setuju, barang-barang yang dijumpai di PRTT adalah barang biasa (common things). Tiada apa-apa barang haram dijumpai kecuali kondom. Perjanjian sewa (eksibit P32) masih sah sehingga 31.1.2017 semasa serbuan dilakukan. SP 9 setuju PRTT ini wujud atau dijalankan di situ secara sah. Sebelum tarikh 24hb ini, SP 9 tidak siasat tempat ini diuruskan oleh siapa dan berapa orang yang menguruskan. Semua siasatan dijalankan selepas 24hb. Lesen yang diperolehi untuk jalankan pusat rawatan adalah atas nama Loh Siew Lan. Selepas tahun 2016, tiada lesen untuk urutan ini. SP 9 setuju Loh Siew Lan yang melakukan kesalahan. Tiada apa-apa lesen dari perbandaran dikeluarkan atas nama OKT. OKT merupakan pekerja atau yang menjaga pusat urutan ini. Apabila ditanya samada SP 9 mempunyai apa-apa bukti, pada 23.6.16, 9.30 malam, perempuan mana yang keluar dari pusat ini yang pergi melakukan hubungan seks atau apa-apa kerja di Hotel Park Avenue, SP 9 menjawab tidak ada. Di dalam kes ini, SP 8 dan SP 10 tidak membuat apa-apa laporan polis selepas siasatan dan risikan dijalankan. Apabila ditanya samada mangsa-mangsa mencamkan kedua-dua SP 8 dan SP 10 di Mahkamah bahawa mereka lakukan seks dengan mereka, SP 9 menjawab tidak tahu. SP 9 setuju 4 perempuan tersebut tidak dikurung dan mereka rela duduk di sana. Sesiapa sahaja boleh pergi untuk dapat perkhidmatan urut di PRTT. 1.7 Saksi terakhir Pihak Pendakwaan adalah L/Kpl Mohamad Syafiq (SP 10). Pada 13.3.2016, jam lebih kurang 11.00 pagi, beliau bersama L/Kpl Wilson (SP 8) telah pergi menjalankan siasatan dan risikan berkaitan Ops Noda / Atipsom di Hotel Park Avenue, Sungai Petani, Kedah. Apabila sampai di Lobi hotel, dia telah melihat satu banner bertulis “Pusat Urut Tradisional Theng”. SP 10 telah menelefon nombor telefon 0195138088 yang tertera atas banner tersebut. Seorang lelaki Cina yang menjawab telefon telah menawarkan perkhidmatan urut tradisional dan seks kepada beliau. Lelaki Cina tersebut telah mengarahkan SP 10 untuk berjumpa dengannya di premis urut miliknya yang berada berhampiran kolam renang di tingkat 3 hotel tersebut. SP 10 dan SP 8 telah ke premis urut tersebut dan berjumpa dengan seorang lelaki Cina yang memperkenalkan dirinya dengan nama panggilan Theng. Theng beritahu dia adalah lelaki Cina yang SP 10 hubungi melalui nombor telefon 0195138088 Theng adalah OKT di dalam kes ini. OKT menawarkan SP 10 dan SP 8 perkhidmatan urutan tradisional dan seks. Dia menawarkan urutan biasa sebanyak RM85/-, urutan batin sebanyak RM108/-, seks “one shoot” sebanyak RM350/- dan seks “over night” sebanyak RM600/-. Urutan batin adalah urutan pada kemaluan. Seks one shoot adalah satu kali perkhidmatan seks dan seks overnight adalah untuk satu malam perkhidmatan seks. SP 10 kemudian telah menyewa sebuah bilik No. 516 di Hotel Park Avenue dan menghubungi Theng di nombor telefon 0195138088 dan beritahunya bahawa dia mahu melanggan perkhidmatan seks “one shoot”. OKT memberitahu dia mempunyai 4 warganegara Thailand yang bekerja dengannya dan akan menghantar salah seorang pekerjanya ke biliknya. OKT juga telah mengarahkan SP 10 membayar wang berjumah RM350/-. Tidak lama kemudian, seorang perempuan Thailand telah datang ke biliknya dan mengaku dirinya pekerja kepada Theng. Dia telah membawa beberapa peralatan urutan dan beberapa kondom dan beliau telah menyerahkan sekeping resit bernombor 14282 bertarikh 31.3.2016 (ID 43) diatas nama PRTT berjumlah RM350/-. Setelah selesai melanggan perkhidmatan seks, SP 10 berjumpa dengan Theng di premis dan membayar wang berjumlah RM350/- kepadanya. Pada jam lebih kurang 7 malam, SP 10 dan SP 8 memaklumkan perkembangan hasil siasatan / risikan yang dijalankan kepada DSP Fauzi. Pada 21.6.2016, jam lebih kurang 1.00 tgh, SP 10 bersama SP 8 telah sekali lagi menjalankan siasatan dan risikan terhadap PRTT di Hotel Park Avenue. Apbila sampai, SP 10 telah terus menempah bilik no. 502 dan menelefon Theng melalui nombor telefon 0195138088 untuk melanggan perkhidmatan seks dan memberitahu kepadanya nombor bilik yang telah disewa. OKT telah memberitahu dia akan menghantar seorang pekerja ke biliknya dan mengarahkan dia membayar RM350/-. Tidak lama kemudian perempuan yang sama telah datang ke biliknya. Setelah selesai melanggan perkhidmatan seks, SP 10 berjumpa dengan Theng di premis dan membayar wang berjumlah RM350/- kepadanya. Pada kali ini, SP 10 tidak menerima sebarang resit daripada Theng. Pada jam lebih kurang 6 petang, SP 10 telah memaklumkan perkembangan hasil siasatan / risikan yang dijalankan kepada DSP Fauzi. SP 10 telah menyewa bilik No. 516 di Hotel Park Avenue untuk mendapatkan khidmat seks supaya beliau oleh berinteraksi dengan pekerja seks itu bagi mendapat maklumat. Nama perempuan yang memberi perkhidmatan seks kepadanya adalah Miss Orathai (SP 3). Beliau adalah seperti di dalam gambar eksibit P 9D. SP 10 telah menyerahkan resit (ID 43) kepada IO kes, Insp Tee Ah Chew pada 5.7.2016. Pada 23.6.16, SP 10 bersama-sama pegawai serbuan Insp Faizul Izuan (SP 4) telah pergi ke premis urut Theng di Hotel Park Avenue untuk menjalankan serbuan. Peranan beliau adalah untuk membuat pengecaman lokasi dan subjek iaitu Hun Kim Theng dan pekerja seks. Pada tahap Pemeriksaan balas, Resit ID 43 dirujuk. Di dalam resit ini, perkhidmatan yang diberikan adalah : 1) Massage 2) Sauna/ steam/Jacuzzi 3) Massage / sauna /steam dan jacuzzi 4) Room massage SP 10 setuju tiada apa-apa bukti yang menunjukkan jenis-jenis perkhidmatan yang diberikan di situ. SP 10 juga setuju sebagai undercover, dia tidak membuat sebarang pemeriksaan di PRTT pada 13.3.2016. SP 10 juga tidak jumpa mana-mana perempuan di situ. SP 10 juga tidak boleh beritahu samada ada perempuan di premis itu atau tidak. Isu dan Pendapat (Findings of Fact) 2.1 OKT telah dituduh dibawah Seksyen 12 Akta Anti Pemerdagangan Orang dan Anti Penyeludupan Migran 2007. Seksyen ini berbunyi seperti berikut: 12. Offence of trafficking in persons “Any person, who traffics in persons not being a child, for the purpose of exploitation, commits and offence and shall, on conviction, be punished with imprisonment for a term not exceeding fifteen years, and shall also be liable to fine." Elemen pertuduhan telah dihuraikan di dalam kes Subramanian Ramachandran vs. PP [2012] 1 LNS 1031 [2012] 10 MLJ 795, iaitu: i) the accused trafficked the person named in the charge, ii) the person trafficked is not a child, and iii) the accused trafficked the named person in the charge for the purpose of exploiting him/her in accordance to the provision of Section 2 of Act 670. Seksyen 2 memberikan definisi "exploitation" sebagai : "all forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude, any illegal activity or the removal of human organs". Di dalam kes Siti Rashidah bt Razali dan yang lain v PENDAKWA RAYA [2011] 6 MLJ 417, elemen pertuduhan telah dijelaskan seperti berikut (dengan izin): “Seksyen 2 Akta menggariskan tujuh jenis eksploitasi. Ternyata maksud ‘eksploitasi’ yang digariskan kesemuanya berbentuk paksaan, kekerasan dan penindasan. Intipati pembuktian di dalam S.12 dan S.14 Akta bukan merujuk kepada melindungi pendatang tanpa izin tetapi merujuk kepada jenis-jenis pekerjaan yang dipaksa dilakukan ke atas mangsa-mangsa terdiri dari orang yang diperdagangkan”. Di dalam kes ini, SP 1, SP 2 dan SP 3 telah memberi keterangan bahawa mereka telah datang dengan sendiri ke Malaysia dengan menggunakan passpot dan pas lawatan sosial dan telah minta kerja daripada OKT. Selama mereka bekerja di PRTT, tiada sesiapa yang telah memaksa atau mengugut mereka untuk bekerja di PRTT. Kesemua pekerja di PRTT juga menerima bayaran daripada pelanggan dan menyimpan bayaran sehingga OKT balik ke premis / PRTT. Mereka juga menyimpan kunci ke premis dimana mereka tinggal dan menyimpan passpot masing-masing. SP 1, SP 2 dan SP 3 balik ke Thailand setiap bulan untuk memperbaharui pas lawatan. Pergerakkan mereka di Malaysia adalah bebas dan tidak dikawal oleh sesiapa. Pihak Pendakwaan langsung tidak membuktikan bahawa SP 1, SP 2 atau SP 3 telah dieksploitasikan. Mereka telah bekerja secara sukarela di PRTT. Daripada keterangan daripada SP 1, SP 2 dan SP 3 iaitu subjek utama di dalam tuduhan, adalah jelas bahawa elemen pertuduhan tidak dibuktikan. Menurut kes Soo Ah Lai & Ors v. PP [2015] 7MLJ 649, Yang Arif Amelia Tee Abdullah J. memutuskan seperti berikut (dengan izin): “There was no evidence of the complainant being trafficked by the appellants for the purpose of exploitation by means of forced labour or orther forms of coercion. The complainant herself had never mentioned the date of the alleged exploitation. Quite apart from the fact that the date and time of the alleged act of trafficking as stated in the charge had not been proved or at all by then prosecution, the court will go on to say that cases of this nature should not have been brought under s 13 of the ATIPSOM”. 2.2 Dua orang pegawai Polis iaitu SP 8 dan SP 10 telah membuat siasatan dan risikan berkaitan Ops Noda / Atipsom di PRTT, Hotel Park Avenue, Sungai Petani, Kedah pada 13.3.2016 dan 21.6.16. Sebagai agen provacateur, mereka mestilah menunjukkan bukti-bukti yang kukuh mengenai siasatan dan risikan yang dilakukan. SP 8 dan SP 10 kedua-duanya memberi keterangan bahawa mereka telah menempah bilik hotel di Hotel Park Avenue dan telah mendapatkan perkhidmatan seks dari pekerja OKT tetapi kedua-dua mereka telah hilangkan resit hotel tersebut. Saya berpendapat, jikalau benar kedua-dua saksi ini telah menempah bilik hotel dan sekiranya benar resit hotel telah dihilangkan, sebagai pegawai polis yang telah menjalankan siasatan dibawah undang-undang, mereka sepatutnya mendapatkan salinan resit dari Hotel tersebut. SP 8 juga telah memberi keterangan bahawa selepas beliau mendapatkan perkhidmatan seks daripada SP 2 pada 13.3.2016, dia telah diberikan satu resit oleh OKT tetapi resit itu dihilangkan. Saya mendapati keterangan bahawa beliau telah menghilangkan resit sungguh mustahil. Resit bilik hotel dan resit bagi perkhidmatan seks yang diterima adalah satu bukti yang kukuh dan saya tidak dapat faham bagaimana kedua-dua SP 8 dan SP 10, pegawai-pegawai polis yang telah menjalankan satu siasatan terhadap satu kes yang serius sebegini dapat menghilangkan resit Hotel dan resit bagi bayaran perkhidmatan seks yang diterima. 2.3 SP 8 telah mengecamkan pekerja yang memberi perkhidmatan seks kepadanya sebagai SP 2 di dalam kes ini. SP 10 telah mengecamkan pekerja yang memberi perkhidmatan seks kepadanya sebagai SP 3 di dalam kes ini. Pihak Pendakwaan sedia maklum bahawa SP 2 dan SP 3 akan dihantar pulang ke negara asal selepas tamat tempoh perlindungan di Malaysia. Oleh itu, Pihak Pendakwaan sepatutnya mendapatkan keterangan SP 2 dan SP 3 untuk mengecamkan SP 8 dan SP 10 masing-masing semasa mereka memberi keterangan di Mahkamah. Pihak Pendakwaan tidak mengemukakan bukti yang kukuh mengenai perkhidmatan seks yang diterima oleh SP 8 dan SP 10. 2.4 Pihak Pendakwaan telah kemukakan ID 43 – satu resit bernombor 14282 dari PRTT. Resit ini dikemukakan melalui saksi SP 10 yang telah memberi keterangan bahawa dia telah menerima resit ini daripada SP 3. Mengikut beliau, dia telah mendapatkan perkhidmatan seks pada 13.3.2016. Jikalau resit ini diteliti, tarikh asal pada resit ini adalah 11.3.2016. Terdapat tanda potongan pada tarikh 11.3.2016 dan ditulis 13.3.2016. Nombor bilik ditulis 516 tetapi ia kelihatan seperti no. asal 510 telah dipinda ke 516. Pihak Pendakwaan tidak menerangkan apa-apa mengenai pembetulan pada resit tersebut. 2.5 Selain daripada itu, Pihak Pendakwaan juga telah kemukakan satu buku resit (eksibit P7) yang telah dirampas oleh Pegawai Serbuan (SP 4) pada 23.6.17. Salinan pendua dan ketiga resit pertama di dalam buku ini bernombor 14451 ditulis tarikh 16/12/16. Resit kedua bernombor 14452 ditulis tarikh 19/6 dan resit ketiga bernombor 14453 ditulis tarikh 21/6. Pihak Pendakwaan juga tidak menerangkan bagaimana SP 4 boleh merampas satu resit di dalam buku resit yang bertarikh 16/12/16 sedangkan serbuan dan rampasan dilakukan pada 23.6.16. Tarikh 16/12/16 adalah lebih kurang enam (6) bulan selepas serbuan dilakukan. Pihak Pendakwaan sepatutnya merampas buku resit yang mempunyai nombor siri 14282 (eksibit ID 43) bagi menunjukkan resit asal diperolehi dari PRTT. 2.6 Tuduhan terhadap OKT adalah beliau melakukan eksploitasi seks terhadap SP 1, SP 2 dan SP 3 pada 23.6.2016 jam 9.30 malam. Pegawai Serbuan (SP 4) telah memberi keterangan bahawa semasa beliau melakukan serbuan pada tarikh dan masa tersebut, 4 orang perempuan Thailand berada di kaunter di dalam premis dan tidak ada apa-apa aktiviti urutan atau seks di PRTT. Kesemua warganegara Thailand tersebut juga telah kemukakan passpot yang sah. Pegawai serbuan (SP 4) dan Pegawai Penyiasat (SP 9) setuju sekiranya 4 orang perempuan Thailand kerja di sana sebagai tukang urut, dengan tidak ada permit kerja, OKT melakukan kesalahan dibawah Akta Imigresen. 3. Alasan. 3.1 Di dalam kes Sia Soon Suan v PP (1966) MLJ ms 116 telah diputuskan seperti berikut (dengan izin): “The requirements of strict proof in a criminal case cannot be relaxed to bridge any material gap in the prosecution evidence. Irrespective of whether the court is otherwise convinced in its own mind of the guilt or innocence of an accused, its decision must be based on the evidence adduced and nothing else and therefore the appeal must be allowed and the conviction quashed. ” Menurut kes PP v. Boon Fui Yan [2015] MLJU 999, Yang Arif Datuk Mairin Bin Idang @ Martin JC memutuskan seperti berikut (dengan izin): “At the close of the Prosection’s case, the learned SCJ was required to test the evidence of all Prosecution’s witness from all angles and to test their reliability and credibility. They must be tested against the probabilities of the case. Their evidence must not be accepted at face value but must be tested and evaluated to ascertain whether it suffers from any infirmities, gaps and contradictions. This is what we call “maximum evaluation”. Di dalam kes dihadapan saya ini, saya telah meneliti dan menimbangkan keseluruhan keterangan saksi-saksi Pendakwaan dan setelah meneliti kesemua eksibit yang dikemukakan dan mendengar hujah kedua-dua pihak, saya mendapati tiada keterangan yang mencukupi untuk memanggil OKT membela diri. Di dalam kes PP lawan Amir bin Mahmood & Ors. ( 1996 ) 5 MLJ 189 diputuskan : “An accused person is entitled to the benefit of a reasonable doubt in the matter of sentence as in the matter of conviction. Any ambiguity no matter how slight should be construed in favour of the offender.” Berdasarkan kepada alasan-alasan yang diberikan di atas, saya mendapati Pihak Pendakwaan telah gagal membuktikan suatu kes prima facie terdahap OKT bagi kesemua tuduhan dan saya berpendapat pelepasan dan pembebasan ini adalah wajar dan patut. Bertarikh pada 10 November, 2017 (PRISCILLA HEMAMALINI NADARAJAN) HAKIM MAHKAMAH SESYEN JENAYAH (2) SUNGAI PETANI KEDAH

Tika 2.6.0

62ATIP-01-07/2016

PENDAKWARAYASAVINDAR SINGH TERTUDUH HUN KIM THENG

10/11/2017

PRISCILLA HEMAMALINI A/P NADARAJAN

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PENDAKWA RAYA PAGE - 1 - A. B. C. D. A. B. A. B. C. A. B. C. A. B. C. A. B. A. B. C. A. B. C. D. A. B. C. D. A. B. C. D. A. B. C. D. A. B. C. A. B. C. D. A. B. A. B. C. A. B. C. D. A. B. C. A. B. A. B. C. A. B. C. D. A. B. C. A. B. C. A. B. A. B. C. A. B. C. A. B. C. A. B. NEGERI KEDAH DALAM MAHKAMAH SESYEN JENAYAH (2) DI SUNGAI PETANI KES TANGKAP NO: 62ATIP-01-07/2016 DI ANTARA PENDAKWA RAYA .…... PIHAK MERAYU DAN HUN KIM THENG .... PIHAK MENENTANG ALASAN PENGHAKIMAN Pihak Menentang iaitu OKT telah dituduh dengan pertuduhan seperti berikut: Tuduhan pertama “Bahawa kamu pada 23/6/2016 jam lebih kurang 9.30 malam di alamat Hotel Park Avenue, Tingkat 3E1, Jalan Indah 2, Taman Sejati Indah, di dalam Daerah Kuala Muda, di dalam Negeri Kedah Darul Aman, telah memperdagangkan Miss Waraphon Seemueang, Passport No. AA5420800 bagi maksud eksploitasi seks dan dengan itu kamu telah melakukan satu kesalahan yang boleh dihukum di bawah Seksyen 12 Akta Antipemerdagangan orang dan Antipenyeludupan Migran 2007.” Tuduhan kedua “Bahawa kamu pada 23/6/2016 jam lebih kurang 9.30 malam di alamat Hotel Park Avenue, Tingkat 3E1, Jalan Indah 2, Taman Sejati Indah, di dalam Daerah Kuala Muda, di dalam Negeri Kedah Darul Aman, telah memperdagangkan Miss Orathai Ananchai, Passport No. AA4819767 bagi maksud eksploitasi seks dan dengan itu kamu telah melakukan satu kesalahan yang boleh dihukum di bawah Seksyen 12 Akta Antipemerdagangan orang dan Antipenyeludupan Migran 2007.” Tuduhan ketiga “Bahawa kamu pada 23/6/2016 jam lebih kurang 9.30 malam di alamat Hotel Park Avenue, Tingkat 3E1, Jalan Indah 2, Taman Sejati Indah, di dalam Daerah Kuala Muda, di dalam Negeri Kedah Darul Aman, telah memperdagangkan Miss Bualaung Pongsrapang, Passport No. AA5750814 bagi maksud eksploitasi seks dan dengan itu kamu telah melakukan satu kesalahan yang boleh dihukum di bawah Seksyen 12 Akta Antipemerdagangan orang dan Antipenyeludupan Migran 2007.” Pihak Pendakwaan telah memanggil seramai 10 orang saksi. Pada akhir kes Pendakwaan, setelah mendengar keterangan saksi-saksi Pendakwaan dan setelah meneliti eksibit-eksibit yang dikemukakan serta setelah mendengar hujah kedua-dua pihak, saya mendapati pihak Pendakwaan gagal membuktikan kes prima facie terhadap OKT dibawah Seksyen 12 Akta Antipemerdagangan orang dan Antipenyeludupan Migran 2007 bagi kesemua tuduhan. Oleh yang demikian, OKT telah dilepas dan dibebaskan dari kesemua tuduhan. Pendakwa Raya telah tidak berpuas hati dengan keputusan melepaskan dan membebaskan OKT dan kini merayu ke Mahkamah Tinggi terhadap perintah tersebut. 1. Fakta Kes dan Keterangan 1.1 SP 1, SP 2 dan SP 3 adalah warganegara Thailand yang telah datang ke Malaysia untuk mencari pekerjaan. Mereka telah diberitahu oleh kawan-kawan mereka bahawa ada pekerjaan sebagai tukang urut di Hotel Park Avenue. SP 1 telah telah masuk ke Malaysia pada kali pertama pada bulan Disember 2015, SP 2 pada bulan November 2015 dan SP 3 pada pertengahan tahun 2015. Sampai di Hotel Park Avenue, SP1, SP 2 dan SP 3 masing-masing pada tarikh-tarikh yang berlainan telah berjumpa dengan seorang lelaki. Lelaki tersebut adalah OKT di dalam kes ini. OKT telah membawa mereka pergi ke Kedai Urut yang terletak di Tingkat 3 hotel tersebut. Kedai Urut tersebut bernama Pusat Rawatan Tradisional Theng (selepas ini dikenali sebagai PRTT). OKT telah memperkenalkan mereka ke bahagian-bahagian dalam kedai dan memberitahu cara bekerja dan apa yang perlu dilakukan sebagai tukang urut. OKT memberitahu mereka perlu lakukan urut biasa, urut ping-pong dan urut tambahan seks. Urut ping-pong adalah urut di tempat kemaluan lelaki untuk menaikkan nafsu lelaki. Urut tambahan seks adalah urut dan melakukan seks. Gaji yang dibayar adalah berbeza mengikut kategori urutan. Bagi urutan kategori pertama, mereka akan mendapat RM25/-. Bagi ketegori kedua, mereka akan mendapat RM50/- dan bagi urutan kategori ketiga, mereka akan mendapat RM90/-. Gaji akan dibayar secara tunai kepada mereka sebelum mereka balik ke Thailand. SP 1, SP 2 dan SP 3 telah bekerja di PRTT sehingga mereka ditangkap oleh polis pada 23.6.16. Gambar P 9B adalah gambar Miss Bualang (SP 2, nama panggilan ‘Boo’), P 9C ialah Phorn, P 9D ialah Orathai (SP 3, nama panggilan Bhai) dan P 9E ialah Miss Waraphon (SP 1, nama panggilan ‘New’). OKT dipanggil dengan nama panggilan Ah Hia. OKT yang akan memberi arahan kepada mereka untuk melakukan urut biasa, urut ping-pong atau urut tambahan seks. Urut tambahan seks akan dilakukan di dalam kedai atau di dalam bilik pelanggan di dalam Hotel. Apabila lakukan seks di dalam kedai, pelanggan akan bayar di kaunter. Jika berada di dalam bilik hotel, SP 1, SP 2 dan SP 3 akan naik dan masuk ke dalam bilik itu untuk ambil duit dan turun ke kedai di Tingkat 3 untuk membayar duit. OKT yang menjaga kaunter dan mereka akan membayar duit kepada OKT. Jika OKT tiada di situ, SP 1, SP 2 atau SP 3 akan simpan duit dulu dan bayar dia kemudian. Resit dikeluarkan bagi setiap bayaran. Resit akan dikeluarkan oleh OKT dan semua pekerja di dalam Kedai Urut. Bayaran untuk urutan biasa adalah RM85/-, urutan ping-pong adalah RM169/- jika melakukan dalam kedai, dan RM189/- jika melakukan dalam bilik hotel. Urut tambahan seks adalah RM350/-. Sesiapa sahaja yang berada di kaunter akan serahkan resit kepada pelanggan. Jika pelanggan berada di dalam bilik hotel, resit akan diserahkan kepada pelanggan oleh sesiapa yang melakukan kerja. SP 3 memberi keterangan bahawa dia tidak pernah keluarkan resit kerana dia kurang mahir dalam penulisan. Selain resit, apa yang dilakukan juga direkodkan di dalam sebuah buku (eksibit P18). Butir yang direkodkan adalah masa kerja dilakukan, nombor bilik, harga yang pelanggan bayar, bayaran yang SP 1, SP 2 dan SP 3 dapat dari OKT iaitu sebahagian dari jumlah wang yang dibayar oleh pelanggan. Sekiranya OKT tiada di dalam kedai, catitan di dalam buku akan dibuat oleh setiap orang yang lakukan kerja tersebut / semua pekerja. SP 3 memberi keterangan bahawa dia juga tidak pernah membuat catitan di dalam buku tersebut. Di dalam buku tersebut ada nama ‘New’, ‘Boo’, ‘Bai’ dan ‘Phorn’. Nama SP 1 dicatit sebagai ‘New’, nama SP 2 dicatit sebagai ‘Boo’ dan SP 3 sebagai ‘ Bai’. SP 1, SP 2 dan SP 3 telah bekerja di Kedai Urut bersama seorang lagi bernama ‘Phorn’. Sepanjang mereka kerja di situ, kesemua mereka telah tinggal di dalam kedai tersebut. Keempat-empat mereka memegang kunci bagi Kedai Urut tersebut. Passpot juga disimpan oleh mereka sendiri. SP 1, SP 2 dan SP 3 telah masuk ke Malaysia sebagai pelancong menggunakan passpot dan mereka tiada permit kerja untuk kerja di Malaysia. Selepas tamat pas lawatan, mereka akan balik ke Thailand untuk perbaharui pas lawatan. Pas lawatan adalah untuk 30 hari dan mereka akan balik setiap bulan ke Thailand untuk memperbaharui pas lawatan. Pada 23.6.16, OKT bersama SP 1, SP 2, SP 3 dan seorang lagi perempuan bernama ‘Phorn’ telah ditangkap oleh polis semasa mereka berada di dalam PRTT di Hotel Park Avenue. Pada tahap pemeriksaan balas, SP 1, SP 2 dan SP 3 memberi keterangan bahawa sebelum masuk ke Malaysia, mereka mempunyai pengetahuan bahawa mereka perlu lakukan 3 jenis urutan iaitu urut biasa, urut ping-pong dan urut tambah seks. Tiada sesiapa yang ‘recruit’, mengangkut atau meminta SP 1, SP 2 dan SP 3 untuk kerja sebagai tukang urut di Hotel Park Avenue. SP 1, SP 2 dan SP 3 setuju memandangkan mereka mempunyai kunci kedai tersebut, passpot berada dengan mereka sendiri dan mereka telah balik ke Thailand pada setiap bulan, maka pergerakkan mereka adalah bebas dan tidak terkawal oleh OKT. SP 1, SP 2 dan SP 3 juga setuju mereka boleh mengawal wang yang dikutip dari pelanggan. Sepanjang SP 1, SP 2 dan SP 3 berada di Malaysia, mereka tidak menerima paksaan atau ugutan untuk lakukan kerja ini. 1.2 Saksi seterusnya adalah Insp. Faizul Izuan bin Haron (SP 4) yang bertugas di Cawangan D7, IPK Kedah sebagai Inspektor ATIPSOM. Pada 23.6.16 jam lebih kurang 9.30 malam, beliau bersama pasukannya telah membuat serbuan di Tingkat 3 E1, Jalan Indah 2, Taman Sejati, Hotel Park Avenue, Sg. Petani, Kedah. Sampai di alamat tersebut, beliau masuk di dalam premis dan berjumpa dengan satu lelaki Cina yang berada di kaunter di dalam premis tersebut. SP 4 perkenalkan diri sebagai pegawai polis dan meminta kad pengenalan lelaki Cina tersebut. Nama lelaki Cina itu ialah Hun Kim Theng iaitu OKT di dalam kes ini. Selepas itu dengan dipandu arah oleh OKT, SP 4 membuat pemeriksaan di bilik di belakang kaunter. Beliau menemui 4 perempuan warganegara Thailand. Beliau telah meminta semua perempuan tersebut serahkan dokumen pengenalan diri masing-masing. Mereka serahkan passpot mereka. Nama mereka ialah Miss Waraphorn (SP 1), Miss Bua Luang (SP 2), Miss Paryaporn, dan Miss Orathai (SP 3). Kemudian SP 4 membuat pemeriksaan di dalam premis tersebut dan merampas barang-barang berikut dari meja kaunter : a) 3 rangkai kunci bersama alat kawalan jauh b) 2 set walkie talkie c) 1 alat pengecas walkie talkie d) Wang tunai berjumlah RM320/- Barang lain yang SP 4 rampas dalam rak di belakang bilik kaunter ialah : a) 6 keping kondom b) I gulung tisu c) 4 helai tuala d) 4 botol disyaki minyak urut e) 1 banner tertulis Urut Tradisional Theng f) 1 buku catitan pelanggan g) 1 buku bill Semasa di tempat kejadian, SP 4 telah meminta OKT serahkan lesen urut tetapi dia tidak serahkan. Selepas membuat pemeriksaan dan rampasan, SP 4 membawa balik semua rampasan, OKT dan mangsa ke IPD Kuala Muda. OKT ditangkap dibawah Seksyen 12 Akta Pemerdagangan Manusia dan Anti Penyeledupan Migran 2007. Mangsa diselamatkan dibawah S.44 Akta yang sama. Barang kes yang dirampas diserahkan kepada kepada Pegawai Penyiasat ASP Tee (SP 9) di dalam IPD Kuala Muda. Pada tahap Pemeriksaan Balas, SP 4 menyatakan Tugas Ops dilakukan atas maklumat dan risikan. Beliau diarahkan oleh ASP James, pegawai atasan beliau bahawa ada aktiviti pelacuran di Hotel Park Avenue. SP 4 setuju bahawa Hotel Park Avenue ialah satu hotel yang berdaftar dan berjalan secara sah dan setiap aktiviti adalah dibawah kawalan dan jagaan mereka. Serbuan telah dilakukan di Tingkat 3 iaitu di PRTT yang berada di Hotel Park Avenue. Pada tarikh tersebut, SP 4 tidak memperolehi apa-apa informasi mengenai lesen perniagaan ini daripada Hotel Park Avenue. SP 4 tidak membuat semakan samada PRTT ini mempunyai tenancy agreement dengan Hotel Park Avenue. Risikan telah dibuat oleh L/Kpl Shafik (SP 10) dan L/Kpl Wilson (SP 8) dan hasil risikan dimaklumkan kepada ASP James. SP 4 tidak tahu apa-apa maklumat berkenaan risikan ini. Peguam telah nyatakan bahawa sejak tarikh tahun 2010, sehingga sebelum tarikh 2016, Majlis Perbandaran telah memberi lesen urutan untuk PRTT dan SP 4 jawab dia tidak tahu. SP 4 setuju dengan cadangan peguambela bahawa keempat-empat warngenegara Thailand ditangkap kerana mereka disyaki terlibat dalam kes pelacuran. Apabila ditanya samada sebagai pegawai serbuan adakah keempat-empat warganegara Thailand diberitahu mereka diseludup ke Malaysia, SP 4 jawab dia tidak cakap dengan mereka. SP 4 ditanya maksud seludup dan dia menjawab secara salah membawa migran, cross border. SP 4 setuju keempat-empat warganegara Thailand mempunyai passpot yang sah. Beliau juga setuju tiada penyeludupan. Kesemua mereka telah datang ke Malaysia atas pas lawatan sosial dan mereka mula kerja di Malaysia menggunakan pas lawatan sosial tersebut. SP 4 juga setuju mereka ini melanggari undang-undang Akta Passpot apabila sampai di sini dan kerja di sini. Mereka tidak mempunyai apa-apa permit untuk kerja dan selepas mereka ditangkap, tiada apa-apa tindakan diambil dibawah Akta Imigresen. Peguambela cadangkan kalau mereka terlibat dalam pelacuran, mereka lakukan kesalahan dibawah Akta yang lain dan SP 4 setuju. SP 4 setuju dalam buku catitan yang dirampas (eksibit P18), tidak ada apa-apa butir keempat-empat warganegara Thailand, nama mereka, no. passpot, apa-apa berkenaan urut, ping pong atau ‘seksual offences’ dan nama pelanggan. SP 4 juga tidak tahu siapa yang telah menulis di dalam buku tersebut. Di dalam Buku Resit (P7) tertulis massage, sauna, steam, jacuzzi, dan juga room massage inclusive govt tax tetapi tidak ada apa-apa butir di dalam buku ini yang menunjukkan aktiviti ping-pong, seks dan nama pelanggan. Pusat rawatan ini dijalankan oleh OKT dan dia bertanggungjawab keatas buku resit ini. Bagi kerja-kerja yang dilakukan, nama 4 warganegara Thailand tidak ada di dalam buku ini. Apabila SP 4 jumpa OKT dan 4 warganegara Thailand, mereka ada di tempat tersebut secara sah. Mereka mempunyai paspot. SP 4 setuju sekiranya mereka kerja di sana sebagai tukang urut, dengan tidak ada permit kerja, OKT melakukan satu kesalahan dibawah Akta Imigresen kerana ambil pekerja warganegara asing tanpa permit. Sebelum ini tiada apa-apa aduan dari 4 wanita ini bahawa mereka ini dipaksa oleh sesiapa untuk libat di dalam aktiviti pelacuran di Pusat ini. Semasa SP 4 pergi ke PRTT, tiada apa-apa aktiviti di sana. Keempat-empat wanita ini kerja sebagai tukang urut tanpa apa–apa permit. Tiada apa–apa bekenaan bukti bayaran yang dibayar oleh OKT kepada 4 mangsa ini yang telah dirampas. Kalau seseorang bekerja secara sah di situ, ia bukan merupakan anti pemerdagangan. SP 4 juga setuju sebagai pegawai serbuan, dia tidak tahu apa yang berlaku disana. 1.3 SP 5 adalah Pengurus Sumber Manusia, Hotel Park Avenue. Tanggungjawabnya selain daripada kebajikan pekerja, pihak hotel juga buat penyewaan untuk premis-premis kepunyaan syarikat. Nama syarikat ialah UG Hotel Property Sdn. Bhd. Launder nama Hotel Park Avenue. Di dalam premis ada satu PRTT. Ia mula beroperasi sejak tahun 2010. Perjanjian sewa dibuat setiap 2 tahun. Perjanjian sewa terakhir pusat ini telah tamat pada 31.1.2017. Ada perjanjian sewa diantara UG Hotel Property dan PRTT. En. Hun Kim Theng yang uruskan perjanjian untuk pihak PRTT. Pada tahap pemeriksaan balas, SP 5 menyatakan semasa pihak polis pergi pada 23.6.16 ke tempat ini, perjanjian ini masih sah dan En. Hun Kim Theng menjalankan perniagaan secara sah di situ. SP 5 telah bekerja dengan Hotel Park Avenue sejak tahun 2013 dan dari tahun 2013 sehingga 2017, tiada apa-apa-apa notis dikeluarkan oleh Hotel Park Avenue kepada En. Hun bahawa beliau langgari apa-apa terma perjanjian. Pusat rawatan ini, spa ini dibenarkan oleh Hotel Park Avenue untuk orang dalaman dan juga orang luar. Tiada aduan dibuat kepada pihak pengurusan mengenai pusat ini. 1.4 SP 6 adalah Jurufoto yang telah ambil gambar warganegara Thailand dan SP 7 adalah Jurufoto yang telah ambil gambar premis dan barang kes. 1.5 SP 8 adalah L/Kpl 184707 Wilson Yeo. Pada 12.3.16, beliau dan L/Kpl Syafiq (SP 10) telah menerima arahan daripada ASP Fauzi iaitu Pegawai Turus D7 untuk menjalankan siasatan berkenaan ATIPSOM di Hotel Park Avenue. SP 8 bersama L/Kpl Syafiq telah pergi ke Hotel Park Avenue pada 13.3.2016 pada jam 2.00 petang. Pada masa itu SP 8 telah sampai di lobi Hotel Park Avenue dan beliau melihat satu banner yang bertulis nama Theng dan juga nombor handphone. Banner diletakkan berdekatan lif lobby hotel. Kemudian L/Kpl Syafiq telah mendial nombor yang tertera dan telah menghubungi dan bercakap dalam talian. Setelah selesai bercakap dalam talian, L/KPL Syafiq ajak SP 8 untuk naik ke Tingkat 3, berdekatan kolam renang untuk berjumpa penjaga premis tersebut. SP 8 terus menuju ke premis Theng dan masuk ke dalam premis tersebut. Selepas masuk, SP 8 berjumpa dengan Theng. Beliau ialah seorang lelaki Cina iaitu OKT di dalam kes ini. OKT telah memberitahu pakej-pakej. Dia menawarkan urutan biasa sebanyak RM85/- urutan batin sebanyak RM108/- dan khidmat seks sebanyak RM350/- dengan overnite sebanyak RM600/-. SP 8 telah beritahu OKT bahawa dia akan telefon balik sekiranya beliau ingin pelanggan daripadanya. Kemudian SP 8 telah menempah bilik hotel no. 506 di Hotel Park Avenue. Daripada situ, SP 8 telah menelefon melalui telefon hotel ke Tingkat 3. Semasa itu, SP 8 bercakap dengan satu lelaki Cina dan SP 8 beritahunya bahawa dia ingin dapatkan khidmat seks dan lelaki itu beritahu akan menghantar 1 perempuan ke bilik SP 8. Lelaki yang SP 8 maksudkan ialah Theng. Semasa SP 8 menunggu di dalam bilik, datang seorang perempuan disyaki warganegara Thailand. Dia masuk membawa peralatan mengurut dan juga 1 keping kondom. Selepas itu dia telah mengurut SP 8 lebih kurang dalam ½ jam dan kemudian SP 8 telah melakukan hubungan seks dengan dia. Setelah selesai, perempuan itu menyerahkan sekeping resit. Resit itu adalah resit setelah selesai perkhidmatan seks sebanyak RM350/-. SP 8 mengatakan dia masih boleh cam perempuan yang masuk ke dalam bilik dan adakan hubungan seks dengan beliau. Gambar eksibit P9 A-E dirujuk kepada saksi. SP 8 mengecamkan perempuan seperti di dalam gambar B. Gambar perempuan tersebut adalah SP 2 di dalam kes ini. SP 8 telah turun ke Tingkat 3 untuk membayar wang sebanyak RM350/- kepada OKT setelah selesai diberi perkhidmatan seks. Seterusnya SP 8 terus beredar dari tempat itu dan balik ke IPK dan lapor kepada ASP Fauzi. SP 8 tidak mempunyai resit untuk bayaran RM350/- sekarang. Beliau telah membawa balik resit itu dan letak dalam kereta dan tidak tahu macamana, ia telah hilang. Pada 21.6.16, SP 8 telah membuat risikan semula di Hotel Park Avenue bersama L/Kpl Syafiq. Setelah sampai, SP 8 telah pergi seorang diri ke premis di Tingkat 3. Semasa beliau masuk ke premis tersebut, SP 8 melihat 1 perempuan disyaki warganegara Thailand berada di premis tersebut. Dia berada di meja di dalam premis itu. Perempuan tersebut adalah seperti di dalam gambar P 9E. Gambar perempuan tersebut adalah SP 1 di dalam kes ini. Setelah itu SP 8 melihat perempuan Thailand tersebut menelefon dan bercakap menerusi telefon menggunakan bahasa Siam. Kemudian dia menyerahkan telefon kepada SP 8 untuk bersembang dengan OKT. Dia memperkenalkan diri sebagai Theng. Dalam perbualan tersebut, OKT telah menawarkan 4 pakej kepada SP 8 seperti urutan biasa RM80/-, urutan batin RM108/-, seks RM350/- dan overnite RM600/-. Setelah selesai bercakap, SP 8 terus memberitahu OKT dia akan menelefon OKT kembali sekiranya SP 8 berminat. Selepas itu SP 8 pun beredar daripada situ dan terus menuju ke lobi Hotel Park Avenue menunggu L/Kpl Syafiq turun dari tingkat atas. Selepas membuat risikan, SP 8 balik ke IPK Kedah dan maklum kepada ASP Fauzi. Selepas itu SP 8 telah datang semula ke premis tersebut bersama pasukan serbuan pada 23.6.16. Pegawai serbuan adalah Tuan Faizul (SP 4). Peranan SP 8 pada 23.6.16 adalah untuk menjaga pintu hadapan Tingkat 3, berdekatan dengan pintu lif. 1.6 Saksi seterusnya adalah Pegawai Penyiasat kes ini, ASP Tee Ah Chew (SP 9). Berdasar siasatan, 4 perempuan Thailand ini berada di premis urut PRTT di Tingkat 3, Hotel Park Avenue kerana mereka bekerja di dalam premis tersebut sebagai tukang urut. Majikan mereka ialah Hun Kim Theng (OKT). PRTT menawarkan perkhidmatan urutan badan dan urutan batin dan juga menawarkan perkhidmatan seks. Kesemua 4 perempuan tidak mempunyai permit kerja untuk bekerja sebagai tukang urut di premis tersebut. Semasa pemeriksaan balas, SP 9 setuju, barang-barang yang dijumpai di PRTT adalah barang biasa (common things). Tiada apa-apa barang haram dijumpai kecuali kondom. Perjanjian sewa (eksibit P32) masih sah sehingga 31.1.2017 semasa serbuan dilakukan. SP 9 setuju PRTT ini wujud atau dijalankan di situ secara sah. Sebelum tarikh 24hb ini, SP 9 tidak siasat tempat ini diuruskan oleh siapa dan berapa orang yang menguruskan. Semua siasatan dijalankan selepas 24hb. Lesen yang diperolehi untuk jalankan pusat rawatan adalah atas nama Loh Siew Lan. Selepas tahun 2016, tiada lesen untuk urutan ini. SP 9 setuju Loh Siew Lan yang melakukan kesalahan. Tiada apa-apa lesen dari perbandaran dikeluarkan atas nama OKT. OKT merupakan pekerja atau yang menjaga pusat urutan ini. Apabila ditanya samada SP 9 mempunyai apa-apa bukti, pada 23.6.16, 9.30 malam, perempuan mana yang keluar dari pusat ini yang pergi melakukan hubungan seks atau apa-apa kerja di Hotel Park Avenue, SP 9 menjawab tidak ada. Di dalam kes ini, SP 8 dan SP 10 tidak membuat apa-apa laporan polis selepas siasatan dan risikan dijalankan. Apabila ditanya samada mangsa-mangsa mencamkan kedua-dua SP 8 dan SP 10 di Mahkamah bahawa mereka lakukan seks dengan mereka, SP 9 menjawab tidak tahu. SP 9 setuju 4 perempuan tersebut tidak dikurung dan mereka rela duduk di sana. Sesiapa sahaja boleh pergi untuk dapat perkhidmatan urut di PRTT. 1.7 Saksi terakhir Pihak Pendakwaan adalah L/Kpl Mohamad Syafiq (SP 10). Pada 13.3.2016, jam lebih kurang 11.00 pagi, beliau bersama L/Kpl Wilson (SP 8) telah pergi menjalankan siasatan dan risikan berkaitan Ops Noda / Atipsom di Hotel Park Avenue, Sungai Petani, Kedah. Apabila sampai di Lobi hotel, dia telah melihat satu banner bertulis “Pusat Urut Tradisional Theng”. SP 10 telah menelefon nombor telefon 0195138088 yang tertera atas banner tersebut. Seorang lelaki Cina yang menjawab telefon telah menawarkan perkhidmatan urut tradisional dan seks kepada beliau. Lelaki Cina tersebut telah mengarahkan SP 10 untuk berjumpa dengannya di premis urut miliknya yang berada berhampiran kolam renang di tingkat 3 hotel tersebut. SP 10 dan SP 8 telah ke premis urut tersebut dan berjumpa dengan seorang lelaki Cina yang memperkenalkan dirinya dengan nama panggilan Theng. Theng beritahu dia adalah lelaki Cina yang SP 10 hubungi melalui nombor telefon 0195138088 Theng adalah OKT di dalam kes ini. OKT menawarkan SP 10 dan SP 8 perkhidmatan urutan tradisional dan seks. Dia menawarkan urutan biasa sebanyak RM85/-, urutan batin sebanyak RM108/-, seks “one shoot” sebanyak RM350/- dan seks “over night” sebanyak RM600/-. Urutan batin adalah urutan pada kemaluan. Seks one shoot adalah satu kali perkhidmatan seks dan seks overnight adalah untuk satu malam perkhidmatan seks. SP 10 kemudian telah menyewa sebuah bilik No. 516 di Hotel Park Avenue dan menghubungi Theng di nombor telefon 0195138088 dan beritahunya bahawa dia mahu melanggan perkhidmatan seks “one shoot”. OKT memberitahu dia mempunyai 4 warganegara Thailand yang bekerja dengannya dan akan menghantar salah seorang pekerjanya ke biliknya. OKT juga telah mengarahkan SP 10 membayar wang berjumah RM350/-. Tidak lama kemudian, seorang perempuan Thailand telah datang ke biliknya dan mengaku dirinya pekerja kepada Theng. Dia telah membawa beberapa peralatan urutan dan beberapa kondom dan beliau telah menyerahkan sekeping resit bernombor 14282 bertarikh 31.3.2016 (ID 43) diatas nama PRTT berjumlah RM350/-. Setelah selesai melanggan perkhidmatan seks, SP 10 berjumpa dengan Theng di premis dan membayar wang berjumlah RM350/- kepadanya. Pada jam lebih kurang 7 malam, SP 10 dan SP 8 memaklumkan perkembangan hasil siasatan / risikan yang dijalankan kepada DSP Fauzi. Pada 21.6.2016, jam lebih kurang 1.00 tgh, SP 10 bersama SP 8 telah sekali lagi menjalankan siasatan dan risikan terhadap PRTT di Hotel Park Avenue. Apbila sampai, SP 10 telah terus menempah bilik no. 502 dan menelefon Theng melalui nombor telefon 0195138088 untuk melanggan perkhidmatan seks dan memberitahu kepadanya nombor bilik yang telah disewa. OKT telah memberitahu dia akan menghantar seorang pekerja ke biliknya dan mengarahkan dia membayar RM350/-. Tidak lama kemudian perempuan yang sama telah datang ke biliknya. Setelah selesai melanggan perkhidmatan seks, SP 10 berjumpa dengan Theng di premis dan membayar wang berjumlah RM350/- kepadanya. Pada kali ini, SP 10 tidak menerima sebarang resit daripada Theng. Pada jam lebih kurang 6 petang, SP 10 telah memaklumkan perkembangan hasil siasatan / risikan yang dijalankan kepada DSP Fauzi. SP 10 telah menyewa bilik No. 516 di Hotel Park Avenue untuk mendapatkan khidmat seks supaya beliau oleh berinteraksi dengan pekerja seks itu bagi mendapat maklumat. Nama perempuan yang memberi perkhidmatan seks kepadanya adalah Miss Orathai (SP 3). Beliau adalah seperti di dalam gambar eksibit P 9D. SP 10 telah menyerahkan resit (ID 43) kepada IO kes, Insp Tee Ah Chew pada 5.7.2016. Pada 23.6.16, SP 10 bersama-sama pegawai serbuan Insp Faizul Izuan (SP 4) telah pergi ke premis urut Theng di Hotel Park Avenue untuk menjalankan serbuan. Peranan beliau adalah untuk membuat pengecaman lokasi dan subjek iaitu Hun Kim Theng dan pekerja seks. Pada tahap Pemeriksaan balas, Resit ID 43 dirujuk. Di dalam resit ini, perkhidmatan yang diberikan adalah : 1) Massage 2) Sauna/ steam/Jacuzzi 3) Massage / sauna /steam dan jacuzzi 4) Room massage SP 10 setuju tiada apa-apa bukti yang menunjukkan jenis-jenis perkhidmatan yang diberikan di situ. SP 10 juga setuju sebagai undercover, dia tidak membuat sebarang pemeriksaan di PRTT pada 13.3.2016. SP 10 juga tidak jumpa mana-mana perempuan di situ. SP 10 juga tidak boleh beritahu samada ada perempuan di premis itu atau tidak. Isu dan Pendapat (Findings of Fact) 2.1 OKT telah dituduh dibawah Seksyen 12 Akta Anti Pemerdagangan Orang dan Anti Penyeludupan Migran 2007. Seksyen ini berbunyi seperti berikut: 12. Offence of trafficking in persons “Any person, who traffics in persons not being a child, for the purpose of exploitation, commits and offence and shall, on conviction, be punished with imprisonment for a term not exceeding fifteen years, and shall also be liable to fine." Elemen pertuduhan telah dihuraikan di dalam kes Subramanian Ramachandran vs. PP [2012] 1 LNS 1031 [2012] 10 MLJ 795, iaitu: i) the accused trafficked the person named in the charge, ii) the person trafficked is not a child, and iii) the accused trafficked the named person in the charge for the purpose of exploiting him/her in accordance to the provision of Section 2 of Act 670. Seksyen 2 memberikan definisi "exploitation" sebagai : "all forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude, any illegal activity or the removal of human organs". Di dalam kes Siti Rashidah bt Razali dan yang lain v PENDAKWA RAYA [2011] 6 MLJ 417, elemen pertuduhan telah dijelaskan seperti berikut (dengan izin): “Seksyen 2 Akta menggariskan tujuh jenis eksploitasi. Ternyata maksud ‘eksploitasi’ yang digariskan kesemuanya berbentuk paksaan, kekerasan dan penindasan. Intipati pembuktian di dalam S.12 dan S.14 Akta bukan merujuk kepada melindungi pendatang tanpa izin tetapi merujuk kepada jenis-jenis pekerjaan yang dipaksa dilakukan ke atas mangsa-mangsa terdiri dari orang yang diperdagangkan”. Di dalam kes ini, SP 1, SP 2 dan SP 3 telah memberi keterangan bahawa mereka telah datang dengan sendiri ke Malaysia dengan menggunakan passpot dan pas lawatan sosial dan telah minta kerja daripada OKT. Selama mereka bekerja di PRTT, tiada sesiapa yang telah memaksa atau mengugut mereka untuk bekerja di PRTT. Kesemua pekerja di PRTT juga menerima bayaran daripada pelanggan dan menyimpan bayaran sehingga OKT balik ke premis / PRTT. Mereka juga menyimpan kunci ke premis dimana mereka tinggal dan menyimpan passpot masing-masing. SP 1, SP 2 dan SP 3 balik ke Thailand setiap bulan untuk memperbaharui pas lawatan. Pergerakkan mereka di Malaysia adalah bebas dan tidak dikawal oleh sesiapa. Pihak Pendakwaan langsung tidak membuktikan bahawa SP 1, SP 2 atau SP 3 telah dieksploitasikan. Mereka telah bekerja secara sukarela di PRTT. Daripada keterangan daripada SP 1, SP 2 dan SP 3 iaitu subjek utama di dalam tuduhan, adalah jelas bahawa elemen pertuduhan tidak dibuktikan. Menurut kes Soo Ah Lai & Ors v. PP [2015] 7MLJ 649, Yang Arif Amelia Tee Abdullah J. memutuskan seperti berikut (dengan izin): “There was no evidence of the complainant being trafficked by the appellants for the purpose of exploitation by means of forced labour or orther forms of coercion. The complainant herself had never mentioned the date of the alleged exploitation. Quite apart from the fact that the date and time of the alleged act of trafficking as stated in the charge had not been proved or at all by then prosecution, the court will go on to say that cases of this nature should not have been brought under s 13 of the ATIPSOM”. 2.2 Dua orang pegawai Polis iaitu SP 8 dan SP 10 telah membuat siasatan dan risikan berkaitan Ops Noda / Atipsom di PRTT, Hotel Park Avenue, Sungai Petani, Kedah pada 13.3.2016 dan 21.6.16. Sebagai agen provacateur, mereka mestilah menunjukkan bukti-bukti yang kukuh mengenai siasatan dan risikan yang dilakukan. SP 8 dan SP 10 kedua-duanya memberi keterangan bahawa mereka telah menempah bilik hotel di Hotel Park Avenue dan telah mendapatkan perkhidmatan seks dari pekerja OKT tetapi kedua-dua mereka telah hilangkan resit hotel tersebut. Saya berpendapat, jikalau benar kedua-dua saksi ini telah menempah bilik hotel dan sekiranya benar resit hotel telah dihilangkan, sebagai pegawai polis yang telah menjalankan siasatan dibawah undang-undang, mereka sepatutnya mendapatkan salinan resit dari Hotel tersebut. SP 8 juga telah memberi keterangan bahawa selepas beliau mendapatkan perkhidmatan seks daripada SP 2 pada 13.3.2016, dia telah diberikan satu resit oleh OKT tetapi resit itu dihilangkan. Saya mendapati keterangan bahawa beliau telah menghilangkan resit sungguh mustahil. Resit bilik hotel dan resit bagi perkhidmatan seks yang diterima adalah satu bukti yang kukuh dan saya tidak dapat faham bagaimana kedua-dua SP 8 dan SP 10, pegawai-pegawai polis yang telah menjalankan satu siasatan terhadap satu kes yang serius sebegini dapat menghilangkan resit Hotel dan resit bagi bayaran perkhidmatan seks yang diterima. 2.3 SP 8 telah mengecamkan pekerja yang memberi perkhidmatan seks kepadanya sebagai SP 2 di dalam kes ini. SP 10 telah mengecamkan pekerja yang memberi perkhidmatan seks kepadanya sebagai SP 3 di dalam kes ini. Pihak Pendakwaan sedia maklum bahawa SP 2 dan SP 3 akan dihantar pulang ke negara asal selepas tamat tempoh perlindungan di Malaysia. Oleh itu, Pihak Pendakwaan sepatutnya mendapatkan keterangan SP 2 dan SP 3 untuk mengecamkan SP 8 dan SP 10 masing-masing semasa mereka memberi keterangan di Mahkamah. Pihak Pendakwaan tidak mengemukakan bukti yang kukuh mengenai perkhidmatan seks yang diterima oleh SP 8 dan SP 10. 2.4 Pihak Pendakwaan telah kemukakan ID 43 – satu resit bernombor 14282 dari PRTT. Resit ini dikemukakan melalui saksi SP 10 yang telah memberi keterangan bahawa dia telah menerima resit ini daripada SP 3. Mengikut beliau, dia telah mendapatkan perkhidmatan seks pada 13.3.2016. Jikalau resit ini diteliti, tarikh asal pada resit ini adalah 11.3.2016. Terdapat tanda potongan pada tarikh 11.3.2016 dan ditulis 13.3.2016. Nombor bilik ditulis 516 tetapi ia kelihatan seperti no. asal 510 telah dipinda ke 516. Pihak Pendakwaan tidak menerangkan apa-apa mengenai pembetulan pada resit tersebut. 2.5 Selain daripada itu, Pihak Pendakwaan juga telah kemukakan satu buku resit (eksibit P7) yang telah dirampas oleh Pegawai Serbuan (SP 4) pada 23.6.17. Salinan pendua dan ketiga resit pertama di dalam buku ini bernombor 14451 ditulis tarikh 16/12/16. Resit kedua bernombor 14452 ditulis tarikh 19/6 dan resit ketiga bernombor 14453 ditulis tarikh 21/6. Pihak Pendakwaan juga tidak menerangkan bagaimana SP 4 boleh merampas satu resit di dalam buku resit yang bertarikh 16/12/16 sedangkan serbuan dan rampasan dilakukan pada 23.6.16. Tarikh 16/12/16 adalah lebih kurang enam (6) bulan selepas serbuan dilakukan. Pihak Pendakwaan sepatutnya merampas buku resit yang mempunyai nombor siri 14282 (eksibit ID 43) bagi menunjukkan resit asal diperolehi dari PRTT. 2.6 Tuduhan terhadap OKT adalah beliau melakukan eksploitasi seks terhadap SP 1, SP 2 dan SP 3 pada 23.6.2016 jam 9.30 malam. Pegawai Serbuan (SP 4) telah memberi keterangan bahawa semasa beliau melakukan serbuan pada tarikh dan masa tersebut, 4 orang perempuan Thailand berada di kaunter di dalam premis dan tidak ada apa-apa aktiviti urutan atau seks di PRTT. Kesemua warganegara Thailand tersebut juga telah kemukakan passpot yang sah. Pegawai serbuan (SP 4) dan Pegawai Penyiasat (SP 9) setuju sekiranya 4 orang perempuan Thailand kerja di sana sebagai tukang urut, dengan tidak ada permit kerja, OKT melakukan kesalahan dibawah Akta Imigresen. 3. Alasan. 3.1 Di dalam kes Sia Soon Suan v PP (1966) MLJ ms 116 telah diputuskan seperti berikut (dengan izin): “The requirements of strict proof in a criminal case cannot be relaxed to bridge any material gap in the prosecution evidence. Irrespective of whether the court is otherwise convinced in its own mind of the guilt or innocence of an accused, its decision must be based on the evidence adduced and nothing else and therefore the appeal must be allowed and the conviction quashed. ” Menurut kes PP v. Boon Fui Yan [2015] MLJU 999, Yang Arif Datuk Mairin Bin Idang @ Martin JC memutuskan seperti berikut (dengan izin): “At the close of the Prosection’s case, the learned SCJ was required to test the evidence of all Prosecution’s witness from all angles and to test their reliability and credibility. They must be tested against the probabilities of the case. Their evidence must not be accepted at face value but must be tested and evaluated to ascertain whether it suffers from any infirmities, gaps and contradictions. This is what we call “maximum evaluation”. Di dalam kes dihadapan saya ini, saya telah meneliti dan menimbangkan keseluruhan keterangan saksi-saksi Pendakwaan dan setelah meneliti kesemua eksibit yang dikemukakan dan mendengar hujah kedua-dua pihak, saya mendapati tiada keterangan yang mencukupi untuk memanggil OKT membela diri. Di dalam kes PP lawan Amir bin Mahmood & Ors. ( 1996 ) 5 MLJ 189 diputuskan : “An accused person is entitled to the benefit of a reasonable doubt in the matter of sentence as in the matter of conviction. Any ambiguity no matter how slight should be construed in favour of the offender.” Berdasarkan kepada alasan-alasan yang diberikan di atas, saya mendapati Pihak Pendakwaan telah gagal membuktikan suatu kes prima facie terdahap OKT bagi kesemua tuduhan dan saya berpendapat pelepasan dan pembebasan ini adalah wajar dan patut. Bertarikh pada 10 November, 2017 (PRISCILLA HEMAMALINI NADARAJAN) HAKIM MAHKAMAH SESYEN JENAYAH (2) SUNGAI PETANI KEDAH

Tika 2.6.0

P-02(NCVC)(W)-1821-10/2015

PERAYU 1. YOKOMASU MARKETING SDN BHD (No. Syarikat No: 904778-V) 2. THEOH CHARNG FA (NRIC No: 740310-02-5283) ... PERAYU - PERAYU RESPONDEN CHOR TSE MIN (NRIC No: 730217-07-5375) ... RESPONDEN

Tort — Appeal — Defamation — Tort of deliberate interference of the Plaintiff’s interest by unlawful means —Whether words of the impugned Notice would, to the mind of any ordinary person reading the notice, assume anything defamatory of the plaintiff — Claim for outstanding salary and directorship fee — Whether claim for outstanding salary is maintainable against defendants — Whether there is duplicity claims filed by the plaintiff —Damages — Whether award for general and aggravated damages excessive Tort — Defamation — Impugned statements — Plaintiff sued defendant for defamation based on a notice by the 1st defendant published in the Sin Chew Newspaper (“the impugned Notice”) in Mandarin on 15.01.2013 — Whether words in the impugned Notice accused Plaintiff of any wrongdoing and words in ordinary and natural meaning defamatory of Plaintiff — Whether impugned statements referred to Plaintiff — Whether insufficient judicial appreciation of evidence by learned JC in deciding that a case for defamation had been made out — Defamation Act 1957 [Act 286], ss 2,5,6, 10

10/11/2017

YA DATO' ASMABI BINTI MOHAMADKorumYA TAN SRI IDRUS BIN HARUNYA DATO' MARY LIM THIAM SUANYA DATO' ASMABI BINTI MOHAMAD

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=fa5e728e-2c78-480d-9091-9b50ba4764bb&Inline=true

1 DALAM MAHKAMAH RAYUAN MALAYSIA (BIDANG KUASA RAYUAN) RAYUAN SIVIL: NO: P-02(NCVC)(W)-1821-10/2015 ANTARA 1. YOKOMASU MARKETING SDN BHD (No. Syarikat No: 904778-V) 2. THEOH CHARNG FA (NRIC No: 740310-02-5283) ...PERAYU-PERAYU DAN CHOR TSE MIN (NRIC No: 730217-07-5375) ...RESPONDEN [Dalam Perkara Mahkamah Tinggi Malaya di Pulau Pinang Guaman No: 23NCVC-6-08/2013 Antara Chor Tse Min (No. K/P: 730217-07-5375) ...Plaintif Dan 1. Yokomasu Marketing Sdn Bhd (No. Syarikat: 904778-V) 2. Theoh Charng Fa (No. K/P: 740310-02-5283) ...Defendan-Defendan] 2 CORAM: IDRUS BIN HARUN, JCA MARY LIM THIAM SUAN, JCA ASMABI BINTI MOHAMAD, JCA JUDGMENT OF THE COURT INTRODUCTION [1] The Appellants (“the Defendants in the High Court”) had appealed against the decision of the High Court in Penang which allowed the Respondent’s (“the Plaintiff in the High Court”) claim with costs. Vide the decision dated 29th September 2015, the Appellants were ordered to pay the Respondent damages for defamation in the sum of RM200,000.00. The 1st Appellant was further ordered to pay the sum of RM76,000.00 being the outstanding salary and directorship’s fee totaling RM2,000.00 per month from August 2012 to date of judgment. Costs and interests were also ordered against the Defendants. [2] Having perused the records of appeal, the written submissions filed herein and having heard the arguments of both learned Counsel for the Respondent and the Appellants we allowed the appeal with costs of RM30,000.00 here and below. [3] Our reasons for doing so now follow. 3 [4] For ease of reference the parties will be referred to as they were described in the High Court. BRIEF BACKGROUND FACTS [5] The 1st Defendant is a company incorporated under the Companies Act 1965 which deals with wholesale and retail sales of automotive parts, batteries and accessories. [6] The 1st Defendant was established by both the Plaintiff and the 2nd Defendant on 16th June 2010. [7] The Plaintiff is a director and the Sales Manager of the 1 st Defendant, who holds 40% shares of the 1st Defendant. The 2nd Defendant is also a director of the 1st Defendant who holds 60% of the shares. The Plaintiff’s monthly basic salary is RM1,500.00 plus RM500.00 as directorship fee. [8] On 29th March 2011, one Ong Bee Wah was appointed as another director of the 1st Defendant and in 2013, the 2nd Defendant sold one of his shares to Ong Bee Wah at RM1.00. [9] On 15th January 2013, the 1st Defendant had caused a notice to be published in the Sin Chew Newspaper (“the impugned Notice”) in Mandarin, which was translated to Bahasa Malaysia as follows: 4 “Dengan ini memberi Notis bahawa Pemegang Saham Syarikat kami iaitu CHOR TSE MIN (K/P No. 730217-07-5357) telah pada bulan September 2012 meletak jawatan. Oleh yang demikian mulai dari tarikh tersebut beliau tidak mempunyai sebarang hak atau kuasa untuk mewakili Syarikat kami dalam apa jua urusniaga dan juga untuk mengutip/memungut apa-apa wang. Juga dalam tempoh masa 3 hari ini Penama dikehendaki melaporkan diri ke Pejabat ini untuk menyelesaikan segala masalah berhubung dengan Syarikat kami. Jikalau tidak segala akibatnya hendaklah ditanggung oleh Penama sendiri. Dengan ini disiarkan Notis ini untuk makluman. YOKOMASU MARKETING SDN BHD (904778) 113, 115 & 117, Jalan Kota Permai, Taman Kota Permai, 14000 Bukit Mertajam, Penang. 13/1/2013” [10] According to the Plaintiff, the impugned Notice was calculated to expose the Plaintiff to hatred, ridicule or contempt in the mind of a reasonable man. The Plaintiff further contended that a cursory reading of the impugned Notice would obviously mean that the Plaintiff is an unethical and dishonest businessman. [11] On 21st November 2013, the Plaintiff brought a civil suit for defamation against the 1st and 2nd Defendants seeking for, amongst others, the following reliefs: (a) his outstanding monthly salary of RM2,000.00 including his directorship fees of RM500.00 from August 2012 until the date of judgment; 5 (b) general damages; (c) aggravated damages; and (d) a formal apology by the Defendants to the Plaintiff in Sin Chew Newspaper and the Star Newspaper within 7 days of the date of judgment. IN THE HIGH COURT The Plaintiff’s Case [12] The Plaintiff’s case is summarized as follows: (a) The impugned Notice which was published in Sin Chew Newspaper on 15th January 2013 is defamatory of the Plaintiff. The words in the impugned Notice as particularized at paragraph 9 of the Amended Statement of Claim were calculated to expose the Plaintiff to hatred, ridicule or contempt in the mind of reasonable man; (b) It was further contended that the words in the impugned Notice were false and in its ordinary and natural meaning bore the imputation that the Plaintiff is devoid of integrity; (c) The Defendants had failed to plead any recognizable defences provided under the Defamation Act 1957; 6 (d) The impugned Notice was made to cause clients and employees of the 1st Defendant as well as friends, family and the general public to have a perception that the Plaintiff is a cheat, dishonest, unreliable, incompetent, undignified, and a problematic person; (e) The words published in the impugned Notice were untrue, confusing and defamatory to the Plaintiff as the words in their usual and ordinary meaning implied that the Plaintiff is unethical and devoid of integrity; and (f) The 2nd Defendant had deliberately and unlawfully interfered in the business between the Plaintiff and the 1st Defendant. The Defendants’ Case [13] In brief, the Defendants’ case is as follows: (a) The 1st and 2nd Defendants are two separate legal entities and the Plaintiff’s claim against the 2nd Defendant for his outstanding salary is unmaintainable; (b) Prior to the current proceedings, the Plaintiff had brought a complaint to the Labour Department for unlawful termination. As a result, the 1st Defendant was ordered to pay a sum of RM1,500.00 as full and final settlement. Therefore, Plaintiff 7 cannot bring another claim for his outstanding salary against the 1st Defendant; (c) The 2nd Defendant did not publish or cause to publish the impugned Notice as the Notice only bore the name of the 1st Defendant; and (d) The impugned Notice did not accuse the Plaintiff of any wrongdoing as the words used in their usual and ordinary meaning are not defamatory to the Plaintiff. FINDINGS OF THE LEARNED JC [14] The learned JC made the following findings: Defamation (a) The burden of proof lies on the Plaintiff to show: (i) the words are defamatory; (ii) the words refer to Plaintiff; and (iii) the words were published. (b) The impugned Notice can be summarized as: (i) Plaintiff resigned from the 1st Defendant company in September 2012; 8 (ii) Plaintiff had no authority or rights to represent the 1st Defendant or to make any collection of payment on behalf of the 1st Defendant with effect from September 2012; (iii) Plaintiff had to report to the 1st Defendant’s office to settle all problems pertaining to the 1st Defendant and if the Plaintiff failed to do so, the Plaintiff would bear all the consequences. Defamatory Words (a) The learned JC was of the view that the impugned Notice bore the imputation that the Plaintiff was a person who had created problems in the 1st Defendant and had resigned on September 2012. The Court found the impugned Notice would lower the Plaintiff in the estimation of right-thinking members of society. Therefore, the words used were defamatory. (b) As there was no dispute that the publication was referring to the Plaintiff and that the impugned Notice was published, the burden then shifted to the Defendants to raise their defence in accordance with the law. (c) The Defendants pleaded that the publication of the impugned Notice was not caused by the 2nd Defendant and in the 9 alternative, the words used were not defamatory of the Plaintiff. (d) The learned JC noted that based on the evidence of the 2nd Defendant, the Plaintiff did not resign as Director of the 1st Defendant and at no time did the 1st Defendant terminate or remove the Plaintiff as the Director. The Plaintiff had also attended the Board of Directors’ Meeting on 15 th March 2013, which was after the publication of the Notice. At the meeting, nothing was mentioned with regards to the Plaintiff’s resignation or removal. (e) Therefore, the learned JC came to the conclusion that the publication of the impugned Notice on 15th January 2013 was made with malice and had caused injury to the Plaintiff’s reputation. (f) With regard to 2nd Defendant’s defence that the impugned Notice was not caused by the 2nd Defendant, the learned JC was of the view that the impugned Notice was caused by the 2nd Defendant. This is because, the 2nd Defendant is the largest shareholder of 60%, is the Managing Director and signed most of the cheques issued by the company. In fact, the 2nd Defendant had signed the cheque, being payment for the impugned Notice in the Sin Chew Newspaper. 10 (g) In addition, the 2nd Defendant had made a police report, reporting that the Plaintiff was missing since October 2012 together with the company’s Toyota Hilux, company’s payments, receipt book and delivery orders. The learned JC found both Defendants were liable for the said defamation. Unlawful Interference (a) The Plaintiff also pleaded the tort of deliberate interference of the Plaintiff’s interest by unlawful means. (b) The learned JC found there was no clear evidence to show the unlawful interference by the 2nd Defendant in the business between the Plaintiff and the 1st Defendant. The fact is, the 2nd Defendant is the Managing Director holding 60% of the shares and as such, he will not deliberately do something that will affect the business of the 1st Defendant. (c) The learned JC found the Plaintiff had failed to prove unlawful interference. Plaintiff’s Outstanding Salary and Directorship Fee (a) The Plaintiff’s basic salary is RM1,500.00 and his director’s fee is RM500.00. The Plaintiff had not been paid his salary and director’s fee since August 2012. 11 (b) The Order dated 28.03.2014, granted by the Labour Department was only an order for the 1st Defendant to pay the Plaintiff’s basic salary and it does not relate to the Plaintiff’s termination or removal. (c) The learned JC found, the Plaintiff had established his claim for his outstanding salary and director’s fee. Since the 1st Defendant and the 2nd Defendant are two separate legal entities, the liability to pay for the outstanding salary and director’s fee to be borne by the 1st Defendant only. Damages (a) The learned JC found the Defendants had defamed the Plaintiff. Hence the Plaintiff would be entitled to damages. After considering all relevant factors, the learned Judge awarded the sum of RM200,000.00 to the Plaintiff as damages. (b) The learned JC ordered as follows: (i) The Defendants to pay damages of RM200,000.00 to Plaintiff for the defamation; (ii) The 1st Defendant to pay the outstanding salary and director’s fee in a sum of RM2,000.00 per month from 12 August 2012 until the date of judgment, all amounting to RM76,000.00; (iii) Payment of interest at 4% per annum on the total judgment sum from the date of filing of the suit until date of judgment and 5% per annum from the date of judgment until full realization; and (iv) Costs of RM20,000.00 to the Plaintiff. OUR DECISION The law [15] We were mindful of the limited role of the appellate court in relation to findings of facts made by the court of first instance. [16] In the course of that, we had sought guidance from the very often quoted case of Lee Ing Chin @ Lee Teck Seng v Gan Yook Chin [2003] 2 MLJ 97 where the Court of Appeal held as follows: “an appellate court will not, generally speaking, intervene unless the trial court is shown to be plainly wrong in arriving at its decision. But appellate interference will take place in cases where there has been no or insufficient judicial appreciation of the evidence.” 13 [17] Reference is also made to the decision of the Federal Court in Gan Yook Chin v Lee Ing Chin @ Lee Teck Seng [2004] 4 CLJ 309 where the Federal Court held that the test of “insufficient judicial appreciation of evidence” adopted by the Court of Appeal was in relation to the process of determining whether or not the trial court had arrived at its decision or findings correctly on the basis of the relevant law and the established evidence. [18] In the above case, the Federal Court had also stated, the Court hearing the appeal is entitled to reverse the decision of the trial judge after making its own comparisons and criticisms of the witnesses and of its own view of the probabilities of the case. It is also entitled to examine the process of evaluation of the evidence by the trial court and reverse the decision if it is wrong. [19] At the end of the case, the trial judge has a duty to explain how the said court had come to its findings and/or how it appraised the evidence and issues which will determine the outcome of the case before it. In doing so the Judge need not explain or identify every factor that he had considered. If the learned Judge failed to do so, his decision can be set aside (see English v Emery Reimbold & Strick Ltd, DJ & C Whithers (Farms) Ltd v Ambic Equipment Ltd, Verrechia (trading as Freightmaster Commercials) v Commissioner of Police Metropolis [2002] EWCA Civ 605, [2002] 3 ER 385). [20] The appellate court must be slow to interfere with the findings made by the trial court unless if it be shown there was no judicial appreciation 14 of the evidence adduced before it (see Hamit Matusin & Ors v Penguasa Tanah dan Survey & Anor Appeal [2006] 2 CLJ 251; Tay Kheng Hong v Heap Moh Steamship Co Ltd [1964] MLJ 87). The Appeal Before Us [21] The Plaintiff’s case against the Defendants was premised on the tort of defamation. The Plaintiff pleaded that the Defendants had caused the impugned Notice to be published on 15th January 2013 in Sin Chew Newspaper (see paragraph 8 of the Plaintiff’s Amended Statement of Claim dated 21st November 2013 (“ASOC”)). [22] According to the Plaintiff the words in the impugned Notice, in their natural and ordinary meaning meant and were understood to mean, the meanings as ascribed by the Plaintiff in paragraphs 12 and 13 of his ASOC (see pages 46 to 48 of the Core Bundle). These words according to the Plaintiff, imputed that the Plaintiff is a cheat, dishonest, unreliable, incompetent, undignified, and a problematic person. The words as particularized at paragraph 8 of the ASOC were calculated to expose the Plaintiff to hatred, ridicule or contempt in the mind of reasonable man. [23] It was further contended that the words in the impugned Notice were false and in its ordinary and natural meaning bore the imputation that the Plaintiff is devoid of integrity. The impugned Notice was issued with malice intent, published and circulated. 15 [24] In a defamation case, such as this, the learned JC has a duty to rule on the three essential ingredients of the tort of defamation before he proceeds to decide on the defences pleaded by the Defendants, if any. Firstly, the learned JC ought to determine if the impugned Notice was capable of bearing the defamatory meaning as ascribed in paragraph 13 of the ASOC. Secondly the learned JC ought to examine if the impugned Notice referred to the Plaintiff. Lastly the learned JC ought to decide if the impugned Notice was published to a third person (see Ayob Saudi v TS Sambanthamurthi [1989]1 CLJ (Rep) 321). (also see Rahman Talib v Seenivasagam & Anor [1965] 31 MLJ; Kian Lup Construction v Hong Kong Bank Malaysia Bhd [2002] 7 CLJ 32; Syed Husin Ali v Sharikat Penchetakan Utusan Melayu Berhad & Anor [1973] 2 MLJ 56; Tun Datuk Patinggi Haji Abdul Rahman Ya’kub v Bre Sdn Bhd & Anor [1996] 1 MLJ 393). [25] The test to be applied has been laid down in the case of Chok Foo Choo v The China Press Bhd [1999] 1 CLJ 461 (Chok Foo Choo), where the Court held that in order to ascertain if the words complained of are defamatory of the plaintiff, one has to examine if the words complained of in their natural and ordinary meaning “impute to the plaintiff any dishonourable or discredible conduct or motives or a lack of integrity on his part?”. If the answer is in the affirmative, the words complained of is defamatory of the Plaintiff. The Court in Chok Foo Choo stated as follows: 16 “In my judgment, the test which is to be applied lies in the question: do the words published in their natural meaning impute to the Plaintiff any dishonourable or discredible conduct or motives or a lack of integrity on his part? If the question invites affirmative response, then the words complained of are defamatory.” [26] Guided by the above authority, our next task is to examine, if the impugned Notice in its ordinary and natural meaning, imputes to the Plaintiff that he is a cheat, dishonest, unreliable, incompetent, undignified, and a problematic person as ascribed in paragraphs 12 and 13 of the ASOC and/or whether the impugned Notice was likely to expose the Plaintiff to hatred, ridicule or contempt in the mind of reasonable man as claimed. In short, whether the words in the impugned Notice in its ordinary and natural meaning bore the meaning that the Plaintiff is devoid of integrity. [27] Upon perusal of the impugned Notice, we found that the said Notice was published by the 1st Defendant to notify its clients specifically and the public at large the following: (a) the Plaintiff had resigned from the 1st Defendant in September 2012; (b) from September 2012, the Plaintiff had no right or authority to represent the 1st Defendant and/or to have any dealings whatsoever with the 1st Defendant’s clients and/or to collect any payments due to the 1st Defendant from its clients; and 17 (c) the Plaintiff was required to report for duty at the 1st Defendant’s office within 3 days from the date of the impugned Notice to resolve all issues with the 1st Defendant, otherwise the Plaintiff would be personally liable. [28] We were of the view that the impugned Notice would have to be examined in the light of the events, facts and/or circumstances leading to the publication of the same. The evidence before the learned JC showed the following, which prompted the 1st Defendant to cause the said impugned Notice to be published on 15th January 2013: (a) the Plaintiff had not been coming to work at the 1st Defendant since August 2012; (b) the Plaintiff collected monies from the 1st Defendant’s clients but had failed to deposit the same to the 1st Defendant’s account and/or to hand over the collections to the 1st Defendant and/or to account for the same; (c) the Plaintiff failed to report at the 1st Defendant premises to carry out carry out his duties and responsibilities as a Sales Manager and/or Director; (d) various attempts were made by the Defendants, either vide letters or phone calls to locate the Plaintiff, however the Plaintiff could not be located and/or contacted. Even if he could be contacted he appeared to be evasive. In fact the 18 Plaintiff had abandoned his position as a Sales Manager in the 1st Defendant; (e) despite a notice of demand having been issued by the 1st Defendant to request the Plaintiff to pay the sum of RM2,412.25 belonging to the 1st Defendant which the Plaintiff had collected from the 1st Defendant’s clients, the Plaintiff failed to respond to the same; (f) the Plaintiff had taken along with him assets belonging to the 1st Defendant, a Toyota Hilux Car bearing Registration Number PKF 2623, a HTC Wildfire handphone and a GPS device. As a result of the Plaintiff’s action in taking the vehicle from the 1st Defendant, Public Bank had repossessed the vehicle and sued the 1st Defendant for the balance of the monies still due and owing under the hire purchase agreement; (g) due to the Plaintiff’s failure to report for work, the 1st Defendant had problems filing its 2012 Financial Statements with the CCM on or by 31st August 2012; (h) the Plaintiff turned up for the Board of Directors’ meeting on 15th March 2013 only after the impugned Notice had been published on 15th January 2013; and (i) a Police Report was lodged on 21st December 2012. 19 [29] Having examined the words of the impugned Notice, we were satisfied that to our mind any ordinary person reading the impugned Notice would not assume anything defamatory of the same. The impugned Notice did not accuse the Plaintiff of any wrongdoing. Instead he was required to contact the 1st Defendant to settle outstanding issues between them. The words of the impugned Notice definitely did not have the effect and/or the meaning as ascribed by the Plaintiff in paragraphs 12 and 13 of the ASOC. [30] From the events we outlined in paragraph 27 above, the reason for the impugned Notice to be published was to locate and/or track down the Plaintiff who had, since August 2012 gone missing, to enable the Defendants resolve outstanding issues between the Plaintiff and the Defendants. The publication of the impugned Notice was the best avenue and/or the last resort for the Defendants to locate the Plaintiff. [31] We observed, despite the events as outlined by us in paragraph 27 above, the learned JC chose to ignore these glaring facts and proceeded to give extensive meanings to the words in the impugned Notice which meanings are unsubstantiated in law and on the facts. We were therefore satisfied that the learned JC had failed to fully appreciate the facts and evidence before him when he ruled that a case for defamation had been made out against the Defendants on the standard required in law. [32] With respect to the award of RM76.000.00, we were of the view that the learned JC had erred in ordering the 1st Defendant to pay the Plaintiff the sum of RM2000.00, being the Plaintiff’s salaries and director’s fee 20 when there was clear evidence before His Lordship that the Plaintiff had failed to report for work since August 2012. The Plaintiff had by his own admission testified that he was wrongfully terminated and a default order was made by the Labour Court dated 28th March 2012, wherein the 1st Defendant was ordered to pay the Plaintiff the sum of RM1500.00 being the full and final payment for the Plaintiff’s claim for wrongful termination. Alternatively, we were of the view, at most, the Plaintiff is only entitled to his director’s fee. [33] Based on the aforesaid, we fully agree with the contention of the Defendants that there is duplicity of claim here. Hence the same ought to be rejected by the Court. DAMAGES [34] In the event, for some reasons, we were wrong in resolving the case at hand in the manner we did, and assuming a case had been made out against the Defendants for defamation, we found that the award of RM200,000.00 as general and aggravated damages excessive. In awarding damages for a claim founded on defamation we were guided by the established authorities enunciated by the higher courts. One such case which is often quoted by the courts across the country is the case of Chin Choon v Chua Jui Meng [2005] 2 CLJ 569 where His Lordship Justice Sri Ram JCA had made reference to the book entitled “Defamation Law, Procedure & Practice” by Price & Doudu 3 rd Edition at page 208 which had laid down the principles to guide the court in assessing compensatory damages for defamation cases as follows: 21 (a) the gravity of the allegation; (b) the size and influence of circulation; (c) the effect of publication; (d) the extent and nature of claimant’s reputation; (e) the behavior of the defendant; and (f) the behavior of the claimant. [35] Perhaps it would be appropriate at this juncture for this Court to examine the pattern and/or trend of damages awarded by the courts, in order to ascertain what would be a fair and suitable damages to be awarded to the Plaintiff. In Chin Choon v Chua Jui M eng [2005] 2 CLJ 569 for instance where the defamation case involved a Cabinet Minister, the Court of Appeal saw it fit to reduce the award of damages of RM1.5 million to only RM200,000.00. The Court ruled that the award of RM1.5 million awarded by the High Court was excessive. In AJA Peter v OG Nio & Ors [1979] 1 LNS 1; [1980] 1 MLJ 226 which case concerned a claim by an insurance supervisor of an insurance company against another agency supervisor, the award of damages of RM15,000.00 was reduced to RM9,000.00. [36] The amount of damages to be awarded by the Court in each case depends on the facts and the circumstances of the case. Looking at the facts of this case and the status of the Plaintiff, we were of the view that the sum of RM200,000.00 is rather excessive. Even assuming we were wrong in our appreciation of the facts and the law, and that the 22 Defendants are liable for the tort of defamation, we were of the view that a global figure RM50,000.00 for general and aggravated damages would be adequate to vindicate the Plaintiff to the public and console him for the wrong done to him by the Defendants. CONCLUSION [37] Having examined the pleadings, the notes of proceedings, and having heard the respective learned Counsel, we found that the learned JC had not given sufficient judicial appreciation of the evidence both testimonial and documentaries as well as the established principles of law concerning the tort of defamation. We were constrained to hold that the learned JC had failed to judicially appreciate the evidence and/or the law presented before him so as to render his decision plainly wrong and upon curial scrutiny it merits our appellate intervention. Hence, we unanimously allowed this appeal and set aside the order of the learned JC dated 29th September 2015 with costs of RM30,000.00 herein and below subject to payment of allocator fees. The deposit is refunded to the Plaintiff. signed (ASMABI BINTI MOHAMAD) Judge Court of Appeal, Malaysia Dated 10th November 2017 23 Parties: 1. Messrs Anoop & See Advocate & Solicitor For and on Behalf of the Appellant No. 55-12-B, Menara Northam Jalan Sultan Ahmad Shah 10050 George Town Pulau Pinang [Ref: L 5560] … Mr. Venodjit Singh 2. Messrs Jeevaretnam & Co Advocate & Solicitors For and on Behalf of the Respondent Suite 201 21, Beach Street 10300 Pulau Pinang [Ref: No. JV/CO/053/2013/hzh] … Mr. J. Shamesh (Ms. Charlotte Williams with him)

Tika 2.6.0

41LB-44/7-2016

PERAYU PUBLIC PROSECUTOR RESPONDEN 1. MOO HE HONG 2. MOO WEE KEONG …. RESPONDEN TS

10/11/2017

YA DATO' ABU BAKAR BIN JAIS

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=d7bf4a4b-8159-41ca-b9b7-71dd78972d7f&Inline=true

1 DALAM MAHKAMAH TINGGI MALAYA DI SEREMBAN DALAM NEGERI SEMBILAN DARUL KHUSUS, MALAYSIA RAYUAN JENAYAH NO.: 41LB-44/7-2016 PUBLIC PROSECUTOR .…APPELANT VS 1. MOO HE HONG 2. MOO WEE KEONG ….RESPONDENTS GROUNDS OF JUDGMENT Though violence is not lawful when it is offered in self-defence or for the defence of the defenceless, it is an act of bravery far better than cowardly submission. The latter befits neither man nor woman. Under violence, there are many stages of bravery. Every man must judge this for himself. No other person can or has the right. - Mahatma Gandhi Introduction 1. This an appeal by the Public Prosecutor against the decision of the learned Magistrate to acquit and discharge the two accused persons at the end of the prosecution’s case for an offence under s. 304A of the Penal Code. This written judgment among others would discuss private defence as raised by both the accused and whether in raising this defence, this court should also recognise 2 the extreme situation and the mental condition faced by both when the offence is alleged to have occurred. The elements of the offence are also discussed. Also highlighted is whether there is a need to call for the defence first at the end of the prosecution’s case before that private defence can be considered by the learned Magistrate. Material Facts 2. Both accused in this case had faced the criminal charge of rashly, with common intention causing the death of one Chinese male. The specific charge reads as follows: Bahawa kamu bersama-sama pada 24.2.2015 jam lebih kurang 12.30 pagi berhampiran dengan rumah No A113, Kampung Cina Tambahan, Air Kuning Selatan, Gemenceh dalam Daerah Tampin, di dalam Negeri Sembilan dengan niat bersama kamu telah melakukan satu perbuatan gopoh hingga menyebabkan kematian ke atas seorang lelaki Cina nama: Chan Boon Poh (No K.P. 661216-01-5809) berumur 48 tahun. Oleh yang demikian, kamu telah melakukan suatu kesalahan yang boleh dihukum di bawah seksyen 304(A) Kanun Keseksaan dan dibaca bersama seksyen 34 Akta yang sama. [Emphasis Added] 3. The above is translated in English as follows: That both of you on 24.2.2015 about 12.30 am near the house No A113, Kampung Cina Tambahan, Air Kuning Selatan, Gemenceh in the District of Tampin in Negeri Sembilan with common intention had committed a rash act that caused 3 the death of a Chinese male: Chan Boon Poh (I.C. No 66121- 01-58090) aged 48 years old. Therefore, both of you had committed the offence that could be punished under section 304(A) of the Penal Code read together with section 34 of the same. [Emphasis Added] 4. In turn, s. 304A of the Penal Code reads as follows: Causing death by negligence Whoever causes the death of any person, by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment for a term which may extend to two years, or with fine, or with both. 5. And s. 34 of the Penal Code states: When a criminal act is done by several persons, in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if the act were done by him alone. 6. The first accused is the father of the second accused. The victim of the above alleged offence had tried to rob the wife of the first accused and the mother of the second accused at their house. This fact was adduced through the Investigating Officer who testified that investigation papers pertaining to the attempted robbery had been opened by the police. The first accused’s wife had been injured by the victim of the alleged offence in his attempt to rob her and a knife as the weapon to inflict the injury had been recovered. A picture of her hand being hurt was shown as exhibit. A picture of 4 her lying in bed with her hand and upper arm being heavily bandaged is also an exhibit. Another exhibit is the picture of the heavily tattooed body of the victim lying dead. 7. The first accused and the second accused apprehended, restrained and struggled with the victim of the alleged offence, during the attempted robbery. Both accused said they acted in self-defence. 8. There is no dispute that the victim’s death was caused by injury on the victim’s chest by a blunt object resulting in contusion on both sides of the victim’s lung. This is adduced through the pathologist. Learned Magistrate’s Decision 9. In her written grounds of judgment, the learned Magistrate found the following: (a) no prima facie case at the end of prosecution’s case, thus both accused were acquitted and discharged; (b) the prosecution had proven the death of the victim; (c) the death of the victim was because of the injury sustained; (d) PW 8 saw the physical altercation between the victim and both accused; (e) both accused had defended themselves because: 5 (i) the victim had attacked and inflicted serious injury on the wife of the first accused and mother of the second accused; (ii) the victim had a weapon and had tried to rob the first accused’s wife and second accused’s mother; (iii) the incident occurred in the middle of the night and both accused defended the first accused’s wife and second accused’s mother as the victim was violent in hurting her; (f) the victim was not beaten after he was made to lie down and tied. (g) based on the evidence of the witnesses, both accused had defended themselves (private defence); (h) the investigating officer had opened an investigating paper for attempted robbery; (i) a weapon was recovered that was used by the victim; (j) the wife of the first accused and mother of the second accused suffered injuries; (k) both accused had defended their wife and mother respectively from further serious injuries and both had defended themselves; 6 (l) s. 100 of the Penal Code for private defence was applicable for both accused; (m) the strike by first accused on the victim’s chest and the second accused action of holding the victim to stop the victim’s action were appropriate and reasonable; (n) the actions of both accused were appropriate based on s. 100 of the Penal Code to stop the victim from further acting aggressively to hurt others before the arrival of police; (o) no evidence from witnesses to suggest both accused had stamped on the victim strongly or used any force on the chest of the victim after he was tied; (p) what was available was only the evidence that showed the second accused sat on the victim’s back after he was tied; (q) there was serious conflicting evidence by witnesses exactly where on the back did the second accused sat on the victim; (r) in law when there is more than one inference, then the inference in favour of the accused should be applied; (s) the prosecution had failed to prove the element that there was common intention by both accused that caused the death of the victim by a rash act. 7 Prosecution’s Submission 10. The Prosecution in its written submission for the appeal contended the following elements of s. 304A of the Penal Code have been satisfied: (a) the death of the victim; (b) the death of the victim was caused by the injury sustained and (c) both accused with common intention rashly or negligently caused the death of the victim not amounting to culpable homicide. 11. It is also contended that a prima facie case has been made out. As such, the defence of both accused should have been called. 12. The pathologist testified that the contusion could have been caused by a blunt object on the chest of the victim. A strong physical blow on the back of the victim could cause injuries to the lung of the victim. 13. The prosecution also contended the evidence of witnesses too supports the case that both accused had caused the death of the victim rashly. 8 Defence’s Submission 14. The defence in turn in its written submission argued that the three elements in respect of s. 304A are: (a) the death of a person has been caused; (b) death had been caused by rash or negligent act and (c) such act must not amount to culpable homicide. 15. The defence also contended that that there was conflicting evidence by the prosecution’s witnesses as to whether the first accused had sat exactly on the back or merely on top of the buttocks of the victim. Therefore, there is serious doubt at which part of the victim’s body was the fatal injury inflicted. 16. It is also contended the facts showed both accused were acting in self-defence. Hence the learned Magistrate was entitled to find private defence under s. 100 of the Penal Code. The Agreed Proven Elements 17. For the first element for both the prosecution and defence, there is no dispute that this is proven. There is also no dispute that the victim’s death had been caused through the injury sustained. There is also no dispute that the death does not amount to culpable homicide. 9 The Disputed Element 18. From both sides’ written submissions, this court found the following were disputed; (a) did both accused caused the injury resulting in the victim’s death and (b) whether the death of the victim was caused by a rash or negligent act of both accused. Other Important Element 19. This court also found that apart from the above elements, the element of common intention as stipulated in the charge must also be proven. As indicated earlier the prosecution conceded the need to prove both accused with common intention rashly or negligently caused the death of the victim not amounting to culpable homicide. The important element here is common intention. Was there common intention by both accused to cause the death of the victim by a rash act? This question is answered in the negative as elaborated in short while. This Court’s Analysis and Decision A. Finding of facts by learned Magistrate 20. It is important to begin by reminding ourselves the cardinal and trite principle that the trial court’s finding of facts should not without 10 cogent reasons be disturbed. The learned Magistrate was given the privilege unlike appellate courts to listen to witnesses who had testified in this case. For this, the learned Magistrate enjoyed the testimony of the witnesses to form whatever finding of facts that was made. Therefore, appellate courts should not in this regard be over-zealous to find fault on the finding of facts made by the lower courts. In support of this trite principle, there is the Court of Appeal’s case of Periasamy s/o Sinnapan & Anor v Public Prosecutor [1996] 2 MLJ 557 that extensively explains as follows: In the state of the law, what was the duty and function of the learned judge on appeal? His duty and function have been the subject of discussion in a great many cases and for purposes we find it sufficient to refer to two of these. In Lim Kheak Teong v PP [1985] 1 MLJ 38, the sessions court acquitted the accused on two charges under the Prevention of Corruption Act 1961, after having heard his defence. On appeal, the High Court set aside the order of acquittal and substituted therefor an order of conviction. The accused applied under the now repealed s 66 of the Courts of Judicature Act 1964 to reserve a question of law. In allowing the application and quashing the conviction, the Federal Court, whose judgment was delivered by Hashim Yeop Sani FJ (later CJ, Malaya) said (at pp 39-40): ... we gave leave because firstly we felt that there was no proper appraisal of Sheo Swarup v King- Emperor AIR 1934 PC 227 and secondly purporting to follow Terrell Ag CJ in R v Low Toh Cheng [1941] MLJ 1, the appellate judge went into http://www.lexisnexis.com/my/legal/search/runRemoteLink.do?A=0.9393454209787317&bct=A&service=citation&risb=21_T26757082518&langcountry=MY&linkInfo=F%23MY%23MLJ%23vol%251%25sel1%251985%25page%2538%25year%251985%25sel2%251%25 http://www.lexisnexis.com/my/legal/search/runRemoteLink.do?A=0.413186144747563&bct=A&service=citation&risb=21_T26757082518&langcountry=MY&linkInfo=F%23MY%23MLJ%23sel1%251941%25page%251%25year%251941%25 11 conflict with the trend of authorities in similar jurisdictions. With respect, what Lord Russell of Killowen said in Sheo Swarup was that although no limitations should be placed on the power of the appellate court, in exercising the power conferred 'the High Court should and will always give proper weight and consideration to such matters' as: (1) the views of the trial judge on the credibility of the witnesses; (2) the presumption of innocence in favour of the accused; (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 at by a judge who had the advantage of seeing the witnesses. Lord Reid reiterated this same principle in Benmax v Austin Motor Co Ltd [1955] AC 370 at p 375 where he quoted from Lord Thankerton's judgment in Watt(or Thomas) v Thomas [1947] 1 All ER 582 that: 'Where a question of fact has been tried by a judge without a jury, and there is no question of misdirection of himself by the judge, an appellate court which is disposed to come to a different conclusion on the printed evidence, should not do so unless it is satisfied that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses, could not be http://www.lexisnexis.com/my/legal/search/runRemoteLink.do?A=0.11037777539134896&bct=A&service=citation&risb=21_T26757082518&langcountry=MY&linkInfo=F%23GB%23AC%23sel1%251955%25page%25370%25year%251955%25tpage%25375%25 12 sufficient to explain or justify the trial judge's conclusion.' The learned appellate judge held that the learned President had 'misdirected himself on the explanation of the accused.' Given the facts as stated in the appeal record, can it be said that there was a misdirection? Or can it be said that the decision of the learned President was 'plainly unsound'? (Watt (or Thomas) v Thomas). On the facts of this case we do not think so. In Wilayat Khan v State of Uttar Pradesh AIR 1953 SC 122 at pp 123 and 125, Chandrasekhara Aiyar J, when delivering the judgment of the Supreme Court said: Even in appeals against acquittals, the powers of the High Court are as wide as in appeals from conviction. But there are two points to be borne in mind in this connection. One is that in an appeal from an acquittal, the presumption of innocence of the accused continues right up to the end; the second is that great weight should be attached to the view taken by the sessions judge before whom the trial was held and who had the opportunity of seeing and hearing the witnesses. … Interference with an order of acquittal made by a judge who had the advantage of hearing the witnesses and observing their demeanour can only for compelling reasons and not on a nice balancing of probabilities and improbabilities, and certainly not because a different view could be taken of the evidence or the facts. 13 21. This principle is highlighted as there are several findings of facts by the learned Magistrate, as narrated to indicate certain specific element of the offence is not proven. For instance, one finding of fact is that there was serious conflicting evidence by witnesses as to the exact spot where the second accused had sat on the victim’s body. The learned Magistrate at page 10 of her grounds of judgment explained as follows: In this case PW 8 gave evidence that second accused sat in the middle of the victim’s back. PW 9 instead said that the second accused sat on the buttocks of the victim. While PW 10 said second accused sat on the neck of the victim. PW 11 said the second accused sat at the front part of the victim’s back. PW 13 said the second accused sat at the side of the victim’s buttocks. 22. First, these facts were found by the learned Magistrate after listening to the evidence of witnesses. She had first-hand opportunity to make her assessment and finding regarding an important issue i.e. where exactly did the second accused sat on the back of the victim. This is important for two reasons as follows: (a) there must be common intention by both accused to inflict the fatal blow on the victim and (b) as there were conflicting evidence where exactly the second accused had sat on the victim, certainly it was unjustified to call for the defence of the second accused as it was not certain whether he had indeed inflicted the injury that caused the victim’s death. 14 23. In finding there were conflicting evidence on this important issue, can the learned Magistrate be faulted? Can the learned Magistrate be said to have taken evidence there were not adduced and had made her own formulation, without justification? There is no evidence to suggest the learned Magistrate had wrongly made the finding of facts without basis. 24. In this regard, the learned Magistrate had correctly taken note of the case Public Prosecutor v Lee Eng Kooi [1993] 2 CLJ 534 on conflicting evidence led by the prosecution as follows: If in a case the prosecution leads two sets of evidence, each one of which contradicts and strikes at the other and shows it to be unreliable, the result would necessarily be that the Court would be left with no reliable and trustworthy evidence upon which the conviction of the accused might be based. Inevitably, the accused would have the benefit of such a situation. 25. On this limited finding of facts alone, the appeal of the prosecution could not stand. This is because two important elements had not been proven. First there is no common intention to inflict the fatal injury and second and more importantly, at least the second accused has not been proven to inflict the fatal injury. 26. Further is the finding of fact by the learned Magistrate that both accused under the circumstances of the case were exercising private defence (defending themselves and the first accused’s wife and second accused’s mother). Here too there is no reason to suggest that the learned Magistrate had no basis to make that finding of fact after hearing witnesses. This again makes the 15 present appeal by the prosecution pointless as the learned Magistrate has the right to make this finding of fact. 27. At the end of the prosecution case, the learned Magistrate had subjected the prosecution evidence to maximum evaluation in concluding there was no prima facie case. The learned Magistrate had carried out her duty as required by the Court of Appeal’s case of Looi Kow Chai & Anor v Pendakwa Raya (2003) 2 AMR 89 as follows: It is the duty of a judge sitting alone to determine at the close of the prosecution's case, as a trier of fact, whether the prosecution had made out a prima facie case. He must subject the prosecution evidence to maximum evaluation and ask himself whether he would be prepared to convict the accused on the totality of the evidence contained in the prosecution's case if he were to decide to call upon the accused to enter his defence and the accused had elected to remain silent. If the answer to that question is in the negative, then no prima facie case would have been made out and the accused would be entitled to an acquittal. B. Common Intention 28. The charge as narrated, requires the prosecution to prove common intention by both accused in doing a rash (“gopoh”) act that resulted in the death of the victim. Common intention would mean there is a pre-plan action in executing the rash act. It is accepted by this court common intention could be formed minutes or seconds before an offence is committed. It is not necessary that 16 the plan to jointly execute the action be discussed way before the commission of the offence. Common intention would in most cases be evident by the concerted, joint and similar action towards executing the offence. 29. In the present case, there are two connected elements to be proven in respect of common intention. These two elements are not exclusive or separate and they are as follows; (a) the meeting of minds to commit the rash act and (b) the rash act has resulted in the death of the victim. C. Whether there was concerted and joint action 30. The facts of this case need careful examination to see whether there was a concerted and joint action to denote the meeting of minds of both accused. This in turn is to determine whether there is common intention. 31. The Federal Court’s in the case of Ong Teik Thai v PP [2016] 7 CLJ 1 quoted the Indian Supreme Court’s case of Krishna Govind Patil v. State of Maharashtra, AIR 1963 SC 1413, where the following observation about section 34 of the Indian Penal Code was made regarding common intention (similar to our section 34 of the Penal Code): It is well settled that common intention within the meaning of the section implied a pre-arranged plan and the criminal act was https://www.lexisnexis.com/my/legal/search/runRemoteLink.do?A=0.6654497050381181&bct=A&service=citation&risb=21_T26703013580&langcountry=MY&linkInfo=F%23GB%23SC%23sel1%251963%25page%251413%25year%251963%25 https://www.lexisnexis.com/my/legal/search/runRemoteLink.do?A=0.7730804826430029&bct=A&service=citation&risb=21_T26703013580&langcountry=MY&linkInfo=F%23MY%23USM_PA%23act%25574%25section%2534%25 https://www.lexisnexis.com/my/legal/search/runRemoteLink.do?A=0.2015859305305432&bct=A&service=citation&risb=21_T26703013580&langcountry=MY&linkInfo=F%23MY%23USM_PA%23act%25574%25 https://www.lexisnexis.com/my/legal/search/runRemoteLink.do?A=0.8432812468910748&bct=A&service=citation&risb=21_T26703013580&langcountry=MY&linkInfo=F%23MY%23USM_PA%23act%25574%25section%2534%25 https://www.lexisnexis.com/my/legal/search/runRemoteLink.do?A=0.8636473144789282&bct=A&service=citation&risb=21_T26703013580&langcountry=MY&linkInfo=F%23MY%23USM_PA%23act%25574%25 17 done pursuant to the pre-arranged plan. The said plan may also develop on the spot during the course of the commission of the offence; but the crucial circumstance is that the said plan must precede the act constituting the offence. If that be so, before a court can convict a person under Section 302 read with Section 34, of the Indian Penal Code, it should come to a definite conclusion that the said person had prior concert with one or more other persons, named or unnamed, for committing the said offence… [Emphasis Added] 32. Bearing in mind, the above quotation, was there an understanding (common intention) to commit the offence by both accused? It must always be noted that the offence must be where the rash act had resulted in the victim’s death. (Please see the charge). So first it must be proven the type of rash act that cause the death and second whether both accused had pre-arranged to commit the same rash act. There cannot be separate rash actions by both, one causing the death and the other not. Also, there cannot be a rash act by one accused and the other is considered not a rash action by the other accused. The rash action or actions must be joint and concerted to cause the same fatal injury or injuries, in the event there are more than one injury that caused death. 33. Arising from the above, first, as explained, the victim’s death was caused by injury on the victim’s chest by a blunt object resulting in contusion on both sides of the victim’s lung. Second, what is the rash act that caused this injury? Third, did both cause the same rash act or acts? It may be two separate acts that was committed but these acts must be rash and had resulted in the death of the https://www.lexisnexis.com/my/legal/search/runRemoteLink.do?A=0.045034214486633806&bct=A&service=citation&risb=21_T26703013580&langcountry=MY&linkInfo=F%23MY%23USM_PA%23act%25574%25section%25302%25 https://www.lexisnexis.com/my/legal/search/runRemoteLink.do?A=0.8007492258241635&bct=A&service=citation&risb=21_T26703013580&langcountry=MY&linkInfo=F%23MY%23USM_PA%23act%25574%25section%2534%25 https://www.lexisnexis.com/my/legal/search/runRemoteLink.do?A=0.8007492258241635&bct=A&service=citation&risb=21_T26703013580&langcountry=MY&linkInfo=F%23MY%23USM_PA%23act%25574%25section%2534%25 https://www.lexisnexis.com/my/legal/search/runRemoteLink.do?A=0.972776619484089&bct=A&service=citation&risb=21_T26703013580&langcountry=MY&linkInfo=F%23MY%23USM_PA%23act%25574%25 18 victim. For instance, both accused could have given separate blows to a part of the body of the victim that resulted in his death. 34. In this case the facts showed that there was no concerted action or actions on the part of both accused which has caused the death of the victim. This is because the learned Magistrate found there was conflicting evidence on the exact spot the second accused had sat on the back of the victim. 35. As there was no concerted and joint action to commit the alleged rash act, common intention is not proven by the prosecution. Again, it ought to be stressed that as per the charge, there must not only be a rash act but the rash act must have resulted in the death of the victim. (Please see the charge). D. Was the action rash 36. Since the charge used the word “rash”, the natural and relevant question to ask, is this action rash? In a situation, as dire and potentially fatal to their wife and mother upon the attempted robbery by the victim on her, the action of both accused cannot be rash. Not only the victim attempted to rob the first accused ’s wife and the second accused’s mother, the victim had also inflicted injury to her during the attempted robbery. This seriously compounded the imminent danger on the life of the wife and mother of both accused. This is not to mention the lives of both accused in their attempt to rescue her. Facing that grave situation, can both accused be said to jointly commit a rash act? In the situation they were facing, this action cannot be held to be rash. In 19 fact, it is called upon them to take the action they did to save the life of someone very dear to them. This action of theirs is only a natural, spontaneous and expected measure which they have a responsibility to deploy for their wife and mother. Anyone in a similar situation would have done probably the same thing. 37. There is another aspect to the situation they were put in. It cannot be doubted that the situation they went through were precipitated by the victim himself. And the situation the victim had caused was quite unexpected and equally dire, not to mention potentially fatal. In such situation where the victim is the protagonist, a fast, urgent and spontaneous counter action is needed to frustrate the victim’s action. Also in such situation, it can be easily appreciated that extremely little time is afforded to defeat the victim’s action. Pushed and limited by this little time available, naturally hinders any man the luxury to properly exercise his mind to think of the best possible response. It is totally fallacious and unreasonable to expect both accused to be able to think in a measured way in handling the victim under the situation they were confronted with. Such situation brought about by the victim himself cannot at all justify a finding both accused were rash in frustrating the victim. 38. The explanation above means that the important element of the act being rash in the charge has not be proven by the prosecution. It is incumbent on the prosecution to prove that both accused ’s actions in dealing with the victim were rash. Unfortunately for the prosecution and fortunately for the defence, this has not been proven under the circumstances of the case as highlighted even on a prima facie basis. 20 E. Extent of purported rash action 39. The actions of both accused in respect of the charge should not in any way be construed to mean that they were at liberty to act in any manner as they wish. Of course, there are limits to what anyone can do. And this adage applies in every aspect of human existence, not only regarding the issue at hand of defending oneself or exercising private defence as discussed here. 40. However, the actions of both accused in this case, bearing in mind the acute, extreme and dangerous situation they were in, make it impossible to find them acting beyond what should have been done. It cannot fairly be decided that they actions were more than necessary. What kind of force or what amount of restrain should be exercised on the victim remains a guess, bearing in mind the limited time both accused had to assist and rescue the first accused’s wife and the second accused’s mother. Also, to be considered is the possibility of the victim inflicting more serious injuries, not only to her but also potentially to both accused themselves. Can anyone say under the circumstances of the case, their actions went beyond what is necessary and required? This court does not think anyone can do that. In any event, both accused should be given the benefit of the doubt when it is difficult to say whether they had acted reasonably or not. F. Did the purported rash action cause the victim’s death? 41. Further, as pointed out the prosecution must also prove that the purported rash act had caused the fatal injury. The finding that the 21 actions of both accused were not rash means there is no necessity to make a finding whether the rash act has resulted in the death of the victim. However, assuming for a moment, the act was indeed rash, let it be examined whether that rash act resulted in the death of the victim. In this regard, first as pointed out by the pathologist, the victim’s death was caused by injury on the victim’s chest by a blunt object resulting in contusion on both sides of the victim’s lung. Second there is no evidence to prove that any weapon was used by both accused to inflict injury on the victim’s chest. Consequently, did both accused cause the injury resulting in the victim’s death? 42. Regarding the above question, the defence argued that the evidence of the pathologist, PW7 was that if the fact showed both accused had merely sat on the victim in apprehending, restraining and struggling with the victim, this act would not have caused the death of the victim. There was no force used as contended by the defence, when the accused sat on the victim. The defence further contended the prosecution did not ask PW 7 that the injury resulting in the death of the victim can be caused by sitting on the back of the victim. 43. I agree that the prosecution should have posed more questions to PW 7 to establish that by sitting on the back of the victim, this would have meant inflicting the fatal blow on him. The doubt that remains as to whether both accused had caused the fatal injury of the victim should indicate that the prosecution had not proven a prima facie case that both accused indeed are responsible for that injury causing the victim’s death. 22 G. Ss. 96, 97, 99, 100, 102, 103 and 105 of the Penal Code 44. A complete defence is accorded to both accused in the circumstances of this case as provided for by s. 96 of the Penal Code that states: Nothing is an offence which is done in the exercise of the right of private defence. 45. Their actions against the victim, based on the facts of this case were necessary and has satisfied the requirement as indicated by Lord Morris of Borth-y-Gest in Palmer v The Queen [1971] 2 WLR 831 as follows: An issue of self-defence may of course arise in a range and variety of cases and circumstances where no death has resulted. The tests as to its rejection or its validity will be just the same as in a case where death has resulted. In its simplest form the question that arises is the question: Was the defendant acting in necessary self-defence? 46. Also relevant is s. 97 of the Penal Code that states: Every person has a right, subject to the restrictions contained in section 99, to defend his own body, and the body of any other person, against any offence affecting the human body… 47. The above provision is almost a carte blanche subject to s.99 of the Penal Code for both accused to defend themselves against the victim in this case and to defend the wife and mother of both accused. In this regard, the injury she had suffered during the https://www.lexisnexis.com/my/legal/search/runRemoteLink.do?A=0.6890437500755534&bct=A&service=citation&risb=21_T26737990283&langcountry=MY&linkInfo=F%23MY%23USM_PA%23act%25574%25section%2599%25 23 attempted robbery permits both accused not only to defend her body but also their own bodies as the victim needs to be restrained from further causing injuries, including to both accused themselves. 48. The only statutory qualification to the above provision is provided for in s. 99 (4) of the Penal Code that states: The right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence. 49. This court is fully aware of this provision and the above stipulation should never be taken as of lesser importance to any perceived extent of the sage words of the global icon quoted as a preface to this ground of judgment. As earlier indicated, both accused are not at liberty to act in any manner as they wish. 50. However, s. 100 of the Penal Code will show that in the circumstances of this case, both accused had not inflicted more harm than necessary on the victim. This provision states: The right of private defence of the body extends, under the restrictions mentioned in the last preceding section, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right is of any of the following descriptions: (a) such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault; 24 (b) such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault. 51. In this case even if the death of the victim ensued because of the action or actions of both accused, they would still be not liable as the victim had inflicted injury to the hand of the first accused’s wife and second’s accused’s mother. It is foreseeable that the victim during the attempted robbery might even cause death to the wife of the first accused and mother of the second accused. There is also that real possibility that because both accused came to her rescue, the victim in the haste of the moment could also cause the death of both accused. One should not forget that a deadly weapon in the form of the knife was used by the victim in this case. The very least, there was apprehension that more serious harm could be caused by the victim during the attempted robbery not only to her but to both accused who naturally had acted to protect her. Private defence allows them to even cause the death of the victim based on the facts of this case. 52. In the Federal Court case of Wong Lai Fatt v Public Prosecutor [1973] 2 MLJ 31, Ong CJ took to task the defence of the case for its failure to allude to this provision for private defence. The accused facing a murder charge in this case was acquitted by the Federal Court having regard to the fact that this defence as per the provision should have been considered to find him not guilty. 25 53. While s. 102 of the Penal Code further accords both accused protection although the offence by the victim might not have occurred at that time. This provision states: The right of private defence of the body commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence, though the offence may not have been committed; and it continues as long as such apprehension of danger to the body continues. 54. In elaborating ss. 99, 100 and 102 of the Penal Code above, the Federal Court in the case of Lee Thian Beng v Public Prosecutor [1972] 1 MLJ 248 said: Turning to the plea of private defence, section 99 of the Penal Code provides that the right of private defence in no case extends to the infliction of more harm than is necessary to inflict for the purpose of defence. Subject thereto, section 100 provides that the right of private defence extends to the voluntary causing of death or of any other harm to the assailant if the offence which occasions the exercise of the right be such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault. Section 102 provides that the right of private defence of the body commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence; and it continues as long as such apprehension of danger to the body continues 55. The circumstances of this case further protect both accused in the exercise of private defence as indicated by s. 103 of the Penal Code that states: 26 The right of private defence of property extends, under the restrictions mentioned in section 99, to the voluntary causing of death or of any other harm to the wrong-doer, if the offence, the committing of which, or the attempting to commit which, occasions the exercise of the right, is an offence of any of the following descriptions: (a) robbery. 56. The victim in this case as explained attempted to rob the wife and mother of both accused. Both accused actions involved private defence in respect of the property to be robbed by the victim. This provision suits the facts of the present case for the benefit of both accused. 57. Also, relevant under the circumstances of this case is the application of s.105 of the Penal Code that states: (1) The right of private defence of property commences when a reasonable apprehension of danger to the property commences (2) … (3) The right of private defence of property against robbery continues as long as the offender causes or attempts to cause to any person death, or hurt, or wrongful restrain, or as long as the fear of instant death, or of instant hurt, or of instant personal restraint continues. 58. Under both limbs of s. 105 of the Penal Code as narrated above, there can be no doubt based on the facts of this case, both accused are protected by private defence. https://www.lexisnexis.com/my/legal/search/runRemoteLink.do?A=0.07121712297320382&bct=A&service=citation&risb=21_T26738131671&langcountry=MY&linkInfo=F%23MY%23USM_PA%23act%25574%25section%2599%25 27 59. All the above provisions of the Penal Code as highlighted, afford a real defence to both accused. These provisions only prove that they cannot be called for their defence at the end of the prosecution case. H. Must the defence be called first before private defence be adduced 60. In the Public Prosecutor’s notice of appeal against the decision of this court, a question has been posed whether it is correct to dismiss the appeal without requiring the defence to be called first at the Magistrate Court, before both accused private defence could be considered. 61. This issue was never raised by the prosecution either at the Magistrate Court or when the appeal was heard by the High Court. This issue was only raised in the notice of appeal after the decision of the appeal was given by the High Court. In short with respect, this is a case of the prosecution being wiser after the event. This is fairly concluded as otherwise this issue would have been raised at the Magistrate Court or the very least at the High Court when the appeal was heard. 62. Further if we note the finding of facts of the learned Magistrate as narrated earlier, she has already found that both accused were defending themselves against the action of the victim. She was perfectly entitled to find this at the end of the prosecution’s case by listening to the evidence of witnesses at that stage. There is no 28 necessity for her to wait for the calling of both accused witnesses (including both accused) by calling for defence before private defence could be raised. 63. Hence this court believes there is no need to call for defence after the prosecution’s case before private defence is considered . This defence could still be established during the prosecution’s case through the facts adduced from the witnesses called at that stage. 64. The Court of Appeal in the case of Al Sarip bin Ambong v Public Prosecutor [2016] 3 MLJ 515 referred to the Indian book Gour’s Penal Law of India (11th Ed) and the Indian case of George v State of Kerala [1960] Cri LJ 589 on the proposition that the right of private defence does not need to be specifically pleaded by an accused. A person taking the plea of private defence is also not required to call evidence on his side, but he can establish that plea by reference to circumstances transpiring from the prosecution evidence itself. The question in such a case would be a question of assessing the true effect of the prosecution evidence and not a question of the accused discharging any burden. It is to be noted that the Court of Appeal in this case disagreed with the submission that the learned trial judge had indicated there is extra burden on the accused that he needs to tell someone after the incident that he was acting in self-defence. That means the proposition as highlighted in the Indian book and case law is accepted by the Court of Appeal. 29 65. Also, it has long been established that a defence can be raised even at the prosecution’s case. In the case of Wong Chooi v Public Prosecutor [1967] 2 MLJ 180, Azmi CJ said; … where a burden is placed on an accused person to prove anything, by statute or common law, the burden is only a slight one and this burden can be discharged by evidence of witnesses for the prosecution as well as witnesses for the defence. [Emphasis Added] 66. Further, even the presumptions raised for the benefit of the prosecution for drugs cases, can be rebutted before defence is called. In the case of PP v Lin Lian Chen [1991] 1 MLJ 316 this is explained as follows: It is trite law that statutory presumptions raised during the prosecution case may even be rebutted during the prosecution case itself. If the accused can raise credible evidence to rebut, on a balance of probability, the presumption of possession and trafficking in a dangerous drug at the close of the prosecution case, then he is entitled to an acquittal if at that stage no prima facie case is thereby established. 67. Again, in the case of Soo Seng Huat v Public Prosecutor [1968] 1 MLJ 80 it is said: It does not mean to say of course that a presumption cannot be rebutted merely from the prosecution evidence. It can. These three cases illustrate the point that it is not always necessary to call for the defence of the accused before any 30 defence is to be considered. Inversely, this proves the argument that even during the prosecution’s case, a defence for the accused could be taken into account. 68. In any event, in the present case, the issue posed by the Public Prosecutor in the notice of appeal is irrelevant because the elements of the offence by both accused as per the charge have not been proven. Conclusion 69. There is no reason to disturb the findings of facts of the learned Magistrate that both accused were protected by private defence in the circumstances of the case. The prosecution also failed to prove common intention by both accused. The actions of both accused based on the facts of this case also cannot justify a finding the same were rash. Even if the acts were rash, the same has not been proven to cause the injury that resulted in the death of the victim as there was conflicting evidence by the prosecution’s witnesses. Further, private defence could also be considered at the end of the prosecution’s case without the need to first call for the defence of both accused. 70. For the all the reasons explained, the Public Prosecutor’s appeal is dismissed and the order of the learned Magistrate to acquit and discharge both accused is affirmed. 31 Dated 10 November 2017 ABU BAKAR JAIS High Court Judge Seremban Parties: Deputy Public Prosecutor Rahimah Binti Abd. Majid for the Appellant State Legal Adviser’s Office Seremban Gobind Singh Deo and Mohd Haijan Omar for Respondents Messrs Gobind Singh Deo & Co

Tika 2.6.0

W-05(LB)-342-09/2016

PERAYU Pendakwa Raya RESPONDEN Lim Chee Kim

Undang-Undang Jenayah — Rayuan Pendakwa Raya — Perintah pembebasan dan pelepasan responden di akhir kes pembelaan — Melepaskan satu tembakan dengan niat menyebabkan kematian Mohd Rahmat bin Jul — Penafian oleh responden — Sama ada pembelaan berjaya membangkitkan keraguan munasabah ke atas kes pendakwaan — Akta Senjata Api (Penalti Lebih Berat) 1971 [Akta 37] s3A, 4, 8

10/11/2017

YA DATUK KAMARDIN BIN HASHIMKorumYA DATUK WIRA MOHTARUDIN BIN BAKIYA TAN SRI IDRUS BIN HARUNYA DATUK KAMARDIN BIN HASHIM

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=994b0b4d-3ca5-470e-9a77-a5f8c1e6f0b1&Inline=true

MRJ NO: W-05(LB)-342-09/2016 1 DALAM MAHKAMAH RAYUAN MALAYSIA DI PUTRAJAYA [BIDANGKUASA RAYUAN] RAYUAN JENAYAH NO: W-05(LB)-342-09/2016 ANTARA PENDAKWA RAYA … PERAYU DAN LIM CHEE KIM … RESPONDEN (Dalam Perkara Mahkamah Tinggi Kuala Lumpur Perbicaraan Jenayah No: 45D-56-07/2013 Antara Pendakwa Raya Lawan Lim Chee Kim) KORUM: MOHTARUDIN BIN BAKI, HMR IDRUS BIN HARUN, HMR KAMARDIN BIN HASHIM, HMR MRJ NO: W-05(LB)-342-09/2016 2 PENGHAKIMAN MAHKAMAH [1] Ini adalah rayuan Pendakwa Raya terhadap perintah pelepasan terhadap responden oleh Hakim Mahkamah Tinggi Kuala Lumpur (‘Hakim bicara’) atas satu pertuduhan di bawah seksyen 3A, Akta Senjata Api (Penalti Lebih Berat) 1971 (‘FIPA’). [2] Butir-butir pertuduhan (P3) terhadap responden ialah seperti berikut: “Bahawa kamu pada 27.8.2012 jam lebih kurang 6.30 pagi di Pusat Internet Café, No. 41 Jalan 1/32, Taman Jinjang Baru, Jinjang Selatan, di dalam daerah Sentul, di dalam Wilayah Persekutuan Kuala Lumpur sebagai rakan sejenayah telah bersama-sama dengan Lim Long Chuan ketika penama telah melepaskan satu tembakan dengan niat untuk menyebabkan kematian kepada Mohd Rahmat bin Jul dengan menggunakan senjata api jenis Smith & Wesson 32S ketika kamu dan Lim Long Chuan melakukan satu kesalahan berjadual iaitu rompakan. Oleh yang demikian kamu telah melakukan satu kesalahan di bawah Seksyen 3A Akta Senjata Api (Penalti Lebih Berat) 1971 dan boleh dihukum di bawah Seksyen yang sama dibaca bersama Seksyen 34 Kanun Keseksaan. MRJ NO: W-05(LB)-342-09/2016 3 [3] Kami telah mendengar rayuan Pendakwa Raya pada 5.9.2017 dan dengan sebulat suara kami telah membenarkan rayuannya. Perintah pelepasan terhadap responden telah diketepikan. Responden telah disabitkan dan dijatuhi dengan hukuman gantung dileher sehingga mati. Sekarang kami memperincikan alasan-alasan membenarkan rayuan Pendakwa Raya. Latar belakang fakta [4] Responden telah dibicarakan bersama seorang rakan jenayah, Lim Long Chuan (‘Lim’). Lim telah dipertuduhkan dengan satu pertuduhan di bawah seksyen 3 FIPA kerana telah melepaskan tembakan dari satu senjata api semasa melakukan rompakan. Pada masa kejadian rompakan dan tembakan tersebut dilepaskan oleh Lim, responden turut berada bersama Lim dan terlibat dalam rompakan tersebut. [5] Pada permulaan perbicaraan diadakan, Lim telah mengaku salah terhadap pertuduhan yang dihadapkan terhadapnya. Hakim bicara telah menerima pengakuan salah Lim dan telah menjatuhkan hukuman mati ke atas Lim. MRJ NO: W-05(LB)-342-09/2016 4 [6] Perbicaraan telah diteruskan terhadap responden. Di akhir kes pendakwaan Hakim bicara telah melepaskan responden dari pertuduhan atas alasan kes pendakwaan telah gagal mencapai tahap pembuktian kes prima facie. [7] Pihak pendakwaan telah memfailkan rayuan ke Mahkamah Rayuan terhadap perintah pelepasan oleh Hakim bicara tersebut. Rayuan telah dibenarkan. Mahkamah Rayuan telah membuat keputusan bahawa satu kes prima facie telah berjaya dibuktikan. Responden telah diperintahkan untuk membela diri atas pertuduhan. [8] Selepas mendengar pembelaan responden, sekali lagi Hakim bicara telah melepas dan membebaskan responden dari pertuduhan. Oleh itu, timbulnya rayuan Pendakwa Raya di hadapan kami sekarang terhadap pembebasan responden di akhir kes pembelaan. Kes Pendakwaan [9] Kes pihak pendakwaan bermula apabila pada 27.8.2012 jam lebih kurang 6.40 pagi, Konstabel Herman bin Ahmad yang sedang bertugas MRJ NO: W-05(LB)-342-09/2016 5 di Pusat Kawalan Polis, Balai Polis Jinjang telah menerima satu panggilan telefon dari orang awam yang memperkenalkan dirinya sebagai Mejan bin Sanag memberitahu bahawa terdapat seorang telah kena tembak di Pusat Internet Café, berhampiran dengan Maybank, Jinjang Selatan. Konstabel Herman bin Ahmad (telah meninggal dunia), telah menjadikan maklumat tersebut sebagai Jinjang Report No. 018465/2012 (P21). [10] Kejadian ini telah disiasat oleh DSP Shan Gopal a/l Gopal Krishnan (SP10). Siasatan oleh SP10 mendapati kejadian tembakan tersebut berlaku dalam satu insiden rompakan terhadap Pusat Internet Café di alamat No. 41, Jalan 1/32, Taman Jinjang Baru, Jinjang Selatan. Siasatan juga mendapati penjaga Pusat Internet Café itu yang bernama Mohd Ramat bin Jul (simati) telah ditembak dan telah meninggal dunia. [11] Responden telah ditangkap pada 21.4.2013. Hasil siasatan oleh pihak polis menunjukkan responden terlibat bersama Lim semasa kejadian rompakan dan tembakan itu dilakukan. MRJ NO: W-05(LB)-342-09/2016 6 [12] Seperti dinyatakan di awal Penghakiman kami, di akhir kes pendakwaan, Hakim bicara telah membebas dan melepaskan responden dari pertuduhan apabila Hakim bicara memutuskan bahawa pihak pendakwaan gagal membuktikan satu kes prima facie. Mahkamah Rayuan telah memerintahkan rayuan Perayu dimasukkan setelah memutuskan bahawa terdapat satu kes prima facie telah dibuktikan oleh pihak pendakwaan. Pembelaan Responden [13] Responden telah memilih untuk memberi keterangan membela diri secara bersumpah dari kandang saksi. Hanya responden seorang memberi keterangan bagi kes pembelaan. Keterangan membela diri responden telah diringkaskan oleh Hakim bicara seperti di m/s 17 – 18 Rekod Rayuan (‘RR’) Jld.1; dan kami perturunkan sepenuhnya seperti berikut: “33. Tertuduh bekerja sebagai “salesman” minuman dengan Ah Bee disamping membantu isterinya berniaga mee di Jalan Ipoh, Kuala Lumpur. 34. Pada 27/08/2012 lebih kurang jam 2.00 pagi, dia pergi ke rumah kawannya bernama Seah Boon Beng di Jinjang untuk tengok stok minuman. Kemudian kawannya yang lain bernama Alex atau nama sebenar Niang Leng Keong menelefonnya ajak minum teh di Jinjang MRJ NO: W-05(LB)-342-09/2016 7 Selatan. Alex tinggal di Jinjang Utara. Tertuduh meminjam motosikal Seah Boon Beng dan pergi ke Jinjang Selatan. 35. Dia sampai di Restoren Anuja (kedai mamak) dan meletakkan motosikalnya di depan kedai. Tak lama kemudian Alex sampai bersama Lim Long Chuan dengan motosikal. Alex meletakkan motosikalnya di deretan yang sama dengan motosikal Tertuduh. 36. Pada masa itu, Tertuduh berpakaian jersi merah, seluar pendek dan berselipar. Alex pula berpakaian baju, seluar jean, berkasut, bag pinggang dan bertopi. Manakala Lim Long Chuan berpakaian lebih kurang sama dengan Tertuduh iaitu baju T, seluar pendek dan selipar. 37. Lebih kurang 6.00 pagi Tertuduh hendak balik. Pada masa itu Lim Long Chuan nampak ada kedai internet di depan kedai mamak tersebut. Lim Long Chuan memberitahu Tertuduh beliau hendak pergi merompak kedai internet tersebut. Tertuduh ingat Lim Long Chuan bergurau. Tertuduh tanya Lim Long Chuan adakah awak betul-betul hendak pergi merompak kerana Tertuduh was-was mana tahu Lim Long Chuan betul-betul nak merompak. Lim Long Chuan ada mempelawa Tertuduh turut serta merompak tetapi Tertuduh menolak dan tidak pergi ke kedai internet itu. Alex ada ikut Lim Long Chuan ke kedai internet itu dan meminta tolong Tertuduh menjaga motosikalnya sekejap. Ketika Lim Long Chuan dan Alex pergi ke kedai internet itu, Tertuduh tak nampak mereka membawa apa-apa tetapi Lim Long Chuan memakai topi keledar. Tertuduh tak terus balik kerana dia menjaga motosikal Alex sekejap seperti yang diminta oleh Alex. 38. Lebih kurang jam 6.10 pagi semasa berada di atas motosikal, Tertuduh nampak seorang lelaki India berbadan gemuk (SP3) lari masuk ke dalam Restoran Anuja. MRJ NO: W-05(LB)-342-09/2016 8 39. Tak berapa lama kemudian Alex berlari ke arah motosikalnya dan memberitahu Tertuduh “kita boleh pergi”. Sebelum sempat bertanyakan Alex apa yang berlaku. Tertuduh mendengar tiga das tembakan dari arah bahagian luar kedai internet tersebut. Selepas mendengar bunyi tembakan tersebut pelanggan-pelanggan yang berada dalam Restoren Anuja tersebut keluar tengok apa yang berlaku. Tertuduh ingat ada benda yang tak baik berlaku. Lalu dia meninggalkan tempat tersebut dengan menunggang motosikalnya. Dia tak tahu di mana Lim Long Chuan berada tetapi Alex berada di atas motosikalnya. 40. Pada 21/4/2013 lebih kurang jam 11.00 pagi Tertuduh ditangkap bersama 5 orang yang lain di rumah Seah Boon Beng. Dia tak tahu kenapa dia ditangkap ketika itu. Bila sampai di IPK Kuala Lumpur, polis memberitahunya dia ditangkap berkait satu kes bunuh. Semasa di IPK Kuala Lumpur baru dia tahu Lim Long Chuan dan Alex juga ditangkap kerana mereka berada di lock up. 41. Tertuduh menafikan dia berpakaian baju, seluar jean, kasut, bag pinggang dan topi pada masa material. Dia menafikan dia membawa pistol yang berada dalam beg pinggang. Dia menafikan dia menyerahkan pistol itu kepada Lim Long Chuan semasa dalam kedai internet. Dia juga menafikan dia tahu Lim Long Chuan ada membawa pisau.”. [14] Setelah meneliti keterangan membela diri responden bersama dengan keterangan kes pihak pendakwaan, Hakim bicara membuat keputusan bahawa pihak pembelaan telah berjaya menimbulkan MRJ NO: W-05(LB)-342-09/2016 9 keraguan yang munasabah terhadap kes pihak pendakwaan. Hakim bicara mendapati pihak pendakwaan telah gagal untuk membuktikan pertuduhan terhadap responden melampaui sebarang keraguan yang munasabah. [15] Di dalam penghakimannya, Hakim bicara telah memberikan alasan-alasan yang dapat kami ringkaskan seperti berikut: (a) keterangan pihak pembelaan lebih meyakinkan berbanding dengan keterangan saksi-saksi pendakwaan; (b) saksi-saksi pendakwaan gagal mengecam responden secara positif sebagai orang yang bersama Lim; (c) saksi-saksi penting iaitu Floricel @ Gloria dan Kumar gagal dikemukakan sebagai saksi oleh pihak pendakwaan; (d) Terdapat keraguan terhadap pakaian yang telah dipakai oleh responden dan Alex; dan (e) Alex mungkin wujud dan adalah orang yang dilihat berada bersama dengan Lim. [16] Kami perturunkan sepenuhnya dapatan Hakim bicara seperti di m/s 18 – 19 RR Jld.1 seperti berikut: “L. Dapatan Mahkamah Di Akhir Kes 43. Mengenai isu pertama, Mahkamah dapati keterangan pembelaan adalah lebih meyakinkan berbanding dengan keterangan saksi-saksi pendakwaan. SP3 tak dapat mengecam Tertuduh sebagai orang yang MRJ NO: W-05(LB)-342-09/2016 10 terlibat sama dengan Lim Long Chuan. SP6 tak dapat cam secara positif bahawa Tertuduh terlibat sama dengan Lim Long Chuan. Dalam pemeriksaan utama dia tak dapat cam Tertuduh. Dalam pemeriksaan balas dia kata dia cam Tertuduh. 44. Kegagalan memanggil saksi-saksi penting iaitu Floricel atau Gloria dan Kumar pada pandangan Mahkamah adalah fatal. Tiada usaha gigih dibuat untuk mengesan mereka dan membawa mereka ke Mahkamah menceritakan perkara yang sebenarnya berlaku. Kes Muhd. Yusuf Bukhari v PP (supra) terpakai. 45. Mahkamah berpandangan bahawa pembelaan berjaya menimbulkan keraguan mengenai pakaian yang dipakai oleh Tertuduh dan Alex pada masa material. Alex memang wujud. Fakta kewujudan Alex tak dipertikaikan oleh pendakwaan. Ada kemungkinan besar Alex adalah rakan sejenayah Lim Long Chuan pada masa material. 46. Oleh itu, Mahkamah berpendapat pembelaan berjaya menimbulkan suatu keraguan yang munasabah ke atas kes pendakwaan. 47. Mengenai isu kedua, selepas menilai keterangan saksi-saksi pendakwaan dan pembelaan secara maksima dan berdasarkan keputusan kes-kes Balachandran v PP, PP v Mohd Radzi Abu Bakar, Looi Kow Chai & Anor v PP dan PP v Ong (supra), Mahkamah berpendapat pendakwaan gagal membuktikan kesnya melampaui keraguan yang munasabah. 48. Oleh itu, Mahkamah melepas dan membebaskan Tertuduh.” MRJ NO: W-05(LB)-342-09/2016 11 Alasan Rayuan [17] Di hadapan kami, Puan Timbalan Pendakwa Raya yang terpelajar (“Puan TPR”) telah membangkitkan hanya satu alasan untuk kami membenarkan rayuan Perayu. Alasan yang dihujahkan ialah bahawa Hakim bicara telah terkhilaf dalam membuat penilaian terhadap pembelaan responden apabila gagal membuat dapatan dan keputusan bahawa pembelaan responden telah gagal untuk menimbulkan sebarang keraguan yang munasabah terhadap kes pihak pendakwaan. Puan TPR menghujahkan Hakim bicara telah terkhilaf apabila gagal untuk menilai keterangan SP3 dan SP6 yang telah secara positif mengecam responden, Hakim bicara terkhilaf apabila memutuskan bahawa kegagalan pihak pendakwaan untuk memanggil Floricel @ Gloria dan Kumar adalah fatal dan bahawa Hakim bicara telah terkhilaf apabila gagal menilai bahawa pembelaan responden adalah satu pemikiran terkemudian (‘afterthought’). Dapatan kami [18] Kami bersetuju dengan hujahan Puan TPR bahawa Hakim bicara telah terkhilaf apabila di akhir kes telah membuat pertimbangan semula terhadap dua isu yang telah diputuskan terdahulu oleh Mahkamah Rayuan diperingkat penentuan kes prima facie tanpa pihak pembelaan MRJ NO: W-05(LB)-342-09/2016 12 membangkitkan keterangan-keterangan yang baru melibatkan dua isu tersebut. Dua isu yang kami maksudkan adalah isu berkaitan dengan pengecaman positif responden oleh SP3 dan SP6 dan isu bekaitan dengan kegagalan pihak pendakwaan memanggil dua orang saksi, Floricel @ Gloria dan juga Kumar. [19] Dalam kes PP v. Sulaiman Saidin [2010] 1 CLJ 184 Mahkamah ini melalui Sulaiman Daud, HMR telah membuat keputusan dengan memberi peringatan Hakim bicara tidak membuat kekhilafan yang sama dengan menyatakannya seperti berikut: “[27] Sebelum merumuskan isu atau isu-isu yang berbangkit dalam rayuan ini, kami mendapati perlu untuk mengulangi bahawa tertuduh telah dipanggil untuk membela diri setelah mahkamah ini, dalam rayuan terdahulu, mengetepikan keputusan Hakim bicara di akhir kes pendakwaan. Sehubungan dengan itu kami mendapati tiada keperluan bagi kami untuk menimbangkan semula isu-isu yang telah diputuskan oleh mahkamah ini terdahulu mengenai isu-isu yang telah dibangkitkan di akhir kes pendakwaan, kecuali jika terdapat keterangan-keterangan baru yang dibangkitkan oleh pembelaan yang boleh menimbulkan keraguan yang munasabah ke atas kes pendakwaan.” [20] Atas pembelaan responden adalah bahawa bukan dia yang berada bersama-sama dengan Lim semasa tembakan dilepaskan. MRJ NO: W-05(LB)-342-09/2016 13 Responden mendakwa bahawa orang yang berada bersama dengan Lim adalah rakan dia yang bernama Alex Niang Leng Keong (‘Alex’) yang mempunyai susuk tubuh badan yang sama seperti dia (responden). Kami telah meneliti RR dan kami mendapati hal ini tidak pernah dicabar atau diletakkan kepada mana-mana saksi pendakwaan. Sebaliknya, keterangan SP3 dan SP6 dengan jelas menunjukkan bahawa responden adalah orang yang telah membawa senjata api (pistol) ke tempat kejadian sebelum menyerahkannya kepada Lim. SP3 dan SP6 telah dapat memberikan diskripsi responden serta pakaian yang dia pakai. SP3 dan SP6 telah dapat mengecam responden sebagai orang yang mereka lihat yang mereka rujuk sebagai “si kurus” dalam keterangan mereka. Keterangan SP3 dan SP6 mengenai pengecaman responden telah gagal dipertimbangkan oleh Hakim bicara dengan sewajar dan secukupnya. [21] Mengenai kegagalan pihak pembelaan mencabar atau meletakkan pembelaan responden bahawa Alex yang berada bersama dengan Lim, adalah menjadi undang-undang mantap bahawa keterangan SP3 dan SP6 mengenai pengecaman positif terhadap responden dianggap diakui (lihat Wong Swee Chin v. PP [1981] 1 MLJ 212 F.C; Alcontara a/l Ambross Anthony v. PP [1996] 1 CLJ 705). Pembelaan tidak pernah MRJ NO: W-05(LB)-342-09/2016 14 mencabar SP6 bahawa wujud orang lain (Alex) yang menyerupai atau mempunyai susuk badan yang sama seperti responden. Oleh itu, kami bersetuju dengan hujahan Puan TPR bahawa pembelaan responden sebenarnya adalah hanya satu pemikiran terkemudian dan ini gagal diputuskan oleh Hakim bicara. [22] Setelah meneliti dan menghalusi keterangan SP6, kami mendapati fakta-fakta berikut telah dikemukakan ke hadapan mahkamah: (a) responden adalah orang yang dilihat memegang pistol di hadapan pintu Pusat Internet Café sambil mengeluarkan kata- kata ancaman “pistol ini bukan pistol main-main.”; (b) responden kemudiannya bertukar senjata dengan Lim yang ketika itu Lim bersenjatakan sebilah pisau; (c) SP6 dapat melihat responden dengan jelas oleh kerana SP6 berada di hadapan pintu ketika responden mengeluarkan kata- kata ancaman tersebut; (d) setelah berlaku pergelutan di antara Lim dengan Si mati, SP6 melihat responden berada di atas sebuah motosikal di hadapan Restoran Anuja yang injinnya dihidupkan sambil menunggu Lim untuk bersama melarikan diri dari tempat kejadian; (e) SP6 telah mengecamkan responden sebagai yang dilihat dan dirujuk sebagai “si kurus” di dalam keterangannya; (f) SP6 menyatakan bahawa dia nampak “si kurus” menunggu Lim di atas motosikal yang injin motosikal itu telah dihidupkan; (g) SP6 menyatakan bahawa dia nampak Lim dan responden dengan jelas pada lewat pagi itu; dan MRJ NO: W-05(LB)-342-09/2016 15 (h) SP6 menyatakan bahawa terdapat pencahayaan dalam premis Pusat Internet Café tersebut walaupun lampu dalam keadaan suram dan mula terdapat cahaya matahari. [23] Beberapa aspek keterangan matan SP6 dapat dilihat dari mukasurat 44 – 59 RR Jld.2 dan kami petik setakat yang berkaitan dengan isu pengecaman terhadap responden seperti berikut: “Q : Pada hari kejadian apa berlaku? A : Pada masa kejadian saya berada dalam premis di kedai internet dan berborak dengan kawan-kawan yang ada di kedai internet tersebut. Q : Rahmat di mana ketika itu? A : Dia berada di baris ketujuh depan meja belakang kaunter. Saya ingat sekitar jam 5 ke 6 pagi, tiba-tiba 2 orang masuk ke dalam premis itu berbangsa Cina. Seorang pergi ke kaunter dan seorang tunggu di pintu sambil menjelaskan semua orang yang berdiri semua orang duduk. Q : Siapa yang suruh itu? A : Orang yang berdiri di pintu. Q : Ada mereka bawa apa-apa? A : Seingat saya saya melihat satu pistol dan satu pisau. Q : Siapa yang pegang pistol dan siapa yang pegang pisau? A : Yang kurus pegang pistol berada depan pintu. Yang pegang pisau yang berada dekat kaunter yang gemuk. Q : Kemudian apa berlaku? MRJ NO: W-05(LB)-342-09/2016 16 A : Saya rasa takut, panic tapi sabar. Saya tak nak sesuatu yang buruk berlaku. Hingga dia mengatakan sambil mengeluar peluru pistol dan tunjuk dan beritahu ini pistol betul peluru hitam bukan pistol main-main. Orang ini orang yang duduk dekat pintu beritahu. Orang yang dari pintu juga pergi ke belakang ke tandas. Round 1 kali dan datang semula ke pintu kedai dan kaunter sambil ambil wang. Q : Lagi? A : Yang kurus ke depan tukar posisi kepada yang gemuk dan yang kurus ambil pisau. Mereka saling bertukar senjata. Q : Kamu nampak jelas muka 2 orang itu? A : Pada fahaman saya muka jelas. Q : Ada mereka di Mahkamah hari ini? A : Seorang ada yang baju hijau yang kurus. Q : Apa peranan dia? A : Saya pohon tengok-tengok dua-dua orang. Lim Long Chuan dipanggil dan dicamkan sebagai yang gemuk (baju merah). Q : Apa yang baju hijau buat? A : Selepas beri amaran dan bertukar senjata seingat dengan yang kurus, dia beredar keluar dari kedai internet sambil pegang pisau. Yang gemuk perhati di dalam. Q : Seterusnya? A : Bila yang kurus keluar, yang gemuk cuba keluar dari kedai internet. Semasa dia nak keluar pintu buka, tangan kanannya yang pegang pistol tersangkut di pintu. Tiba-tiba simati dengan serta merta pukul si gemuk dengan rotan di tangan gemuk. Rotan itu memang ada di premis tersebut. Q : Kemudian? A : Si gemuk keluar bersama simati. Mereka bergelut di luar MRJ NO: W-05(LB)-342-09/2016 17 premis. Dalam tempoh 3 ke 4 saat orang-orang yang ada dalam premis tersebut keluar termasuk saya. Ada yang menyelamatkan diri dan ada yang cuba membantu. Q : Apa kamu buat? A : Semasa saya keluar, simati dan sigemuk bertumbuk bergelut di atas jalanraya di luar premis. Yang gemuk berada di bawah. Yang mati di atas. Yang gemuk melentang. Yang mati bertiarap atas si gemuk. Pada masa itu saya dengar tembakan pertama dan kedua. Q : Dalam masa yang sama kamu nampak Tertuduh kedua? A : Saya nampak di lorong berhadapan Restoran Anuja di seberang jalan. Dia menunggu si gemuk. Q : Apa lagi kamu lihat? A : Saya dengar tembakan ketiga. Saya tunduk. Tiba-tiba saya bersandar di tembok tiang kedai untuk menyelamatkan diri. ….. Q : Bagaimana dengan Tertuduh si kurus? A : Tertuduh kurus tunggu si gemuk di seberang jalan. Q : Ada Tertuduh (kurus) datang ke tempat gemuk dan Rahmat bergelut? A : Tidak pasti kerana saya terhalang oleh simen tembok. Q : Selepas 5 ke 6 saat kamu merangkak ke Rahmat. Apa jadi dengan si gemuk dan si kurus? A : Saya tidak nampak mereka berdua. Motosikal yang dinaiki oleh si kurus telah tiada. ….. Q : Semasa dalam kedai internet, kamu cam muka gemuk dan kurus. Bagaimana keadaan pencahayaan di kedai internet? A : Lampu menyala tapi suram. ….. MRJ NO: W-05(LB)-342-09/2016 18 Q : Seorang pegang pistol dan seorang pegang pisau. Apa jadi dengan pisau? A : Selepas kurus bawa pisau saya tidak tahu apa jadi dengan pisau itu.”. [24] Dalam pemeriksaan-balas, SP6 menyatakan seperit berikut: Q : Seorang kurus berdiri depan pintu dan gemuk di kaunter? A : Setuju. ….. Q : Bila kurus mengatakan dia memiliki pistol kamu takut? A : Setuju. ….. Q : Apa pakaian si gemuk pada hari kejadian? A : Tidak berapa ingat. Q : Bagaimana dengan si kurus? A : Dia pakai topi warna merah dan seluar jeans. Baju tidak berapa ingat dan pakai kacamata rabun. …. Q : Kamu ingat kurus pakai topi merah, jeans dan baju? Ya. ….. Q : Kamu lihat bahagian sisi si kurus? A : Saya lihat tertuduh bertentangan. Saya berhadapan dengan pintu masa dia beri amaran. Q : Ada lampu tempat buka pintu? A : Ada 1 lampu tapi samar. Q : Cadangan – keadaan sedemikian kamu tidak dapat lihat muka kurus dengan jelas? MRJ NO: W-05(LB)-342-09/2016 19 A : Tidak setuju. Q : Kemudian si kurus beredar dari kedai internet selepas menukar senjata dengan si gemuk? A : Setuju. Q : Setuju – selepas itu kurus tiada lagi di kedai internet? A : Dia keluar dan duduk atas motosikal seberang jalan. ….. Q : Cadang kamu tidak cam tertuduh (kurus) kerana itu kali pertama kamu lihatnya? A : Tak setuju. Q : Cadangan – semasa kawad cam, polis bantu kamu untuk camkan tertuduh (kurus)? A : Tidak setuju. Saya sendiri yang cam. Q : Berapa orang dalam barisan? A : Seingat saya 8 orang. Tertuduh duduk di No: 4.” Dan semasa soal-semula, SP6 menyatakan berikut: Q : Kamu tak pernah jumpa kurus dan gemuk sebelum ini? A : Setuju. Q : Bagaimana kamu boleh ingat muka gemuk dan kurus? A : Semasa pergelutan helmet gemuk terkeluar dari kepala dan saya nampak mukanya dengan jelas. Saya lihat si kurus dan focus mukanya pada masa kejadian walaupun dia pakai topi.” [25] Sepanjang pemeriksaan-balas, SP6 tidak pernah dicabar tentang kewujudan orang ketiga yang bernama Alex turut berada di tempat MRJ NO: W-05(LB)-342-09/2016 20 kejadian. Tidak pernah juga diletakkan kepada SP6 bahawa si kurus itu seorang yang memakai baju warna hijau berseluar jean, memakai selipar, bawa beg pinggang dan bertopi. Keterangan SP6 masa pemeriksaan utama mengatakan tertuduh yang berbadan kurus memakai baju berwarna hijau, memakai topi berwarna merah dan memakai beg pinggang dan responden yang dilihat telah mengeluarkan sepucuk pistol dari dalam beg pinggang tersebut. [26] Keterangan SP6 disokong oleh keterangan SP3 mengenai perkara yang matan. Pada masa kejadian SP3 yang datang untuk memungut wang dari kaunter Pusat Internet Café tersebut telah melihat 2 orang yang datang untuk merompak. Seorang memegang pistol dan seorang lagi memegang pisau selama 3 – 4 minit. Pada masa itu keadaan cahaya terang kerana lampu ada terpasang. SP3 mengesahkan bahawa dia ada mendengar 3 das tembakan dilepaskan. Apa yang lebih menarik perhatian kami adalah bahawa SP3 mengesahkan keterangan responden sendiri bahawa pada masa kejadian responden memakai seluar pendek dan berselipar. Kami perturunkan keterangan SP3 seperti berikut di m/s 14 RR Jld.1: MRJ NO: W-05(LB)-342-09/2016 21 “Q : Semasa kamu nampak 2 orang itu yang pegang apa bangsa dan pistol? A : China, seluar pendek, selipar biasa, umur lebih kurang 44 – 45 tahun. Q : Yang pegang pisau? A : China, pakai cap tinggi. Dia pakai kasut. Dia tinggi. Q : 2 orang ini ada tutup muka? A : Tiada. Yang pendek gemuk pakai helmet hitam dan tidak ingat sama ada visor.” [27] Kami mendapati tidak ada juga cabaran terhadap identiti sebenar orang yang berbadan kurus. Tidak di “put” bahawa yang berbadan kurus adalah Alex dan tidak disyorkan orang yang berbadan kurus menyerupai diskripsi dan berpakaian seperti pakaian Alex yang telah diceritakan oleh responden dalam keterangan membela dirinya. [28] Kami bersetuju dengan hujahan Puan TPR bahawa Hakim bicara telah terkhilaf dalam memutuskan bahawa terdapat keraguan terhadap identiti responden dan terdapat keraguan mengenai orang sebenar yang dilihat bersama Lim masa kejadian berlaku. Kami juga bersetuju MRJ NO: W-05(LB)-342-09/2016 22 dengan hujahan Puan TPR bahawa Hakim bicara terkhilaf apabila memutuskan Alex adalah orang yang bersama Lim pada masa kejadian. [29] Mengenai isu kegagalan pihak pendakwaan memanggil Floricel @ Gloria dan Kumar, Hakim bicara memutuskan ianya fatal terhadap kes pendakwaan. Kami bersetuju dengan hujahan Puan TPR bahawa hakim bicara telah membuat dapatan yang khilaf dalam perkara ini. Kami berpandangan bahawa adalah menjadi hak penuh pihak pendakwaan dalam pemanggilan saksi-saksi untuk membuktikan neratif kes mereka. Pihak pendakwaan mempunyai budibicara untuk memanggil saksi-saksi untuk membuktikan pertuduhan terhadap responden. Tidak dinafikan Floricel @ Gloria dan Kumar adalah saksi mata yang turut melihat akan kejadian yang berlaku selain SP3 dan SP6. Walau bagaimanapun Floricel @ Gloria dan Kumar gagal dikesan kerana dipercayai telah kembali ke negara asal mereka Filipina dan India. Tanpa 2 penama ini memberi keterangan, kami mendapati kes pendakwaan masih dapat ditegakkan dan ianya tidak fatal terhadap kes pendakwaan memandangkan terdapat keterangan kukuh dari SP3 dan SP6, dua lagi saksi mata. MRJ NO: W-05(LB)-342-09/2016 23 [30] Dalam kes Ong Hooi Beng & ors v. PP [2015] 1 LNS 63, Abdul Rahman Sebli, HMR memberikan pandangan atas isu yang sama seperti berikut: “[59] Further, even without SD7’s evidence the prosecution already had sufficient evidence to establish a prima facie case against all the appellants. Thus the failure to call him as a prosecution witness is of no consequence as it did not result in a gap in the prosecution case. It is trite law that an adverse inference cannot be drawn for failure to call a witness when the prosecution has discharged its burden. As Yong Pung How CJ said in Chua Keem Long v. PP [1996] 1 SLR 510 at pages 523-524: “The appellant’s contention is that the failure of the prosecution to adduce evidence of those other gamblers meant that the court could presume that the evidence would have gone against the prosecution, that is there were no such visits. Such arguments are commonly made, Commonly too, such arguments are without merit. The court must hesitate to draw any such presumption unless the witness not produced is essential to the prosecution’s case. Any criminal transaction may be observed by a number of witnesses. It is not necessary for the prosecution to produce every single one of those witnesses. All the prosecution need to do is to produce witnesses whose evidence can be believed so as to establish the case beyond reasobable doubt. Out of a number of witnesses, it may then only be necessary to bring in one or two; as long as those witnesses actually produced are able to give evidence of the transaction, there is no reason why all the rest should be called, nor why any presumption should be drawn that the evidence of those witnesses not produced would have been against the prosecution.” MRJ NO: W-05(LB)-342-09/2016 24 [60] As the burden of proof lies with the prosecution, it is entirely for the prosecution to decide whom to call and whom not to call as a witness subject of course to its overriding duty to conduct the prosecution with utmost candour and fairness. If the prosecution knows that a particular witness from whom a statement has been recorded has not told the truth, will not tell the truth and will in fact lie to the court, there is no point in calling such witness. In fact to do so would be to pervert the course of justice. [61] As for the prosecution’s failure to offer SD7 to the defence at the close of its case, we do not think this is a ground for drawing adverse inference under section 114(g) of the Act. In the first place SD7 was available and in fact called by the defence in support of the appellants’ case. The nature of his evidence when he was eventually called to give evidence for the defence perhaps explains why the prosecution decided not to call him as a witness. They must have anticipated that he would be a Trojan horse. The second ground of appeal must therefore fail.”. [31] Hakim bicara turut menyalahkan pihak pendakwaan dengan mengkritik bahawa tiada usaha gigih yang dibuat untuk mengesan Floricel @ Gloria dan Kumar. Kami bersetuju Hakim bicara telah khilaf apabila gagal untuk menimbang keterangan SP10 yang telahpun menjelaskan bahawa Kumar adalah seorang warga India dan Floricel @ Gloria adalah seorang warganegara Filipina. Penama-penama tersebut gagal dikesan dan sapina gagal diserahkan. Penjelasan SP10 kami petik seperti di m/s 92 – 93 RR Jld.2, seperti berikut: MRJ NO: W-05(LB)-342-09/2016 25 “Q : Ada saksi yang cam tangkapan? A : Ada. Q : Ada saksi yang cam tangkapan? A : Itu keterangan saksi diambil. 4 orang saksi mata yang Nampak dan boleh cam? Q : Siapa mereka 4 orang ini? A : 1, seorang warganegara India bernama Kumar. Q : Pada masa kejadian di mana Kumar? A : Dia bekerja di kedai mamak depan kedai internet. Q : Lagi saksi lain? A : Teman wanita mangsa orang Filipina bernama Gloria atau Flora. Q : Teman wanita mangsa berada di mana semasa kejadian? A : Bersama mangsa. Q : Saksi 3? A : Pathamananthan supervisor kedai internet. Pada masa kejadian dia hendak masuk ke kedai dan berselisih dengan suspek. Q : Saksi ke 4 yang boleh cam? A : Seorang lelaki Sabah yang turut berada di tempat kejadian bernama Mohd Daly. Q : Saksi Kumar dan Glory di mana mereka sekarang? A : Mereka tidak dapat dikesan. Q : Ada sapina cuba diserahkan kepada mereka? A : Ada tetapi gagal disempurnakan.” MRJ NO: W-05(LB)-342-09/2016 26 [32] Dalam kes Tan Kim Ho & Anor v. PP [2009] 3 CLJ 236, Mahkamah Persekutuan telah memutuskan mengenai isu yang sama seperti berikut: “[37] There was nothing in the evidence to indicate that David entered the lounge after the 2nd appellant walked out. The learned DPP rightly submitted that it is therefore irrelevant whether David was called or not as a witness. There was nothing in the prosecution’s case to indicate that the non-calling or offering of David to the defence could have undermined the prosecution’s case. David was not even a witness necessary for unraveling the prosecution’s case and therefore could not be deemed as a material witness for their case. The defence as a material witness for their case. The defence cannot invoke s. 114(g) of the Evidence Act. As Mohamed Azmi SCJ said in the case of Munusamy v. PP [1987] CLJ 221 (Rep); [1987] 1 CLJ 250; [1987] 1 MLJ 492 at 494:- …Adverse inference under that illustration can only be drawn if there is withholding or suppression of evidence and not merely on account of failure to obtain evidence. It may be drawn from withholding not just any document, but material document by a party in his possession, or for non-production of not just any witness but an important and material witness to the case.”. MRJ NO: W-05(LB)-342-09/2016 27 [33] Kami tidak bersetuju dengan dapatan Hakim bicara yang menyatakan kegagalan pihak pendakwaan untuk memanggil Floricel @ Gloria dan Kumar serta seorang lagi saksi Mejan bin Sanag yang membuat panggilan telefon memberitahu polis tentang kejadian sebagai fatal kepada kes pendakwaan. Kami juga mendapati bahawa anggapan dibawah seksyen 114(g) Akta Keterangan 1950 yang memihak kepada pembelaan tidak wajar digunapakai atas kegagalan tersebut. Kami mendapati tiada keterangan yang dikemukakan dapat menunjukkan bahawa pihak pendakwaan telah cuba untuk menyembunyikan atau menyekat keterangan yang bakal diberikan oleh saksi-saksi tersebut sekiranya mereka dikemukakan di Mahkamah. Kesimpulan [34] Atas alasan-alasan yang telah kami huraikan di atas, kami dengan sebulat suara mendapati bahawa terdapat merit dalam rayuan Perayu. Rayuan Perayu dibenarkan. Perintah pembebasan dan pelepasan oleh Mahkamah Tinggi diketepikan dan digantikan dengan responden didapati bersalah dan disabitkan atas pertuduhan. Kami menjatuhkan MRJ NO: W-05(LB)-342-09/2016 28 hukuman mati terhadap responden sebagaimana yang diperuntukan di bawah undang-undang. Bertarikh: 10 November 2017. t.t (KAMARDIN BIN HASHIM) Hakim Mahkamah Rayuan Malaysia Peguam cara Bagi Pihak Perayu: Norinna bte Bahadun Timbalan Pendakwa Raya Jabatan Peguam Negara Putrajaya Bagi Pihak Responden: Chong Joo Tian Teruan JT Chong Associates N-4-10, Gamuda Biz Suites No. 12, Jalan Anggerik Vanilla 31/99 Kota Kemuning Seksyen 31 40460 Shah Alam

Tika 2.6.0

W-02(NCVC)(W)-1882-11/2015

PERAYU YAP SEONG YEE (NRIC No.: 631006-10-7548) ...APPELLANT RESPONDEN EUREKA PROPERTY MANAGEMENT SDN BHD (Company No.: 746857-W) ... RESPONDEN T

Contract — Breach — Remedy of Specific Performance — Damages for breach of the terms of the agreement — Sale and Purchase Agreement dated 10.04.2008 (“the 1st SPA”) to sell the Property — Whether there was a breached of the 1st SPA — Whether 1st SPA was repudiated resulting from failure to make full payment in the manner as prescribed under Clause 4 of the 1st SPA — Whether there was a breached on the 1st SPA in failing to deliver the relevant documents provided under Clause 9 — Whether issue of fraud had specifically pleaded — Whether there was the right to sell the Property under the 2nd SPA — Whether there is a bona fide purchaser for value — Specific Relief Act 1950, section 23; Rules of Court 2012, Order 14, Order 18 rules 10 (1) and 15

10/11/2017

YA DATO' ASMABI BINTI MOHAMADKorumYA DATUK DR HAJI HAMID SULTAN BIN ABU BACKERYA DATUK DR. PRASAD SANDOSHAM ABRAHAMYA DATO' ASMABI BINTI MOHAMAD

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=bfc92a2a-b931-4e18-84f9-5824b2f1397a&Inline=true

1 IN THE COURT OF APPEAL OF MALAYSIA (APPELLATE JURISDICTION) CIVIL APPEAL NO. W-02(NCVC)(W)-1882-11/2015 BETWEEN YAP SEONG YEE (NRIC No.: 631006-10-7548) ...APPELLANT AND EUREKA PROPERTY MANAGEMENT SDN BHD (Company No.: 746857-W) ...RESPONDENT [In the High Court in Malaya at Kuala Lumpur In the Federal Territory, Malaysia (Civil Division) Civil Action No: 22NCVC-762-06/2012] BETWEEN EUREKA PROPERTY MANAGEMENT SDN BHD (Company No.: 746857-W) ...PLAINTIFF AND YAP SEONG YEE (NRIC No.: 631006-10-7548) ...DEFENDANT 2 Heard Together With IN THE COURT OF APPEAL OF MALAYSIA (APPELLATE JURISDICTION) CIVIL APPEAL NO. W-02(NCVC)(W)-1889-11/2015 BETWEEN PHRA RUAM TEWIN (Thailand Passport No.: C 714450) ...APPELLANT AND EUREKA PROPERTY MANAGEMENT SDN BHD (Company No.: 746857-W) ...RESPONDENT [In the High Court in Malaya at Kuala Lumpur In the Federal Territory, Malaysia (Civil Division) Civil Action No: 22NCVC-40-01/2014] BETWEEN EUREKA PROPERTY MANAGEMENT SDN BHD (Company No.: 746857-W) ...PLAINTIFF AND PHRA RUAM TEWIN (Thailand Passport No.: C 714450) ...DEFENDANT 3 CORAM: HAMID SULTAN BIN ABU BACKER, JCA PRASAD SANDOSHAM ABRAHAM, JCA ASMABI BINTI MOHAMAD, JCA JUDGMENT OF THE COURT INTRODUCTION [1] The two appeals, W-02(NCVC)(W)-1882-11/2015 (“Suit 1882”) and W-02(NCVC)(W)-1889-11/2015 (“Suit 1889”) emanate from two Kuala Lumpur High Court suits which were jointly tried and heard together before Her Ladyship Dato’ Su Geok Yiam. [2] The Appellant in Suit 1882 appeals against the whole of the decision of the High Court at Kuala Lumpur dated 30.9.2015 which allowed the Respondent’s claim against Madam Yap (“the Appellant in Suit 1882”) and dismissed Madam Yap’s Counterclaim against the Respondent with cost of RM50,000.00. In Suit 1889, the court allowed the Respondent’s claim against Phra Ruam (“the Appellant in Suit 1889”) with cost of RM50,000.00 [3] For ease of reference, Yap Seong Yee will be referred to as “Madam Yap”, Phra Ruam Tewin will be referred to as “Phra Ruam” and Eureka Property Management Sdn Bhd will be referred to as “Eureka”. 4 BRIEF BACKGROUND FACTS [4] Madam Yap is a Malaysian citizen and is the proprietor of an office suite known as Parcel No. J-3A-13, Storey No 4, Block J, Jalan Solaris, Mont’ Kiara, 50480 Kuala Lumpur together with accessory parcels no. AAC-J-04-13-1 and AAC-J-04-13-2 (“the Property”). Madam Yap purchased the Property from Sunrise Century Sdn Bhd (“the Developer”) by way of a Sale and Purchase Agreement dated 27.12.2004. Madam Yap obtained a loan from United Overseas Bank Malaysia Berhad (“UOB”) to finance her purchase of the Property from the Developer. By virtue of Clause 6 of the Loan Agreement with UOB, Madam Yap assigned all benefits, rights, title and interest in the Property in favour of UOB. [5] Eureka is a private company limited by shares and is incorporated in Malaysia under the Companies Act 1965. Eureka had entered into a Sale and Purchase Agreement dated 10.04.2008 (“the 1st SPA”) with Madam Yap where Eureka agreed to buy the Property at the purchase price of RM2,000,000.00. The Developer agreed to the sale of the Property from Madam Yap to Eureka. A 10% deposit was paid upon Madam Yap signing the 1st SPA. At the time, the 1st SPA was executed, a separate Strata Title has not yet been issued. [6] Under the 1st SPA, the balance of the Purchase Price in the sum of RM1,800,000.00 was to be paid to the Vendor’s Solicitors as stakeholders within 3 months from date of receipt by the Purchaser’s Solicitors of the Developer’s Consent, failing which the Vendor shall grant 5 the Purchaser a further period of one month to pay the Balance Sum provided that the Purchaser shall pay to the Vendor interest at the rate of 10% per annum on such part of the balance sum which remained unpaid from the expiry of the Completion date until actual payment. [7] If the Purchaser obtains a loan from a financial institution, the Vendor shall render all assistance in the purchase of the Property, the Vendor shall provide all assistance, including giving of undertaking to refund the loan in the event the relevant documents could not be perfected between the Vendor and her financier and/or if the Deed of Assignment could not be perfected between the Vendor and Purchaser. [8] The parties had also authorised the Vendor’s Solicitor to utilise the balance sum to pay the Vendor’s Financier to redeem the Property upon the undertaking of the Vendor’s Financier to refund the redemption sum in the event, the Deed of Receipt and Reassignment and the Deed of Assignment cannot be perfected for any reason whatsoever. [9] Under the terms of the 1st SPA, the Completion Date fell on 04.07.2008 and the Extended Completion Date fell on 04.08.2008. The balance purchase price of RM1,800,000.00 was not paid on the Completion Date and/or on the Extended Completion Date. Eureka and Madam Yap agreed further to extend the time to complete the 1st SPA up to 60 days, bringing the Final Extension Date to 05.10.2008 from 05.08.2008 (“the Extension Agreements”). 6 [10] On 23.09.2008, UOB, Eureka’s financier released the sum of RM1,052,962.33 being the redemption sum. However, Eureka did not make a payment of the balance purchase price of RM447,037.67 on the Final Extension Date. [11] On 08.10.2008, Eureka via its solicitors, terminated the 1st SPA and demanded for all sums paid to be refunded by Madam Yap, including compensation in the sum of RM200,000.00. [12] On 12.11.2009, Eureka commenced an action at the Kuala Lumpur High Court vide Suit No. S-22-13-2009 (“Suit 13”) for breach of the 1st SPA against UOB as the 1st Defendant and Madam Yap as the 2nd Defendant to claim for various reliefs but not including specific performance based on Madam Yap’s alleged breach of contract of the 1st SPA. [13] In her defence, Madam Yap denied having breached the 1st SPA and contended that it was Eureka which had breached the 1st SPA. She counterclaimed for, amongst others, specific performance of the 1st SPA. [14] On 06.03.2009, Eureka discontinued Suit 13 against UOB with liberty to file afresh. On 05.06.2009, Eureka filed an application for summary judgment under O.14 of Rules of High Court 1980. [15] The application was heard before YA Datin Zabariah Mohd Yusof and was dismissed. The learned Judge found Eureka’s obligation to pay the full purchase price was a fundamental term of the 1st SPA and failure 7 to pay the said sum within the prescribed time was a breach of the 1st SPA. In essence, the learned Judge found that Eureka had no right to claim a refund of the sums paid and/or for compensation. Eureka appealed to the Court of Appeal against that decision. However, it did not pursue the appeal. [16] Whilst Suit 13 against Madam Yap was pending, after seeking advice from her conveyancing solicitors, Madam Yap entered into a Sale and Purchase Agreement dated 22.09.2010 to sell the Property to Phra Ruam, a Thai national and a Buddhist monk at a purchase price of RM2,000,000.00 (“the 2nd SPA”). The strata title was transferred by the Developer to Phra Ruam and Phra Ruam became the registered owner of the Property. [17] In May 2010, Dragon Anabolics, a business set up by monks of the Malaysia Dhamma Sakyamuni Monastery as the landlord, and Sreenevasan Young, as the tenant, entered into a Tenancy Agreement dated 01.05.2010 for the period of 2 years at a monthly rental of RM9,120.00. [18] Eureka then, by way of its solicitor’s letter dated 13.07.2011, sought to tender the balance purchase price of RM447,037.67 by way of a HSBC cheque in that amount. Madam Yap, through her solicitor, did not accept the payment of balance purchase price. Eureka pointed out that Madam Yap had earlier counterclaimed for specific performance. Madam Yap then amended her Defence and Counterclaim to remove the prayer for specific performance and accepted Eureka’s repudiation of the contract. 8 [19] On 09.05.2012, Eureka discontinued Suit 13 against the Madam Yap with liberty to file afresh, as they intended to commence a fresh action for specific performance. [20] On 22.06.2012, Eureka filed a fresh suit no. 22NCVC-762-06/2012 (2012 Suit) against the Madam Yap for reliefs including specific performance. Eureka claimed that they had been willing and able to pay the balance purchase price at all times to Madam Yap, and that Madam Yap had breached the 1st SPA. [21] Madam Yap in her defence pleaded that it was the Plaintiff who was in breach of the 1st SPA and counterclaimed that she is entitled to damages for loss of rental income as well as a declaration that she was entitled to forfeit the deposit of RM200,000.00 as well as RM100,000.00 and RM300,000.00 pursuant to the Extension Agreement. [22] On 29.01.2014, Eureka filed a new suit no. 22NCVC-40-01/2014 against Phra Ruam for damages for fraud in executing the 2nd SPA for the same Property with Madam Yap. IN THE HIGH COURT Eureka’s Case [23] Eureka pleaded the following: 9 (a) UOB had used a sum of RM1,052,962.33 from Eureka’s loan account with UOB to set off the redemption sum of Madam Yap’s loan with UOB; (b) Eureka also pleaded for the purpose of the 1st SPA whereby Madam Yap agreed to sell and Eureka agreed to buy the Property, the following salient Clauses are relevant: i. In Clause 1, the Property was to be sold free of encumbrances at purchase price of RM2,000,000.00, where RM200,000.00 being the deposit under the 1st SPA had been paid by Eureka to Madam Yap at the time the 1st SPA was executed; ii. In Clauses 2 and 3, Madam Yap was to obtain the consent of the Developer to the sale and assignment of the property to Eureka within 1 month from date of 1st SPA; iii. In Clause 4, the balance purchase price of RM1,800,000.00 was to be paid by Eureka to Madam Yap within 3 months (“the Completion Date”) of the date of the receipt of Developer’s consent by Eureka’s solicitors, failing which the completion date was extended for a period of one month to pay the balance purchase price with interest thereon at 10% per annum; 10 iv. In Clause 9, the balance purchase price shall only be paid upon receipt by Eureka’s solicitors of the following documents:  Duly executed Deed of Receipt and Reassignment between Madam Yap and UOB;  Duly executed Deed of Assignment between Madam Yap and Eureka;  All other document evidencing title to the property  A certified true copy of Developer’s undertaking. v. In Clause 10, Eureka and Madam Yap shall execute a Deed of Assignment in favour of Eureka and the same shall appoint Eureka’s solicitors as stakeholders; vi. In Clause 21, if Madam Yap was in breach of the 1st SPA, Eureka shall be entitled to terminate the same, whereupon all monies paid towards the purchase price of the Property shall be refunded by Madam Yap to Eureka, free of interest. Madam Yap also shall pay a sum equivalent to the deposit as compensation. (c) Eureka also pleaded the existence of an oral agreement between Madam Yap and Eureka before or at the time parties 11 entered into the 1st SPA whereby it was agreed that Eureka would only obtain a loan from UOB to assist it to pay the balance purchase price in consideration of Madam Yap selling the Property to Eureka; (d) The parties entered into an Extension Agreement, contained in letter from Eureka’s solicitor dated 29.08.2008, where the Final Completion Date was extended to 05.10.2008. However, on the Final Extension Date, Eureka did not pay the balance purchase price because Madam Yap did not perform her contractual obligations as stipulated in Clause 9. Madam Yap had failed to deliver to Eureka’s solicitors the documents set out in Clause 9 on or before 05.10.2008; (e) Madam Yap’s solicitors had asked for an extension of time until 09.02.2008 to comply with the contractual terms but this was rejected by Eureka’s solicitors. Eureka then terminated the 1st SPA and demanded refund of all monies paid to, accepted and received by Madam Yap as well as compensation in the sum of RM200,000.00 in accordance with Clause 21 of the 1st SPA; (f) Under Suit 13, Madam Yap had counterclaimed for specific performance. Hence, Eureka pleaded that Madam Yap is irrevocably bound by her election to claim for specific performance in the Suit 13 and cannot resile from it; 12 (g) The 2nd SPA was a sham and a fraud perpetrated to cheat or deprive Eureka of its right to complete the 1st SPA and to become the legal and beneficial owner of the Property; (h) Eureka also pleaded that upon payment of the balance purchase price of RM447,037.67 into Court on 18.08.2012, Eureka had become the beneficial owner of the Property; and (i) Therefore, Eureka claimed for specific performance of the 1st SPA as well as the cancellation of the registration of name of Phra Ruam as the owner of the Property. Madam Yap’s Case [24] Madam Yap’s Defence to Eureka’s claim could be briefly stated as follows: (a) Madam Yap pleaded that it was Eureka who had breached the 1st SPA and that her contention was accepted by YA Datin Zabariah binti Mohd Yusof on 16.09.2009 when the learned Judge dismissed Eureka’s application for a summary judgment against Madam Yap. (b) However, subsequently Madam Yap had sold the Property to a third party, i.e. Phra Ruam, because she needed the money. Hence, on 22.09.2010, Madam Yap entered into the 2nd SPA to sell the property to Phra Ruam. 13 (c) On 26.04.2011, by an affidavit affirmed by her, Madam Yap gave notice of her acceptance of Eureka’s repudiation of the 1st SPA. (d) This averment was relied upon by Eureka in its application to withdraw Suit 13 with liberty to file afresh. (e) Madam Yap had communicated the acceptance of the repudiation of the 1st SPA to Eureka when she filed her Defence and Counterclaim on 08.04.2013 for the 2012 Suit. Therein, the Court as well as Eureka were informed of the 2nd SPA. (f) As Eureka did not pay the full purchase price to Madam Yap, RM2,000,000.00 by the Final Extension Date of 05.10.2008, Madam Yap has the right to repudiate the 1st SPA and treat the agreement as having come to an end. (g) On 13.07.2011 by her solicitor’s letter, Madam Yap rejected Eureka’s proposed tender of balance of purchase price. (h) Subsequently, on 22.08.2011, Madam Yap’s learned Counsel applied to amend her Defence in Suit 13 by deleting the prayer for specific performance. Eureka’s learned Counsel did not object to the application. 14 (i) As a result of the breach of the 1st SPA, Madam Yap had suffered loss in the form of rental from the Property. She had left the Property vacant from April 2008 until September 2011. The monthly rental is about RM15,000.00. Hence, she has claimed for loss of total rental of RM540,000.00 for a period of 36 months from October 2008 until September 2011. She has also claimed for a sum of RM135,000.00 that was incurred by her for professional charges for the preparation of agreement, professional advice and conduct of case and others. (j) It was only on 18.10.2012 that Eureka paid into Court the balance purchase price of RM447,037.67 and in 29.01.2014, Eureka sued Phra Ruam. Phra Ruam’s Case [25] Phra Ruam’s Defence to Eureka’s claim could be briefly stated as follows: (a) Phra Ruam denied that he had practised fraud on Eureka; (b) He also pleaded that Madam Yap had first sold the Property to Eureka by way of the 1st SPA but Eureka defaulted payment of the balance purchase price on 05.10.2008 and Madam Yap terminated the 1st SPA; 15 (c) Phra Ruam then bought the same Property from Madam Yap and on 22.09.2010, he entered into the 2nd SPA with Madam Yap; (d) The transfer of the Property was done on 24.03.2011; (e) Eureka withdrew Suit 13 on 09.05.2012 and on that date, Eureka still had not paid the balance purchase price to Madam Yap; (f) The learned Judge in the summary judgment application had found that Eureka was the party in default of the 1st SPA; (g) Madam Yap had notified Eureka that she has accepted the repudiation of the 1st SPA by Eureka and in doing so, the 1st SPA had ceased to exist; (h) Phra Ruam is a bona fide purchaser for value because the purchase price for the property was paid partly by Phra Ruam and partly from contributions by the devotees of a Buddhist Society; (i) Madam Yap is a devotee of the Buddhist society and she has received a sum of RM1,100,000.00 from Phra Ruam and the balance purchase price of RM900,000.00 was a donation by Madam Yap; and 16 (j) The Property is rented out and the Buddhist Society is using the rentals for its expenses and activities. The office bearers of the Buddhist Society are dealing with the tenancy and the rental. [26] Based on the above, Phra Ruam prayed for Eureka’s claim against him to be dismissed with costs. [Note: The salient facts set out above were extracted from the Grounds of Judgment (GoJ) as well as the written submissions filed herein with and/or without modifications]. THE ISSUES [27] The issues posed for the determination of the High Court are as follows: (a) Whether Madam Yap is irrevocably bound by her election to seek specific performance against Eureka in Suit 13, so that she must continue with the 1st SPA dated 10.04.2008 made by her and Eureka, and permit Eureka to complete the same? (b) Whether Madam Yap may, notwithstanding her election to seek specific performance in the 2009 Suit, withdraw or resile from her said election? (c) Whether Madam Yap is in breach of the 1st SPA by: 17 i. Stating in paragraph 9 of her affidavit filed in Suit 13 that she accepts Eureka’s breach of the 1st SPA? ii. Rejecting Eureka’s proposed tender of balance purchase price of RM447,037.67 on 13.07.2011? iii. By repeating in paragraph 31 of her Amended Defence in Suit 13 that she accepts Eureka’s breach of the 1st SPA and by deleting her Counterclaim for specific performance of the same? iv. By letting out the Property to a tenant and receiving rental in respect of the letting? (d) Whether the 2nd SPA dated 22.09.2010 made by Madam Yap and Phra Ruam and the subsequent registration of Phra Ruam as the owner of the Property on 24.03.2011 was in breach of the 1st SPA? (e) Whether the 2nd SPA dated 22.09.2010 is null and void for fraud and the subsequent registration of the transfer of the title to Phra Ruam as the owner on 24.03.2011 is defeasible and ought to be set aside by reason of fraud on the part of Madam Yap and/or Phra Ruam and/or their agents and/or the Developer acting individually or in any combination thereof? 18 (f) Whether Eureka is entitled to specific performance of the 1st SPA and/or the cancellation of the name of Phra Ruam as the registered owner of the Property and other reliefs sought by in Eureka’s Statement of Claims in the 2012 and 2014 Suits? (g) Whether Madam Yap is entitled to the declaration and sums claimed in her Counterclaim in the 2012 Suit? and (h) Whether Madam Yap had accepted Eureka’s alleged repudiation of the 1st SPA and had informed the same in April/May 2011 and again in August/September 2011? FINDINGS OF THE LEARNED JUDGE [28] The learned Judge made the following findings: (a) Madam Yap’s Counsel relied on the decision of Her Ladyship Datin Zabariah Mohd Yusof dated 16.09.2009, in the summary judgment application, which found Eureka was the party at fault for the non-completion of the 1st SPA as well as the New Zealand case of Chatfield v Jones [1990] 3 NZLR 285 and the English case of Johnson and Another v Agnew [1979] 1 All ER 883, in her contention that she was entitled to elect which of the two remedies, damages or specific performance to abandon before the trial of the 2013 Suit. Madam Yap had opted to abandon the claim for specific 19 performance. This line of submission was adopted in full by Phra Ruam. (b) The above issues were found by the learned Judge to be without any merit based on the doctrine of res judicata. The second issue too could not be sustained because by virtue of the doctrine of stare decisis, the Court was bound to follow the decisions of the Malaysian Court of Appeal in Toko Palayakat Jamal (M) Sdn. Bhd. (dahulunya dikenali sebagai Abdul Jamal Trading Sdn. Bhd.) v Soon Seng Company Sdn. Bhd. [2004] 4 AMR 643 and Lim Ah Moi v AMS Periasamy Suppiah Pill [1997] 3 CLJ 629, wherein it was held, once a party had made an election to pursue the remedy in the form of specific performance, that party was bound to continue to pursue that remedy and it could no longer resile from that election. (c) It was not opened to Madam Yap to accept Eureka’s repudiation of the 1st SPA as having come to an end because Madam Yap had kept the contract alive until 13.07.2011 as she was still pursuing her claim for specific performance of the 1st SPA. Madam Yap made the amendment to her Counterclaim to delete her claim for specific performance only on 22.08.2011. 20 Whether Madam Yap have the right to sell the property to Phra Ruam under the 2nd SPA? (d) The Court was of the considered view that Madam Yap did not have the right to sell the property to Phra Ruam under the 2nd SPA. On the date of the 2nd SPA on 22.09.2010, Madam Yap was still maintaining her claim for specific performance of 1st SPA in Suit 13. Madam Yap did not inform the Court or Eureka that she had accepted Eureka’s breach of contract and that she had sold the Property to Phra Ruam. (e) Madam Yap’s own solicitor in Suit 13 testified that Madam Yap could only sell the property to Phra Ruam if certain steps were taken in Suit 13. The Court was of the view that on the facts, such steps to address Madam Yap’s intention to sell the Property to Phra Ruam had not taken at all. Whether there was fraud in the purported sale of the property to Phra Ruam under the 2nd SPA. (f) The Court found that the real object for the purported sale of the Property to Phra Ruam was to put the Property out of Eureka’s reach, whatever the result of Suit 13 and/or the 2012 Suit. The only reasonable inference that the Court could draw from Madam Yap’s conduct was that she was determined to cheat Eureka by dishonestly denying Eureka its existing right to complete the 1st SPA and to be registered as the owner of 21 the Property and to unjustly enrich herself and Phra Ruam from the rentals derived from it, thereby causing injury and loss to Eureka. Therefore, Madam Yap with the complicity of Phra Ruam, Messrs H.C. Tan & Zahani, their common solicitor, and Dragon Anabolics, deliberately created the 2nd SPA and transferred the Property to Phra Ruam and let out the Property to a tenant in order to benefit from the rentals to Eureka’s detriment. Whether Madam Yap had concealed the 2nd SPA? (g) In order to achieve the fraudulent purpose, it was imperative that Madam Yap kept silent about the 2nd SPA to avoid possibility of Eureka taking legal action to obstruct the sale and transfer of the Property to Phra Ruam. As stated, at the time the Property was sold to Phra Ruam, Madam Yap was still counterclaiming for specific performance of the 1st SPA against Eureka. (h) On the facts of the case, once the title of the Property was registered in Phra Ruam’s name, Madam Yap coyly sought to change her stance in amending her Counterclaim to delete her claim for specific performance. The Court accepted Eureka’s Counsel’s submission that Madam Yap knew exactly what she was doing when not giving full and frank disclosure of the sale and transfer of the Property to Phra Ruam. 22 Whether the 2nd SPA is a sham and was created to conceal the true state of affairs? (i) Based on the evidence, the Court found the 2nd SPA was a sham and was deliberately created to conceal the true state of affairs. The conclusion is irresistible that it was created by Madam Yap and Phra Ruam and Messrs H.C. Tan & Zahani, to lend a modicum of credibility to the fraudulent transaction. Whether Phra Ruam was involved in fraud? (j) It quite difficult to reconcile why Madam Yap chose to sell the property to Phra Ruam, who is ostensibly a Buddhist monk. The evidence showed that Phra Ruam does not have the ability to pay the purported purchase price of RM2,000,000.00. In giving evidence, Phra Ruam had admitted that under the 227 Buddhist precepts observed by him, he is not allowed to hold money. Also, yearly income was established to be not in excess of RM1,000,000.00. Phra Ruam stated that a body of monks called the Sangha had given approval to him to sign the 2nd SPA but no one from the Sangha was called to give evidence of this. (k) Therefore, there was every reason to doubt Phra Ruam’s ability to pay the purchase price of RM2,000,000.00 under the 2nd SPA and yet Madam Yap was prepared to sell the same to him. The Court arrived at the irresistible conclusion that 23 the only reason to have Phra Ruam involved in the transaction was to present a veneer of respectability and credibility to a sham transaction. Whether Phra Ruam willingly allow the fraud to be committed? (l) The Court found that Phra Ruam had willingly allowed the fraud to be practised on Eureka. He was willing to go along with the wishes of Madam Yap and Madam Yap had stated that she has known Phra Ruam for more than 15 years. In relation to the 2nd SPA, it was Madam Yap who had referred Phra Ruam to Messrs H.C. Tan & Zahani and asked Phra Ruam to appoint that law firm to act for him in the 2nd SPA. It is important to note that Messrs H.C. Tan & Zahani was also acting for Madam Yap in the 1st SPA as well as Suit 13. (m) Phra Ruam stated that the Committee and Madam Yap had decided to transfer the title of the Property to his name without full payment of the purchase price, contrary to the terms of the 2nd SPA. Phra Ruam was legally represented in the 2nd SPA by Messrs H.C. Tan & Zahani and yet, he merely followed the wishes of Madam Yap. The Court came to the conclusion that in November 2012, Phra Ruam was a willing participant together with Madam Yap in the execution of the fraud against Eureka. 24 Whether Madam Yap and Phra Ruam committed fraud? (n) The Court was satisfied that Eureka had succeeded in proving on a balance of probabilities that both Madam Yap and Phra Ruam are guilty of fraud against Eureka. The dishonest acts of the two defendants showed that they intended to deprive Eureka from its existing right of owning the Property. Whether Dragon Anabolics was also involved in the fraud that was committed by Madam Yap and Phra Ruam? (o) The Tenancy Agreement was made on 01.05.2010. At the time, Madam Yap was still the registered owner of the Property and this was before the 2nd SPA was entered into. Madam Yap could have let out the Property in her own name but she did not. The Court found that she did not do so because she was desperate to disguise her involvement in the Tenancy Agreement with Sreenevasan Young. In addition, there was no document to show that Madam Yap had allowed Dragon Anabolics to let out the Property and to keep the rentals to meet its expenses. (p) Thus, although the Property was legally owned by Madam Yap and let out by Dragon Anabolics, Madam Yap was the real power behind the scene. She could easily influence the monks to help her in denying Eureka the right to own the Property. For this reason, Madam Yap had to account to 25 Eureka for the rentals received under the Tenancy Agreement since she was the effective landlord and Dragon Anabolics was just a mere puppet that was used and manipulated to disguise Madam Yap’s role in the fraudulent scheme. Whether Madam Yap had breached the 1st SPA by resiling from her election, i.e. specific performance? (q) In Suit 13, Madam Yap had elected to reject Eureka’s breach and to proceed with the 1st SPA. Later, Madam Yap wrongfully resiled from her election by seeking a declaration for her to refund the redemption sum paid to her bank UOB from monies from Eureka’s loan account with UOB. Eureka then proposed to complete the 1st SPA by tendering the balance purchase price. At this point in time, Madam Yap was still counterclaiming for specific performance. However, the balance purchase price was rejected by Madam Yap through her solicitors. The reason stated was that Madam Yap had abandoned this remedy and that Eureka’s attempt had been overtaken by events. Whether Eureka is entitled to seek remedy of specific performance of the 1st SPA? (r) The Court found that Madam Yap’s rejection of the balance of purchase price gave Eureka the right to seek remedy of specific performance. Since at the time Madam Yap was still 26 claiming for specific performance, she ought to have completed the 1st SPA. (s) To do justice to the parties, Court may order a contract to be specifically performed notwithstanding time is of the essence of the contract. In Charanjit Singh a/l Ver Singh @ Veer Singh & Anor v Mah Seow Haung [1995] 1 AMR 204, the Court granted specific performance of a sale and purchase agreement in 1994 although the completion date was on 10 December 1979. Whether Eureka was ready, able and willing to complete the 1st SPA? (t) The Court found Eureka to be ready, able and willing to complete the 1st SPA from 13.07.2011. Eureka had paid the deposit of RM200,000.00, the sum of RM300,000.00 being difference of balance purchase price and loan, the sum of RM100,000.00 being compensation for late completion of the 1st SPA and the balance purchase price of RM447,037.67 which was paid into Court on 18.10.2012. (u) It is trite law that the determination of whether a party is ready, able and willing to perform a contract is a factual matter. Payment of cash is not the only means of determining payment. In the case of Farquharson v Pearl Assurance Co. Ltd. [1937] 3 All ER Ann 124, an offer to pay an amount 27 by cheque was held by Court to amount to evidence of readiness, ability and willingness to perform the obligation. [29] The gist of the learned Judge’s reasonings was extracted from the GoJ either with or without modifications. OUR DECISION The law [30] We were mindful of the limited role of the appellate court in relation to findings of facts made by the court of first instance. [31] In the course of that, we had sought guidance from the very often quoted the case of Lee Ing Chin @ Lee Teck Seng v Gan Yook Chin [2003] 2 MLJ 97 where the Court of Appeal held as follows: “an appellate court will not, generally speaking, intervene unless the trial court is shown to be plainly wrong in arriving at its decision. But appellate interference will take place in cases where there has been no or insufficient judicial appreciation of the evidence.” [32] Reference is also made to the decision of the Federal Court in Gan Yook Chin v Lee Ing Chin @ Lee Teck Seng [2004] 4 CLJ 309 where the Federal Court held that the test of “insufficient judicial appreciation of evidence” adopted by the Court of Appeal was in relation to the process of determining whether or not the trial court had arrived at its decision or 28 findings correctly on the basis of the relevant law and the established evidence. [33] In the above case, the Federal Court had also stated, the Court hearing the appeal is entitled to reverse the decision of the trial judge after making its own comparisons and criticisms of the witnesses and of its own view of the probabilities of the case. It is also entitled to examine the process of evaluation of the evidence by the trial court and reverse the decision if it is wrong. [34] At the end of the case, the trial judge has a duty to explain how the said court had come to its findings and/or how it appraised the evidence and issues which will determine the outcome of the case before it. In doing so the Judge need not explain or identify every factor that he had considered. If the learned Judge failed to do so, his decision can be set aside (see English v Emery Reimbold & Strick Ltd, DJ & C Whithers (Farms) Ltd v Ambic Equipment Ltd, Verrechia (trading as Freightmaster Commercials) v Commissioner of Police Metropolis [2002] EWCA Civ 605, [2002] 3 ER 385). [35] The appellate court must be slow to interfere with the findings made by the trial court unless if it be shown there was no judicial appreciation of the evidence adduced before it (see Hamit Matusin & Ors v Penguasa Tanah dan Survey & Anor Appeal [2006] 2 CLJ 251 ; Tay Kheng Hong v Heap Moh Steamship Co Ltd [1964] MLJ 87). 29 The Appeal Before Us [36] Eureka’s cause of action against Madam Yap was for breach of contract in failing to deliver the relevant documents provided under Clause 9 of the 1st SPA. Eureka did not seek the relief in the form of a specific performance, it had claimed, amongst others for: (a) A declaration that Madam Yap was in breach of the 1st SPA read with the Extension Contract as a result of her failure to complete the sale within the prescribed time as agreed; and (b) Payment of the deposit in the sum of RM200,000.00, the difference between the Purchase Price and the Loan in the sum of RM300,000.00, compensation for the late completion of RM100,000.00, Redemption sum of RM1,052,962.33 and compensation in the sum of RM200,000.00. [37] It is apparent from the reliefs sought, Eureka had elected to terminate the 1st SPA and pursue remedies based on a valid termination of the 1st SPA. It did not pursue the remedy in the form of a specific performance. Consistent with the stand taken, Eureka did not seek to preserve the Property either by way of an interim injunction and/or a private caveat. It is clear here, from the outset, it had no intention to pursue a claim for specific performance but had instead opted to claim for damages for breach of the terms of the 1st SPA. 30 [38] Madam Yap, on the other hand, had denied that there was a breach of the term of the 1st SPA. She further pleaded that it was Eureka which had failed to complete the 1st SPA as it had failed to make full payment within the time stipulated in the 1st SPA and/or within the extended time as agreed by the contracting parties. Instead, it was Madam Yap who pursued a claim for a specific performance. [39] Eureka then filed an Order 14 Application which was heard by Her Ladyship Justice Zabariah Mohd Yusof, who dismissed the Application. Justice Zabariah found Eureka had failed to make full payment in the manner as prescribed under Clause 4 of the 1st SPA. Hence, Eureka was found to be in breach of the 1st SPA. According to the learned Judge, it was a fundamental breach of the term of the 1st SPA. The obligation under Clause 9 was only a subsidiary term. As Eureka had breached a fundamental term of the 1st SPA it could not seek compliance of the 1st SPA. [40] Therefore, Eureka had no right for a refund of the sums already paid and/or for compensation. Aggrieved by the above-stated decision Eureka appealed to the Court of appeal, however, it did not pursue the appeal. [41] Upon our evaluation of the evidence before the Court we found that the learned Judge had misunderstood the law and the principle applicable for the grant of a remedy for specific performance. We were guided by the various relevant cases cited by the learned Counsels for Madam Yap and Phra Ruam such as Leelavathi K Govindasamy v Sivan Subramaniam & Anor [2015] 3 MLJ 187 ; Wong Kup Sing v Jeram 31 Rubber Estates Ltd [1969] 1 LNS 201 ; [1969] 1 MLJ 245 ; Pakharsingh v Kishansingh AIR [1974] Raj 112 ; Malaysian Building society Berhad v Prima First Development Sdn Bhd And Another Appeal [2013] 5 CLJ 239, where the Courts had held that before the Court grants the remedy in the form of specific performance, the Court must be satisfied that there must be a continuance readiness and willingness of the part of the party seeking for the relief in the form of specific performance to perform his part of the bargain from the date of the contract up to the date of hearing. In the case quoted above, the party seeking for a specific performance must not only demonstrate to the Court its willingness or readiness to perform his obligation but he must also adduce evidence of his willingness and readiness to do so. [42] Turning now to the facts of the case at hand, we observed that the learned Judge had taken the 13.07.2011 as the date to determine if Eureka was ready, willing and able to fulfil its obligation under the 1st SPA instead of the date as prescribed in the 1st SPA and/or from the date of the 1st as agreed by both parties. At the date of the alleged breach, Eureka had a choice whether to treat the 1st SPA as having been repudiated and claim for damages for breach of contract or to seek the remedy in the form of a specific performance. As Eureka had opted for damages in lieu of repudiation, it could not pursue its claim for a specific performance. In addition to that Eureka had not taken all reasonable steps to preserve the status quo of its claim. This proposition is supported by the case quoted by learned Counsel for Madam Yap in Johnson and Anor v Agnew [supra] where Lord Wilberforce stated as follows: 32 “Election, though the subject of much learning and refinement, is in the end a doctrine based on simple considerations of common sense and equity. It is easy to see that a party who has chosen to put an end to a contract by accepting the other party’s repudiation cannot after words seek specific performance. This is simply because the contract has gone, what is dead is dead.” [43] The Federal Court in Berjaya Times Square Sdn Bhd (formerly known as Berjaya Ditan Sdn Bhd) v M Concept Sdn Bhd [2010] 1 MLJ 597 had adopted the principle of law enunciated in Johnson and Anor v Agnew [supra]. His Lordship Gopal Sri Ram FCJ said: “[27] In the second place, particular attention must be paid to the wording of the subsection. It says ‘fails to do any such thing’ within stipulated time. The words ‘any such thing’ refer to the promise in its entirety. In my judgment, s 56(1) should be read together with s 40 of the Act when determining whether a promiser has committed a breach of such a nature that goes to the root of the contract. This is sometimes described as a fundamental breach. In the third place, s 56(1) as is the case with the other provisions of the Act are ipsissimis verbis the corresponding provisions of the Indian Contract Act 1872. That Act was drafted at the time in the history of English common law when decided cases, spoke of the voidability of broken contracts and a right to rescind such contracts. That is what Lord Wilberforce in Johnson & Anor v Agnew referred to as ‘the contrary indications’ that may be disinterred from old authorities.’ In my judgment, the phrase ‘becomes voidable at the option of the promisee’ in section 56(1) means this: a party not in default has a choice whether to put an end to the contract or signify his 33 or her acquiescence in its continuance when the party in default commits a fundamental breach of contract by not performing his entire promise within the time stipulated by contract, provided that time is of the essence of the contract.” [44] As reflected in the pleadings and the prayers sought, Eureka had opted to treat the 1st SPA as having been repudiated and had come to an end (see Appeal Record Jilid 3/2 at page 880), thus entitling Eureka to claim for damages for breach of contract and a refund of all monies paid pursuant to the 1st SPA. Therefore, Eureka could not now turn around and say that it was willing, able and ready to perform the contract. It was also evidenced through the testimony of PW1, as at 08.10.2008, Eureka was not capable of honouring its part of the bargain to pay the balance purchase price as agreed by both parties. [45] In addition to the above, Her Ladyship Justice Zabariah Mohd Yusof, in dismissing Eureka’s application for summary judgment had also resolved that Eureka had committed a breach of a fundamental term of the 1st SPA as it had failed to settle the balance purchase price within the time permitted by the 1st SPA and/or further time as agreed by both parties. Pursuant to section 23 of the Specific Relief Act 1950, Eureka which had become incapable of performing its part of the bargain could not approach the court for a remedy in the form of a specific performance. [46] Further, pursuant to the Common Agreed Facts filed herein (see pages 878 to 882), Eureka admitted that it did not pay the balance of the purchase price of the Property amounting to RM1,800,000.00 in full on 34 the completion date or extended completion date (see paragraph 7 of the same). [47] At paragraph 11 of the same document as stated above, Eureka stated that it had through its solicitors, terminated the 1st SPA and demanded that all sums paid under the 1st SPA to be refunded to it by Madam Yap, including compensation of RM200,000.00. [48] The learned Judge had instead relied on Madam Yap’s Counterclaim for specific performance to rule that as Madam Yap had made an election to pursue the remedy for specific performance, she was bound to continue to pursue that claim and could not resile from her election. The learned Judge relied on Toko Palayakat Jamal (M) Sdn Bhd v Soon Seng Company Sdn Bhd [supra] and Lim Ah Moi v AMS Periasamy Suppiah Pillay [supra]. [49] The learned Judge had clearly misunderstood the authorities cited by Eureka and failed to appreciate that it is settled law that Madam Yap having taken the position to claim for specific performance, was at liberty to change her position on the 1st SPA. Reference is again made to the case of Johnson v Agnew [supra] quoted by learned Counsel for Madam Yap as follows: “But it is more difficult to agree that a party, who has chosen to seek specific performance, may quite well thereafter, if specific performance fails to be realised, say, ‘Very well, then, the contract should be regarded as terminated.” It is quite consistent 35 with a decision provisionally kept alive, to say,”Well this is no use – let us now end the contract’s life.” A vendor who seeks (and gets) specific performance is merely electing for a course which may or may not lead to implementation of the contract; what he elects for is not eternal and unconditional affirmation, but a continuance of the contract under control of the court which involves the power, in certain events, to terminate it. If he makes an election at all, he does so when he decides not to proceed under the order for specific performance, but to ask the court to determine the contract.” [50] The final issue raised by Madam Yap was that Eureka was granted leave to file a fresh action against Madam Yap for specific performance when Suit 13 was discontinued pursuant to the application filed by Eureka vide Enclosure 28, only meant that that Eureka is allowed to commence fresh proceedings but not that it is entitled to the relief in the new action. [51] Based on facts as alluded above, we were of the view that Eureka is not entitled to specific performance of the 1st SPA. However, based on the facts and the evidence adduced before the learned Judge, we were of the view that Eureka was justified in repudiating the 1st SPA as Madam Yap had failed to deliver the documents stipulated in Clause 9 of the 1st SPA to Eureka’s solicitors. As at 03.10.2008, when Eureka’s solicitors wrote to Madam Yap’s solicitors to propose payment of the remainder of the balance purchase price on terms that included the delivery of the ownership documents. As Madam Yap did not deliver the ownership documents as requested, Eureka did not settle the remainder of the balance purchase price in the sum of RM447,037.67 on 05.10.2008. 36 Hence, the 1st SPA remained incomplete with both parties accusing each other of breaches of the 1st SPA. Pursuant to Clause 9 of the 1st SPA, Eureka had repudiated the 1st SPA and claimed for damages for all sums paid to Madam Yap pursuant to the 1st SPA. [52] In view of our finding that Eureka was not entitled to specific performance as discussed above, in fact, there was no necessity for us to delve on other issues considered by the learned Judge. However, for the sake of completeness, we will attempt to discuss other issues raised by Eureka in its submissions. [53] Based on the above-stated facts, we were of the view that, at most Eureka would only entitled to damages as a consequence for the repudiation of the 1st SPA by Eureka. [54] We had shown above, by way of its pleadings, Eureka’s claim against Madam Yap was premised on the alleged breach of the 1st SPA wherein Eureka had claimed for various reliefs such as damages for breach of the 1st SPA. However, what remained clear is that, it is not Eureka’s case that Madam Yap was involved with the fraud and /or that the 2nd SPA was a sham involving Madam Yap, Phra Ruam, the conveyancing solicitors as well as the monks. In gist, Eureka had not pleaded a case of fraud against Madam Yap in its Statement of Claim but had raised the issue of fraud only in its Reply to Defence and Defence to Madam Yap’s Counterclaim. 37 [55] The approach taken by Eureka is clearly in contravention with the provisions of Order 18 Rule 15 of the Rules of Court 2012 (“ROC”) which had clearly stated that the plaintiff must specifically plead and identify its cause or causes of action against his opponent in the Statement of Claim. Order 18 rule 10 (1) of the ROC further supports the contention that the plaintiff must plead his cause of action against the defendant in the Statement of Claim and he is not permitted to raise new ground or claim which is inconsistent with his previous pleadings. In view of the above, Eureka is not entitled to raise the issue of fraud and/or that the 2nd SPA was a sham against Madam Yap without having to amend his Statement of Claim to include fraud as a cause of action against Madam Yap. [56] Upon our evaluation of the evidence placed before the learned Judge, we found that, the conclusion made by the learned Judge went beyond Eureka’s pleaded case against Madam Yap. The learned Judge had no basis either in law and in fact to arrive at that conclusion. Despite the fact that the claim against Madam Yap was of a very serious nature, Eureka did not see it fit to lodge a police report of the same. In fact, in cross-examination, PW1 had admitted that, as there was no proof of the alleged fraud, Eureka did not lodge a police report. Notwithstanding the above, the learned Judge had ruled that a case against fraud had been made out against Madam Yap and/or Phra Ruam or even against the conveyancing solicitors and/or the monks who were not even cited as parties in the suits. 38 [57] We observed that Eureka had attempted to drag in parties who were not cited in its pleadings with the alleged claim of fraud and/or the alleged sham 2nd SPA entered into between Phra Ruam and Madam Yap. This is obviously not permitted by the law and had caused serious injustice to these non-parties, the conveyancing solicitors as well as the monks. [58] In support of this we would rely on the case of Metramac Corporation Sdn Bhd v Fauziah Holding Sdn Bhd [2007] 4 CLJ 725 and Om Prakash Chautala v Kanwar Bhan & Ors [2014] Indlaw SC 62 which cases had held that it is inappropriate and unfair for findings to be made against the persons who are not made parties in a claim, without affording those persons the opportunity to rebut the same. Justice would demand that those persons against whom some adverse findings had been made out and/or in the event mala fide had been imputed must be given the right to state their cases. Otherwise their basic natural justice had been infringed. [59] Learned Counsel for Phra Ruam too had filed his written submission which we had perused and considered. In essence, the points raised were similar to the points highlighted by learned Counsel for Madam Yap. In order to save judicial time and for want of duplicity, we proposed not to discuss the same herein. Further, at the outset, learned Counsel for Phra Ruam had also indicated his intention to rely on his written submissions filed herein. Learned Counsel too had at the outset indicated his intention to adopt the submissions of learned Counsel for Madam Yap and prayed for Phra Ruam’s appeal to be allowed as prayed with costs. 39 [60] On the totality of the evidence and the facts as presented before the learned Judge, and noting that specific performance is an equitable remedy, we found that this was not a proper case for specific performance to be granted to Eureka. CONCLUSION [61] Having examined the pleadings, the notes of proceedings, and having heard the respective learned Counsel, we found that the learned Judge had not given sufficient judicial appreciation of the evidence both testimonial and documentary as well as regard to the established principles of law concerning the cause of action premised of breach of contract and fraud. For the reasons we discussed above, we were constrained to hold that the learned Judge had failed to judicially appreciate the evidence and/or the law presented before her so as to render her decision plainly wrong and upon curial scrutiny it merits our appellate intervention. Hence, we unanimously allowed the appeals filed by Madam Yap to the extent we discussed above with no order as to costs. We had also allowed Phra Ruam’s appeal against the decision of the learned High Court Judge dated 30.09.2015 with costs and the orders of the learned Judge were hereby set aside to reflect the decision of this Court as stated above. Eureka’s claim for damages for breach of contract against Madam Yap as per its claim was also allowed and we ordered the full refund of all monies due to Eureka under the 1st SPA with costs of 40 RM10,000.00 subject to allocator fees. We also allowed Phra Ruam’s appeal against Eureka with no order as to costs. The deposit is refunded to the Plaintiff. signed (ASMABI BINTI MOHAMAD) Judge Court of Appeal, Malaysia Dated: 10th November 2017 Parties: 1. Messrs Saaran & Co Advocate & Solicitor For and on Behalf of the Appellant in the 1882 Suit Level 1, 110-C, Jalan Yam Tuan 70000 Seremban Negeri Sembilan [Ref: SK/CA/578/15] …..Dato’ Malik Imtiaz Sarwar Mr. Pavandeep Singh Mr. Saaran Nadarajah 41 2. Messrs Sharif & Khoo Advocate & Solicitor For and on Behalf of the Appellant in the 1889 Suit No. 34 (1st Floor) Persiaran Kurau 1 Taman Samudra, Batu 1½ Jalan Seremban 71000 Port Dickson Negeri Sembilan [Ref: SK/CA/578/15] …..Mr. Gurdit Singh Mr. Nashvinder Singh Gill Ms. Chrysandy Lai 3. Messrs See Kwong Yan Advocate & Solicitors For and on Behalf of the Respondent No. 24A, Jalan SS22/21 Damansara Jaya 47400 Petaling Jaya Selangor [Ref: No. SKY/EPM 2310] …..Mr. Ringo Low Kim Leng Mr. See Kwong Yan

Tika 2.6.0

B-05-296-08/2016

PERAYU MUHAMMAD RAZZAQ BASHIR AHMED … PERAYU (W/PAKISTAN)(NO.PASSPORT: KH 380680) RESPONDEN PENDAKWA RAYA … RESPONDEN

Dangerous drugs — Trafficking — Appeal — Appeal against conviction and sentence — Appellant found guilty on charge for trafficking in 1816.1 grams of methamphetamine — Whether the learned trial judge misdirected his mind to the contradictions in the testimony of PW1 — Whether trial judge committed error and misdirection of law by relying on direct evidence and the same time invoking presumption — Whether there were infirmities to the approach taken by learned trial judge in handling of case — Dangerous Drugs Act 1952[ Act 234], ss 2, 37(da), 39B(1)(a) & (2)

10/11/2017

YA DATUK YAACOB BIN HAJI MD. SAMKorumYA DATUK SERI HAJI MOHD ZAWAWI BIN SALLEHYA DATUK KAMARDIN BIN HASHIMYA DATUK YAACOB BIN HAJI MD. SAM

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=f9b18fdf-46ff-48ed-81b5-3eb792d6bdec&Inline=true

1 DALAM MAHKAMAH RAYUAN MALAYSIA DI PUTRAJAYA (BIDANGKUASA RAYUAN) RAYUAN JENAYAH NO : B-05-296-08/2016 ANTARA MUHAMMAD RAZZAQ BASHIR AHMED … PERAYU (W/PAKISTAN)(NO.PASSPORT: KH 380680) DAN PENDAKWA RAYA … RESPONDEN [Dalam perkara mengenai Perbicaraan Jenayah No. 45A-30-04/2014 Dalam Mahkamah Tinggi di Shah Alam, Selangor Antara Pendakwa Raya Dan Muhammad Razzaq Bashir Ahmed (W/Pakistan)(No. Passport: KH 380680) Yang diputuskan oleh Yang Arif Hakim Dato’ Indera Haji Abd Halim bin Aman di Mahkamah Tinggi Shah Alam, Selangor pada 29 Julai 2016] CORAM : MOHD ZAWAWI SALLEH, HMR KAMARDIN HASHIM, HMR YAACOB HAJI MD. SAM, HMR 2 JUDGMENT OF THE COURT Introduction [1] The appellant was charged for trafficking in dangerous drugs, to wit 1816.1 grams of methamphetamine, an offence punishable under section 39B(2) of the Dangerous Drugs Act 1952 (“the Act”). The offence was said to have been committed on 16.4.2013 at around 3.30 p.m. at “kawasan menuju keluar Pemeriksaan Kastam, Balai Ketibaan Antarabangsa, Aras 3, MTB, Kuala Lumpur International Airport” (“KLIA”). [2] At the conclusion of the trial, the appellant was found guilty and convicted by the High Court on the charge and sentenced to death. [3] Dissatisfied with the impugned decision, the appellant now appeals to this Court against the decision of the High Court. We heard the appeal on 30 October 2017 and we unanimously dismissed it. We now give our reasons. The case of the prosecution [4] Briefly, the prosecution’s case may be shortly stated are as follows. On 16 April 2013, at about 3.30 pm., Sgt 16415 Noor Diana binti Mohamod, the complainant (SP1) together with her team of narcotics police officers were 3 on observation duty at the Baggage Claim Area at Arrival Hall, Level 3, Kuala Lumpur International Airport, Sepang, Selangor. While carrying out observation, Det/Cpl 152895 Mohammad Fazlee bin Kesot (SP3) and one Insp. Khana spotted the appellant walking along the lane of bagagge claim area of the arrival hall. According to SP3, the appellant appeared to be “pergerakan perjalanan dia ganjil seolah-olah tampung sesuatu”. SP3 and Insp. Khana then approached the appellant. Insp. Khana introduced himself as police officer and asked the appellant for his passport. At that time, the appellant was seen pulling a luggage bag (P22) heading toward the custom inspection area at the carousal. The appellant then was instructed by Insp Khana and SP3 to scan his luggage at the custom scanning machine (mesin pengimbas kastam) and nothing incriminating was found. The appellant was then taken by SP3 and Insp. Khana to the Pejabat Siasatan Jenayah Narkotik, KLIA, Level 3, MTB KLIA and handed over to SP1. SP1 then instructed SP3 to conduct body search on the appellant. SP3 discovered a white package tied to the appellant’s right calf (betis kanan) and another white package tied to the appellant’s left calf (betis kiri). The appellant was wearing a long trouser. According to SP1 and SP3, the appellant appeared to be “takut dan gelisah” and shocked upon the discovery of the two white packages from his person. The appellant was then asked by SP1 to untie the two packages from both his calves and handed over to SP3. SP3 then handed over the two packages to SP1. In the present of the appellant, SP1 examined the contents of the two white packages by slightly cut open the packages for drug testing and discovered that it contains crystalline substance suspected to be methamphetamine. SP1 then resealed both the packages with white paper sellotape. Thereafter, the appellant was placed under arrest and the police report was lodged by SP1 vide KLIA 4 Sepang/004181/13 (P5). Subsequently, the appellant was taken by SP1 to Ibu Pejabat Polis Daerah Sepang and handed over the appellant together with the two white packages (P29A and P29B), search list (P4), arrest report (P5), passport under the name of the appellant (P9), boarding pass under the name of the appellant (P11), luggage bag (P22), and other personal belongings of the appellant to SP6, Insp. Murugan Suppiah, the investigating officer. The handing over was acknowledged by SP6 as evinced in Borang Serah Terima Barang Kes (P6). [5] The two white packages and their content were later sent to the Chemistry Department for chemical examination and analysis. The chemist, Zulkfeli bin Mohd Edin (SP5), confirmed that the two white packages contained a total of 1816.1 grams of methamphetamine. Methamphetamine is listed in the First Schedule of the Act. Findings at the end of the prosecution’s case [6] At the end of the prosecution’s case, the learned trial judge found as follows (pages 17 - 21 of ROA Volume 1): “Dari keterangan jelas bahawa tertuduh sememangnya mempunyai kawalan dan jagaan terhadap barang kes dadah tersebut kerana dadah tersebut memang terjumpa pada fisikal tertuduh iaitu terikat pada betis-betis kakinya. 5 Berdasarkan keterangan tersebut jelas bahawa tertuduh sememangnya mempunyai milikan terhadap dadah yang dirampas daripadanya. …. Dari aspek pengetahuan pula, untuk menghubungkan tertuduh sebagai mempunyai pengetahuan terhadap dadah-dadah jenis Methamphetamine tersebut, prinsip yang diputuskan melalui kes Gunalan a/l Ramachandran & Ors v. PP [2004] 4 MLJ 489 adalah relevan, bilamana diputuskan “Knowledge is to be inferred from the surrounding circumstances of a case”. Dari aspek pengetahuan juga, terdapat keterangan mengenai kelakuan dan keadaan tertuduh di dalam kes ini yang relevan dan juga konsisten untuk menunjukkan dia memang mempunyai pengetahuan terhadap barang kes dadah tersebut, barang kes diikat pada kedua-dua betis kakinya. Keterangan jelas menunjukkan tertuduh sememangnya tahu terdapat sesuatu yang terikat pada kakinya. Tertuduh boleh pada bila-bila masa membuka dan memeriksa bungkusan yang mengandungi dadah tersebut. Tempat 6 dimana dia ikat juga menunjukkan dia membawa sesuatu yang terlarang atau tidak dibenarkan masuk ke negara ini dari segi undang-undang. Malah melalui keterangan SP1 dan juga SP3, semasa dadah tersebut dibuka dan diserahkan kepada SP1, reaksi tertuduh adalah takut, gelisah serta terperanjat. Reaksi sedemikian jelas memperlihatkan akan pengetahuannya tentang dadah-dadah tersebut. Ini berdasarkan kepada keterangan bahawa terdapatnya: a. Dadah disembunyikan – keadaan dimana ia disorok dengan diikat di kedua-dua betis kiri dan kanan kaki beliau. b. Mengangkut dan mengimport – membawa masuk dari luar negara dadah berbahaya ke dalam Malaysia. Di dalam kes ini, tertuduh telah menaiki pesawat dari Lahore, Pakistan menuju ke Kuala Lumpur, yang mana dadah tersebut sentiasa berada bersamanya, diikat di kedua-dua betisnya dengan tujuan untuk diedarkan di negara ini. Kemasukan tertuduh ke Malaysia disahkan oleh Jabatan Imigresen melalui laporannya. c. Membawa – tertuduh telah membawa dadah tersebut apabila dadah tersebut telah disorokkan di dalam dua 7 ikatan bertali putih yang dibungkus di dalam bungkusan-bungkusan berselotape putih. ……. Dapatan Mahkamah Setelah saya meneliti keterangan yang disampaikan melalui 6 orang saksi pendakwaan ini, meneliti kepada kedudukan kesemua 38 eksibit yang dikemukakan itu, menimbang kes ini secara keseluruhannya, mengaplikasikan prinsip ‘maximum evaluation of all witnesses’ sepenuhnya seperti yang ditetapkan di bawah undang-undang, dengan ini saya memutuskan bahawa di akhir kes pihak pendakwaan ini, pihak pendakwaan telah berjaya membuktikan wujudnya suatu kes yang ‘prima facie’ terhadap tertuduh ini seperti mana pertuduhan.” [7] Having found that the prosecution had succeeded in proving a prima facie case against the appellant, the learned trial judge called upon the appellant to enter his defence. 8 The case for the defence [8] In his evidence given under oath, the appellant did not dispute that the drugs were showed to him. However, it was the appellant’s version that the drugs were not found on his person. The appellant averred that a body search was conducted on him and nothing incriminating was found. The appellant further averred that he was then taken into a room where he was asked to be seated in a sofa and his luggage was taken into another room. The appellant further averred that half an hour later, 4 officers approached him and one of them showed the impugned drugs to him. It is the appellant’s version also that SP1, the complainant, was never with the appellant at all material time. The appellant said that he had no knowledge of the said impugned drugs. Findings at the end of the defence’s case [9] After evaluating all the evidence adduced before the Court, the learned trial judge made the following findings and conclusion at the conclusion of the trial (p.33 of ROA Volume 1): “Keputusan 9 Setelah saya meneliti serta menghalusi akan keterangan dari saksi-saksi pendakwaan yang seramai 6 orang kesemuanya, setelah mendengar dan menghalusi akan keterangan dari tertuduh sendiri, setelah meneliti serta menimbangkan akan penghujahan di setiap peringkat, meneliti kepada kedudukan undang-undang yang berkaitan dengannya, mengkaji otoriti- otoriti kes yang dikemukakan, menilai serta menimbang kepada keterangan secara keseluruhannya, dengan ini mencapai suatu keputusan iaitu pihak pembelaan diakhir kes pembelaan ini telah gagal menimbulkan sebarang keraguan yang munasabah terhadap kes pihak pendakwaan. Tiada keterangan berjaya dikemukakan bagi menyangkal kesahihan keterangan pihak pendakwaan bagi tujuan menimbulkan keraguan yang munasabah. Sehingga di akhir kes pembelaan ini, jelas bahawa pihak pendakwaan telah berjaya membuktikan kes mereka melampaui keraguan yang munasabah. Oleh itu, tertuduh dengan ini disabitkan di atas kesalahan seperti mana pertuduhan.” [10] The appellant was thus convicted and sentenced to death. The Appeal [11] Before us the learned counsel for the appellant advanced two main grounds to challenge the learned judge’s decision: 10 (i) credibility of SP1; and (ii) passive possession. [12] However, in the course of submission before us, the learned counsel for the appellant had indicated to us that, although he had listed two grounds of appeal in his written submission, he would nevertheless not proceeding with the second ground, i.e. a case of passive possession, thus focusing his submission only in respect of the first ground of appeal, i.e. credibility of SP1. [13] On the first ground, learned counsel submitted that SP1, the complainant as the arresting officer, is not a credible witness. It was submitted that SP1 in her testimony gave two different versions of the event and that SP1 had concocted her evidence concerning the arrest of the appellant. At the first instance (first version), SP1 testified that she was the one who noticed that the appellant was walking rather suspicious and she introduced herself as police and instructed the appellant to scan his luggage bag and later took the appellant to the narcotics office. Her evidence however, was contradicted by SP3. SP3 testified that the appellant was spotted by Insp. Khana and it was Insp. Khana who had instructed the appellant to scan his luggage. SP3 further testified that it was Insp. Khana that took the appellant to the narcotics office and SP1 was there. Learned counsel further contended that SP1 had changed her testimony (second version) and admitted that she was wrong in saying that she saw the appellant was walking 11 at the luggage area. SP1 further admitted that the appellant was taken to the narcotics office by SP3 and Insp. Khana. CCTV (P23) also showed that SP1 was not at the carousal where the appellant was first noticed by Insp. Khana and SP3. [14] According to learned counsel, had the learned trial judge directed his mind to the contradiction obtaining in the evidence of SP1 as discussed above, His Lordship would have found that SP1 was not a credible witness. [15] However, that was not the end of the matter. Learned counsel further submitted that the learned trial judge erred in calling for the defence of the appellant at the end of prosecution case by relying on direct evidence to prove the element of trafficking as defined under section 2 of the Act and at the same time invoking the statutory presumption under section 37(da) of the same Act. Learned counsel vehemently was submitted that the learned judge had placed two different burdens to be discharged by the appellant. This is a serious misdirection on the part of the learned judge (see: Victor Chidiebere Nzomiwu & Ors v PP [2013] 2 MLJ 690; Noor Azman Abidin v PP [2014] 1 CLJ 58). 12 Our Decision Credibility of SP1 [16] In considering whether the learned trial judge had misdirected himself when he failed to make a finding on the credibility of the SP1, it is essential for us to reproduce the material part of the learned trial judge’s conclusion at page 26 ROA Volume 1: “Meneliti serta menimbangkan kepada keterangan yang dikemukakan oleh saksi pendakwaan, didapati tidak ada sebab SP3 dan lain-lain anggota untuk mereka-reka cerita tentang kejadian yang berlaku. Tertuduh tidak pernah mengenali SP1, SP3 serta saksi polis yang menahan beliau pada hari tersebut dan begitu juga disebaliknya. Jadi isu penganiayaan terhadap tertuduh oleh pihak polis tidak timbul sama sekali. Keterangan saksi pendakwaan khususnya SP1 dan SP3 jelas menunjukkan bahawa SP3 telah melihat sendiri tertuduh telah membuka sendiri kedua-dua ikatan kain putih yang diikat di kedua-dua betis kaki kanan dan kiri tertuduh yang apabila diperiksa oleh SP3, ia mengandungi bungkusan berselotape 13 putih yang di dalamnya mengandungi bahan kristal jernih disyaki dadah. Meneliti keterangan secara keseluruhannya, saya mendapati keterangan yang diberikan oleh SP3 jelas menerangkan akan kedudukan sebenar apa yang terjadi diwaktu dan ditempat pemeriksaan terhadap tertuduh dilakukan. Keterangan tertuduh yang pemeriksaan badan dibuat di kawasan pemeriksaan pengimbas kastam, jelas tidak berasas. Mahkamah telah menunjukkan dan melihat rakaman CCTV di mana adalah jelas dalam rakaman tersebut hanya pemeriksaan terhadap bagasi sahaja dilakukan dimeja di belakang mesin pengimbas kastam, tiada pemeriksaan badan dibuat di kawasan itu.” [17] At page 29 ROA Volume 1, the learned trial judge stated: “Juga, saya mendapati bentuk pembelaan yang dikemukakan oleh tertuduh itu adalah berbentuk penafian semata. Saya memutuskan apa yang disampaikan oleh SP1 dan SP3 itu adalah merupakan kejadian sebenar.” 14 [18] With respect, we disagree with the submission. The learned trial judge had critically examined the evidence of SP1 and SP3 and found them to be credible and trustworthy witnesses. [19] On the issue of the discovery of the drugs on his person, the learned trial judge had concluded that the evidence of SP1 is consistent with the evidence of SP3. There is no cogent reasons to reject their evidence. The fact that the impugned drugs was found on his person when body search was conducted in the narcotics office was amply supported by the evidence on record. The trial judge had seen the CCTV recording of the event and concluded that a body search did not take place at baggage claim area as claimed by the appellant. The body search was conducted at the office of SP1. [20] We are satisfied that the learned judge was perfectly correct in accepting SP1’s evidence. As such, we do not find any error by the learned trial judge. [21] In the case of Selvam a/l Arjunan v Public Prosecutor [2012] 4 MLJ 755, it was argued that the credibility of the main witness for the prosecution SP2 was at stake since he did not prepare a search list. The Court of Appeal held that the absence of the search list is not fatal to the prosecution case bearing in mind that the accused was caught 15 red handed with the drugs. So too here. The case of the prosecution is that the appellant was in physical custody and control of the two packages. They were tied to his right and left calf, respectively. The evidence against the appellant is overwhelming. Misdirection [22] Concerning the appellant’s complaint that the trial judge had committed error and misdirection of law by relying on direct evidence and the same time invoking presumption 37(da) of the Act, we are unable to agree with the submission. Looking at the grounds of judgment as a whole, we are of the view that the learned trial judge reached at the correct conclusion. This is what the learned judge concluded at the end of prosecution’s case at page 18 of ROA Volume 1 : “Tindakan serta perlakuan tertuduh semasa kejadian jelas menunjukkan bahawa tertuduh bukan sahaja berada di dalam milikannya dadah-dadah tersebut, malahan berlakunya perbuatan mengedar sepertimana yang diperuntukkan di bawah seksyen 2 Akta Dadah Berbahaya 1952 yang mentakrifkan maksud pengedaran. Walau pun ‘milikan’ tidak termasuk di bawah definasi mengedar, perbuatan tertuduh mengangkut dan membawa dadah dari satu tempat ke tempat yang lain itu, ia adalah terjumlah daripada perbuatan mengedar.” 16 [23] As regards the issue of trafficking, the trial judge stated as follows at page 31 of ROA Volume 1: “Fakta dan keterangan jelas membuktikan bahawa tertuduh telah mengedarkan dadah jenis Methamphetamine berjumlah 1816.1 gram, secara langsung yang jelas melebihi berat yang diperuntukkan di bawah seksyen 37(a)(xvi) Akta Dadah Berbahaya 1952 tersebut. Juga, terdapat keterangan langsung di dalam kes ini yang menunjukkan tertuduh melakukan perbuatan pengedaran dadah sebagaimana yang ditakrifkan di bawah seksyen 2 Akta Dadah Berbahaya 1952 iaitu mengangkut dan membawa dadah-dadah tersebut ke Malaysia, bagi tujuan pengedaran.” [24] The learned trial judge went on to explain at page 33 of ROA Volume 1: “… menilai serta menimbang kepada keterangan secara keseluruhannya, dengan ini mencapai suatu keputusan iaitu pihak pembelaan diakhir kes pembelaan ini telah gagal menimbulkan sebarang keraguan yang munasabah terhadap kes pihak pendakwaan. Tiada keterangan berjaya 17 dikemukakan bagi menyangkal kesahihan keterangan pihak pendakwaan bagi tujuan menimbulkan keraguan yang munasabah. Sehingga di akhir kes pembelaan ini, jelas bahawa pihak pendakwaan telah berjaya membuktikan kes mereka melampaui keraguan yang munasabah.” [25] We entertain no doubt that the learned trial judge relied on the direct evidence in concluding that the appellant did engage in drug trafficking as defined by section 2 of the Act. The learned trail judge did refer to section 37(da)(xi) of the Act in passing but did not rely on the said presumption. Conclusion [26] On the foregoing reasons, we find that no substantial miscarriage of justice had occurred to the appellant that would warrant appellate intervention (see: Sheo Swamp v King Emperor AIR [1934] PC 22; Reza Malek Zadeh Sahabali v PP [2014] MLRHU 1815, [2014] 3 MLJ 380). There are no appealable errors committed by the trial judge. In our view, the conviction is safe. [27] We, therefore, dismissed the appeal and affirmed the conviction and sentence of the High Court. 18 Sgd (YAACOB BIN HAJI MD. SAM) Judge Court of Appeal Malaysia Dated 10 November 2017 Counsel for the Appellant: Dato’ Rajpal Singh Messrs Rajpal, Firah & Vishnu Advocates & Solicitors No. 42-1A, First Floor Jalan Medan Batu Caves 1 68100 Batu Caves Selangor Darul Ehsan Counsel for the Respondent: Nurshafini binti Mustafha Timbalan Pedakwa Raya Jabatan Peguam Negara Bahagian Perbicaraan & Rayuan Aras 5, No. 45, Lot 4G7, Presint 4, Persiaran Perdana 62100 Putrajaya

Tika 2.6.0

N-02(NCVC)(A)-215-01/2017

PERAYU VIMALA SANGARI A/P R. NATHAN ... APPELLANT [NRIC NO. 720423-01-5286] RESPONDEN LOH CHEN YOOK ... RESPONDEN T [ NRIC NO. 541215-10-6147]

Land Law — Caveats — Private caveats — Appeal — Removal of caveats — Caveatable interest — Whether appellant has locus to remove the private caveat —Who falls into the category of aggrieved persons — Whether part payment gave respondent caveatable interest — Whether balance of convenience lay in favour to remove caveat — National Land Code, ss 256, 259,323(1)(a) & 327

10/11/2017

YA DATUK DR HAJI HAMID SULTAN BIN ABU BACKERKorumYA DATUK DR HAJI HAMID SULTAN BIN ABU BACKERYAA TAN SRI DATO' ABANG ISKANDAR BIN ABANG HASHIMYA DATO' SRI HASNAH DATO' MOHAMMED HASHIM

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1 THE COURT OF APPEAL OF MALAYSIA (APPELLATE JURISDICTION) CIVIL APPEAL NO. N-02(NCVC)(A)-215-01/2017 BETWEEN VIMALA SANGARI A/P R. NATHAN ... APPELLANT [NRIC NO. 720423-01-5286] AND LOH CHEN YOOK ... RESPONDENT [ NRIC NO. 541215-10-6147] [Dalam Mahkamah Tinggi Malaya di Seremban] Dalam Negeri Sembilan Darul Khusus, Malaysia Saman Pemula No. 24NCVC-289-10/2016 Dalam Perkara Seksyen 323, 327, 329 dan 417 Kanun Tanah Negara 1965 (Akta 56); Dan Dalam Perkara Aturan 7 dan Aturan 92 Kaedah 4 Kaedah-kaedah Mahkamah 2012; Dan Dalam Perkara Kaveat Persendirian nombor perserahan 11653/2011 bertarikh 24 November 2011 atas tanah di bawah Hakmilik Geran PN 11243, Lot 6128, Mukim Si Rusa, Daerah Port Dickson, Negeri Sembilan Darul Khusus. 2 ANTARA VIMALA SANGARI A/P R. NATHAN … PLAINTIF [NO. K/P: 720423-01-5286] DAN LOH CHEN YOOK … DEFENDAN [NO. K/P: 541215-10-6147] Coram: Hamid Sultan bin Abu Backer, JCA Abang Iskandar bin Abang Hashim, JCA Hasnah binti Dato’ Mohammed Hashim, JCA Hamid Sultan Bin Abu Backer, JCA (Delivering Judgment of The Court) GROUNDS OF JUDGMENT [1] The appellant/purchaser of a property under the judicial sale pursuant to the National Land Code 1965 (NLC) appeals against the decision of the learned High Court judge who refused to allow a private caveat lodged by the respondent. [2] The respondent had purchased the said property under a sale and purchase agreement executed 6 years or more before the judicial sale. The respondent has also not paid the full purchase price. The said sale and purchase agreement was a conditional sale and purchase agreement where the state authority consent must be obtained. The said condition reads as follows: 3 “Tanah yang diberimilik ini tidak boleh dipindahmilik, dipajak, digadai melainkan dengan kebenaran bertulis daripada pihyak berkuasa Negeri”. [3] On the date of hearing of the appeal, the learned counsel for the respondent brought to the attention of the court that the appellant in his application for removal of the caveat did not produce the certificate of judicial sale. The learned counsel for the appellant conceded that the certificate of judicial sale was not disclosed and undertook to produce the same. The learned counsel agreed not to object on that issue if the certificate was produced. [4] After hearing the parties, we adjourned our decision to enable the appellant to produce the judicial certificate and also for the parties to submit further on the phrase ‘aggrieved party’ stated in section 327 of the NLC as the learned judge had specifically ruled that the appellant was not an aggrieved party under the said section to give her the locus to make the application which read as follows: “327. Removal of private caveats by the Court. (1) Any person or body aggrieved by the existence of a private caveat may at any time apply to the Court for an order for its removal, and the Court (acting, if the circumstances so require, ex parte) may make such order on the application as it may think just.” Jurisprudence related to ‘aggrieved person’ 4 [5] The dictionary meaning of ‘aggrieved person’ as a general rule appears to be multifold. In the context of specific legislation, courts have given a special meaning to the word ‘aggrieved person’ in the context of the particular legislation as a whole. One common threshold which appears to run through most of the judicial meaning of ‘aggrieved person’ is that the person must be directly affected in his subsisting or acquired right by the conduct of third person and the law protects the said subsisting or acquired right. It cannot relate to a future right or prospective right, etc. For example, (a) the dictionary meaning of the aggrieved persons reads as follows: (i) Black’s Law Dictionary defines ‘aggrieved’ as having suffered loss or injury, damnified or injured; and ‘aggrieved party’ as one whose legal right is invaded by an act complained of, or whose pecuniary interest is directly and adversely affected by a decree or judgment. One whose right of property may be established or divested. The word ‘aggrieved refers to a substantial grievance, a denial of some personal, pecuniary or property right, or the imposition upon a party of a burden or obligation. (ii) Some of the legal meaning of an aggrieved person in relation to legislation or case laws reads as follows: (a) In Wu Shu Chen & Anor v Raja Zainal Abidin bin Raja Husin [1997] 2 MLJ 487, the Court of Appeal observed: 5 “The Code contains no definition on who is an aggrieved person. To my mind, the word 'aggrieved' must be given its ordinary meaning. To be aggrieved means one is dissatisfied with or adversely affected by a wrongful act of someone. An aggrieved person is therefore a person whose legal right or interest is adversely affected by the wrongful act or conduct of another person or body. The category of aggrieved persons is never closed.” (b) The Privy Council case of Eng Mee Yong & Ors v V Letchumanan [1979] 2 MLJ 212, as per Lord Diplock observed: “It is for him to begin by satisfying the court that there are sufficient grounds in fact and law for treating him as a person claiming such an interest in the land as would, if it were established, make him aggrieved by the existence of the caveat.” (c) R.A.P Nathan v Haji Abdul Rahman bin Haji Yusoff & Ors [1980] 1 MLJ 248 the court observed:- “The next point is whether the third defendant is a person aggrieved by the existence of the caveat as provided under section 327(1). A pertinent question that arises is whether he will suffer loss if the caveat lodged by the plaintiff is not removed.” (d) Quite recently, Harmindar Singh Dhaliwal JC (as His Lordship then was) in the case of Noratahar bin A Hamid v Abdullah Hassan & Ors [2012] 1 LNS 122 6 “In the instant case, however, the Plaintiff had produced evidence that he had paid the full purchase price through a letter by Bank Muamalat Malaysia Berhad, the chargee bank, dated 22 July 2011. This was also supported by a "Perintah Jualan oleh Mahkamah" issued by the Senior Assistant Registrar of the High Court Ipoh which was the Borang 16F of the NLC issued after property was sold at a court auction. So in effect, the Plaintiff was an aggrieved person in that if not for the caveats, the Plaintiff would have succeeded in becoming the registered owner of the said land.” Brief Facts [6] The brief facts of the instant case in our own words can be summarised as follows: (i) The appellant has purchased the property in a judicial sale of legal charge of Alliance Bank pursuant to section 256 of NLC. (ii) The respondent has prior to the judicial sale had entered into a conditional sale and purchase agreement dated 22/11/2011 to purchase the said property for the sum of RM2,500,000.00 and had only paid a sum of RM500,000.00. (iii) The respondent had not paid the balance purchase price or discharge the legal charge of Alliance Bank, but had placed a caveat on or about 24/11/2011 to protect his interest on the said property. 7 [7] The Memorandum of Appeal inter alia reads as follows: “1. Pesuruhanjaya Kehakiman tersilap dari sisi undang-undang dan/atau fakta apabila memutuskan bahawa kaveat yang dimasukkan oleh Responden/Defendan ke atas tanah bawah Hakmilik Geran PN 11243, Lot 6128, Mukim Si Rusa, Daerah Port Dickson, Negeri Sembilan Darul Khusus (selepas ini dirujuk sebagai 'hartanah tersebut') harus dikekalkan. 2. Pesuruhanjaya Kehakiman tersilap di sisi undang-undang dan/atau fakta apabila gagal mempertimbangkan dengan sewajarnya atau sama sekali bahawa Perayu/Plaintif telah membeli hartanah tersebut melalui lelongan awam yang diadakan oleh Mahkamah Tinggi Seremban pada 18 Oktober 2016 yang merupakan "judicial sale". 3. Pesuruhanjaya Kehakiman tersilap di sisi undang-undang dan/atau fakta apabila gagal mempertimbangkan dengan sewajarnya atau sama sekali bahawa Perayu/Plaintif telah mendapat hak milik yang tidak boleh disangkal (indefeasibility title) daripada pemegang gadaian Alliance bank (chargee bank). 4. Pesuruhanjaya Kehakiman tersilap di sisi undang-undang dan/atau fakta apabila gagal mempertimbangkan dengan sewajarnya atau sama sekali bahawa pemegang gadaian telah mempunyai kepentingan berdaftar (registered legal interest) ke atas hartanah tersebut. 5. Pesuruhanjaya Kehakiman tersilap di sisi undang-undang dan/atau fakta apabila gagal mempertimbangkan dengan sewajarnya atau sama sekali bahawa Responden/Defendan hanya memasukkan kaveat ke atas hartanah tersebut selepas hartanah tersebut digadaikan kepada Alliance bank (chargee bank). 8 6. Pesuruhanjaya Kehakiman tersilap di sisi undang-undang dan/atau fakta apabila gagal mempertimbangkan dengan sewajarnya atau sama sekali bahawa Responden/Defendan telah gagal mengambil sebarang tindakan Mahkamah untuk menegakkan tuntutan atau haknya terhadap pemilik berdaftar mcskipun kaveat telah dimasukkan ke atas hartanah tersebut selama 5 tahun. 7. Pesuruhanjaya Kehakiman tersilap di sisi undang-undang dan/atau fakta apabila gagal mempertimbangkan dengan sewajarnya atau sama sekali bahawa pemegang gadaian dan pembeli bona fide di lelongan awam mempunyai kepentingan yang terlebih dahulu (priorityjdaripada pembeli bawah perjanjian jual beli tanah. 8. Pesuruhanjaya Kehakiman tersilap di sisi undang-undang dan/atau fakta apabila gagal mempertimbangkan dengan sewajarnya atau sama sekali bahawa tarikh penyempurnaan bagi perjanjian jual beli antara Responden/Defendan dan pemilik berdaftar telah luput. 9. Pesuruhanjaya Kehakiman tersilap di sisi undang-undang dan/atau fakta apabila gagal mempertimbangkan dengan sewajarnya atau sama sekali bahawa Responden/Defendan tidak mempunyai hak in rem ke atas hartanah tersebut malahan Responden/Defendan hanya mempunyai hak in personam terhadap pemilik berdaftar tesebut. 10. Pesuruhanjaya Kehakiman tersilap di sisi undang-undang dan/atau fakta apabila gagal mempertimbangkan dengan sewajarnya atau sama sekali bahawa remedi Responden/Defendan telah dinyatakan dalam perjanjian jual beli hartanah tersebut iaitu menuntut ganti rugi daripada pemilik berdaftar.” [8] It was contended before us by the appellant that it was wrong for the learned High Court judge to have refused to remove the caveat when the caveat pursuant to well established case laws was sterile in nature as 9 the respondent upon the entering of the caveat has not taken any steps to perfect his title or his interest in the said property simultaneously. Support for the appellant contention can be found in a number of cases, to name a few are as follows: (i) In Khor Cheng Wah v Sungai Way Leasing Sdn Bhd [1996] 1 MLJ 223; Court of Appeal, per Gopal Sri Ram,JCA (later FCJ), at page 229: 'It is a cardinal principle of law, that when a litigant seeks the intervention of the court in a matter that affects his rights, he must do so timeously. The maxim vigilantibus, non dormientibus, jura subvenient, though having its origins in the Court of Chancery, is of universal application. Even in cases where a right is exercisable esdebit justitiae, a court may refuse relief to an indolent litigant.' (ii) In Paya Terubong Estates Sdn Bhd v Pusaka Warisan Sdn Bhd [1998] 2 MLJ 463; Court of Appeal, per Gopal Sri Ram, JCA (later FCJ), at page 468:- ‘The importance of timeous institution and prosecution of proceedings in this area of the law is well brought out by the judgment of Sinnathuray J, in the Singapore High Court in Teo Ai Choo v Leong Sze Hian [1982] 2 MLJ 12.It is a brief judgment and merits reproduction here: The matter before me is a simple one. Mr KS Chung for the plaintiff has raised five serious points. I need only deal with the last one, the fifth point, that on the subject of delay. First, I accept he decision in Plimmer Bros v St Maur (1906) 26 NZLR 294. In that case, Stout CJ in New Zealand, on an application to 10 remove a caveat, on facts similar to the present case, where the defendant had commenced no action against the plaintiff relating to the land in respect of which a caveat was lodged, referred to several reported cases and said- “It was his duty to commence an action promptly if he considered himself entitled to specific performance...Here nothing was done for nearly sixteen months, and then a caveat was lodged. More than a month has elapsed since then, and still no action has been commenced. In my opinion, an action for specific performance under such circumstances would be hopeless, and a caveat under such circumstances must be deemed vexatious ..in my opinion, to prevent a man dealing with his property after such a long delay is so inequitable that the court will not lend its assistance to such a proceeding.” (iii) In Damai Jaya Realty Sdn Bhd v Pendaftar Hakmilik Tanah Selangor [2015] 2 MLJ 768, in dealing with issues related to judicial sale, observed: “[5] In the instant case, the certificate of sale and/or order for sale has not been set aside by the respondent and/or other relevant bodies. If the respondent and/or relevant authorities are aggrieved by the order of sale and/or certificate of sale, they have a duty and an obligation to make the necessary application to the court to set aside the order. However, what they cannot do is refuse to comply with an order of court. In Badiaddin bin Mohd Mahidin & Anor v Arab Malaysian Finance Bhd [1998] 1 MLJ 393, the Federal Court observed: It is well settled that even courts of unlimited jurisdiction have no authority to act in contravention of written law. Of course, so long as an order of a court of unlimited jurisdiction stands, irregular though it may be, it must be respected. But where an http://www.lexisnexis.com/my/legal/search/runRemoteLink.do?A=0.8424045905179136&bct=A&service=citation&risb=21_T26587444548&langcountry=MY&linkInfo=F%23MY%23MLJ%23vol%251%25sel1%251998%25page%25393%25year%251998%25sel2%251%25 11 order of such a court is made in breach of statute, it is made without jurisdiction and may therefore be declared void and set aside in proceedings brought for that purpose. It is then entirely open to the court, upon the illegality being clearly shown, to grant a declaration to the effect that the order is invalid and to have it set aside.” [9] On the facts of the case and based on the cases cited above, we take the view that the caveat ought to be removed by any person who will have locus to remove the caveat under section 327 of NLC. A number of persons may have locus to remove the caveat provided the person can demonstrate to the court that he is an aggrieved person in law. To be an aggrieved person in law, we take the view that the applicant must demonstrate that his subsisting interest or acquired interest, etc. has been violently affected by the presence of the sterile caveat and/or non- sustainable caveat under the law. Support for the proposition is found in a number of cases, to name a few are as follows: (i) In Gondola Motor Credit Sdn Bhd v Almurisi Holdings Sdn Bhd [1992] 2 MLJ 650 Supreme Court, per Harun Hashim SCJ, at page 658: 'At all material times, the option to purchase and the sale and purchase agreement were subject to the registered charge. Shaikh Mohamad was a director of Tg Petri and in turn a director of the respondent and was well aware of the existence of the charge on the subject land. In any event, the fact of registration of the charge is notice to all the world of its existence. Any dealing subsequent to the charge and with notice of the charge, as here, cannot defeat the indefeasible interest of the registered chargee and through him the purchaser at a judicial sale. The error in this case was to ignore the 12 indefeasible title of the chargee and the continuous legal operation of the charge from the moment of its registration up to the completion of the judicial sale and the issue of the certificate of sale. For the reasons stated, we would allow the appeal with costs here and below. The order of the learned judge is set aside. We order the removal of the caveat.' (ii) In Rohaya bt Ali Haidar v AmBank (M) Bhd (previously known as 'MBf Finance Bhd) [2016] 2 MLJ 819 where Prasad Abraham JCA (as His Lordship then was), following the principles enunciated in Gondola’s case had stated: ‘In our present case the earlier purchaser of the said land based on the letters of disclaimers issued by the respondent had their interest (if any) subject to the respective charges on the said lands. What the respondent should have done was to take immediate steps to redeem the land in question or part of it but had failed to do so. Therefore it follows that the interest of the purchasers would be subject to the registered charge and to the appellant who acquired the registered and indefeasible interest in the said land when they had paid.’ (iii) In Wong Kok Leong & Anor v RHB Bank Berhad [2015] 1 MLJ 385, the Court of Appeal held on the facts of the case as follows: “(1) The respondent must comply with s 281 and crystalise his cause of action by filing a suit and obtain a judgment and if necessary proceed with foreclosure proceedings as set-out in s 281 of the NLC. If he fails to do so and/or if limitation has set in, s 331 will become applicable to provide relief on the facts of this case and s 328(1) of the NLC states 13 that a private caveat shall lapse at the expiry of six years from the time it was lodged (see para 7). (2) The appellants need not seek any declaration to get the lien holder's caveat removed and obtain the title to the relevant properties. The limitation issue will only apply to the respondent in respect of ss 281 and 331 of the NLC, as to the cause of action. The appellant was not pursuing a cause of action against the respondents (see para 11). (3) A caveat has a specific purpose and is not a cause of action but a quick relief to protect interest (capable of being protected under the NLC) in the land in the nature of a statutory injunction and it is never meant to assist the indolent as in the instant case (see para 13).” [10] We have read the appeal record and able submission of the parties. After giving much consideration to the submission of the learned counsel for the respondent, we take the view that: (i) the appellant has produced the certificate of judicial sale issued under section 259 of the National Land Code and in consequence in law he will fall into the category of aggrieved persons whom we have mentioned earlier and will have the locus to make an application under section 327 of NLC to remove the caveat; (ii) the learned judge erred in law in refusing or failing to remove the sterile caveat in limine on the application of the appellant; 14 [11] For reasons stated above, we allow the appeal with costs here and below, subject to the allocatur. The judgment of the High Court is set aside. The prayers in the application of the appellant are allowed. We hereby order so. Dated: 10 November 2017 sgd (DATUK DR. HAJI HAMID SULTAN BIN ABU BACKER) Judge Court of Appeal Malaysia. Note: Grounds of judgment subject to correction of error and editorial adjustment etc. Counsel for Appellant: Mr. Manian Raju [with Ms Zatul Izra binti Zulkefelee] Messrs. Krishna Dallumah, Manian & Indran Advocates & Solicitors No. 62 & 63-1, Jalan S2 D36 Regency Avenue 2 Seremban 2 70300 Seremban N. Sembilan. [Ref: KMI/MR/096/16/L] 15 Counsel for Respondent : Mr. Balraj Singh Messrs. Nora Hayati Raj Advocates & Solicitors 57B, Jalan 5/58, Taman Gasing Indah 46000 Petaling Jaya Selangor Darul Ehsan. [Ref: NHR/LCY/1/2017/L]

Tika 2.6.0

23NCVC-56-07/2015

PLAINTIF TAN SRI DATUK NADRAJA A/L RATNAM DEFENDAN MURALI A/L SUBRAMANIAM

10/11/2017

YA DATUK S. NANTHA BALAN

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I am . mm . mm. . 4.5mm pcnon and 3 .mev....5 cum." r am van m I!» mgllcs and mm running me m.W.; C)ur1xyTm<l .1. um . camml Rum .. : hm: mvunpllnvnrmluj mmflcx mwm. m m. u.nw.. cam Trust V IInn:ham>1ptnunnlshnmlanhensonmlmslbcmugmm: Relvgmlls Chunky Tum VI Ihavrcummnlkdabvu:hnHl1umslIcW>edm: mzbymc mu-n..s chm-,v Tm VI Hut A m. null! n. mm mm pnsman as In: Chmmun ..r am .~m.m-mm and ma Exeenme Cmnmulu «nu: Religlnuschanu rm V. 1 I11»: .m.a=...m, sh..." . wnlumcus Vuu m we Rclvlinus Chxmy Tnms wcaurm m mm: In: my mrulvgnm »;nrmMDI11:m=1 A Imr sup} :1! me ncnbook Mn.“ mm mznn :3 now show“ m mrlnd mlrkzd u rm. ~w.v-. nnnh ....: 1 v=nl\ Mm nm on uzun. uh: lzspun-[cm wmm .....x pllbhshtd wr unxnd m be u Ivan md |1ub\|5h:d an m mnamemu V-uebook Abcmnm - mung mm m. Inlhrwnnls m7rds— -orig."-m 1m in rm!" mm. an — xunp... Kuil nun Civa hernnllmn-Im||inu Ihuul dlgnlalun nbnzal dau wmaaak... unllxk velsnr mm. wlxrll mm“. Adnknn pu..u Dfllllrunn nlui IE:-nl-n Tnnxlnwn — n. millwnu cnllcdud Ivy nun c.-u lunpk uuul n. he mu m rm Iheadunvlun ofpmruuduvx nu. Akin‘ win lhn m-u-mu-a.. -2?] Fun: 1: mu g2 a) 9.» 95 um \. h:\Kv( mu me publlcnnun Wii Wm slung mm . pmnvr nla nuvwrlt-<1 .».p,,...., m. ,..;..mm.c mm: M"! and mm. mm uh: B-wu Crvrs mm: slaps m u. bnmgmmd Al 0.. mar Ilm Mmlmn. me .,.....u..u.. m-mmm ... pnnurlph U1 Abmc “.5 hkzd tn, 57 vwwcandshmrd by :2 pap]: .m.»m v my hchzvr mu m: Rcswudznr «mm pubhshtd ands! pgmuual m rm... 4». mm mmmwv y:L|wu of ma mpmam 1 mum Axcmml mmmenls Ind ,..m,<..r...: ...a n(my<:UIn Illa why Mm, smd onion 2. Chanmwn Ind . mzmbw aim: name ..r»mmm... and lixmnwc Commute: mm m mum... .5 my cnnduzuhzmn I vcrihr bchcve mm In mmmunlx ma pnslmgs nlened m m pamgnph cu move an .,mu....,- m wg. Kumnr(I.J.:nl7.Il.l9pmy -;r...mz:-Ac: mum .umm.: mm mmlvilul mm- {lamb an — Say: memnunui htvrrrannn -ernlu pm. nemlany Alluhpll |I1ngIIh 1. .n..m. . : helku mm the; Aunly hvt m mu.m..;I V.» l2J‘zn17.||.a2pmy -ongimu mu .. 1...:/~ rlnnshkwvl — wmu. win hcrhuat am. . lni .a.|.n luehendak nu... m...«-I |r;-nan-A m.u.uo. 7 May Inn .0 do ... hut m m ....um.m. :1! the enrrvnl nnel mn |1J.1wI1. ammb "AwnWI£WI>Wfi:tiuumnrmhv/I" hnvdamnl — Kuuk mmu. lxlum mun mil [Englhh Tnmln .... am.» r....u.1m.»..m nu yfll mm mm (H: mmrrnm: and minus idumlmd uv vnrxgrnuh at abnvL m mm! "mm and mdmary m.-1..."; mum m we undrmooduv mun ma. . lmn: tlnhnurxl pawn uld ma Hmeabused ..., paminm ax Ihn:C an nllhe mm al Mmngemzm and um I:>m.-Alne cmmm um: x.-ngm v'us¢ unm 0...:-y mm m use Ihc luhglaux (ham: mm fund: rm my ,,=m.x [haw cmnlmlltd ahluchnllhrlmsl lepawdon mzhy me nmw... cw, Trust xv Tm I am lflvfil to mm In: wsilian as the cm...“ Hf Dunn] of M.....,¢.m. nrd um em...” Cumming: mm: Rehgmu: Emmy mg V Huve .u mu Ind an mm ran rhc fumkoi nu Rchyiuw Chanly Tum u lam grecdy nml unnmhle hknr: .., M mm: A lm: may of mg rmmu pomng ma nzun and M \mws\nx-on vmo Blhua Mali . :3. um Hnmmbvc Conn‘: wgrpmev. m Mnhlm Mums-my me now amwn In no ma mrkad u Exhvbil ~muo-. us. mmmmnmmumxmu ml : »:nI\ Itzlwzvt mm on 2: mm. In: Rap-mdevu pul-Huhcd .r uuscd m be Dublvshod an m: R:srmnd:m's Fuebotk my-.m . mm of: newvlvel «mm -14 a mum Mm: ma ».mu.—n arm: wumu Bum cm;-.m,,k ... mg hztkgmund M2 1 vunl} mm max .. (he dune M‘ was Amdax me Dubhcanan .mm.1 ... pm-nymph 10: mm was him by 1: pawl: and mm by v um ion WWI’! mhns ms 1 vcul: um»; mu Khc Rcwmldwll funnrr vuhlnhcd Indlvr ptmumed m Iemnm ml the cammwx xecunn nflhe Respondu|| s flub-Iwk Mu-uni cnrnlm-Ills and pnimg$n/In: mm ..:m,wu... In wny of my am olfmes 1‘ Clmmun ma 3 member chm BmmolMumwvI<m mu Lxcouuvccommuwc um m mm. m ...m..amm.=... nu x verily bclmvc mm In wmnltnls ma rmnncs rckrrvd m a.. Dluyivh ms Ibov: u: u Ioflmaa , m Jzu.Lumiru.2un.u.u,...; arm. »...mmm.. numl ;m..g. kmumw Pm" Irulduunulvrl/u .mm2-M m nan! vdm n.4,.;..m....:...,:r hm. u... . mu. um. lnynr «uni um». lknn hlynn m. ncrelu |-_-Ir um um um: um. lulu henum ma... smnldl Par us..m \z..gx..n. 1.....:..... -......n.:..~. .... 5... am ».u my Iflhry .-y..»....1-yw.»...u..............n.....s...,...a1 .... :.:.».,..am.2nn....n....> ~:..... ....... lmljv lnnullnlhu M... .......n ..........m m. ;.:...n. n..4....«/ WV mu x...4..m...».x..I....:»........g....... hmlbn padflflflflve ymlhi p....m.a.m..m....... lruwarmga" m............ . s....... ung Inrhuu mu. 4.. mu ..m. :.........g... Mink: ...... .:.... ....... . flak mm Mmk: pm. ma... banendndnun .1... .m..u unml-I ...mg........... ..............u u......»n r.......:....... — rm.» am: an no... ...u ulvly Inhnve pack. 1..., .... .... ..........c...: 4.....c.m Surny n.., ... ...............a ........ ......u u. Beth! ...... .....u«.| ms . 155:}! .v... m commems and pnslmgj ..1..... ed .. puagnph mm .....c . ma. ........A N... -wdwary m.......g ......... .. WGN undemnnd ... mun M , . v».m.\...¢..m,..»s....m.mco..........or.m:.........r ‘/1nrnxKm:nLmd me :..m....¢u...........:. ullht a.......... cm... 1.... .0 We the Rnhgnnux nmnn Tum‘: r....... r... .w,,..s.....s.... .. Ihawuwnlmlls-dnhrcnchallhnmsllcykfiedoumvlfiylhc l<e|1gmusCh:m|y ....s. .n... I ...u ....n. ... mm the .... ...... .. flu‘ rm...m.... ..r 3...... .m.....=....... ...a Ihe£xznni»eCumm|Ilen u the u.»..,;.u..........., ...... .. I mvsuse u... name of Gad .. ....s..w.w....c mm. :7! .v.. Rtclwguuuschanly ‘rust. » 1 .... ......1..u.ea and ....... us: my mtzflrvl .0 a..<....g....n nghl hon) w.....; A mm my arm rmmk vusmlgdzlcd 2.32017 ....a .5 .....sn....... ...... n.....,.. w. ..... 1,, 0... ::..........m. Com‘; .......m... M; w..:..... Mumslmylrcnowshnuu .0 ...c...a .....m .5 5.. - - -mu 1". m. n..s«....u r.... ma... Pnsvludgggg n I v wnly Mm KM! DVI .xz2m7_ hr na........... Wm ..... pm M or cau5:d N in »....z. ....u .;..M.mm on M n=.,...........-. Fumhrxlk M».-...... . yam... mm .m lcvlhvwmg ......1s. rm m..r7I In ~s.m.. u .a 1... sn ~..s.u..o. mun x s.m..n knndnlmnium Au-lrnl vm.......m......:..:.u...n..-u Cnvnbnlehbe um» ...a.1.....¢..-..x-1.I>.u.m.. .g mm: on .y..~r |EIg|iIi 1’ uInIlon—S|\|ku|nr1la'l ..snm.u..-.1 ubgu . cmnio um ' A-mu‘ lmpvlu . 2: llaurs mun] .. am. Cutu 1:mpI: an nurthue . mnnunnnlun mum .,.. rrwlhvmprl i\¢1PknxuhIn')] I mu}! ?-elmm|h.1ll\vt'r\\Nm:I\<-I W/IYNVIEL1 nhmg mm .. nmm nlmy son, Dam‘ N Suukumzr mm lb: bakgmlmll afmrmxcrwr n[I‘VI:§|IMAHLI\1(:YmVVHnIIl||EWV|)‘tIl|JMYlH mux hue whn: Dam’ V Slukumar and mm ..mc..:» ohm Rtlvglom Chmly 1m»: 11:. -u mummg lhz n..ms.m dnnulmm Vly xm um furlhcr hum mm nu! « lh: am .»r ms Mflduv mg pumumn .am.nm m vlllgrwh n 1 abmcwzslnkadhy we yxwpkand mm: by,1U paw}: wuh Ivlhzn : mm mum lhnl lhc :m,..ma=..x Iunhrr mums nndar pcmullzd An mm M m: wmmznl stcmm M01: Rcswndcnl 5 rum:--k Acumnl c.mm..-.-.« um! ,..um.; uFm< mm «rflnuelfln the M» at my sam omen as Ehammn arm . memha «(the Bond m Mmnguneux ,4 Lxaaulwr Lummmeezml ... mm." -4. my conduct Iherrm n \en1\ mm mm Ihc .w...m ind ,.m.,..(. vvfrnvd m m Piragflvh ||.3ubvv:.w:u:fv\lrw 7 Ln Pnug Rama! 13.1.2017. §.2fl|JmI -‘on: my mrrmm. is enough far In: f-mi/v wixll rlvem mu»- mm/Ir/e~ my %mu.a14u 5.5: pm) «r-amzv mm. am. Malnrxr" um Baixmmuzan, : Mp") ‘Sun M11/0/IA: -wrva will ru 4: arm Wzlrzlx ma murltla .111 pm: um». um -pm./Iy m. Illmlov pkridmf Ir..-am. 1.....u.u..... mm s..unm.. norm will 1.. ma mu. mum lnnl ....r..p n punhh .....m. m... xpecully o. (Ive -n-as mu my Pgnml'nrnm(4..!.:0|7.T.2lun} "l‘arlIxy la]: in mm: Iuwl. plx Golgivepunirhmrnl” I N" |hI III: SDVIIIIINHE Ina KIIHIVIVIV Ilkrllified II. III.r.gI..oIs II I .III II a amt Ill HVZLI Hllhml .IIII mm mnmng mum Bl Writ Klllderflmhl II. menu lhll. I IalnaflII£v|V|gCII:IflVIln II ldtitrvellvbepuilisleflhyfitli HI Cod W|“|7|l7IISHm¢wV|71PI'II¥Xi§ mIIc1.uIIIIg dun I\. I Hm: Ilnncd Ind I M mlwxd III. Eye I..w. III (M K€VK5!0u$Ch)llIK)4 TIIISK I4 III.=.Iy hl‘/HI! n.IIII.pIIuII I..y WW, I:IIII- N swlklllmlh III my II.«=m llkl IE ltphtc HIE .5 [M Chunmm of am IV’ »I.II.mIaII and nfthe um.“ u.mIII« ohm: Nzliguuls Uluily Tmu ». I. qrm cII.IIIII.II pmcfofi Hkyhvlfilll II. rmI.I.»rIII, 9;... n.III- N Swlkllmll VI M WGIEH and In flfilefilldtvflhe 5,. Lawn mu I:=IIgIIm Chlnly Imsk I I...‘ ImII.a Ill) Sun IX BK ‘d: rm‘ I-IIIIIIIIIIII UFVM nm of MMIIHEIIIKM .II.I lb: mm...“ Cblnllullm M II: R:IIgImsCMIrIlyTm€L I hive mm: IIIIIIIIII IIIIIIIIIIII IVE By: Law: III the KEYIQIM5 cm, my I7, .IIImII,, my Wll In IIII.-opmI~I.I: mm. In»: Rillylmls cI..IIIy nm In Vumhasu Iuxllry Villdvflllflflllll III AIISIFIVII \lH My 501’! ..III I,» II run:I— §9VH¢lHl.71l|-G lNflI3DlDP'|!l:fl lhl‘ rm. mm Rel nI1\Chr|ly Tum Inenmch a.mIm fll1dI!ufflfl\|}V$ III Ihlvv II..a I-=IvIII.IcI.IIIIInImIIIIIIIIIIIIIIII helnllllinlhe Kellgmui Ch:IlI|y Tum I My [am _ ..III I IM IIIIIII M M1 [hr Ktfllphms ChMi|y mg‘. illlldi )0 II. nus: II My pvxflibll 55 III: mIIIIuI. Hf mm Ir Mllligflllllll ma (H: EXb1:AllWICmnlmIIE¢ nllh: Rthgiulfl Chunky lam. I luv: men [he lnfllngtfllcfll 0' the Ru IIIIu-my Tnlxl with my Fvml) IIIEIHEVII IEIHIIDEI flndfllends Xll. III. vfllflmllzdIhflthfllmllnhllsrlwflflnlvwhylhv XIII Thll I am IIIInI IAI hum I716 IIIIIIIIIII I: the Chmllllfln OI am III-»IIII..:Inm IIIII (I1: Exwmivrfivmmilustnl III: Rzl aIIsuIIIIIy TVIISK XIV I IIIII I71: Rrllxrous Chllfly 1m: IS IIII wni Nl_\ I.IIIII,v ‘IIASIIKSI A HM {up} nhh: mamk Dflmg am: 2 Mn Ism xhmm IImI=.IIIII...Im.mIIIuI -I42: Pnpclfiofll 11: v zvzrlhll Ih: Ia: mm Respnndrm m wnung And ,m.:,m...., nmlurcrnmng lo M wrmxn ma yvubhshtd and/nr pm [mg m lzrnnm m the cnmmem: scam: the said cmmsns and poamg ur me and ..:.-mar... m M: mm and «mum n..m..... Ind . member um: um ow M-upmem ma Exnumw Cmnmmte ....A m relunn In my cumlwcl (herein nu I921m7, zn22nI7. 2:22am. 2311017. 1z1m7_ 232017 Ind 932017 in the Rcxpmdenl 3 mum Azmum m in Im1».:h m ,,..g...». v or an Imm- v22 1 mm lvrr mu um um um: Rtxy-mduu m wriunn um pllbfishmg ...a/u causmg m be wnnen and puhhshed ...4m pemumn: H: mm... m m. mmm wsllnn Ihe sud cnmmrnlx and poilngs nfme ...a nlmysdl in a. way 01 ..., um «man; as Chmmun ma 1 mum nr Ihe um: an Mun-gem.“ ...a Fxccufive Commune: mu m Mllmn la my mam lhnlm an mzon. mzan. zmon. z:.2.2m7, uzun. zumv And 3 mm m m: Rrsywndulfx rmeuau Acwum .c m Imach ufpzngrnph v oflh: :..a,,...=.n mm: fnflbwlng mumm 1214 m Rzspa|Id:m mm mm and puhlisied and/nr mm ‘.7 he Mann: and published Ind/hr pcnnlnnd In vcmlm m In cmnrnwnls mm. m 5 rmmk Amaum cxvmmuns and poslmgs mmnmtng M. ,.. nu way u my ollices .3 lb: Ch m.... Ind . memha whim am at‘ Manngnnem ma Exccuhvc (ommmc: of m: Rzlngmm Chanxy mm mm m .«m.. w my mvvduu mm vmch mum IVY were undaslond m me... or mm minded m he undznwod ... um um mumnp mm h-vz been «mm m Plruflnrrhs 5 5 n s, 7 s. n s. v 5. m 5 mm H 5 at-aw: India: mch mm nu: m nmflxl manning, .n=g;m..s and mcnsmun :.,m,...n; me AM ur myxelf u. m. M, n! my ....1 mm .. Chnlmun ma . member nf Ihe Bonrd .7: Mxnuemrnl and Laesunve Emummec Ind ... mu...“ 1.» my conduct Ihacm. ma Ihuse nfiemlng mm‘ A xlkyinnx and xwumiuns in Dirusrim-<55‘ 65. 75. us, as. ms rid us Ibuvdud bun sxlzn.-sly vi:-dud xx -n: vflmd g mmngs Illfilhons ...a k¢us.IImM by ...= ... my Arlwnded summ. qr Clmm .1 .a 9.12.2ms. I rrfzr «a me I-flluwmg II-ugllvhs m lh< Amrndzd smmm afchmn: ‘ 9 (av. 1=).lU» mu. m. m -m N: may mu 4:) 2| \hM£)Ind|1‘). P... w nI7I :2 2: Despnz Ilve Judgumu bflng u. [um Ind mm the Ruganndall huvml um I C: aim: ludgrrmu. me Rnpmwdml yvmcwdld u- m... and puhhsh lrld/flI$I1l-S<A‘ID be wnllul xrd publlxhedxndmr pwmillvd u. remlm 1:: me cnmmmu mm‘ the .r.a...m..m.« mmmcms am posnngg mmernmg WK m I»: WI) nfmy olliaesxs Clmmmn nml . mzmhrr 0: In Build :1! Irlnungmvsenl ...; Executive Camrmuee ...a Mme m the WI) ufmy ;. nflizzs and ... .¢m.an m m, Lomlm:| lhzvtm on the Rtsvandemk Fnochnnk Am...“ m : vcnb hrllrvc . 1 m: n.;,..u.a=..u vtfusnl w wmm um mmn I 0! IM Judgmenl dcspiu ha - dun mum afme ......=, ., 11 «fun! In -My me lndgmau ma lhnl m. x..,»...u... .. thus VVlCDllI¢I1WlD(lNX H.u..m.me Cmm. :2: n vzr-Hy bcllrw um um: Rzspoudcrll‘s mu: m (amply mm ,-awn I ufllw Judyvkm. dawn: r. clear mlnncflhe ,..a,ym.. a . nnded or ¢.u=..m.a «.. vmpcdz. nhslmcl m mm»: -2.: Idnumslnlinn olpmxce. :2 5 lam mm by ..., whcnw: and! may behcvesammvmc lobe lme mu n.. nm n. max ... ,,.....,r..,m 51 ... n 5 .59.. ...1 WM «.4 by me Rewnndem seek in Imdemniyvr (I1: inlegmy md kkndmnnvxllalml muumny Ilux Hommmble Conn - Ra:Ipnnd:m’I rebuild 13 In ycspnnse m m: cnmrmua] a[7pIu::uon ("Enclosure my me rtspnndcnv filcd an nffidavu nffirrncd on 17 Ayn] 2017 (Encwnm. Ms) and u reads (mam) ns fnllrrwx. “fcnerlnu mm... x Mdllnhn pmm. :2, up wxxlngglllmyn muufllwn Iwsrhlmmn is? kmudunyrl 5,: mg: 5.4 mm Alidun Mznrnluslhhn Pcmyilnvl am Pcmnhon dwlml a. nmr. bch-n yzng knkuh unluk memhuklikmnyu «mm. buhzm ..;...;. yang ainymm am knnren hcnkumyu mun. mrngumx nu Arming Pemahm dun flan segl .mm..y. F‘I§t10nF7l 4 In so fax as dssobedamce of pangraph (1) or m: om: 1: concenmd, .11: apphcnm «had on seven (7) pcsljudgncnt Fzzzbook pubhcauons ntmbuzed .0 «he respondcnr, 1:, wnmn n .5 allcgcd ma: lhe respondent had dgfanned me Fumes: by publishing words which ..= «mum to the wmds znmplmncd ufm .11: defnmamry publications which was the snbyecr mm n! the mm su‘ . 5. A, rm nuxlmdmg du: Cnun vu nu.» nfl’v.|nvu, u 1.» alltged um an mspomknt ma stared m m ruT|/Jnvu nffirmed on 7 Fdsruzry 2017 Ihnl ht wuuld be zuincd by m: bnnkmplcy procceclnlgs whsd-A wue mm. zpms: mm by an 2|-tphcanl. whtrcas m oppoung mg appbcanfs ipphtauon m m: Court of Apptnl for secunly for costs, the Ltspnndcm 1: nllzged :0 hav: mkzu R posmon whlch was contrary m his nffidflfll’ u. support ofhls apphcanon for stay or execuuon. As ma. u .5 alkgsd am (h: respondent was nor mhrul [O .11.; Conn when 1:: sought a shy of txecuunn and am such conduct on (I1: re.<pnnd4nt’.< plfl, 15 m be tnnsrtucd us conduct winch undmmm Lhc Mlmlnxnuzunn mi mace Bnckgmund 5 In nrdu m undcrsund and npprccmc me conlcxr mt cxxmmstnnccs lending up w mg communal procecdxngs, u .5 necessity to cxznunc me bms of the dzfzmauun sun md .11: event: um luck plm-. rhcxnfzu. P||nJn17| 9 S’-Va mgr: rnerufikw baluuv Down: 51,». mrmbdva a... mm. b<r-kulnn u... :mx.,.k.n unluk mcmhiul mnkxudrmlkwd werxnmvnnynnzdudukznokh Pzmnhun .1. perenggm 5 5 am. Afidnvn Mmemusuhkm Pcrnyunmn dun p=...m.. dilnak m »..w.mmu.n. kukuh unluk rmmhukxikannyx no Sehubtlngan amp" pemnggan I: dun «7 m a. mu up menymakan bamwa poslmg yang saphnm pm: we 2 2017 mun n=.m..... mm Isu .1‘ mm: n.-...unm.. Kull mm M..«...... nmm....... (“P:nguMIn Km nun mengglmnknn 4-.“ mg mm ..m..x mmnlsaynr km .u..,...,. T:1uar\Sm:1m Dcllmulz &Cn xhllmkas mm-vs»: uu Admin xnyn n1MnhJ:|u Ierhmup frngnrunl K-u flan .14....) ..m..u.., 1>...g..m.. K main way dlsarnzhn deny: adlnn lclhadzp 1-mm... Snya when kcbcnarm muuk mum kepadn m...m. M-mm.» ma bcrknuln mm Kml a Maha Manrmnan Drvuihuum yxng mum mu.» an....p..un .1. mm dun mmm Kahlil km-u"M. H Mnka nu mcnyntnhn hnlwwl. um n>.u;..m... Km! ,.... Imus mznglmbxl unggunwzwub dun munbrn verlnluun umuk ml wig am-ngknkun Mch xuyn rlnn bukumyl .=m.m»g um. Pcmohrm mmk n.=ny.v.r»g-....k... reng>..x.n.m wrszbut am Emacs Mahkumnh Vnng Muh: . uruuk Inemnhnn umuk mznakommun say. lwrwnnyi MI: Ihsu mm sly: um. m:fl!hInu Mnhkuvuh Vang M..1..m..ym min: 5.33: mzrufikm am..." .¢kr...,k...w.,. r..m.n... «.2 us. 5.3. mcnyaukan bxluwa pmmg 3mg say: mm pada znzzon .a.x.n Mv. "mu dnn mm; hcrkzrunu nmuynn Thatpmam a; mu: .1. mu Pimng flibzndmgkzn dnnyvw Km: .1. am. cu. m Bum Cnws“! Ixu kunpnn Thllpnlm an 17 n nu K tn n. . (‘nus um um. am.m dengm Fsmuhon nu nr:nvhIu| umm. n.:..w. u. -an»: m_uu...,, kmyman memfilnah mhamp Pcmuhun a... ma memalakuw hnhnw: .m mm mm perbmm mcnplnhgunu mg..u...m mlubnl YIIE¢1InI7l 2n. Sehubungun .1e..1.... .. .1... ......,.1..... um... 11........... 1. M... 1>....... y... .11.... 1...1..;..... .1.....1. 11: ..1.... .1... 1.1.. .... mm. 1-11.11-11 1..1. ........... 1....,........ .1...........n.. 1....a. ........ ...... ¢1.1..1. .....y.1. ....... ....1..1........ 11...... .1 yum 1...1...p.1... .11.... kxherupu .1111... ....... ,....g.......... 2 wt. y..... 1. 1-..1.. 1-1...... 1.... 1...... Eaduwrmnl a.....1 .1... 1.......1r... 1.1.1.1. v.....- M... .......1.....y. -m.1.1.u..' 1.1.1.1. ...............1..1..1.z..g.. ......... 5.1.1:»; .1... ....... .i.1.1. .......1.... unluk ..o........ .11.... Mnh s..1... 1>.........s. K... yang ....1. ......g....1..1 1.....g....,.w.1. 1... ............ .......1....1 ..m... ...1 mm .1a.....11.111.... .1... uyn .1... 1..1......y. 1...... 1.9.1. r........... .1....1. nucnyzlahgumknn 1>¢.g:..1........ ma»... 1... plmn ~1.m.1.....1. v.1... Huh: 1.. ......1. ........1.u.. ...1.... ......gx......1.... nya kmmnnya ...s .1... 121...... ..,. 1.1.. .............. »1...1........ 11.... M.11.. ... y.... ....... ..,.. .........1.1.... denganxaknu-kemnyn s.1...1......... 1...... ...¢...... 1: .1... w 5... .1. .1.., .._... ......,. k... 1......... wslmlyung say: 1.1.. pad: 2121017 ..1.1.1. .1..e...111..1. ..n...'. ......11.1. 1...... n....- N s........... 1...; .11.... 11.1.... ..1.1.1. ....u 1>.....1.... s.1...=..,. ke....1..... 1....y..... 1... 1.1.... .......r....1...... u...‘ N s...1......... y.... 1...... sly: .....r.k..1 saya .1......n.1. .1... ..q......... .1 y...; ....... yaw pavuyn -1.1... .1... 11...... 12...; >4 s 1...... mum 1...... .......n.w. 5.... 11.1.1.1... lid .11 1... .1»... ..1. .1..... memlxla .1... 11...... ........1n..y. 12.... N s........... 1..s.n..1 11.1.. mu... Inst! 1...... .11 .....1..... u...1.......... msebm ...1..1...1.. .. .1.......1......1.1. 5...... s.n.11.......... 1...... ...e...;.... 211 .1... 21 .1 .1. say: ......y....1.... hnhnwn .1... ........1..,.. 11.11.11 .11.... .....1. ......1. ..........11...1.... mu... D... N. s...1..1.... .e...11... 1.... ..........r.;......... 1.... km: 11...... ........1.1.... 1...r1.1.111.= ham: 1...... 1......1..1. 1...... ....»1.r. 1.. ..........,v. .. n..w.1.. unwk vvwvndzduhknn hcmd: M.r.......1. kesemuz kuenngm ..1......_.. 1).. 1. si..1........ .....1.... .....1.....1...1.1... .......... ...v...1... ..,. Scuknl . sy. Mm mznymbul unshh-Iangkfl. 1...... ....1..s....... mu. 12......-1..r..... mu o..1........ ms 12...... .1. .1... ....<..... pen-n 1... ,...g ....... sly! V131 1.1.1. ...,.........k ...e...1..1.1.k.... 11.5.5. 01.1. 11...: .1c....:..... in)’: .....,.-.1... 1...... kmyumn .._.. ...1...1... 1>.1.~ N. s...1........ .....1... 1.1.1.1. ........... 1.11.1. .1... . 1.1.1. ......r. .1......k... .1... .1.1....1.... ..»...... x:..y...... 1>.....1..... wahuyun 1>....- N. s.v.1........ 1.1.1.11 ....k 1>......o..... 1:... 22 .1 71 Pmerlmln nu 25 an m.-mm... mm pmllng yang gm rm: pl-Ii 192 mm mm. berkznaandcnyn 15:: ‘V ....n. :».....n.... x.- mm. Mnrkmnun Drvumnnnm (“hngumsm K dun sly] rv-rcnxumnb vcrmilan m human :3 4. ma, hlgv mm. .» pntngguv In am; as am... A mam Mtncnuuamon Pvmnlaludan Pemuhw rmnm... x..s 29 x . mm. X!!! r. .w. m...; M; 3,. Mm pd‘! um an ..:...n Ixrkzrum pcrrdeklul r K In-nleunlnmlnnfl mum-.—..amu ml. 30 Mm ...,. .m,....m um». Dldun Verlgnruiun x n mg hum: ms-ngambxl Ianggungawlh a... mcmhen ,.mzx.s... mu nu yu-x u.w-my... u|:9I guy: a... huhnnyn mm. mm. Prmohun ....m menynlnhnmukzn mg..m..n Imsebux an Vnvscs M.r.m.m. Vlng Mull: mv unluk mummrn umuk .mgmmu.a.. 3.,» immvnnyn .-m shun Mhawn ..,. M.» nncnghmz Mahkzmuh Vlng Mulua m yang mum 3:31 mevufllun d<nw:nx:ku|<-bernw, :-....-m.... n.» :3 "say: mtnyllikm mm. Wscms nus sun mu! pm. zmn .a.1.m hrrkenrun mm m...m... Kuul M. Ielah menggumnn dam vmng klmm ..,.mk mtmhaynr Ims gunrmn I'rImmSh=un mv.mm & Cu a.mmm tcmmtnr‘ In nu. Adun say: may. Jelas Icrhadnp Ienuarnnn K a... mum lcrhadzp m;........ um mm mm a.;.....x... .mg..x .4"... mmmhp mum" JA Mnk: syn mcn_vm«.n mm. Bndm Pcnzumxm Km yvll um mengmbnl langgunmwno .1... mnnbm pcnklum umuk ma Ylnzdihangknkunmch W... van] ».. pm Pcngumun M gaga\ umuk lnanben puualasan pm 2: nl7l :5 ha: mum xenvmg Nam yang man mu x. mm Bum Cave: mu mmmx vermnynan alnn kw um lehlw a.>.m.... palm Lvlch mam; gunman Prmnlmn auu klmcwkunmnyn am. lvehndilan v-«mm dun -mkuyn Dam‘ N. Sivnlmmnr. Suam livnnll mus um. dxhuf vnimdw knew... mzrekn dzn mm. nu ma. nmu-an um dnlun \\hnn|ppI1|\\ faznbook Nllmm, my: Iguvudnk mum" Prmnhnn am". mu m. Ptvsnihn siyi nuwh mnv wmdw Pmfllmsa-I xmv am. bukmnyu Prmullan. Mm mvulan! ktvudn Wrwhon unluk m=..,.:.».u...k... v-=..gn.n.m... mm»... .4... [flaws Mm. .>. mg Muha WK unmk nlrmdlon «mu mzvlgkwmkm uy. lwmwlyu mu mm. Nzhnwn wyn Mun rnennhlm Mnhkmmh Vlmg Wulvl VII. mg mum syn .m.nm dengan 5:V¢ns— mm. Peurhlun um an gm. mmylvlkan mm poslnx yinu 3::/I builrl-dA3J1l||7 Idaluh amupm. shnyl mcnuuk kzpndn my K. Svvlkumlr y...g mu m... ..:.m. nnnk Pemnmm sa...m my-u... mp..." an -1..|m mcmfilnamkm um‘ N Swnlumux, yang warm .-ya mcu-fiknn, sly! dumihun men prgwrnc . Inn yang mu. gm pert/zyn mm. mm hahawa Dam . Swakumu msehm Mm) mm...” mam ...m..m prnbudn ,.. mum ;.,. nun memhela a aengm xrpcnuhnyx Dam‘ N Swikumar mscbul man man Aersmlndung m mm“; my..mm msehm walmpnzn .n.n,.mv.m aleh hpnnyn «v Szhuhnmgan dcnpn puuugpn xx dun :9 a. an: my: mymm mm 5131 mun-..._w. hukn yang mu». “mu memhuknlan hlhuva n....- N Swnlunur Ierxlml mm ...m.v..».;..m... dma kmk -rm mcrmkkuu llvnf hvdllp mm. dmgm membel: kuea mewnh 4.... kedlnmnn nmnmull dz wxmm, Almrllm ylnn my.“ um w. znn. Level 2:. son Eluumn sum. m.n.....n... Viuurln mun dun .m.p.m,.x mung xuvlpuun 4. mz am an .u.m.:.. duun Namhur /um... «mun xlwmus flan gm bclsedu unlnk ..wm.n«.n um Mahk-vmh kcnmux mmm stkvunvn Dun‘ N Slvakurvur ma.» mmm nmm Iefludnp 3:31 Seukax m) up um. ,..e.«w-.s.u hvnnhh-Inngknh mm me:-mum. kc]-Id: -.1‘. vlhlk mg Imkmun am mm .... dzn hebcrapn pelkzn lain mug n. llfl 34y: mm mm WIJ I-mukmendx-d-Mmu u om mm demlklmv um my.:.m hihnvm k:<I)n\mn m. mum mm‘ ‘\‘ Suzkurmr mam mm berluuun mm am ... ndnk mm. .;.,.....u... M... .4m.:.... my. mm... um-am Pmm». unhuym nm N Swakumar mm anak Fenvohan. ~‘ 9.... 24 M 7| The argnmzms :4, coumx for an appllcnnl mu ma: uh: firs! quesucm am mm ‘S whuhu me respondent WM lcsponslblc for me seven m pos:— mdynmz puhliczmms ... the Fzcebook account 25 dxtsznbed m due om; 52 Smruncnt. In Lh|s “gm, oaunscl [oz :11: applicant said that 1: us clear from me respondent's zffidznt m Knply (Enclosux: 143) am 1'1: dots not dispute ownership arm: Fzcelzook account. 15. Further, n \|«'.I.\ subn-um-d am lhc mpomlcm rm not smlghv m up. um the cnnzenu am: xevcn (7) pox!-yudgvncnl publlczunns m um rmb..:,k nccuunl ma has nu! repudiated dw nzcuncy‘ of rh: Lranslzuuns Hence, counsel saxd um due Imp(-rauvc quxzmon for purposes of am cornmmzl pmcecdmg .5 whevhex mg respondent and puhhshed or camcd .0 Ix pubhshtd wnungs of md conoemmg an zpphcznl and m me my of his offius and/or pennltlgd commcnts (0 be poslcd or and concerning the zpphcanl md m an \va\' of ms offic:s,Wh1:h m d:f:maroq' arm: applyum, m. In mas mgud, counsel sud ma: m duemunmg “mm Ihz respcmdem has breschad pnngznph (1) of an Ordu, 1: .5 necessary to ask whcxhcl ch: srvm pmmudgnucnt pulwhcauons m defmnalory of mg plmnnff and m me my of 1m n|T1:u.< and whuher mg dcfamnmry words an sxrmlar no mg \Im(ds cmumncd u. the impugned public;-Allan; m the mam sun. me1.<.»m 17. 13. 19. In «spam, (11: respondent maintains am we won]: (ontzmed m m sevan (7) pnst~|udgn1:m pubhcmons whether by w; of his ungmal postings ox me commmts by vncwns, do not lefer [0 me zppllcam ma are not dcfzmzmrr om: appllcam and m the wax‘ or am nffius. The rexpondcnt sand ma: h: ms mmly qurxuornng (I1: mmugn-u=m or the Temple and um pangmph (1) um“ Urdu am not rcxtncl or mmm lum {mm nuxmg xssurs pcmllmng In the rmnzgumcm of am Tumplc. 1: ms aonumded fox Lhe respondent um um publxnnunx vu (ha xvm (7) pm:-yudgrnlcnt Fnccbouk pozung are not defamzmn of mg plmnnfi ma that the menmngs ascnbod :7: an Ippllcznt to ma nffzlldmg posungs znd commenu are not admmad [O and mu Lhe postings and commmrs do not mm m Lhe applicant 2nd of l-um in vhe way ofhn offices Hmtever. n was mnrandcd for an applxcnnr mu m the Amendrd Sum-mrnt or Clmm msorr). mg applicant Ind pzrtxwlanscd uh: ammmur,» Wm, gm pnmgnplu 521 A500 mudn-H11: gwnndx of gudynmg dns Cuun had m pnugnph [3] to [w] dluun, ulrnufled me uiicnchng words and mm um um offzndmg words are cxphnll; /mhemndy dcfamnton, arm nppucm. v..=mm Thus, u was commded for the mum. um un 19 February 2017 (Exhmn NR4), 20 February 2017 (Exh1bvI(NR—7), 21 February‘ 2017 (Ex!-ubit NR-8), 23 February 2017 (Exlubu NR—‘)), 1 Much 2017 (Exrubu .\n<—1o).2 March 2017 flixlulzu ML11) ma 3 March 2017 (Exhxhxr NM2) pmcrzded in publish posmlgfi and comments cnnmnmg simtlal or lxkc dufamamry warm, rnncrmmg the npphtanr and ufhxm )1: eh: m, nfhn. ma uffircs. Counsel for (11: apphclnt ma lhn! n 51:11 cxunplc of am: most seuons md ummuy offmdmg words .n me sevux (7) postqunlgpntnt Faczbook publxcznons mu. are m mlmn or ch: Inynncuon Pu parsgxaph (1) orme Order an as fol.lo\vs:— . ~u..,,.a n m..p-3.: was .. gcngxurs ..........g Itmplz sum I\sINd3nv|1xI1:irI|(|\IIn:dIulnkcuvn-ruuwdmhiul u-mum; mu ‘.. Eam Ca\tsmnp|e'1Exh|hu me) .. "Haw dues m. alecum gags mu m mm km haw mm .1. sum: pt/(son um m. ..u4m.~ Doe:Ih1s:sI\uerfun|\y IzmpLe' «:m...nu> ‘§nmeIlnngI\keaunrl...v.hn u |veIinuipmb|:m’lF_\<hiM mm a w mu mi imzsnulv c»...n.m may hurl“ mm m mun um mzvuggmml Mu) same prison mlfingpresiduucy for mnrelhan 3 deans" «E-mi: mm V "flamcavetemyk mm aw (mam KIM) ». "Hnp<Im5mrmr_V gm mum u bzlongxvrns gomgown Wm lhix fiml wt: WY“ W it-vm hm muluu"(F.xhI|\1l mu» vu “Runs H mm m mm x Mm ...xp.m-‘m.a.. N1-9) memru 23. 24 .. ~r.m.:, mm; ()pp5.. business‘ Llixlnblx M41) x. ‘sazvehflfullhemmary wwllgmnlumm po<kcu\ordmu|up\41H pm». mm spccmfly ma "(Exn:nx\NR-11) |¢fl‘I}WI)L§ ma! 1: m. ducrnfuxz nlgugd rm Lht .1pp||cinI. am by publishing 111:5: words, um rzspundcnt had bmzched pzngzaph (1) of me emu. rm zpplimnt mzdc an um um hus wmplalnv. at am: cumxnmal pmoeedmgs is not rhnt me mm posnngs m an sevcn (7) Fmbook pubhcznnns arm: pmraguph (1) ofrh: Urdu bu: mm the spcnfic mmmcnls made by the vuwexs appearing rhueunder do. 1.. so fax xdnnufimnon and ztfetence m .11: zpplxcam ,5 cnnctmtd, n was mubmmcd cm an applicant mm rh: comment‘! have hem mad: m relannn m or m rtspnnst m :11: mam pr-shngs which utcrmfint nu nppl|c:\nI mm/m makn mfucncr :0 am manngx-mun: of (I1: Tunpl: w ch is llcfldtd by an apph=1nI.Is the Chzlmum ufwl-nch mm an by; no mm. Cuuns<l fur the apphunt sud ma. nny suggesuons w m: conuzxy n cunuwcd and d.ixhnn¢sL 12 um: pointed out um m some of the posvyudgnenl Facabaok pubhcaunns, mg respondent ma “p3mc1pIK:d" m Lhz zommmts and “eggad on" due vxewexs. wrzsoru 25 26 27. 25¢ Cuunscl also pointed out am 111 response (0 one viewer's conurnenls. the mspondtm mo stand undu me cam.-mm sccuun am he had “proof” nfwrongdomgs. Counsel cm on npphcam hxghhghtvd am m none of the seven (7) pn.<r—|udgmL-In publlcztlnnx dud uh: rexpnrndenr make in} attempt m Ilpudmrc ch: Vflc, wnuus ma vumpcmzm cu.-nmcm mu wcrc made by m. Vlvzwtrs 1: was nguznl mnlaex ntnthaluly am 111: respondent did not or chm:-5: not .0 an my Slvps [0 remove mg oifcnduxg cmrm-mus and/0: am not rebuke or cannon an wtwns for mug commzms winch are dcfirmtory of an npphcanz, whcn 1.: had me czpab|.l|ly and ryppomzmly m do w Accmdmg [O counscl [ox (hr applxcnnt, .111; goes to show uh: mspcndenfs mzlmous snle ofmmd. :\.< for me respondent’: cnnlemplmus m of mxsludmg [hc Cuurt. cnum=l rm the applltnnl and am In flu: :c.<pu..uc.-ms 1f[ld1\‘ll m xuppou zifinned by m: respondent on 7 Fcbn.u\ry 2017, f.|cd ..-. support or um kspondcx-At’: nppllcluon to sin’ uxccuuun uf .11: monzmzy pm of me Uxder. vb: rtspondtnt had affimmd um ht am not havz a [med mcwrne and mu h: am not possess enough funds if m: axccuuon was no: srzycd (paragraph 27.2 1 of Ex!-nbnt mm} and pangmph 27 5 of Exmbn .\uz.13), rm:-z..m 29. Counsel ,.........1 to m. rm .1... ans Cnun ...d proceeded .0 End .1... Ihz ...p...a.... 1..a .d.......d .o 5...... ....,..c........... pa... 4 of me No... ofPmoeed.|ngs d...d 15 February 2017 (am... Name] 30. The xzspondemz mzmmxs n. his 5...: zffidzxiz touching on I... finzmml p..d.c........ read .5 Iollowv ‘27 Stun .......n... up... a. ms 5:): s........_.. a....;s..... ..... p.1.....<... uyl sesungguhnyn vzruyl a... ......y........ um... »x...a....4......... ms .1. am... 1... .1. ..... ...=..w....kk... cur...“ p.....,........... .1.....x.u... ..... ..s.m..q..... bznkm ~ 21: vn......r wlnh mtmulahln mu... o...k..ps. ...e|.I... ....a.k... n.m......» Ymgu 5»... Au... 4...... pm... x........;.. N... BA—m4cC—ns554wm)1s .m..a... 3.). .1... .....a..-...... mas)... p.....u... mm. 4...»... pm. m.2.2nn (pmmdmg u...x.-us. lcrszbul) m s......... prawnhnu .......p.. ...,.x.... ....«........ .1... .._ .s...ym........ 5...... swung .......,, ...... 12;/A ...:.. a..... v........... vermin mu... any: 4. am... Mnhkunulv mu... 2711 Say: mdnlah W... .m. pamzgaan 4... hagm 2.... .....m. 4...... ........ s.,. 5.1.3.. .......g ...x. panlngnn mink .k... dam menemskau mu m! .. ...=.. Vmgxung .3. 4...... 4...... ,..g,. ............. Malahxn g... u... n....:...... mrndvll ..e....|....... umuk .......=.w-s sebu-mg ,.w..... .. an... .......x y... ......,;»/.... ..u... .m.;......>..........1......x....y. .... .. .. 212.2 5......» mm... :....xn.:.i ...w.... ...u......... uema....m W..." kehmun 3... u... ...,.,.. Menu: 5.... uduk ............. .x...:..,..... ......, hag: ..=......m.. u.......... .n.. ......,«... .......g. ........... .........x yin; 9.... maukvu .....,.k... .1... p...a....... perlu .1.........u... 272.: Kmdzkprmayun a... 1.......... ..m..... uy: .x... .e........... ..«.....,. ,...,...... ............. ......... .m.:........... 1...... my jug: mm... .1: an... r............ M... ><...,.... mam 1-...;o..m The bnckground [0 due dcfamauan sun Is as iollom. |'hc applscnnl \|')\$ 2: ill xnnnuml umes or 2: ms: smc: 1992, me Cl-mn-nan of an managzmcnt wmlmttcc of me Sn Mm Mznzmman Dhzvnuhm-mm Tu-nple (“me Temple") ma. ,5 an xcm-nc Hmdu ztmpk along 1:12.. Tun H 5 Lee, \n Kualn Lumpur \ccardmg m an pleaded cuss, the Tunple and us pxoperty/nssnm are all part of 2 xelulous cl-nmablc mm. The rehglous cl-mrmblc mm also own. the mmh. mmpl: m man and the am Caves Temple complex as men. The applicant fled mg mam atuun my d:;[:|nauun zgmlut me Icspondxnl fur vznuus p ungs znd comrnmz; m mg xupundcn - Fzccbook accounts. Aha . mu m:.L .uagmm W13 gwrn ... favour of uh: zpplkam Th: Ordcr mas ms follows-— - y ,u. Inguncuon Io rem-nu ma :lefuvdanL wmm 5, hlmnelfar xhmuih -mus. slrwamy mud/or zmpngms [mm wnunfl and puummg and/ur unsung m be Mullen M puumm . the dcfumllnf) was twill?!-Ilucd 01 in the Fnccbwk Wm-cmm mm inch mhzr s....n.:. or Iikc dzfunlmlv vmrds cf Ind mnccmmilhe Pu...“ mm m me way nlhnum «‘ 2» An «nu: um nu defsvullnl .1.» mmmm Ink: dawn. ten-Iwu um ddclzal! an ....mm mm nanndy m=.am.naa ... Allnmdnx w: -3" ..a mum .n.=..a<a mmm ufnhnvm ma om .mp..;no< wbnuum vdzn :d .x was m lo ma ur awn B3 and pigs: 5 m :3 afklundle Ba rm vm Fucbwk numulls In my mm mm; M ... ..u. s Ixamgnlnm In and skimp://www lxczbunhwm/Quchang lmmslv and/or any am<r Ywchmk Am....z5 .n.m. lvehnt opmud lmd /m vnrruad ....a/ armunumed. Pig: 4 ma an 32. m 9... ..., .... 5.... ..................... ..:...............1... .:........k... .1. 1.. .1. .... Rn;/um mm. M.......... .z........ .... b¢ua)1.a|(:n A........m ....g.....," 17: Saw .1... ...¢..p....... 1.=...s.m mg ...... belch .... ....» 1...... p........... a.......p.. Flmnlxf ...........p ...,.. sc........... pnvsvdvlls hnnkuvsi mgr... ....m....... .1... syn .s..:...n..«.... why: xwrlng hulknp. sebelum pelupusan 11...... ...s...... a... swam. kayuan Iusebul ......m..um sayx. .... ...... ...... mengembahkan ......a... ..,....... ...... .... ...... sq): 9...... a.1..m.... ...-r-...: wwaufl ya... mm...» 3.... ...... ................ 5:... »..m..x... yxngxidxk ...........,.......x 27.5 suyn .1. . ...... ...... ...... mempunym ...... ...... ...... .... ........,.. p...g;............. ...... ............... .... ...»... .1.;pm....a-~. 175 .....g;.......g.... .=a.....k...... mm... ........ pmu ...... ......g......... ...... ...... ......» ...‘... ‘- The ......I.=..... .1... rcfcncd ... ...: rcspundcnfs ..rn.:...-.. ... ...... ..r 7 m.......- 2017 ......1. v... .rr......a ...: flcd ... .I.. Cour: ofAppeaI .. oppomac... ... .... AppI.\<:anl':' Nouoe of Mouon dazed 11. .\I...u..b=. 2014 r... .«.....y fa: zmu. Counsel sand um ch. nesponrlenfs zffidawr .. the cm... of Appeal znnxzmtd tryntnry zmrrnents w1.m... he ma «ma dm he held full ...... ¢.....1......e... as 3 ........g.. ... a xzcunry firm (pangmm. 15 of 54...... mus) and .1: having ever sud ... ms nffidnvu ...... he w:\& unzblc m .... zusn. .hc.ch,. suggcshng . .. 1.: w..» ... a p...«....... ... ..., cnux g,......,;.~.,.1. 7 2 ..r1;.....1... NR-15) ......e :. ...’ 3.3 Th: contradictory nvttmnnts by me ....,.....a.... ... ms affidznt tiled ... mg Court o(1\ppt1l. ma .5 . V3. Sly! Wu... kzbomun M.n.x.....:. v... Mulu .... muuk .......j..u 1.9.4.. 3 | ma. Usal Iltspnn-tan ...«...u. um zala wmnmyl bnwah Seksyen 44 Ann r.q.>.m.... ;<.m....... mm a.../..... beam 27 flan 2; man. Mnhlumnh R.,..... ...¢....n.... .......k Jam... um Kax nchnnynk kM§l|,I1Ufln0(§<|:pnIm 4...... Jebagu "Pumohman Iersehul") -inn u Sclcmmyn. (Ayn .......,..k Iuepldz Pumoholun mmam unmk 1...“... Km ......u kmsmnouno am» um... um. mm m yang mam: ....,...a.... hnhnwn .4...» M... ......m. y... ...n......... mu .........m a... mum... ..»....u ...a...mz.. mu. mmn... mu melnhu km... ..u :2 Sin am....r.... nleh yeuu..m.. M): ylnu rm... sun Vera): ndalnh 5.... bnhnw: mm yang a.s....u..x... oleh Resvondrn ... mm k..4....x... km...” ..,. muk «mm... 4... 9,. enggan .......k ..........y.. ganmugw a... km )ang .1.....mm ...m.. 5... m,.....:.:. mmumv .4»... Mann yang ........ an wvevwuszhkun :3 s.............. my .. la)/I m...».......... m. . xbuhm |>......»........ lznscbm a.(..|u.. sly: Icllhpun ...=...:..|x... Rekod Rnyum ........... Memamndum Xavunn a... berscdu ......... pendcngaun 2...... : mermvuukkan bxhwa kesengguhnyzmej ..,.. .......x........ 9....-,u..m...... m. ....m .........g. .1... km yang ...:.... mm nya nlnh mm... rm: mum um... .... Rapnndzn .....x mms mwggunalmn kengalllmn SI;/I ......m..n m...>.y.. rnmmml .1... has sax...-m hum >-.. .........c..... ......u......... K... sclxnjul .1. Mahkxnah ..... m. cm. 9... .::....u... my: ...e..,:..k... bnhnwa Kmrundcu udak ......gm..m.. my-..; nllun yang Inurwabuh .1. .... ........,. .....1.... my menyaknng mm... vcmehul m. :2 «I71 34. us Secan mm... 5.5. wznymkan hnhawn wlllupun Nam: mum mlzh au.uk=.. pad) I9 um dun say: mm mcnpmrul sagahlxndllun umukmelinxungkln mu... Ini.R:swndu| ham: mm km Vevvnnhomm mm: m. mum. m 2 b-Mm) lrwnx dm ma. um y-mg ammm dxlun krmtvmmln Iuxahul uplm /.r.a.m Sokungnu benehu hug: m.=n.«... kelrmun .m :5 s.,. nncnyllakzn mm. say: mm,-...y.. kedumun am. Ihrvul map dumn Malaya; Sn;/A .»....,,..,.,.‘ m.....g. ,..., um: um. um: . Suyliuuadulahuser-rm¥anI:kxi(dn1nm wvauka... rluempmym mas: aw yang oerah damn uma pohhk 5-,. mm!-Inlylu pew...» rrnuh mun nets-gni u-mm mbulh Stqnku s<k\|nh. Say: um mu mznyhmkm m-ggum.w.n gm. unmk mmunukan say}: langgungan km ynng munglun mm. : mun.“ allh Mmk.....n mg Mulv: UH sckinnya Rayuun say: mink «mm... pod: kuelunmxnaniupun xcbuhaglan I7 Sly: mm. st-mm! urn! xlmldnhm pom 4... :3): mid: lkm menutbnnkm Iunmunnnwnh uyl .......u numb-zy Inn mm.“ Implwknsn mg mam nmnlumgxulnlnn ktludupzn pohhk say: Ix Saya juga dinnsuiuli ma pngmmun mg mam saya pevuya mm hum Iuhuwl nyn mtmpuny 3...... x.,..... ms am“... flan mun Say: hamsmban pthung unmk munheh Rnymn snyn nu km. gun kn Stslhnnn Mcnmlndum um... ylng a.v..um a. ml? mm: Imwlkun a‘ <Im dun dmmh whip! :kimtm"MS-4 Iv an. us‘ no» In the “admin mm was filed m me Court of:\ppeal. (he respondent has also menurmed (hm {hr cm mm h: had mkm ms lnmxlv {M :1 mag, m man and Ind muted Spam. .~\c€nrr.ling m the applicant, am Ihnwcd om hc ma mg financial mcanx m yusufy .1 refuxzl nfth: mulwn for mumy for costs (pnnguph 8 ufExh|b1z NR46) mm nI7| 35. 36. 37. run xasponrknr funhrr nvzned m the ma mam um me m1 m1<nn for no; pzylng nu dmnnges and wsL= avmvled ms bonus: he was appczhllg agamst due judgmzm clued 29 July zuw ma wzi wmnng in; me outcome of on appeal (pmmph lI(u|) of Exlulzu NR46) According to counsel for the applicant, flu mmmy zvcrmcnlx “.1. relremltd m aw xcVpnnd:vI('s wrIn:n .subm|.ts|nn ama 2 .\1.uch 2017 (dud m Lhc Caun of .\pp:i| (pnuguphs .1 1(z)(u), (m):n:.|(v)nfEkmbnN|1—17). Thus, cmmxcl In: the |pph(2m cumcndcd am the xexpnndcnr had pzinlcd 2 tuully duTexcm pncluxt bcfoxt me Court u[1\ppcnl and am lhnsc net: and Lxmssxons were dcsxgnul to rruslcad Lh|s Court wnh the. mm of pexsuadmg dug com to grant 2 say ormcuum. or the Older Thus, on ma. pram-use, u was comcnded mg: mg respondent has obmuzled. xmpedcd, undznnmed and xnm-fcred wnh rh: .mqmv and an zdmmlstunon of yusuce. Fumm, mg msponam has abused me legal process of thls Conn and wmmmad Contempt ofdus Court In k.~‘pnn.<<, me re.t}>ondem denied am he had mad: m nvermmls am ma mmux the Cmxn and cunlcndcd thn :11: Ippllclm 1174» «mu m nvczmcnls made m rm nAT1dn\'u nu: nfcmuuu Pant u M” 33, However, ncconhng m an applicant, (1.; xtspondmt ma metal)‘ advanced bare dmuls to oppose Kh: appl.|cnn('s conlenuon ma um Lhc ms,-.onamv_< affidzvxt :5 silent on the zllcgrd conmex: and L; dzvrud of nny explanauan Rs (0 how am zpphcnnt 1-ml allcgtdly tzkcn me mponamn mmms mlr nfcunxzxl Cnmlvel for me applicant submlnrd am that has bun 2 wmm and cmmuma an». un [ht pan of the rctpnndcnt In bu-zch, dcfcu znd undcmunc :11: Order ma u.» mnslcul :1»; Dunn. 39. umi on L1): nfuxtnld, me ippllunr zubmmcd dut rh: applicant has shown beyond zeasmnble doubt. am the rcspondcnus m contempt of rhrs Com: mx therefore the appllzam uxgtd am an respondzrn be commmad fax contempt 40. on m nrhcr ma. counsd for m: xtspnndmr ma am pnapxaph (1) tn? ()1: ma“ .3 unumzln. md:fimrs and daily ammgunux. She mfancd In the cam nf Dam’ Im I Jung)‘ Val/I4 1/. Pmarintmr Kuhn/ml (M) Srirv um ¢~ Orr (Na 1) [2005] 3 AMR 393, [zoos] 5 mg 439 ("Sunny V=llu’s can") what an cu-In 11.14 mm mm u mpmum my anzfnr m /urging m :2: my 2». my arm.’ .. urmmbtuoui mm: mm MM; 1: n be am Pug: :.- mu 41 In am presznt 215:. n was angued am am apphmnt ma max to set out pzcclsely what are the dzfanukory wurds cmttanled m m: sand s:v:n (7) posmudmmz publlciuons, which are purporlzdly simdzr m an m-nmncd wmds in Urdu to offmd pmmph (1) or th: om“. Azcnxdnlg m cnunszl {M an rzspondcm, u .5 not -he drfamamry mcnlurlgs that are mununed m paragraph (1) arm: Oxdwbuv rxthcr. Lhc mslnum is on 4.-rmmnv words um mm mm ur “mun m lhv: dcfzmnlury words nppcznng m the unpugnul Fucbuuk publmnuonx m m mam sun. Counml said am me .ppu:;.m has |'xu.Ir,d .0 show how dun respondent has vxolxlzd me txpflss lam): of pamguph (1) of mg Order. Thuefaxe on um pru-mse, counsel conztndzd dm :1-us zppllmtmn rm communal 1: nama, dcfzzme ma cannot be mzmtzlnzd m law and fun and ought to be dlsrmssed u bum. Cnuuscl fur the rzspnndmt also xdxzd an (H: Ntw Zzzland Conn of Appcnl cm nf(,77rx1mph(r Rahcflkfrxnqy u but Ir/um 12014] NZCA m at paragraph nu] ma submitted mu uh: nppllcnnr had (med :0 prove um um rc<[I-xnslant had “nctual knowledge" ufan) defarrulnry comment: mule br vltwen who mu acccss m we F.Icc|><mk Account. In tespongn. counsel for mu zppllcanl sud um m of knowledge m not mud or alluded .0 m an kgspundcnfls gram... Hence, me poml um was mm should be dxsreyxded In any event. .1 W mntzndzd fin Lhz amvhtznt am the rum smnuon helm: the Court denrlv shows (In: r:xpondent's mm pamdpznon 141 um publications Fun: :5 ..m 43. 44. 45, 1.. particular, ms conduct m asking 11): mm: m “pls slum", show.» Ins acuv: pzrncxpauon 1" me commmts. Thus, the respondent had Invutd wmmenm and cannot now be hard to say he had no knowledge. Th: respondent ma am xtspundzd .0 sum: of me fic\vcr’s cornmzmx ma mu “e|zg:d" them on. in m [M in me nllcguunn nfnuxltadlng the Cnun 1.: cum-ma, :1 Wm mmmmn in. am (I.-spondcnl um pmgnpm 27.2,: and 27.5 m the Iv.~x«ponLlA:m's affdavu have bean mm complelelv (Jul M m (umcxz and widuoul nfucnc: la arhu paragraphs m thc gm Zffldlvlt, pamculidy palagncpll 272.1 and that by doing so. 1: is me ipphcnnt who .5 mlslmdmg kl-us Couzt In nxnplufiurlon, counsel ma um me mpandenvs affidavn m rm.» Cnun wax zffinned m mz znmexr of n suy nf axtcunon of a mommy claim for RM250.000.D0 for boxh general and exzrnplary damages and RM97,247,47.00 for costs uhcxus the wad.»-1; affimucd ... appnsmun m me npphclnan [or security rm cusu m the mm at" M/£50,050 00 \V2\ only m 1..-mm ufcmu of the ippu] Thu'cl'nw [hm lwu mumm m on diffcxnnt mnuus and E)! zmounu. winch 21: vastly r:li|Tu=n(. wgumu Analysis and conclusions 45, In nw view, the smmng poml .5 ownushnp cf me Faccbook mo...“ Clearly, u. m grads“; due Iespmldenl has rm! dzszvowed uwnexshlp Ind/ox mspansxbdlry lo: the posungs md/or cm-nmmts m on ma: (7) post-yu I Fzczbock pubhcauons. Hawem, during su|:m1ss|ons, the mpondm look a djifercnx smug» and somcvrhal dnsunced hlxnsdf from my dcfanmtory commcnls by vmwcrt. In [his «gnu, u .5 mm-am m not: am me respondent ..m~.,uwm1x, mvncd or suhcllcd maximum cxpmm and cuculmmn uf hls pnsungs. Hz “km ms vmwcn In “Pu share" ms pnxungx. And tum: un lhu ckpununw .. the mu, m: r:spundA:nl cannm feign xgnmznc: am an pomng on my nmuer(.<) mung to me apphcanl or me uempnc or me ism Caves Temple \v|ll 1nev|mbly mvxtc a deluge of musuc and ammmxy commmts of the apvphunt bv viewers who had unhindered access [0 ms Fncebook acmunt In dns mwd, m his .md.vu. the respondent dxd nol dum am he ms unaware of the commtms um Wet! made by me viewers. maml. n ..= we um for .11: respondent m suggtsl during an sulnnission stage um me apphcanl ma m prov: mm h: (r:.<pond:nr) had auua} knrrwkdgt. Th: |Ssu( of thc rcsprrndcnlk lack uf actual knuwlcslgc 15, \n the pmcm nrcumslzncr. plainly : nun-suncr. run an M7! 47. 43. The ncxt km :5 Lhe respondenfs complaint am the npphcmt ma failed to specxficully mmary the offxndlng woxds u. me s:ven (7) post1ud.gz-nan: Fzcrbook publlcauons. In um rqzaxd, I hnv: rad uh: Order 52 Suremtm and find an. n clenrly and unmlstakzhly mdermfigs rhr Irnpugncd wards winch arc and m lx- dcfnmamry nfth: plmmff. In An; regard, m Ienns niche Idmnfiauon of I11: spanfic defaznzmty words .5 pct :1». in/an (7) ponjuxlglatnl Facebook puhllcauulu, u us ncctsxfiarv w r:f=t to me -rm: um was przpnmd bv oounscl for an zppllcnm whxch Ix ltpxoduted mun-— Puhlulmn ....m‘...m: yc....m.‘,.../D... mmmm ma. ‘ yM...m 5. m ymsmm-»m.my.m. \E.>.-nun)‘ »W,.o -».,...,.w my ln.xuuuuu2un.lWn-I -m.:,»».»agm..z...¢r (my n...:.=.uu-zwmnwm «m:.mmmr,.mm,.m,!g um ..m...u.,.~»..».y.......m. mrvmhd Abba g/unerk ;.m......c,..a. ma [Pam nmum — m . 3...,“ mumm M mam M .. ‘ an-. x....4 in @ «in mnmmuu mm 1:59-my ‘N-w dww ./mm....w. .. ,.,..:¢.. Lento A-1w 1%!/ ‘ mm» Dun mm AM:-wk»-rLx muff’ M m:n_\u(2n:2nn um; -:m.,.u»«y-m,,4.;.»..aws.« (M vmnn(2n21m1uIym) ‘afixmuumzum »-.m...,... memm Kw? umu....mmn, van-am: -4.:.....,.L. n....... mm. -yhqpwv 2-.uy:'m....,..4..a.x.»...; ....... &v:xLa mm’ 1 mm... :mm ml-77 54 on um &u_Kumn<2n1wu.3o<gmp "rn--vn4~4mm«-«mm:-man/am ! amuuozzum um» ‘A/lnavhpnkfl llnzlumvm-hum-x— AH M ...a nasal §nmn E mgvgm|20L:nI1.71Avm> ' : mm.. 4:»... will n W (M M my my - m 1.m7.5I9vm) -...m.,m.. .,» mmum 1m|v,s.»1yuu Hlvtlhrmwtrsflntnwhrrvlvklwwlllfl nusgmxauum»-4. m...... win! M 7-4 ......,a» (zI zmw WWI} '(PM)v~vm[mWv1 am..m, .. mm, u..mu-,m.a rfigmggm (Z\ um. um; -»s...w-o....,..wa.y. ..,....u. ...., Mwzunr [Paw-M n...m.‘. AH ....:..... mm: M my V»... yum um.» Afilnl Enmuaunlm 2.2nI7.LI9pm> -w... MW ..»....w«.....:.wu- |%\wmtuun.uun— mmmmnm 1:... mgm mn.m.—: am now ,.m....«,..=,«=-......».= ;».. rem.» n...x..m., um my ..m.,m l mmuamm mm, mm -nmvnvw I7-A mmm... ...,.,.w.. Milmrr-Mn »......:.m>....w- [bum 1nnu‘w a mum P... an nl7l 3; The penal emdursmwelu .; m be nnthuied n. ma mag ... mm 0! lllucn 4.» as (M. A; r.*m..:.:.....- flmsnm arI1Mw1umI.lw(wnn wlrrunl s~s pamnum fmm 191: am. ufmi: Jlmgrnml «ml the am. m..n vtymnu u renhulmnx 5) Mgnvulm Ind =.....:.r, a..;. m m: Sum of nmmuuwmm mI:1=suI5% an Inn hum mm ahhls 1m1gmcmun|I\ ma daxznifull pa3merIAoUu\inlmn)' e7 om m m: sum nrnm91.um(:«I>uum 4% allow/ar (:2: V0 on/#59 Rule 744/ mm «(Own mm. the mm ofcuxu mu airy mm-a u the me at 5% per Irmum (mm mgm afmis mgmm: mm mu we 41!: ac mu pnymtm m mm...” 10r4(r§9KMV: 2: km. :1/(‘mm 2am’ The appcal 10. he respondent ms dxsszusfiod mm mg Ordex. He Ipptzaltd [0 mg com ofAppe11 by m, of Conn of Appez] blahysm CM] Appml No W/-02(NCVC)(\‘<)~1576J)S/2016(“the appeal") Th: appzalwas dxxmlsszd on so August 2017, 11. Th: apphcnnr alleges um whxlst (hm appeal was pending, (he Iuspnndcnk Ind dxsnlxyrd puagnph (I) of an may ma publtshezd .n the mponaem Facebmk nccuunL further muclex whnch m dr.‘FlmaIon' of II-A: applicant and m (I1: wax‘ of his ufficus On 23 March 2017, the Coun was snusficd um nu nppllcam mu esmbhshnl a “p/Ilmz/aux!" cm of contempt or Conn and lave was :ccotd.u|gly gmmx unda 0.4:. 52 me 2(1) Ilules of Conn 2012 (“ROC"} for conumttzl pmc:ed.1ng.< (0 b: wmllunced agamxr me respondent. p... g .m mm n-,. hmnu (112 2011.711:-nu mu. m. rm: m..:.s_.,».... mum“ mu. »..:.........‘..4.». m.4.m. x..»...... Ian um ma ...... zmn m.....a:..mm nu mum: r-um. |A:rvuAn ....n .m...m...mp-1 IE-uh-in ».y..y.m . mu... ur-mu! [hum me «.w»m.s.m.. .=x..a...w....n.-p Tm)» mum lumixJn 5... in mu. .. n..;u...‘.».«.....mm.v puma Wm. am mu pm-ry m hum rm;-..m . mm... (min Nu.» u x........... w... Igul) 2 mn.1zA3vn) »..m..xmasw..::.»..m«m.....m g Mm»: MVGV/Vlr m M. aowmstm fimvrrglhx 1.... M91!’ ., m. but y...- M 3...; ggm(zt21u11.5I)umJ ’ m mnvrer s x.m._.mr.x». .a.. mo; an an ml %u: zen. n .9”: “Kc-du»£aEK5rJn4I. Suvmvlnrvq mm. M- n....m.m 7 3y: nulnur-yu Kwmlhm I->.m.r...u..m7 n=u.«....u..,.u..‘, nmmmumx n...‘..E mum .1: 1nI7.H111-m7 ummm. Yam! m...m.m..u. m.m.u....m.,. Im ldahh mum: ..y....m=1 [bum :.m.m.. mmmm .. mm: W! o. vwdrwmm .m........ and u..n.m..n.m 1:1: mm ».....mm.u...m,a«.- [Yr-Mn-n - xmmmmmmm mum Ynnfllwn — l ml vo: BhAm1232w.:2:Jp-n) mm ...;....... .....n......u .,.u.m-m V04 um...-ruAm..m. m ...: »..:~....m-M... Smut‘ |Ym§\lwn rrmma. tn?-rvzw ".4. .u.. mu m M. I-nan 7 mm W mm -N My l 1 PIl<4luI7l 49. mm a nun . ac...) Evin M um-«mm..,.;,... W...» rwvwnllu .u, may Ldawlpn wfl :.,.:.m.«-W. Mm-:.. ....,,¢ u-rpmm-nuaow .n....»..m wm... v I-r..,.‘.m s..»..-.». ......s.n. .—\ udnkmn-wn)l|ve1-ngu Mm ......m.mm..m mm-:..w.,.u.. a-n.mmum.aa...¢..ua.u.ma. manna!-n A-1 .,«.u va.:m......m rm. whn In in: W!" may n....m-um Max M ..k...n. .: an «m»ny mmmw 7 mus.-m xu tzmrum. m 1 w x...) nu an-uamanu: m\1.52urm> - ,;..mmunu.2- Ms4_vAL§ImKn4JJ mm mm» zmuMnx_a»-—%" ln.Kuuuuuu|1.wSp-I «x... mm». ..m MINE! mm murmmma wt!»-»un‘p..4m VIM mmmummnm mums». n....s.m 1H m .m....mu.». mum; ml mm »......p....4u mum.» ‘ m cm». m..,.4..~ Kflqhxh v..,....m».,.;m W. up, E ummsm am at M “mm: Having mmnmd the oA'|’cnd.1ng words m :11: Fzcebook puhhnmon. Kh: nrxl quzxnovn rs whznhcr an cummcnw m szvcn (7; post- iudgnznl Faccbaok pubhcalions are defimntory of me plamuff and m L11: way ofhxs offizcs. muzorn 50. 1.. ch): «gm, ... nscmmmng ‘mum Lhe commcnu by wrwcb ax Idannfiad m m: cm; 52 Surumnr are dcfaxmtory of me plamnff, I was guxdcd by m pnncxples .5 tnundakcd by m Court of Appeal m cm Fm: Chm V. 7;» China PM W [1999] 1 cu 461 CA (n p 46(:— 457) where Gopxl Sn Ram, 1c.«\ ma V ~>: u.....,.. I mm, It dwblud mm In: am my‘ all wun, m .n .m.. for defmulm ., m amm mun. me mg. cnmplmnnd nfnre Wax. .mx.nm a‘r.n...m m....g. And u 5 bzymwd ugummm Inns Vi ... M.“ .. M...“ .r 1.. mm mm; upun m. wmlrwcnun DY m ward: Duflvslwd Asloyd Mamsvul n mlarrflv Sk:Ir:m[¥96Jl Mn E»: vs: .1 ms: nu: ommary and mm mnnlng nf wards run he enha lb: Inenl mezninl 0 may mg .n nnpllni u mklvzd or ... Indvlut ...: manning mu does mi mmune suvbun olcxxrlnstc ms p. Mme gcrrml knnvakdgc um .). mm. mm ., :.,».»v¢ oram..mm¢a ... an hr-g\I-|K< -sea un ix - plfl cl m. prdln-ry .,a "mural vwunlng of want! (rel:-In V Duxlv rcltgm/IH L/d[Iue.1| 2 An rx my. Thu ordmnry Ind mm: rneanmg m Ihtvefme mclnde any ampumm. or infnenct WHICH ., Ir.Isnrub\: Kldifl guixkd rm by my >p<u..u mm, by xcmrll knmalzdv and mu faltmd by My gm ‘mu mm M caxmunnan. vmuld dnw imm an word: 1n: um of n.su...»|mss nlndennd dwrctwhe ¢mm VI Ms iunchm (1(d:I:\dvngw9It|h:r\| m,,..,.m 3 jury m am’ pxnicuh use In ma mu namnlblc pusanx mm ....a.m.n.a lhrwmd: =.m.p:.‘..=« Mm .n:r....mn mm Vnmnmlxmrnu menu WM‘?! \Hnh:Iv|:\|udl\u~m -2.. rsxiwn dull: was pnbhxhed m m r ......m and mdmary mumng mm m I31: p\nmIilT:n;/dnhonlnurnhlc nrdlsrzafluhlc wmlual m nkmvn m . 1-ex af mmmy on his pan: me mltsxiw mvlws an ulfilnuuvz lnwvlx, am. the warm mmpumm afar: dzllnuhxy Ls“, J3 Jryammam v Uah rm rm /ma} I LI-X :4 mm 3 ML: aw mama M.\.n...... J. m an IdmmbI:yImgm:n| m m Damk Pntmggt H, Abdul-lahnmvr Yn’b4b V 5" Ylln mm 4. DH /my I mix muoooj I mu m wuma ma remwed me r:l:v=n| I-nllwmles upon ms mm. mm: mg... and I wauhl. wllh rcspecl, exweub -mm Ihe Inlmash ..ar1='=“.v I-ma “ raw: u17| 51. In my mw, uh: words um were ma by me vxmzrs u: Lndzzd capable or bcnnng a defmnaton, mmmg Th: running of the offendsng wards us quiu capable of being dcnccxcd m me language arm was used. And so an msmnoe. me cmmmm by [he vxcwu Mahcxh Raul posmd ms cnmmull on 20 F:bnun 2017. “A/Imrrlhn /(IN! mm; m,..g~ am)‘ In:/v/-M qmxkfiv 71? ha»: mm man/game//I.. W lame /mm»: mm /mmi:/rg far mark /M n ./mm-, cnnvns the lncanmg um me appllcnnl hzs wlungfufly cnuzncl-ncd hn-nsclf 2|: pmmem of mu Tttnplc for d(cml¢s.N1:>.L Suun Ra) poiltd on 20 muuuy 2017 um W1 mm/5 pm/', which nlufly means am the Ippllunt hm pockerted the monies belonging to Ih: Tm-Apk. Km, Maduvnn Suppiah posted on 23 Febmary 2017 (ha: “vugzar n my art nmnmg. WM 1.; rcpt/1." and ans clcazly czmdcms me applicant is a mguc ma 3 am. Th: 1.5: txuflplc is (ht pnsnng by nu] Km: on 3 March 2017 whn cnmrnenrzd, “W111 Imffn/r/x mm .¢.u,;., mm M part»: lomi Mwrqa M//pntdv {barn at/)(mtI_/y /H I/umiwg ,mmt.«:J' Hcnzc. hzscd nn am mm: mcnmng m an Implicd or Inferred or m.m=u meInIng the applicant has lzccn cnndcmncd .s n flucf, mguc, dcxp--L ma a cheat. 1: (11: mm: zxzmplcs m nu! dcfamnmry words of and cunren-ung mg zpplxnnl ma u. ma \\‘1‘/ ..i hh oifices, mm 1 Jon’: know wrm IL The ntxl xssuc .5 whethzr ch: rnumng of an offending defzmsmry words 1" an uhpugued pos1—yud.g-ntm Faoebook pubhrzumls carry may or bk: dzfzrmtory menmngs m the dafanlakory xmzds which the xtspundznt ma been resmtnzd mm pub|.|sl-ung Pan an M7! 53. In tins ztgzxd, u .5 aguln rzlzvnnt and necessary m mm :0 I11: cornpcuuve [able wad. suns pxcpncd by counsel for :11: Ipplicnnt, wl-uch givcs a an doepxmon of she smulznty. 11:: mm is rtpmduzcd .5 follows , u.w...a n.:._my -v...-...... r........»... um-nary w...u.u..... MI ..u.. u.........- ».:.u........ ASHE .. .. Asot 1“ mm». [fiduh vmm... . mud n s x..W.am mm. M». r;xmmNx4 cam»: M... .. .m..,. mm. me an. u-:44 ~...,»:«..»...../..,.....»., u-yum Wmdnvrv XII m »...c..m.-n. ~..~u.m:.¢.4.¢._,....a" mun Mu may p47Wr' mm m.«.,.;..4.. Amvrrnmrw mu . mu VV1 hr [H K. rmvu bu-w m. .5.-Amaom Wvmnnm‘ n..., /ht; M M my . | s...m..:.~.:.~.: mu: 5 mm.n.».m..m. anmwrrvhka 4.r.wm.u.»..‘»m: mm 75, .94»: pm, MW MIlW1'V<rv1|IWIbBlbdu fla1—Muh:un-ht!" mm nnazr-um .» M. ..».,..n... Pv-M ml/M: :»=..«m flu mnumnadndu" x 2 mm... vm.mmw...."..u.a.- mm; flu mm /In-r my zxnimnm M7 mun vumko .; 5.... my — M... 11" ». W . IWVVI /Vtwlflfiiw ..v .... ».~y.am mu nllmr mum /a, .mm...«.«..-- a »«»...».,.mxu=..mm «am M.».. - am. ,...4 m...m:.m H xrmu Van pm. F4’)! may . may--u».m you mu m, 1.. Hr! MM .u my /-..:...«.my= - Pubikrlwu mm .<...¢ saw .u W om S-mu 9.. an m.« M. NH»! Mday-bv Nlflfl .m...~. mm mm, .4 may um ..u., at m... 1». mt. rm X7201-I-1 rwwprldl/Flinn ma-nu anon; WU »..,..;. /. , Nd ...... M. my mum: n4 ..... ,9“ mm. L...»..... M.“ .. (M1: 417' nwvfli \« Noe lndlmlabbev mm-nu xm ma... 7!! Amt .......: M» . um may -.n. m #94 _ mu. 1», mm. 1. ., Rd’ nve Inn 9... 4: al7l 54. 55. 1211175. .1m.11 11‘ MT 1111., 1111.111 Vrvn 1.... 1011111 1..., 1.1 11 m...1.1,1 W11 Irvin-MAM — rm 1111 ~.,..g_1..111.m1.. :.111m1..11 m-.1...1..m1 WV x111 1\.1m11r1... 11,11 .1,“ .11., 1 11.13 ...W11. '7‘ !>14b1-«mm - 1 11...m..1<1.1.m...1.11... z.11..~..1z 1 u1.w.11.1-mm 11.1.11... :1». ».«/1:11.. mv-rr 1.11." 1.1.. WW! M111 rm M4115“ 1.1: pm.» 1».. ,,.....11, 1». 111.11; ,.1.1.:.... 20111 mm. 11 Mr! um /~11, M11111. c1131. 11.. mar; ~11 .1mr.111 ~11”. ",1." vm... M111. 1 mg 1. M11. n-am‘ 1m w1,.1., .11 mm 11/111 . 1.... mm :1» 111 15151111 1 mm‘: 11.1 111 onnsnda 111: 1:11 ofcontcmpx, 1 w111 sure 11111 111: oflmdsng ‘W111 111 1111 sevcn (7) p1,.1.1111ag111:111 Fxebook publimunns (c1111-1111:1115 by newersj dtarly, obvlouxly and 11111111mx:b1y 111:1 111 111: appbcanl 11111 1111 defzxnzn:-ry of me 111111111111 1 11m 1111111; mfemd 11) srm-1: 115111: offzndsng words and 11:11 mzamngx. .1 31111113 zxample 111111. defalmzmry publlcnuon 11 :11: 111: or 111: words "1111¢v111.; prexiduxl" (3 Much 21:17). w1111;11 11 undoubrtdly 1 xefexuwc lo 11.: applicant :1 . duel New. 1 111111 11111 11115: oAT:nd.u-1g 11111111 1.. 1111 seven (7) pu>(— ,1111g;11e111 pubhunans, 3:: 111111111 111 subsunmlly 111111111 .1111 1:11 111: sum: 11111111111; 1; 111: defamatory Wolds 111 1111 Fncebook publimuons 111 111: 111.111 11111 -1111 1111111111151 11 shown 11 me companuve uhle xefumd to abov: me 4s 1.171 56. Thus, 1 hm no doubts m rm’ rnmd mm m: seven (7) postjudg-nlznl publications in (he respmxdenfs Fnocbook account wu: meant .; . second Handle ofa nmollc ma: an Lhe apphcanfs Irpunuon .; an Indmdunl and u Pmsxdcnt of the Tcmple. n/ha! through \-texwxs’ comments. I should add mm the rzspondenl did not dxsavnw (hes: cnmrncnls and did nothing to mp thtsc comments mm. bang pruned m his Faccbmk account Quu: me mainly. the Iv.-xpnmlcnl not [mu xnvnzd cnmmenls, "am he uxcnuugml Lhc \'m\v1-Iv: m =1-ml: znd commcnl The law av. I tum now In the law of contempt of CaurL n .3 mix: am an act of rhsobodsnncc ofan myuncuon .5 a contempt or Conn as 11 .5 conduct whlzh 1; xnu:nd:d or calculated .0 irnperk, nbmuct or plqudict um admlmmmon of )\Isnc: Also. « would be an an of Knrnttnlpt .r ; dzponenl or m aifidavxr mx5lcad< mg Cnun or I: unmnhful m the Court Th: fulluwmg c..<c..- .... dz: law at cnultmpt war: refzned In during ...bm..mm and Lhcy arc nuw luproduwd b:lv.vw:— 2) KW; mrdArm:I)en/ cm». and om [1971] 2 an ER 373 (p.34l):— Tonmmm ofwurv. an aim: Iype mm mnsms in mm. nhn injunclwn ur ....;m.m..,. Vi m.=.:...m Ihm may cm) prml u-mscqlunus. rwn In» or mzam um Ihe ma.“ required m mnhhxh innusl benprwwilkly cvfllxu ~ rm .7 Mn b) W cm Kmng L ME/Hrzbioxgr aw cxxm [1993] 2 ML] 217 (supmm Lem!) (pa Abdul Hmmd Omar 1.v)[n pg 229 m 2211-, »n .5 nmhhchzd 2.» mu . pcrsovl gm. xthnnuu urder 1.». cum rm hem mus! mlul) hound 1...“, mn n.u....m.x n VS «I wait n .s um opm ram". -4» dead: for hlmsclfwhuhzr um Drdrr um mum .,..<a um} u...=4.ma... ml! vuwnr n»..¢.=..:. na. duty it on: afohedienoe nllil such lim: :1 In: urlier any n. In nu» nml “mu. Any Ixnun wlm mu. m obey .n nnicr at mun mm lhz mu ..r hung ma a.. mm.m..4 with all its .u....n..n vunw4|I1unu'E :1) J /i.IboA: Kmmh ¢~ Am 1:. Data’ Yalllmal/at @ Rumnhngm r/.1 .Mmmm, bzinar [201 11 1 CL] 460 (Cuun u[.\ppu:\|][aI pm 13]» an nxIoV:Inmu v B05} {No zwvuvl QB! ox .n 1 W WIKI (K m n IIWE . n ‘.. um m And: awn nfthwnntmut uhlxylmv mmdhe am mm by unpmmg an; aim: pmadunl sa..u.u..m..:.m...> Wm mun. 1Iu:lud1ng KM mm um: «I . ,m;...=.u W hblamm m Mh:r unmon mu I): am .71 eunlemvl or .1 cu: m. ....n...gm.nam.m.. - an...umu......m... veriurywuunn mm. ullmzk Llntlwn ' [Emprhzsus Adam!) 4) CIVIH/JC/l(HgHu!DPII/I01‘?/flJA14lIWl19H()] [ML] 299 (fiupwmu Cnuz()(n lnulyu um: m.m..m1 2.. that am tmpnsunmcnt for conlgmpt or mun cm znnccallllg 2 documgnz zppnlcd l-us mse)(pt1 Lac Hun Ho: Q], (n(}).30l):— -um aim has um power m punnh cu mmm any Maw; 47] me mun‘: Dwotesx. :2. mm in mm; 0! Wm do-:um:n(S at mm dsscewsnflh: .a nrdtawvinglleculul », dellberuely xlVlVruun| - rm nr m. m-. rm: Mcnmv nu mun ‘mm may with Lhemnltmflsummanlr mm dwend awn mu svmum m zmdv pnflxulvcnsr pm 4: n1 7| v.. lhc Wm... .... .. .. (Int mu m. n......a 1...... wu unflbd rm .. ....,......... ........, u... .5. «M .....c=|....... ah document a I-.5 n ... ur... the ......m..y .1 . mm. M. ...n....» .. 4.. .... anal,‘ mlanz (om: mu: .. Ihzxnon Thuvbtllm behrned max nu UNIX: n.. W van nmpa .. .u .... .» -.............. n. .....no,...:¢ VH1: “.3 Wlflll m Iumud Judyr .h.my.. n. “:5 uvulvgsndnwe xx . m. n... V4 ...u.. have me mucus: chm: mm... pmwt ... 4». we (cute .1... Iuduzs We mu ......r... Mhcn mu pnwfl a. mvsuscud [kmphnux Added] mm K..».... ./p 0.... Pm... . Pm. l’mJ:mInr puun] 6 ML] 790 (mm mspetk .0 mg ....,..m.... L)faffid7n1t :V1d¢lIc:)Lp sz2> I my mm... mm... ..n..<.... mm ...m. m. mm... .«\..p.. bdme .1... nuk: vu findmp .4 {an x. mm... .3. denmd 9... . r... um um a.=.s..... mvvhru the .....n........ .-rum lu m. Vast: ........: .. a. pm»... ... lb: .3... 5... ;...mm .1 plan?’ l\vw,lI:n«pv1rd my ..4 ,.....n. .., wly ..r.....- ,, .s. .4 Hunt: nm... a. ........ by ...y .1 on] .¢......«.-y .... .. .. x am .>... mm...“ o.-.. mummy orllllcln .. ... uktn .. .5. bn ..4.........r......m..... nlhltlhemllwrw ..u.»....n ...a .. ..g h... lb: um. .. .. .n. mu. n... m. ....u.... .m..ua by my ..r n.. (Wu 2...... Thur mm...» cxmcpl Ilw ......m .1 aclmnwlndged zxprlls. ... ...1m.... Tom": ...a xnluvuyalhnl ........ ........ m. ....m mm, .x.. xmlh ma... .. .......x can be pm. ..w.. my ..:........y ..m.....¢ ., sum .m...m... M... Neuncr an um .. ...a ............... L7! .... ban .. mm war. if m. .. (cum: nu mm. Thw mwy Rrvcs .. unphmzcmu uzuns My -yo. mlxwslcs-Id a..,......... wwll Ilw ....u. 1... .y...... .1 ....n.. «nu tullunu .. w.......-. m .a.,......... 1... r... .. ga..m...u..... ... ...........y Awe .v........n.......4.. Jlyxmlukz \ Pr mz Ml mcu c.... m. m ....u..... 3.. ................r ..... par! and of .u. ..n...... ....s.... ol 1......» .....| .. mun, ........, .. .n. ....ma. ....m.1 me w.»r1I m ...m.g M gm“ orlsheuiduu. pvvven. mum flrrvlurm r. duh mm. mm In clur mama... nfdnlrrvunzc. m nnly of am mun: [rum ....mr.;... nun lit: .4. mm» minus. 1.. WIH Imlfl Iu:\v mp...-.~, um umplnl Nu: mug and mm: uszs helm: ukmg nun mum: wxll pm we ntmvnmnlwn nu-mm mop-uy All mu of nm zvlrl mu. .....wv.-nu: am an Haul!) u. upul Muevldun :. mute. An) mm... yr [Emyhms om! pa Xuunlm mu BM » Am; Karim! u Mwm [1994] 1 ML] ms (Lhu Cuun vccugnucnl um am making of me uMem:nu m nffidi\'us is hung punxshnblz as cnnlempr nfcouxt) rp 1‘ "Baring m mm mm mm M u hrnued m Lug: An Much me Phnnlflfwvuly MW; Kim! mvoddrnst and ma. nr has claimed m be dmoned In An: nlfidnm ... suppan m M emu ma I01: dd¢udnn| mm y-extant‘): mu Ihv plnuum‘: =:.....m» to Ian um. Ihc awn.“ .; g ggugd M 9 mm; Ah: mum; .5 mam...” ndvmmlbmnnvnn mm mm... ..m.,rm.m-. fxlsz alfidanl ind m Izwxolcumempl nfwun in rnakwng . false flalemrnlr/fIu:\m\\\:ludg um Whlfill me defend ’ Imdsme lzmmmu ma! ]aA/H Iwprv Id» BM ¢~ /hm v' ymm Sm. :4». EM |2aw| MLJU ‘42 (High Cmm) Qvamgrnph 74 "wuhducvcspm nhchlmm hzs ggglnlnd Q Ihzflnvnullkun .:W..mg.....;...(,(u 4 mg §fl§ gm mu mam 5; m cmrwmlmssnun Wllhu - limphasws Added] rune-‘corn Grounds for commiuzl 1:. ‘Ihc .....|......x. complmnlx 33...... (In: mspundult mny bu guheznl from due followmg paragraphs of dug s....m... fihd p.......;.... .0 own. 52 mm 5(2) ROE <-ah: om. 52 Slaremtnr") (whmh m Kcpmduced rubaum‘ ~n nu; anuuuws on wmcu mz g§MMn'rAL @253; mu; souuur mu A—PImLIc\'r|oNs ron .mm:M:w m annru Q]: ru. n S1 . vwlg. 5...... than on 1922m7. Lhe Rtspondan vwfllb ...a p............ .. main.‘ ... he »....._-.. .....4 puhlxxhvd nn lb: Rzspovrdellfs hcehoak Accnum a pmlmg ....... me Iomswng ......n, .. mxxeli m... .. .... ... the WI} .. my among 3. c........... and . ...=..x.=. .« .3 ......a of m............. and :.m..... u..........«...4 ... .¢........ wmy ..m..¢. \\x-mm. 5...... «mm M. ..md.uz mgms... m: m Mun ~..:..m .. Emu Clvr! M.» 4.1.... pm... ......,..:.a... 4.... kuil .......s hes mmrm mm. Ikrtgevumlya m..m:. mzamm Mu... r............ — s.. I’u0w mponx .....a. .. .. ... ................ ....... 5.. M... u..»....... 3.... Cu“ ......»u g... .........,. .........,.. ....... .... mcnm. .. .,......... n... .. .... .. .. mnI1n2.zau1] s 1 Han‘! ......~.a u... we .mm......... W mm... ..m mm u M... ofm: mp.....s.... ma g ... rm... .. Ah: Semul mm sum. ....>. ........ ....m...,, W. .,.,....... ... .. pu\1z¢lq>orl\ Iml . 4:\M1d ,.......m we ..z..... onmt Mumga .. .1... (‘met mm 19:: .2... nu: arms .. H1: hnkgmund As ul m. .1...» uh .mn.a...., m. .........-.u.. .«=m.a:a .. ,......n.;.. 5 . nhuvc wag lnkcd hy us kaplund mu... shard K7) .2 v<VD\e wwhmhcrs. I»... 5 MM h) 472" Bank Bnlmrl v. M In (em '1'.mm (No. 2) [2004] 5 (us/uz wv (High Couu)(p.-121) . xo@ wuns havz mud n. or E. m llv: Mlwwlng In: cf muse of m whtrc IN: rrvdruvr fikx . dnuhlc mm fnr (ht um um Lumm Samm:d|ndIl(>HI1Bu|n63Jy u» when nu: vhnnufi Ker/:3 ... umuuon vml in mm... m: aeranaanunxen.nIum45J4Ltos17s;. m what that VS . «.....m=... :..um.. bawrww lhz yllmull Ind me aemm m om u. d¢\':vuA the ngm. of: mm WV‘: (M-own n. .usamcaz:m. u» when m: plum!!! ms rxccmmn Ind sures m: m...a.mrx ma. on mm mm: dly .. III! mm‘ nhuinxndecaetnmm depnve me plalnufl ol his (...uu>u.m.N.,«..,.ms;u:m A71). (Jr when monry is vaid by WI) uf: cnnsmeminn m up: w..m...»..u of: mmmn m W...“ In: w..m«»« (R V. Nmmn Hum} 67 1:» am. as; what um um mxly Dluuls ...r.-Ky lrlwllll u. mm»; mm (Load V Thamlm: Ham 2 am an. (7; WIIEE m. Em makes . fnlse mam m urdet m mm nan (Ro,\um xc|n(|61l)('mC:vlAfi).lud an Wm 11; M, why E5 Ihemun sexucixeufdiscrznm ... . dunno: pmcemmg ....k=; . {Q5 :m§ mu (Am .. /\pwdandBI\36[|9WI rm» :9; m.- Im an m. Ix exhzuinve. Aug Whig gm *5 m Iemywu-vsmua1 Em L411 Man Hung 1/ Emnrum /9.. :4... BM. av on [wow 2 mm 573 (High Cnun) (pct ‘L Szlvcnthxnnzxhzn J) (pzragmph 41) , ~[m1n¢ gm.» om owmm Ihc vvsyundcnu mu m mmg w m that In: order ..r W sum WI; nhtfid mm m mph- -no mun onlzn 0! KM umru u H n. Indus m at .. uzvfllunu m -up.n.:=...,. la my mum. are u m Inch megwy nlpenple. n unluf be galnud can the owning ollh ....n..»....m heobryexl .» the um wfll M . m.m..w.. u. m dn: .u.a..am-nm Milmin um um. will a. nu nupul rm m lnw lz~.mpam.mn pmsxmu k> 1) uwm jarlu ¢~ cg. /M) 54.. BM. .. cwmm ml,‘ Xriu um. ¢‘Am>r'[l‘)$'4j 3 Au.) w{1-ugh cm...) (1. p.-19): “Smcz xhc ...r=.a..... r... m: imlrfil of munsd mm 0.. ...;m....... V... xrwd. we m.-.......... MI: mll bmachnd ...a r«...s. 0! n.. .v... M... am. .ns....cn..... ........x r... the pu.....r......a mt zcusmmal 2...... be mzled M 1 uphzhl u... ...n......s... um ... j..,. ..... . , M... win cu... u. ...u.-.. of II! t mry m amen ol no ¢................ 1 ... unmlrn ul .1. ugh c.....m.....:.: .....x..-_...: .. elk mm v. be . brnkdarlrn .. n...:.. ..1.........-....... .1 ’ . In lhxs us m. a.r¢..a.m. luv: nal anly 4505.... m cmrnnd .0 ........un... Ind mwmvcnl Ohc ......‘s nrdcr v nu...-1...: simimwc :1» my ma Ls» arm. n. |mvnsoum:m nll my ,...;.mm........-pr’ lEmD¢\a:vs xdded] 001 Alan; 3.... u am L'..m.a2 [Arum/tr: 14... BM. [1993] 1 ,\MR 45' (High Cuuu] (.1 p 472).. xfordcrs .,« lhz min ..= ..... ..o=..a, .. ..a. ma... ....u.< -4» >.....g |I1¢ ........ , .m .4.......,.....u. ..r m. ...... 4...¢.,,g.». .. dvsrczzard and '...n=a.m. mm mm... ‘nun. 1.. ...........r public P.» _,....am of m mun ....u u lrultd wuh ...p«. ..u rm r. ..m..: uhulvalu-' |r...,.m mam} In MEF Hm... BM z» ,4... 1/ Han... 1m Km ¢~ 0.41995} 1 ML] I35 (mgr. Coun)(arp 144) , -r..............: n A. . mn.......ur........: (Ieeuun ....... ¢..v mm .1. m........». mm c .: ..m........ wm samcxme ...» 1; ..m..(,.............4..,. ................ s. ulrulnud .. ulvnruu .» rm: .. .... , ' mm wilh .5. cuurse urn-.u.o. ....I m.» .1... mm mm... I-Han, A .......ni.... . marl wluln ...a ..u....em...a.,... ulamrr .....u by n. .....-mum-vy .. mug: um: um: -.. rlu . ....n....:... ..u .. ..:..a.. 1...... .1...‘ . F... u..-...-. u. .. m. 4..., ..m.... .. cnminul nruzfly .. uhserve me Ienm of an ..,.....a.... m.....,.x..... ...z,..... .. n...........x¢......m.c P331 52 .: 7: «ma mu (has: who Mg. u. get afmzl urdm mum :11: so by |h<P"VWwuv:: 5.. ms» M: ls|h:«rdumuflIvrul1I::A'|1- and mm m an Inner m pvnposmnn ,5 wtll m:.w.m um cvcn Mhnv lhn mm nr lbc mull -wuam mmlirvlnmn W men was my am 5 mm; .., scope, .. WIS (he duly cf uh: puny mynnnal m N m.» M m Injunslmu a-.a..mw .n ‘ma ...uua ulmmnumng m an pupmed A cunlemm ulmun .. Imlcnllv . «Want nulnu a. mum And .0. . my the judge penoully ..a is punhhshk s........m....m...;...:... -Iunvulhrd lynxflhetvull [Fmphms Add:-1] AMA Muhprmu Pnma Rm/5 M BM uxn K1/angkalm tum Engumrl//g]V 54". am, 9)‘ an, [2090] 2 CL] 53-», Law Hnp Bing 1 (m kc mm was) hcld 1:. 533 V -1. 15 amen In In: what ha wnducl mroughmn mg -ml: nfm: uvmmlul p1m:a\muu ~n.(.mm.:..u mnsnmlmg unmnugmzd Icpenlmoe mm m md:e-din znmnxlnlhuuxhovlly ohhecnun Fmhcr in my M. u. .,...:m 10 be mm:-r mm begun: |rnlnkIMabe?_v x.. the Jm .4.:¢..:.m minmm mm m m Mdrlll :2! the »..m...n.. ....m M ...m..... ... uni:-r u. xhw sq realms: n. ..,x......m .. m cstlkfl oppormnly, an um .. 1.. -.r-mm. um, ...:.«u-.... x.. . nnd.-1 ml u M ....a wuv «am no flh¢r.T?KIDaIv!3 llluslbrmnk ...m=r.m of Idem. mumhlglnmx mu unquuhfied xulwlenl S-DWI! Dar my Dtowmum in mm umnecuon ‘s u.» bn mm .n we Jr-dnmmlofDuI.('JmHng m §:n(Rua)» E Nauymunlc omus (Amman! Ddhv zm, mm. mm ‘canned c»..crmm uvd mum n. [U 5: ulfeml clam .4 me euhcn vrmnumlr Inmcunvc rfllrmumr and oomnuon mm ‘s 11:: mm Mm purgmx uflcunmnpl ma u sh.-«nu nu! b: Imuud m the ‘mp: :16 um (ht mm ohm: ng ymmshrm-nl MW and ,umnmm an gm mg:-an. u .\ Ihevvfazc wrung nu me pan 1:! a lawya In cnnlum um um: Faun um clmmxrmvducl . mvvwnlm] Iummcmr-A nf(‘«ull. men he .5 \~1\|Ing m lander m mvovndvlloullpulogy mu 5: n! 7| 5:1 59 lleposmm wuuld hnvebezndn rem: Xlddrfrndlnlhnd Ienderud ha! Mm mmb.w.m ...a N... we mum u the adieu oppnml |y mu >2 amma hcrllfidunls m Itply mm: Phinlxflx affmlvuu mm m nuwon VV m. ;.Am....»= um: .« umnun 01’ m an;/evem helm the hearing ..nn:.pp|.=u.m. mm .m..m mm. uf mmlon, m wk: u. ennbl: In: cum! in: bmzan H1: aqmhvgy Mun nddmorul mlhglung k:lvr' [:pwh-lsisaddndl Cum-u=1 rm {hr msponrknl nlguud srrcnaubly am pzngnph (1; of mu om“ wn vnguu and ambnguuux Sh: ma um um zcsmunz \-as on "dtfzmnmry words" we not on "dcimmwn' mcanmgs" 1 nm nnahlz to accept this submission as Anyuncuve orders of msmml cannot b: rad m a nanuw or pcdanuc way as 1. bung sugguted by m mspandtnL cam vb: rm mm m :11: mam sun .11: xespnndcnk had hem found lnbk rm damn; mg zppllunt by zhz pubhcnlwn of I plxrhan of defimzlaq wordx («mu by his own posting: 01' rhmugh cnmmznu by vurwtvs), me rennin! per plrlgmph (I) of the Order mu=r bc me E! mcnmp mg all (hm: deiamamx} words on similar ur «.bs..ms.|1,~ mm ma Iuvmg the him: m Ink: n-waning: is w<|l or mum pzngnplx (1) of m (min am» not munflun "dtcinxnaluzy meuungs" but 1 )us( do not xee how am minm. \\"h:n um I: : “mam on pubhcanon of dcimutory words. it follows lDg1c.Il.ly mm m: pm" and onhnnry mzamng DK innuendo or obhqu: mtamng am flows fmm me offmthng words, Is covucd by me zzsunmt as well pm 5; M7! 60. GI. 62 1 ncctpl an posluon of law mu mm mmmml proceedxngs as am; on mue 0. ambiguous ordus duen mg Court mu gw: mg hzncfit nfdoubt In the wntunnor. In B1: A0 A3,: v 04/ /1’) Y“ [2m} 1 AM'R 574. [2014] 3 M1.) em; [2014] 6 CL] 991, I had refcmtd :0 San!) I/elm cm and 11:14 mu whm the ntdcr suffcn [mm m, lack ufclnnry or xx zmb1guuui.Lhcn the bvqntfit ul dumb: km :0 In given m mu all-shed cunu:mnux.— "L251 mm when the my Lragardlm nfwh-.1Mr in .. 3 wnsem nnkr -r - wcrcvvr um me by m: mm sulfers from my um of cum or x: unmpm; lhznlhz bcnzfil nldwbl Mswlw mm.” (hr Iflejzd wnkmrwr m mu ya-...q. «ma hr r¢l:v|m .., me: In the nkmxinn nfih: (‘nun ollkvbul m mu sq: Vusclh D am 5.... Mun-mad V um hmher Indwrm SM and a (mm! 1 ML! cu. ca mm mrcmnt uwzld on dwlxmrv nfllx mg» Conn WNEII m dnmmad a nommilul wuum mm dun um: Mdrr menu was nus lhzvx u .s MI Clpllflc Drum mlorwd n, sammmfl ms is haw nu Cmm on-ppm mu .: - 6551-flhejudqmnnl‘ m Vezmeflfilflp \\|.s:|urYyn[91un .m.y.g mu an W4.’ will no! 5. Er/nrrvd A, m..mm ,/ .u [yum my vr-roe .,, .-w..m. (hr lulc mm: Implnxws w M Wm gawn\slhzinInIpveI1Iiun ocpmx mum It .5 ma 0:‘ Imus Mm: am vuclfmm nu: ....m um ... .ns.. .9 define me ..m...n....‘ mlpnsed 5.4.1.“, cm; & sm» an (‘onrempi (2nd um patngwh ma ..,. 145" Hnwcver. m me prcscnr can, I am not zunwnctd mu pangnpl-A u) of the Order 15 vague or ambtgunus. an xhu. rrg1Kd.n sugnxfiunx m mm: am In rtspundlng m Endmzum :25, by wly of nu. zffidzvxt nffirmed on I7 .\prL| 20:7 (Enc|u*uxc 145), ch: nspondent 1...» nut mu suwd {hm pmguph (1; of av.» Order 1: vzgut and/or ambxguoux p.w=ss..m 63. 64. As mcnnontd tuba, Afzn order .5 wguc and ambxguous. dun such mguznsss ind nmb1yun;wd.l(m {may} be consuued spun: Lhz puny seelung n. rtly on Lhz mderwluch .5 mg spnngboaxd for commmzl Bur mm \s not the slmancn rm 1 fund nothing vague or ambigunus about paragraph (I) of the Orrlu. Cmlnxcl fur (hr zppllcnm ulled on SW V41» '» cm m bnlucr 111:: mgurncnr nn (ha fim.Ixn' nfprcdxcullng n committal pmcecdmg un an mm \|.'|1ldll: vague nx n.n1ngnm... In thus «gm, 1 am szmficd um (11: smnanon m sun Vt!/M: cm: n totally dliiuvnt {mm mg pltsent smnuon. In In», V://:4‘: case, mm were differences between me Bzhasa Malays}: ma Engjnsh vusxon of uh: order and me Mouon for comrmlml is well. In thnz cast. cm-nmmzl was nghu, dxsmusqd as am motion for wmrnxml nefgncd no articles bztwecn November 2003 and 30 Novzmbex 2003 (see: pmmph 9) of the yudwntm) whercas (11: 13:11:32 Mzlaysxz Order xtfsncd m umclzx ama n Nnvrmlx-r ms and la .\:owmm zoos and the English inferred in nuclei bctwccn n Nuvcmbcr 2003 and Is Nnmnlm 200: (W paragraph! 9, 11 and 12 of the judgmcnlj. 1-hm ix dandy . um: nfd.\ATuv:ncc Lvnzwccn an pnzicm case mu um sirunuon than pzcvmled In 1 any Vt/In’: use vnnusorn so 1.. dm prcsmt case, 2: zhr. ask of mpenuoml find um um K no Ambxgulzv or vzgncncss in pzngmph (1) nf (1.. Otdzr and the zespnndmt wzi clurly msrrmntd (mm wrlnng and publishing or causing m be wmren ma pubhshcd dcfavmuory words complained of m am rmbmk ,.ub1mmn< ma /0: such mm m smulm or hke dnfirnnmry words, of and concerning me pxmarr and m m: wn, of ms ufnocs Thu mpandm: .5 flu. who: of all uh: puqmg. m :11: xvcn [‘) poM—yudgm:nx ..xu¢1u.. In law, hr 1: mspunnblc in. mg tommcnu hr and pain‘ \'1I:\\'un« u wcll Indccd, m mu mam mg 1 ma mm m zzspondmt um: for defammg me zpphcant by nrtuc of Ins own postings u mu as for me comments that W: puma by \1cwr_rs. Am smc: the Court of Appeal has dlslrussed me mspmxdenfs appeal on 30 August 2017. u must mean am ms Couxfs mling on the respondent’; Inbsliry {ox comments made by vntuers rm hm. uphcld by the Court nf.\p}1:al During sub 11$ .2 was suggested um uh: nppllcint ha: um mm that am lupondcnl had aczunl kxmwlnlgn: of the cummul-u>. 1 End um tu Ix dssmgznuuus and unzcnablc. Fursr. mu oiknmvlcdgu W not mctd m an respundcnfs u'fid:\'u m reply (Enclosure 14:; and secorndh, lzklng mg mm! egregious pubhcnuon. mum; me 7“' post—|udgn:l|[ pubhcnuon us an example, 11 can b: arm um respondent “pzmL:1p:red’ m um pubhmunn m am he zrsponded [0 the comment: and sand am he can “show pm?’ Pnrflofil (:7. as. 69. The com:-nznt 1:: Lb: 7'" post judgment pubhrauon xciczs to an zpphcnnt as wmm. pmmr winch ma:ns“th|cv1ng prrsxdrnt". It ,5 pm, and mhmna; defunnton; of mg zppL\canL Indeed, m the A-mm mu, am zpphzanr ma pmdlcmed his defamation mm on rhc ham r>fpub|.Icnunns whzch connlncd mlpugntd word: whmh mum refuted In him .5 a Ihxcfnr snggcxtlng um )1. ma xtnlcn nr wphnncd off anwn of an Tcmpl: Thu po~st—|udgmcnt pnblicauuns m quits‘ clmly 2 «pm of win: Ind um plate m zh: mam dtfamauun sun Th: respondent was qunm zwsxz um :1-an .t he posted btmgn or neutral commenn zbuul an apvphunt nx me managexnent or .1“ Temple ox Batu Caves Temple. mu: \v|lI be . deluge of ntupcuuve. rile. and v|c|c\u commtnls whxch are dtfmmory of the npphcznl, Thar ..x :xacdy What happened on :aLh ofche seven (7) occasions mu, 1:: so far me r<spundcm'.< zffidznt nffinntd on 7 Fdznury 201'? 1» CI)n(CXJ'|Ld‘ I am also xansficd that rhc xcsprundcnr had mlvlcd lhc Conn In Kcnni nfwhzu he had nntrd nhnuz In: Humans and nbnhzy m pay Lhc judgnmnt mm mu cum. wlmn mnvmg um Court for a my of cxncuuun as compared to wlnl he had stared m In: aix'|<|avi| 111 mu Conn cf Appnl m opposing an apphczuon for secunzy for costs. Defer: um Court 3!: palnmd 2 plant: of tmpecumonry whtltns berm Conn of Appul 1.: pamtzd 7. dflfzxsnt plzrurz \Y/Inch msum Is ma mm .5 notlmpormnt. Fan: 5: nF7I 70 71. 72. Rather, mm minus 111 me present context .. mm me respondent had affinncd nffidzvm bnfore twn rhffcvznr mum and which conumzd mammal winch Wu: conmmcmn, [0 uch other m mm: xespccm. -rm: alone would suffic: m amount :0 mxslezdmg an com rkcrlrdlngly. .: is mr mm mm m. rcspnndenfls unlnlrhful .m.I.vu und:m\\no the mmgnry of {HE wamal pmcm and umsmnmcs the due zdrmmsuznon or ‘uxucu. In mg .=..u1., mm,‘ culhlducd an um facts mu cu-cumsLanc:.< and me avcxmenzs m Lhr amdmm md subnn.~suuns,l zm szusfied mm the zpphzanr has pIoV:n bevond (amenable douhl am an impugned puxzqudgmznt pubhunons m not usual, zcndznml 01 unintnnucms] and that an rupondult had wilfully and dehbcuzelv dnolzcyed paragraph (1) mm Ordex and ma mlm m|sled the Com when ht fikd ms nffidawt nmm-and on 7 Rama, 2017 (Endnmr: 92) m <¢:k|ng a stay oftxrtuuan. Baxvd on the rvxdenee that «us pxmnecd, and hmng am, cmuldertd subnussmns of ruumcl (um. wnucn and 01741), 1 nm sausficd um um apphcml hu pxoven beyond reasonable doubt um um mspondent had brezchnd puagnph (1) oi the Urdu, not [U51 once but on seven (7) sepnnte occasions As sunh. u 15 my finding am an respondknt 5 gmlly ofmntanpt ct Lhss Court. x then mvucd munscl In subnur nn rmngznon ma mg appmpzute pumshmem for mmempt. ngesouyvu Sentencing - r..c..... m be con-idend 73. 74. In lrnuyunn, cnunscl for the rrspurudcm submltltd Ihll he did nu: make an.» .1=r..ma.o..- pusung wm. n-gnzds m .h.- npphcznt. c........=1 5...: .1... .. .. only 4.: cnmmcnb me». am Court 1... found .0 be defunntory of and oonctrmng .11. npphcznt and than 1... a.»....n. in: not mam.» and mm... as far as ma putty commmts axe wncemed. Counsel for (he Iespondcnt asked this Connlo rake mm account the an chap .0 the rvspnndcm .5 49 um old: b) he .5 ..he only wag: enrner: c) hc hu um. a..1...u.cam1 I \m.Im.p.. .1; hr rttcndy mu hn dzughlcv uvcnczx. an ,.....I.:.; e) any cuslodul sentence mu jeupnvdlze ms amploymnnté 0 1.: .5 currzndv employed; g) Ins w|fe .5 2 houscwnir. h) he .5 me sole bxezdwmner fax the fanuly; n ... the [ask whm h: gxv: an undermkmg 7 he fulfilled aw ....amk...g. 0 11¢... . pnlinuan. m» .s.. n! 7. 5: n v:nL\ mm um um Rnxvundem mum published amtar yuuvmilzd «.. rzmlm N‘ m: wmmcnl wuum mm Ibzwuxndcnl 5 Faccbwk my-In comments and Wxluvy afme and M nnsell’ m m. VHIV nfmy ma w/"Van us (‘hnvnnmv and n mcmhw «mm» Band A)! Minlgcmzm md Exbrtmvc <m.....um.m m mhlvon m m,‘ cmdml umm so n ma, n. V: mm M ulmmrnlb W ,.»....5‘ rvfsrml .0 m yumgnnh 5 Ihnwczm .» mum», m xm_ysumuuu.mn, nan---1 “CW”!/'¢b.._mm:aa M.- on Rxkum-r(l9.uun.x.3npm) --am;.m...,, ». ....4 ». lurk“ mu n uu 1nl7.&!5|ulI) “Sn/V1: .. mmwmi pumrx n mum mmm mm:/c. ID!" x..:.,.: 1071 u 1....‘ mm: lo we ovtr mu: ,m. mag“, rm! In lulu rm ya»-we |[ng|-h -n.m....... —.4..,.m .. =....-u,.u.: ,,.pu. .. g...,.... running ltnpk .m.. u..p.a n hung m ed m :.u. mer u....m ,.m.. ..m. ..=, xnl :. amt... .....,.:.| 4.»; n mgr. u |1n.z.zn|7,Iz.s9un) “Flaw tan (In «mm am an 1.. mm ;.mm...;..» mm 1». ram Wm. bdrtg 1):: pvexlleru.’ Dots Ihu :; ml: /armly mum.- my \.n.nnn‘un.x2nr'.z.w..n.) »: mm me; an vallfiiv «(A am" my L'mn.Bmzn.z.zum. 1.JI|-un) “samahlng m. .. rand ms 1: . Ktvlauxyrwbdlm” mu mum in uanuon, on...-7 -4: Inn um um IDIVIE (Magi may um. .,...-an .1 0-414 (Iva ..a...gm.»u why saM( pawn vulliu pwxfdlnry [or ....,..m..:«.44,.>- 55 um llul mg urrvmmnh and poauvw .¢=~.zu-mu m gumgmyuh 5: Ibwv: M Khan ...m..x ....s mum ,..e...m; mcam m were undmqmmm mean Ihaz , . Inm Kim Rehgmus Chzmy Yum mm In: am arm.mpm mxln mu. um! sllnkshzn. r-ummu 76. 73 1.) 1... luv: apphuuon .5 pendmg .. .1.. m...1 cm... Coumel zhcmfmc asked ch... they: 1»: no ..-us.od..I scnlcnc: 0.. the ...1.=. 1....d. munxel for me applxcnu sad .1... a ¢.......a..1 cement: .. w.......=.1. H. ....1 .1... cunlex-npt ofCuur1 .. . scnaus matter ....1 .1... Lht: ...1u....1: r... am pm... .0 pumxh I... conlnmpl .. .0 nuinum me dngmly arm. cm... c..u..s¢1 exnphzsucd .1... .1... ms nu! .... .....-.1..c......y ........¢....n — 1. w.. . pemunenl ........c...... after mm. H: m.-.....1e.1 .1... pztvxously lhue was .1... an ......1..c...o..~ lmuncuon .. mm um. further ,...L.L.c.......s w1..1.. mg 5.... was gouu; a... 2.. such. 1.. ....1 .1... . cu..od.’.1 senrenc: .5 w........¢a Counsel Submitted .1... .1... .. .. plain case or hbel. He 3.... .1». mponde... was 1.3.11. flpresented .. .11 ......s, The zllepuons agxmsr .1... .,.pL.c.... am senous. Counsel ma .1... me ..pp1......*. ...=.1......e... was such .1... despite I.m.-.,; . |udgI'ncnt ... 1... rm...., and hmng ... order .:s.....-....g (hr rupnndcm, the npphcnnl .. now Lvcfnm the cm... m cnfmcc .I..: ordu .-.. con-1mxm.I. And me Cuurr mun rncll; 0... . “.1w.~..¢... sentence". c.......-.1 cmpl-usxzed .1... .1...» .. no. . -‘U... off” pubhcanon .. .1.... WEIR 5...... (7) pos1—]ud.gmen( ,...1.1i.........s. 1-1. ssud .1... .1... .1... conclusxon of .1.. mil and me Issuance of the meal o17I Oxdu, the Iezpondenl ma been ‘\mx1\.ed" m a later of demand ("Lon") which was sun to the Iespondcnfls exsrwhlk solicitors The LCD was Issued to gel an respondent to am down mg impugned Faccbook amclc-$. Cnumcl ma am we respondem ‘s ncung mm Impunm H: prunred nut that the rcspnndcnt never mnrcndcd am the con-Amums urn zccxdcnml. on ch: cnntnrv, mm was pvmnvu: m. by the rupondtnr Th: cunduu of [he rcspundcnl Lx cunlumncmuw. Counsel hlghllghtnd dun the seventh uncle Wu. shnzvd 330 uxncs. coma ma um um explnmuon by ltspondcnr does not pass mung: mu an onset has u. b: ubzycd 79. Counsel sud that the zt~px)nd:m has not shown mmoxse. Then was no Ipolngy mm was undued it me earliest opportunity. Th: Apology am Is bung tendered now .s quahfied. Th: smbenn of Uh: apology (or me lack um must 1,. rakcn mm account. Apart from dxsobeung . Cnun Oxvlu. me m of n-nslemllng the Conn vm rm affidavn .5 . hcmnus nffzntc. Ha fxkd cuntradlcmn .«rr.am-.. m um mrrmm mum and Lhu Np: nfcnnducl cannot be pumshcd wk jusl « rm. an The zffidnv _ a swam summcnl before me mun. As [or me mpondenas halnkruptcy :5 pm of Lhe plu m mmgnuon, ouunsnl 5...: tin: Llns Is pm of Lhc duz process of hw He sad bung 1 sol: wage eamer occurs m many cas . PIE: 51 m: coma polntzd out ma. me postings ... (he zcspnndenfs Fzczbook account are gull .1.=.<. 1.. so far as punishment ..= concerned, counstl for me .,.,.1.c.... s..1.......=a am am should 1.. a dczerent senmnce ... an 5...... nf a zusmdlal semenoc rcflecung {he guvxtg, of mg tomtmpruous acts. ....1 ...v..=a .t.= c.......m1.:...... crmudgunnn me [nHow|ng r.m..<:, .. The .¢...-..- of the Unlcr an en... ....x m. ...,.....az... u... :v.<pxe.K:n\‘:d by sn|.c.m.. all .1o..;¢ ... 11.: Allegauons ....1 .m.m..... 245...... u.= applicant an ...-...... ... ..m....- ...a ..= high!) .1=r..........,, m. we respnndcnfls .mpug;.ed zcuons xeinfoxcts me c......n. n..u...g ..I am ...p....u=...'. mahcc .g.....~. flu: a,.;.1.(...:. .v 11.: shm ......-.L.<. ofbxunhcs or me um. — atvgn (7) u.m».c... ......-3. v. 'n.< m,.....a.... ma zlxmdy hm. unmtd by am app1.c....3 so1.c...m Io smcdv comply xmh terms an... Qndcn v.. Th: respondcnfls conduit um cunmmacluus or openly drfianl arm Dnlu: v.., 11.: respondznfls Kw nf cunlrmpz wcxt ..... nccmnus u. ms ..r....-.uss...n. They saw 1....»-pr... and znnszxoufi new of will camed nut zfitr dchbc-nnnn. Psluculady so as ch: respondent |...a one: .32". pamnpalzd ..., and aged an an cornmcms, P... 5: ..m vul, The lcspondnnfs cxmses [ox um brunch and [01 ms umunun .0 mnkz mu ma {nnk dnsclozuzx lacks my crndxbllny and wrrm frnm my or1=,;.um.;, x. rm zupwndznr is clearly unremorseful rm Ins ounlnnpluous conduct‘, nnd xx The zcspondtnt has not scan 1: a: :0 lendzr an apology to am Court at me allies! oppoxlumly V/iLh wgnd m the Iuugvh of Lhc mnnencn, munxel ma mm :1-.e nngu: oi scnlences is hm-Mn 14 my: lo 3 months. Coumel to: m: .ppnm. gav: the following txzrnpkx of punlsluncnz for Contempt oiOoun.— ~_- g ’ % mm _;m 1 4,.m.4.,.... n... ma . 5.... gr... ..m.‘.. Jmuum u. m u.ma....... ommmm ..... :..;.....:..;m. mm» mm ...... n4mmri00vn2rLIm mm.» . 1... nu! : »....x.~:..4...:-mu; . .,.mr.m..m gmmm um|w~mnL>4s1w1r-b mm. mam: mu. :54-mun VIM .. Vmurlnu mm.“ pl:-Hm‘: x... , m.....~.....m. . Bvuzh uhvll .m 3 mm u.m.y....~u.«m um»... m. »..m...... [mill 2 cu 752 ¢.«....m {mm mm mm mm a.«....., .m.....‘. ¢ y.. (‘Mu ~.. u x.. w. 0.. . r..m. mm an an ton mu] 9 Mu ms um dnmmxuxy .\.a..=....¢ mu. m... :.«,m...m.. Amkr .7... to mmfiucmc ; W mu .m... WVQ m. ....mx.4...m mm. , .. L4: ,4... y...m.. . am of-:1 m,.n.n.. lrmnm m.m.nu...nwnz ..\...w..mm.m.m. MU m m. . AIA| m.....n..mxn. u:|» pvqmvml ma: phullfl :>.., M nI7I 83. 34. 85 ‘fa *j*:;‘».c..,¢....~;..uu.... 4*. a,..mr.m..m..n um“ -....,-.«....m.mm..n mm..zm.«m. W M 1 ;nm.m..mn.m= V" ‘ man] . zu uu |r.r. u: m: .:..m.,,m...m, ‘M. .4..u.m.p=«..m...:. , [ML For my part, I find um dxc sung is no! m the respondent’: push judgment Fncebook posungs but mum 1: .5 m be found m the unions and mupemm commults mm were mud: by the v1:\v:rs who had unhmdezed access lo the mpnnama. Fzmbnnk ucount. The posmon m law .5 dear. The xrspondznr as an Fuccbaok mom owncr/rtparzrnr u xupnnuble and liable xn Ixw my his own pnxllngx ma rm comments that an mm by In: “v1:we:<" or Fncclxxxk rncmk. In this case, um was no apology by the (upon-dun! n me mzlizsl oppormmry md ma. ma...-m x. 011:, 1 was mwfindzd by wunsel for Uh: applicant am in apologv at me elevannh hour 1; watch nothmg (see. Arab-Muhiymrr mm KW Ida. BM y Jri K:1a~gbzla—Ral!an Engflenilg W 54.. BM. ¢~ On. [24:00] 2 cu caz). Hence. a belated and 1..1n.=m=1 apology docs nnr mmgntc (HE serious misconduct by me mpnndcm which blatantly undzrmlnu lhc mrzgnty nf an cmm nnd Impcdcx and obrsrnzcu the du: pmczn adlrunxxlrnunn of yusucc musnrn 86 It 15 clan: and quite mdupnmblc am the mspnndmt would have known all too well aim all he had .0 do was .0 make sm-nz xumkk about the zpvpllcznt ox has fmuly mm the Tanpl: and dus mud genzmtc a ‘xiv: of vimohc ma muons cornmcuu by m Faccbuok vxewers or friend: an. Thcxv is nn dv-rub: at all am me u-npugned cnmmenlx whxch arc fmmd m (I1: .<u:\'(n (7) poi-njudgncnr publicntiuns arc uf the same at xubnanuallv rhc We gun Is :11: Ixnpugnnl um.m.m:y pubhcauunx u. the main dufnmnuon smL 1., am mgard, counsel (0: me apphclnl has plepalml a (ompnrznvc mm [0 show me sxmdazuy mwfln um puhhtauuns m du: mam sun and uh: pcsmudgrnenl publlcauons. Th: tornplamt by m; respondent :1-m Lhc pow-}ud.p'ncnt pubmnm do not refer to the :pp|.Ir.m1( or are not defznmnry of Lht applxcant am plamlr unrcnablc. Th: complaint by me rcspondem mm th: applxcmt has not idenufied wnh pamcularly mg sxnulmly bzlwezn :11: impugntd post yudgncm publlcnzlnm and m. dcfnmamry pubhcalmrnl m rm main sun 15 equally wuhnux merit. F.\'en n cnrwry fiance of the post yudgncnt pubhcuuuns will mm um mm 1:. . .mmn,; urmlmly. Ilcncc, mm I.\ no doubt u nu rhax tlu postings by um re:«pond=m and the cnmmcrlls mu (hes: pcsungs ma amacwd or mvxted, wcrc all mzguad M m apphcam. P-peas-2:71 88 an 90. No doubt, ch: mponaau auunpmed to m...m.: hIms:lf by smnng broadly am he was mlsmg Issuez 111 «gm: .9 mg adxnuusrnuon of .11: Tcmplg but mm .5 no doubt that he and; mmaed to publish mg postings which gkncrated the defmnaxoq‘ comments apmsr mg ippllcanr. In vmw oi II-m mspundcnlk lusmr, wuh an zppllum mm} W} {hut Faccbuuk account nphud: wluch mu Lhc :<u|:}A::l of me mam drfunannn sulr, u would be mu‘: and dssmgtnuuus [m an mspondent w feign any ngnomnu of am lxk:luhoud and acmunry ma: ms postings of ma conttxnnng me zppllcant mu gum ox pxompl or gamtr commgns winch at: ddzmntory of me applicant mu m the way oflus officcs Hm"; du: rcgard lo all the mcummnm, |m:1udmK mg rm um (I1: mpondem was respcnsxlale rm seven (7; po<t—]ud)m1:n( publvzaunns. cnmninmg dernmaum words m mu {nnn ormmmmn E3 viewers. 171' and cunccnung {hr plnnnff and m the wny u[ has urncu. 1 nm Ilnptlltd tu lhc (uncluamn that the n~aponduu's cnmluc: demonsuaus an cgzgxou; dmegazd [02 due sznculy ur um one: of . Cour: oicompzunt |unsd1cnon. 1: Lx conduct which 3: unpazdomble. Lndced, on me zoplr or pardon, u .5 clear um Lb: zespondem is nnrzptnmnz and unzpulugtui Th: so-allzd apulogy ms mzre “up, senate” n was not 2 sincere Ipologf Anyway, u came way mo law m ()1: an to amount to mmung worlh oonsxdcnng PM aw mu 91. Taking all of Lht rdcvanr fzcluzs unto consxdennon including the scvznl rnattcrs adverted In above, 1 am Impcllzd m an vlcw um n .5 necnsnzjz and u'np:nnve m ms case .0 nnpoac a custodial scntence. or r/nurse, me length ofvhc smtmc: xx 3 runner of ducrzuon and the Conn L» always mndnd by (I1: mnuating ma aggiavnnng mm.» In am ulnmzw nnnluu, I am of uh: \\=\I« um um rcspundcnl xhnuld be .L-mung: m um (I) month unpmum-mu rm Lmng m cunmmpl of Court and me sentence w|lI zakc cffccl n-nmmllzurlv Th: respondent wxll sen’: Ins wmgnct at the Sungu Euloh pmon Pursuant to Ordex 52 rule .5 (2) (.;, (b) and (C) Rules of com 201:. I hereby pronounce Lhe ;oum.,...,,. (3) The mm or me conmmnox 15:, Murali A/L Subumamam (KP No 680(;1fi—n8r5715) :m1;..,; 7.‘. my 13. jzlan Anggcnk D:-mm 31/Isa. Sekxycn 32, Km. K:muning,Shnl1 Ahm, Stlnngnx. (b) He .5 gmlry of ban‘; 1:! cuntcmp! of Com: rm xlnsobeymg pzngnph (1) of am (Jule: of .1“, Court am: 29 pa, zom md m rn|:‘lczd.Ang Lhe Conn by way of ms affldavlt filed In support or m Apphcnuon for stay or txecnuon affinnzd on 7 Fzbnury 2017. vunefiuorn (C) The conwrnnor 15 hereby snnmmccd m b: Lmpnsoncd for one (1) month and h: held .z me Sungm Eulolu prison. 9; Cmlnscl For the rcspnndmt ma sh: ma Insznlcunns m .p..¢.1 m the Court 0! Appeal and mum: that the cum-xdlal sentence bu med. 1 “ma. But um (ht xmpund:nl rm been found guilty ufcuntcmpl. I was u[ um mm man (11: mv pending appcil cannot bc uncondlumul. Arm hunng mg oral apphcnuun r...- may pendmg me nspondcnfs appeal on my Emdmg am n u m contempt ofCou1( ma me pmmummm of scntence, 1 oxdcxed me cu.stod.Iz.l smmmce m be staged (puldlng appeal) on me [ollowmg (:1-ms , (1) mg rtspondtnt .5 (0 lodg: ms valid mnemznmul passport wnh the Dqaun Rama: nfthc Cnuxr by 3.0m p.m «my. and (11) Pay mm mun (mm 1., hnmclf or through any am pm) a ucunly band 0; KMsr),00(v.oo ml val-nth .5 to be pmd by my p.m. on 13 Nuvcmlxr mm, 94. 1 funhu ordered (hz yespondznr m pay costs of an comrmmd proceedings m an sum ofRM20.DOD on (subiecl to 4% allouuzz). mm n17| Ordu accordmgly. Date: 10 Novunlm 2017 ( s. Nznlha Balan judg: ' H1gh Court Km. Lumput Counnel: Mr. G. Rapulngzm mguhrcr with .\[x K :\w/nth (.\I:.m;r. J/mlrw Dr/amm 6‘ Cu) fnx an zpphcant. Ms K Saraswnhy (Mm. r.1<mmu (~01) fnrrhc r¢=pnndenl D:1m'Dl1an;m1y Vnsudm/an together Wllh B Devandn (Mum. ac r. r.. ¢‘~' ca) for me xnlnnrener. sum-2: Ordzx 52 Rule 3(1) (2) Rulns cfCoun 2012 om; 52 ml: 5 (2) (.)_ (13) and (c) Rules nfCr)un 2012 Cal Dam’ rm I .11.,” V9//Ar 1. 1=,.”+;.m Imam m) M. mm c- Orr (No 1) [2005] 5 MT.) 439 HC l\'JtI‘g/7Ia)1v(.4)(Vf})c'rr'C/rffvln mm'O1}>z-vy [1971] 2 All ER 373 W cm Km; may 1.;/M; BM ;~.4m119uJJ 2 ML) 21- sc m..,emm m. m : hnvz selfiah .m=..um m necupy M mm or um: on mun ml the am: MM-Inficnpenl and me lixcwiwe Comnunnuyllllc mgm.sc9..nxyrm. far m. n hm: nbuxd And / ur ....su..a IN 3,. Lnwx «I ma SH Mm Mlnamrnzn Temple Dncvmhamm my. Lumpur ¢- m.g.....; Chum) Tum‘) B, ‘randy mm. n.y.4.,‘.-ma my son. Dam N Swalumal, .; my suwsswr ma m mm m! .; me an null: 54 am of Mlmgcmml and ohhr Encmm Commute: .»m.=n¢n..m cm... Tm: .. L W L1uAmu\ pnmms nzplmxm in (Ivan: n{my son. own \iv:kurnar V x.. mmm .n.1amg,m uflhe By: Lauxohhc Kzhgwus Ciumy mm. x mm w.mu;.: m, law .. u.. -ac rm»- Chumun :71 (he Build a1M2nagerncnL:nd me Excumve Cmmmllccallhe Rthgmux chm, rm »« um um mg-nu fvrlhc Bye-Llwxofxha Re\|gmn:CMnly -mm VII : mm m b: vnkked Imm my post ...x pnrslluvn m m: fielngmus Chnmy Tm vw. : run the Rshmnu». away Tum .; .r u u.‘ . lrmfic owned bymy fuml} :\ m..u..n.nm;cn Tnu|u§xluMn:4 m_.cmx. m we rmmeslhal mm mm R=Ii|m-u cm." mu x. m Rchg-ws mm, Tms\’x dzcnuus under lb: E):-Laws m . shim ma lur Show an‘! xu Ihlvtoummrllzd-bvrlchnlxfmlnaillrlflvsadnnnnbyllwe nun g “scum-y mm x... mu I am unfn nu ma (ht .-«am I: the Ehntnnnn ..n emu oI\/Ianlguvvxlu Md m ExmuuveCqmmmA< om: Rcl xChln|y Tm A me new hr the mm.» pail ... mm m zzuw a, now Shaun lo m md marknd a mum -mus". n:_mzn1r.umin.\m.nm.m:n:m : venkv mum mm on mznn, me Reiyiunmnl wm: Ind puhhxkd or ausad Lo he «mm 2.4 yubhshed on lhc RtspuIn1:rIl'} rwebook Awumwl . puxnng mm m: fuflowlng uvrds. -rm ‘|"hIpInnm2|Il7nndwnk(nI|« u. wmc... w. s« “lmu Cnvs .....:xy.u ullmlnm?” r—..=u..m IAJI»/e mm .;-Am 1 pm’ 1a.1m1u:.@ RA/mzlmga/:1 1/1 Muzlmmrgr e> A591 [201 1] 1 CLj<160 CA cw] om]; Har 1/ pm; Pnmzulnr [1955] 1 1111.] 299 sc .1/mu 1<...m 4/}: Own Parka:/V 1 Pnhlr: Pvwmz/var [2000] 5 ML] 790 FIG PB Imtntm Lin BMI» /lbdal Rmbnib Mahantd [1994] 3 ML] 165 HC /W114)”; 4». EM z»/W 1 1/mm 510/2 :4. am ]2oo9] MLJU 742 He Afin em Bubadv. Tan In I(1r};u'Ilmt/Jmx (No. 2) ]2ou4] 5 Awnum HC En; 14.. M.” Hm] 1 En:/Imm ya,” .14". BM zy Or: [2007] 2 1111.] 571; He W11/mm jarir c- Cu. M 5.1.. HM. I'C!:»/quga (M) 17.. am O‘/l1u1r[I‘7§4] 3 ML] 40 HC 004 Mag M mm L'u1uzr1a1Inn4vm1z': m, 5/2.: [1 W5] 1 Min 417 11c MEFHaHug1BIJd ¢7AnarvHaImg 1-141 Km; 29' 0r:119‘)5] 1 ML_] 135 HC Am/1—Ma£y:taa Plum Rmlg 5.1.. BM. 1- In Kzbug/cuta-Rahal Engmtemvg JV 1.1.. BM. 0‘ 0/1. moo] 2 0.] 6.32 1-1c C/Pa/c F00 Om :7. TA; Chm Pm: BM[19v9] 1 CL] 451 CA Bu Ah 1'\_7]a 1 O17i.4/7 Yaw [2014] 1 AMR 57a; [2014] 8 ML] 601; 12014] (1 (1)991 HE v.,u1m1 mm. belveve Lluuhe puhlumuan was paand .:u..w.. . . mg documznl mm..a--n..m man hmnwnmerm am Th-vy-usm zm7 — um.y.u= (.n\bcImn" ...: . pmmm ohm «um: ur mm mm wxlh ms 3...“ Emu .:....,:¢ my MI .».. lutkgmund and m. mud ~..u.c.w draw: an in .,m.... A: .. an 4... ohhws Ammmx. ... pl-bhunmv .m..m ... ,..g...,». M ...“. ... mm m pccple ,..m.,.a », 20 ,..,,|. wsm..m..; 53 I vmly beam mm L11: uewagm funmr puhlnhed mm ,,..mm m rzmam on uh: mrwmznl szsmn cf mg R:swndgm'x rmmx Acmunl mm...“ and ,..m.m Mm: Ind nYmy!c|1' m m any nfmy sud omocs .5 Challrnln and . mnnba nflhe Band uVM.mu|g:m<nI and Kxeamv: Cummull-xnnd m Mnlmn .. my unumu mcmn so : vwly behave um m commmls and poslmp vrfmtd to m pamyipllfilnbovennuxfnihmx, up %1m2.znn,;nap...y «c..m.« 14: no .: rm mm... lulu: for hrr mm. ioulnaw wholmam r-‘gm my m1._&“2n2.2»:7.smpm! w:.uuu«pou«~ |e..um n....|.mu. an gnu ... wan; U sw... Pnnmnlvn: (m.z.2n|7.7.up-1 «am Clw mm L. sn.~ mm" as Insscll mum mmmgnls ...: pnsmvg; .a=....n¢a m r...w..,.m r-4 shove. m mew! Mimi! and mm-y mania; mm ar wae undmslma m mun um . lnmnlhxnhwgc m Huv: um : Ptnnml claim mm: nmnltxlhavhdung («the an g some-y rm . Iluvvccnmm cdlhtvnrhn-III-cllus|rvpns:dnnxvxhylhl Relvlmus Chuily Tum W mm : um ....n. la mm m posmnn .. m Chmnnnu ..r Hoard .m.4..ugem=.u ms the Extvmvw Cnmminnt of um: Kelulamcmnly Inm . I run lhc Rcllllnux Cmnty mm .5 ‘r 11 us a vrivu: lxmnly mm, A true mp, nflhg rmmx sung mm 2n 1 um 15 now am“ m mg Ind milked .. m.m.~m:.v . I‘z¢¢‘1«r7I 7 | 7: 74 m nml mxmn... v..m [mg I may mm max M 2| now, 9.: Rcspondzm WIVIK ma yuhlmmd « uuxm m h: wrulm and p..m.m IV! m. Rsspnrdcnfs Fuzbwk Atwunl . purling «am the fallnwmg \...m,. -uk nk z.-.... A.-nu.‘ ..... »...y.:. mu» hall mm nmn hum mm nun Cnvnl" |LnglI.In 1.-....n....... . on ok nu. ymr Ion nl ...::m.n.. _.. nu) . m...: nrvr I-‘erurl mnlnr vermin-(Ii: rm. m-pm: mm. helvxvc mu m ,.A7:m..mn VVII5 ,,..g..: .n.m,- uuh .. pm»: mm: mywn um ‘I Slukumxr wuh mg buckgmunn Wm: M.“ uflhe 5.. Main Mzlmu\m.m hemp]: m mm 1..., n .~ x“, mm Duo’ N Swxkunul and mher nffcmlx arm Rehgmus cum, {nu nremcn murmng lhmwum Junllmru My sun mm mm. hem cucled ml m am am .4 m Almlml. I91: pubhtzlmn ,au...a..4 m mm» 7 1 .1,“ m ma 5, 7; Pmwraud mm by :7 .-wnmw. amen : vrrwly mm mm um ac.,m.x=..x r-mm publnhcd ..,.a.., vmmlkd m rumam on me mmrnem xecxian nfme Rexponflem ; facelnwk Account mm...5 mm poslmg mime mm M mpelf m ma my at my ma mm: as Chalrrnan ma . mzmha aflhe mm n|’Managemeuund Lxecunvu Cnmmmerxrm m mm." u. my u-am vhcrcm n vtnly :..I..». m... Ih: umunrms and pomnns mhmi m m mgmm 7.2 abvvcau 1!: fnHmAs,- m <2:.z.nu7.sa9 v-7 “hmbérnhlnl ...,.;.~ I-u £:iJsIm:uzLa.zo|1.s.*4)pm) «um /7111 ,......e_. no 1.» when a M...“ ./m ,;..;.. amlptmhtlMirlloVrv4I<wllI[1/frumlordmlvugu” um Knnulmmlm: mama nm2:.21nu7.x.::...ny «my mmn. mu rum”: mvnmr I: .ma Mtsxlrvx lo mm Pnssaillfsiflumwnislhzrf rm V1l‘22u17.&I&m) «mm nmlun min may um. mum m brsa An-um I2.-gm m. um... All mmnz um» um: nnl_\ .whenue .m..g..m7 Amgnn} um. Puse|u«vI1I

Pytesseract-0.3.10

WA-28NCC-334-06/2017

PLAINTIF Cheah Chin Kean DEFENDAN True Fitness World Sdn Bhd

09/11/2017

YA DATUK LAU BEE LAN

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DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR (BAHAGIAN DAGANG) PENGGULUNGAN SYARIKAT NO: WA-28NCC-334-06/2017 Dalam perkara mengenai True Fitness World Sdn Bhd (No. Syarikat: 713263-U) Dan Dalam perkara Seksyen 465(1)(e) dan 466(1)(a) Akta Syarikat 2016 Antara CHEAH CHIN KEAN … PEMPETISYEN (No. K/P: 681206-08-5203) Dan TRUE FITNESS WORLD SDN. BHD. … RESPONDEN (No. Syarikat: 713263-U) Dan 1. SEIK YEAN YOUNG (No. K/P: 870730-60-5036) 2. LEE KWAI SENG (No. K/P: 860628-43-6838) 3. HO WAI YIN (No. K/P: 860327-56-5696) 4. MOH LAI JING (No. K/P: 680114-06-5171) 5. ABBY TAN BOON YEE (No. K/P: 811004-01-6376) 6. ALAN BASIL PETER (No. K/P: 810114-14-6089) 7. ANURATHA RAMANAIDU (No. K/P: 770518-08-7288) 8. BEH TUCK WOOI (No. K/P: 720924-07-5383 9. CHANDRA MOHGAN A/L G DEMUDU (No. K/P: 700403-08-5959) 10. CHEAH WENG KEAT (No. K/P: 790803-06-5481) 11. CHEE SHOO KEONG (No. K/P: 571228-08-5565) 12. CHEN CHEW HAR (No. K/P: 740902-14-5764) 13. CHEN FOOK YEIN (No. K/P: 811213-12-5181) 14. CHEW WAI HOE (No. K/P: 830526-14-5275) 15. CHIA SIN LIY (No. K/P: 810623-06-5404) 16. CHIA TIANG KIANG (No. K/P: 731009-14-5273) 17. CHONG PEI NEE (No. K/P: 731013-14-5292) 18. CHOO WEE LING (No. K/P: 770522-14-5532) 19. CHOW WAI FOO (No. K/P: 791210-06-5325 ) 19. CHOW WAI FOO (No. K/P: 791210-06-5325 ) 20. CHOY CHEE KHONG (No. K/P: 840920-05-5285) 21. CORNELIA TAY SUET CHENG (No. K/P: 690710-10-5706) 22. DENNIS YEOH GWAN JIN (No. K/P: 730215105403) 23. EDMOND LIM GIN SHENG (No. K/P: 821006-08-5411) 24. EDMUND WONG CHEE MUN (No. K/P: 861117-56-6193) 25. EE CHEE WAN (No. K/P: 790512-01-6057) 26. NG JING YI (No. K/P: 850529-02-5605) 27. FONG SOON WAI (No. K/P: 811031-14-6395) 28. FOO PUI SAN TAMMIE (No. K/P: 920604-10-6036) 29. FOONG YEE CHING (No. K/P: 900722-10-5298) 30. GOH YIN LIN (No. K/P: 890420-01-5792) 31. HIA NGEE YEOW (No. K/P: 720403-14-5091) 32. HOH YEAN MUN (No. K/P: 690227-10-6012) 33. HOO HUI NGOH (No. K/P: 740809-08-5090) 34. HOO SZE YEN (No. K/P: 790708-14-5342) 35. KEITH YEW SZE HAM (No. K/P: 780411-05-5365) 36. KHOR JIE QI (No. K/P: 940322-14-6396) 37. KHOR JIE YI (No. K/P: 920428-14-5334) 38. KIRAN KAUR A/P JOGINDAR SINGH (No. K/P: 580925-07-5180 ) 39. KOAY HOOI LIN (No. K/P: 640605-07-5466) 40. KOH BOON WEI (No. K/P: 850924-01-5407) 41. KOON WEI LEONG (No. K/P: 850121-14-5785) 42. KU WAI FOONG (No. K/P: 850205-14-5491) 43. LAI PUI KHEONG (No. K/P: 730331-10-5291) 44. LEE KIT SENG (No. K/P: 761211-14-5645) 45. LEE WAT NGO (No. K/P: 620910-10-5766) 46. LEE YEK PENG (No. K/P: 851121-14-5201) 47. LEE YI TIAN (No. K/P: 901008-05-5486) 48. LEE YOKE CHIN (No. K/P: 660227-10-6656) 49. LEUK KENG MING (No. K/P: 860616-38-6547) 50. LIAN THNG KAIH (No. K/P: 790917-14-5471) 51. LIEW CHIAN KEONG (No. K/P: 770804-14-5215) 52. LIEW CHIN DWO (No. K/P: 780312-08-5665) 53. LIEW SOON FATT (No. K/P: 821205-14-5501) 54. LIM CHER (No. K/P: 630702-01-5984) 55. LIM FONG NYEE (No. K/P: 781115-14-5336) 56. LIM PHAN YUEN (No. K/P: 840730-14-5191) 57. LIM SUI JIN (No. K/P: 801031-05-5013) 58. LIM ZHI SAM (No. K/P: 950713-05-5191) 59. LINDA TEOH OON CHENG (No. K/P: 580515-07-5364) 60. LIONEL A/L ALFRED (No. K/P: 850604-10-5999) 61. LOKE FOO SOON (No. K/P: 851206-05-5513) 62. LOKE PHAIK POH (No. K/P: 580402-07-5528) 63. LOW LAI HOE (No. K/P: 810303-10-5262) 64. LUM POH PENG (No. K/P: 750409-10-5004) 65. MAH SENG WAI (No. K/P: 830510-14-5211) 66. MARGATHA MANY A/P ATHANARI (No. K/P: 550430-05-5316) 67. MARK YEOH GWAN HIN (No. K/P: 750422-14-5393) 68. MICHAEL CHEAH SENG JIN (No. K/P: 720520-07-5213) 69. MOHD AZMI BIN ZAHARAI (No. K/P: 791122-06-5903) 70. MONICA CHANG MUN YEE (No. K/P: 880916-08-5488) 71. NG PIO BERN (No. K/P: 760121-07-5589) 72. NG SIEW YEAN (No. K/P: 720426-09-5066) 73. NG WAN WOEI (No. K/P: 810808-02-5654) 74. NG WEE MING (No. K/P: 720719-14-5151) 75. NG WEI YEN (No. K/P: 590213-10-6152) 76. NITHYANANTHAN A/L NESADURAI (No. K/P: 591229-02-5669 77. NORLISAH BINTI MOHD RAMLI (No. K/P: 670910-01-5942) 78. ONG HOW BENG (No. K/P: 691118-08-5659) 79. PAUL WONG YEE KEONG (No. K/P: 7230418-10-5729)(sic) 80. PHANG KOK WENG (No. K/P: 820104-08-5437) 81. PHILIP SOON WEI-JUN (No. K/P: 851004-10-5455) 82. PHYLICIA YEO YEE SIEN (No. K/P: 860122-14-5540) 83. QUAH SEAN HUAY (No. K/P: 810609-10-5780) 84. QUAH WAN ER (No. K/P: 840422-10-5884) 85. QUAH WAN THENG (No. K/P: 860501-43-6284) 86. REUBEN PAUL (No. K/P: 720731-14-5445) 87. RICHARD BOAK (No. K/P: 710208-10-5239) 88. ROHANI BINTI HASHIM (No. K/P: 670103-11-5074) 89. SEE AI LING (No. K/P: 740421-14-5632) 90. SEK MAY LING (No. K/P: 630312-10-7410) 91. SELVARAJA A/L MURUGESU (No. K/P: 550422-10-6529) 92. SEM YONG HAO (No. K/P: 960531-56-5261) 93. SIAU CHO DIONG (No. K/P: 631113-08-6009) 94. SIVAKUMAR PARAURAMAN (No. K/P: 790812-06-5635) 95. SOONG CHEE HOE (No. K/P: 720303-08-5415) 96. SUTHICHANA THARMAPALAN (No. K/P: 740312-14-5158 ) 97. SWAN SIEW FONG (No. K/P: 671024-10-6334) 98. TAI YOKE CHENG (No. K/P: 670208-08-5828) 99. TAN AI SIM (No. K/P: 660314-05-5324) 100. TAN CHOON YIT (No. K/P: 841009-08-6063) 101. TAN KAM LIN (No. K/P: 630911-08-6236) 102. TAN KIM FONG (No. K/P: 570804-08-5666) 103. TAN KUANG MING (No. K/P: 840322-14-5547) 104. TAN SIU NI (No. K/P: 880801-56-5326) 105. TAN TING SIN (No. K/P: 790809-07-5197) 106. TAN XIN NING (No. K/P: 900724-10-5574) 107. TAN YOKE SIM (No. K/P: 631209-08-5246) 108. TAY BEE HOON (No. K/P: 621027-07-5988) 109. TEOH PIT YIN (No. K/P: 751130-07-5367) 110. THAM CHUAN SIONG (No. K/P: 830314-10-5175) 111. THOO MEE LEE (No. K/P: 591019-03-5260) 112. TOMOKO MATSUI (No. Paspot: TZ0764239) 113. TRACY CHAN YEE LI (No. K/P: 770914-14-5654) 114. WONG CHOON EE (No. K/P: 771004-08-6071) 115. WONG CHUAN MEIN (No. K/P: 830401-10-5165) 116. WONG JAY KIE (No. K/P: 851117-14-5496) 117. WONG MOOI LEE (No. K/P: 740827-09-5022) 118. WONG TEE FATT (No. K/P: 751105-11-5275) 119. WOO BEE TING (No. K/P: 780912-14-5828) 120. WU CHEE KEONG (No. K/P: 650118-10-6957) 121. YAP POH LIN (No. K/P: 800101-08-6348) 122. YAU SUN FONG (No. K/P: 570611-05-5110) 123. YEE BEE LING (No. K/P: 631001-02-5594) 124. YEE PIK NGAN (No. K/P: 800228-14-5392) 125. YEE YOKE LIN (No. K/P: 640606-10-7490) 126. YEOH AIK CHEONG (No. K/P: 720703-07-5371) 127. YEOW CHEW SEONG (No. K/P: 630927-04-5332) 128. YIO LIM CHOONG (No. K/P: 860215-56-5181) 129. YONG MUI YUEN (No. K/P: 781010-14-5946) 130. YONG WEI CHEONG (No. K/P: 780605-14-5967) 131. ABDUL HADI BIN ABDUL MANAF (No. K/P: 900310-04-5321) 132. ANG YEE SHIN (No. K/P: 930421-07-5328) 133. CHAI HOOI JETT (No. K/P: 911003-14-5916) 134. CHAN FUN SHIN (No. K/P: 850627-05-5381) 135. CHEAH TEIK CHUAN (No. K/P: 841106-14-5133) 136. CHEAH YEE YANG (No. K/P: 900927-10-5785) 137. CHEE MEI LIN (No. K/P: 650318-04-5124) 138. CHEN CHEE MOON (No. K/P: 860419-43-5215) 139. CHEN TZE HUAYU (No. K/P: 860617-43-6120) 140. CHEONG PIK YIN (No. K/P: 900516-05-5305) 141. CHEW LI SA (No. K/P: 690824-01-5004) 142. `CHEW PING KEE (No. K/P: 860825-35-5560) 143. CHIA WEI HAW (No. K/P: 940814-14-6501) 144. CHIN ZE WEI (No. K/P: 890125-14-6167) 145. CHONG HOONG SERN (No. K/P: 880924-14-5081) 146. CHONG LAI PING (No. K/P: 680819-08-5762) 147. CHONG TONG SEONG (No. K/P: 461006-10-5199) 148. CHOO SLIM MEI (No. K/P: 881026-35-5612 ) 149. CHOO SOOK LING (No. K/P: 910421-14-5164) 150. CHOONG WAI KIT (No. K/P: 801130-08-5111) 151. CHOY WAI HUN (No. K/P: 710527-10-5359) 152. CHRISTINE LOY SOK CHING (No. K/P: 930319-07-6076) 153. CHUA YIH CHING (No. K/P: 820918-07-5078) 154. DAVID LOH JIAN WEI (No. K/P: 911231-10-5465 ) 155. DAVID TNEH CHENG ENG (No. K/P: 780825-07-5331) 156. DESMOND TAN CHIAM WEI (No. K/P: 851203-07-5869) 157. DHAMAYANTI A/P REGUNATHAN (No. K/P: 791209-14-5424) 158. DINESHWARAN A/L UMAKANTHAN (No. K/P: 810501-07-5073) 159. EE MENG SHI (No. K/P: 871224-06-5959) 160. ELIZABETH TAY (No. K/P: 670816-10-5562) 161. TAN LAY LAY (No. K/P: 800318-14-5070) 162. EOW WAI YEN (No. K/P: 860517-10-5125) 163. FAM YOKE LING (No. K/P: 710927-10-5366) 164. FAZIL AHMAD BIN TAUIDDIN (No. K/P: 820706-14-6225) 165. HENG FOONG YI @ WENDY (No. K/P: 660716-10-6454) 166. HEW CHUNG KEAT (No. K/P: 900816-10-5379) 167. HO CE-YI (No. K/P: 870125-10-5412) 168. HO CHING YI (No. K/P: 9910103-43-5230)(sic) 169. HO CHONG SIANG (No. K/P: 630707-08-5033) 170. HO YAN KANG (No. K/P: 01020-10-1463)(sic) 171. HUI YOONG SEONG (No. K/P: 820507-14-5991) 172. JAIKRISHEN SINGH A/L BHAGVINDER SINGH (No. K/P: 900208-14-6345) 173. JAIKRISHEN SINGH A/L BHAGVINDER SINGH (No. K/P: 900208-14-6345) menyaman bagi pihak MANDEV SINGH SOHAN (No. K/P: 020203-14-0897) 174. JAYNE TSUTSUMI @ CHEONG KIT BUNN (No. K/P: 670315-08-6260) 175. JOSEPHINE KOH YUNG AI (No. K/P: 650215-04-5316) 176. JULIAN OOI HOCK SENG (No. K/P: 670606-08-5487) 177. JUSTINE TAN MEI-ERN (No. K/P: 920210-14-6078) 178. K. SUNITA A/P T. VINAYAKA DAS (No. K/P: 760324-10-5426) 179. KOH POH LI (No. K/P: 771216-07-5892) 180. KOK SHWU JIUN (No. K/P: 860918-43-5682) 181. LAWRENCE ANDERSON BURLEY (No. Paspot: 537383077) 182. LEE CAI FOONG (No. K/P: 891126-10-5644) 183. LEE CHAI HOONG (No. K/P: 910205-10-5870) 184. LEE KHAI CHUN (No. K/P: 920129-10-5471) 185. LEE LAY NEE (No. K/P: 760322-03-5268) 186. LEE SIAO YEN (No. K/P: 640629-10-6570) 187. LEE SOOK FONG (No. K/P: 730309-06-5262) 188. LEE YEK PENG (No. K/P: 851121-14-5201) 189. LEONG EE MUN (No. K/P: 861225-43-6310) 190. LEONG HO FUN (No. K/P: 761202-08-5142) 191. LEONG MEI YEN (No. K/P: 840307-14-6488) 192. LI CHEE WAH (No. K/P: 910301-06-5995) 193. LIEW YIN WEI (No. K/P: 850214-08-6593) 194. LIM EE HARN (No. K/P: 941002-14-6914) 195. LIM GIAN SENG (No. K/P: 700110-10-5629) 196. LIM JIA HUI (No. K/P: 851206-14-6124) 197. LIM KEY YEE (No. K/P: 841207-10-5405) 198. LIM PUI MUN (No. K/P: 871113-35-5080) 199. LIM SZE YEUN (No. K/P: 870914-14-5812) 200. LIM YAU CHOY (No. K/P: 621227-06-5207) 201. LIM YOKE TOH (No. K/P: 670510-10-6036) 202. LIM YONG YAN (No. K/P: 860606-43-6387) 203. LING KUOK YONG (No. K/P: 880505-13-5081) 204. LIZA ROSEYLN KONG SIEW LING (No. K/P: 910930-14-5981) 205. LOH SIEW KHOUNG (No. K/P: 561211-07-5337) 206. LOO MENG FATT (No. K/P: 740915-14-5819) 207. LOW JIA SERN (No. K/P: 901216-04-5047) 208. LOW SOU FOONG (No. K/P: 750924-14-5748) 209. MAK PUI CHING (No. K/P: 840918-14-6444) 210. MICHAEL LIM CHUNG KEAT (No. K/P: 780822-07-5221) 211. MOHAMAD FAHMI BIN BASAR (No. K/P: 870328-52-5871) 212. MOHAMED EFTAL BIN MOHAMED EBRHAIM (No. K/P: 891229-14-6561) 213. MOHAMMAD NAJMI BIN MOHD NADZRI (No. K/P: 920221-14-6161) 214. MOHD MAZLAN BIN ABDUL RAZAK (No. K/P: 731013-01-6191) 215. NAH KAH HO (No. K/P: 900810-14-5505) 216. NAJWA BINTI MOHD NADZRI (No. K/P: 891118-14-6008) 217. NASHA BINTI MOHD NADZRI (No. K/P: 880619-87-5002) 218. NG SIAO CHI (No. K/P: 840412-14-6332) 219. NGU MEE KING (No. K/P: 651122-13-5528) menyaman bagi pihak TAY JIAN HUI (No. K/P: 010117-10-1147) 220. ONG BEAK TEIK (No. K/P: 650924-02-5369) 221. ONPIMOL BORIWAN (No. Paspot: AA493056) 222. OOI CHIEW BEE (No. K/P: 91094-10-5210) 223. OOI CHIEW EAN (No. K/P: 841228-07-5030) 224. PHANG KOK NENG (No. K/P: 820104-08-5437) 225. PHUAH SIEW KEAM (No. K/P: 630129-10-7578) 226. PHUNG HON KEAT (No. K/P: 910930-14-5891) 227. PUAN JIA HUI (No. K/P: 910901-91-5017 228. QUAH MIN SEE (No. K/P: 870706-14-6124) 229. QUAH MUI LENG (No. K/P: 730109-10-5012) 230. RAMES A/L SIVAPATHAM (No. K/P: 700726-08-6497) 231. RENUKA KUNATHEVAN (No. K/P: 770118-10-5280) 232. ROZARIO AUGUSTIN LAURENCE (No. K/P: 4611118-10-5505) 233. SEE WAI LIK (No. K/P: 901130-14-6779) 234. SEOW JOANNE (No. K/P: 991015-07-5436) 235. SEOW LAI HUAT (No. K/P: 620909-07-5459) 236. SUDESH A/L PRABHAKARAN (No. K/P: 800610-01-6064) 237. TAN AI SIM (No. K/P: 660314-05-5324) 238. TAN AY YONG (No. K/P: 731219-01-5813) 239. TAN CHIN KWEE (No. K/P: 711018-10-5275) 240. TAN ECHUN (No. K/P: 900130-01-6726) 241. TAN GEOK THIN (No. K/P: 840329-12-5020) 242. TAN NAM HONG (No. K/P: 570927-08-6407) 243. TAN PEI LI (No. K/P: 651107-06-5066) 244. TAN RICHARD (No. K/P: 840708-05-5173) 245. TAN SIAU WEI (No. K/P: 900328-12-5928) 246. TAN SIEW KUAN (No. K/P: 840328-08-5290 ) 247. TAN SIEW PENG (No. K/P: 670907-07-5004) 248. TAN WEI WANG (No. K/P: 880924-04-5531) 249. TAN YAW HAN (No. K/P: 850120-10-5263 ) 250. TANG EE THONG (No. K/P: 860912-56-5152) 251. TANG YEE LENG (No. K/P: 671222-08-5052) 252. TASHA LAI SOOK YEE (No. K/P: 921215-10-6176) 253. TAY SZE YANG (No. K/P: 931108-66-5035) 254. TEE CHOON PEI (No. K/P: 840121-01-6126) 255. TEE WEI JUN (No. K/P: 860720-59-5007 ) 256. TEE WEI LUN (No. K/P: 830901-05-5379 ) 257. TEH KOK WEI (No. K/P: 820622-14-5735 ) 258. TEOH PING WAI (No. K/P: 721112-08-5310) 259. TERRY DIONY (No. K/P: 710620-12-5450 ) 260. THINESSHWARY A/P YOGARAJAH (No. K/P: 891224-07-5514) 261. TOH HUI XING (No. K/P: 930105-04-5100) 262. UNGKU NAZLI BINTI UNGKU ISMAIL (No. K/P: 701017-71-5160) 263. UVANESAN KATHIRAVELU (No. K/P: 860911-43-7669 ) 264. VENESE CHANG WAI YEE (No. K/P: 860820-38-5234) 265. VIMALA DEVI NAIDU A/P SADASIVAN (No. K/P: 811113-01-6148) 266. VISHNU A/L GOVINDASAMY (No. K/P: 800117-01-6475) 267. WILSON LIEW YEONG (No. K/P: 901207-07-5025) 268. WONG AN JIE (No. K/P: 890127-14-5117) 269. WONG KEAN YIP (No. K/P: 901207-07-5025) 270. WONG LEE YUNG (No. K/P: 830824-14-5476) 271. WOON HOOI YIN (No. K/P: 9201016-14-5868) 272. WOON YEN YEN (No. K/P: 900522-10-5744) 273. YANG KUOH YEONG (No. K/P: 930804-05-5228) 274. YAP BEE LIN (No. K/P: 710820-10-5956) 275. YAP CHUI TENG (No. K/P: 861113-56-6110) 276. YAP JIAN HEUNG (No. K/P: 801228-12-5505) 277. YAP KWEI MOI (No. K/P: 790219-14-5298) 278. YAP LEE TENG (No. K/P: 881227-56-6264 279. YAP POH AIK (No. K/P: 870511-10-5699 ) 280. YAP SHOON YEE (No. K/P: 961021-10-5833) 281. YEAH HSING YEE (No. K/P: 900726-14-6273) 282. YEE WAI SEE (No. K/P: 910518-08-5532) 283. YEO KHENG GEE (No. K/P: 650228-04-5382) 284. YEOH CHEE CHUEN (No. K/P: 850420-08-5401) 285. YEW TUCK SENG (No. K/P: 741210-07-5077) 286. YONG HUI LING (No. K/P: 790710-06-5212) 287. YONG JEN SHIUN (No. K/P: 810622-14-5015) 288. YONG MUI YUEN (No. K/P: 781010-14-5946) 289. YONG SHIEW FHUI (No. K/P: 820709-14-5228) 290. YONG WEI CHEONG (No. K/P: 780605-14-5967) 291. YONG ZHI SHIUN (No. K/P: 941204-10-5491) 292. YUEN YOKE SIEW (No. K/P: 600226-08-5676) 293. ZIKRA BINTI ISMAIL (No. K/P: 791204-14-5628) 294. ALAN YEO (No. K/P: 760912-04-5167) 295. BALRAJ RAMANATHAN (No. K/P: 540227-07-5435) 296. BERNARD LIM SOO HAN (No. K/P: 720507-10-5203) 297. CHEAH POH YEN (No. K/P: 861014-14-5046) 298. CHEN FAWN KEONG (No. K/P: 730408-14-5081) 299. DING LIANG WONG (No. K/P: 451218-08-5063) 300. ELLEN HUI YUEN FONG (No. K/P: 681012-12-5246) 301. GAN LI YING (No. K/P: 730210-01-5580) 302. GUO YUAN YUAN (No. K/P: 751221-74-5012) 303. GURDIP KAUR A/P AMAR SINGH (No. K/P: 521114-10-5972) 304. HARITH MENON (No. K/P: 690914-10-5345) 305. HARITH MENON (No. K/P: 690914-10-5345) menyaman bagi pihak SHREYA MENON (No. K/P: 001126-66-0114) 306. INDYRANY A/P G. KANNAIYA (No. K/P: 600719-11-5212) 307. LEE HUI WAH (No. K/P: 731005-14-5612) 308. LIONG FUH CHANG (No. K/P: 830628-12-5013) 309. LOH KOK HOONG (No. K/P: 640602-06-5537) 310. LYNNDY LEE LI PING (No. K/P: 791017-04-5410) 311. MARCUS NG LOONG HONG (No. K/P: 841012-10-5157) 312. NG FAN HUA (No. K/P: 880330-02-5250) 313. PETER RAJ A/L ADAIKALAM (No. K/P: 680815-05-5195) 314. SANGEETHA A/P CHELLADORAI (No. K/P: 800917-07-5748) 315. SHEILA GAN YEEN LIANG (No. K/P: 850415-13-5304) 316. SHEILA RS NATHAN (No. K/P: 630301-10-8346) 317. SUGITHA A/P SELVARAJA SINGAM (No. K/P: 761207-05-5452) 318. TAN CHUN KEAT (No. K/P: 890508-07-5757) 319. TAN HONG JIE (No. K/P: 930905-10-5503) 320. THIVAKARAN A/L SIVARAMAN (No. K/P: 780720-06-5401) 321. VICTOR LIM FUNG TUANG (No. K/P: 720124-10-5177) 322. WAI SUE LENG (No. K/P: 840527-10-5100) 323. YONG JUNE FOOK (No. K/P: 741103-13-5249) 324. GIAM SZE SEONG MERVYN (No. K/P: 770607-14-5005) 325. LIM KEE HUAT … PEMOHON- (No. K/P: 670725-10-5313) PEMOHON DAN PENGGULUNGAN SYARIKAT NO: WA-28NCC-336-06/2017 Dalam perkara mengenai Truest Sdn Bhd (No. Syarikat: 711894-T) Dan Dalam perkara Seksyen 465(1)(e) dan 466(1)(a) Akta Syarikat 2016 Antara CHEAH CHIN KEAN … PEMPETISYEN (No. K/P: 681206-08-5203) Dan TRUEST SDN BHD … RESPONDEN (No. Syarikat: 711894-T) Dan SEIK YEAN YOUNG & 324 YANG LAIN … PEMOHON (No. K/P: 870730-60-5036) DAN PENGGULUNGAN SYARIKAT NO: WA-28NCC-338-06/2017 Dalam perkara mengenai True Yoga Sdn Bhd (No. Syarikat: 673491-K) Dan Dalam perkara Seksyen 465(1)(e) dan 466(1)(a) Akta Syarikat 2016 Antara CHEAH CHIN KEAN … PEMPETISYEN (No. K/P: 681206-08-5203) Dan TRUE YOGA SDN BHD … RESPONDEN (No. Syarikat: 673491-K) Dan SEIK YEAN YOUNG & 324 YANG LAIN … PEMOHON (No. K/P: 870730-60-5036) DAN PENGGULUNGAN SYARIKAT NO: WA-28NCC-342-06/2017 Dalam perkara mengenai Fitness Growth Sdn Bhd (No. Syarikat: 692832-X) Dan Dalam perkara Seksyen 465(1)(e) dan 466(1)(a) Akta Syarikat 2016 Antara CHEAH CHIN KEAN … PEMPETISYEN (No. K/P: 681206-08-5203) Dan FITNESS GROWTH SDN BHD … RESPONDEN (No. Syarikat: 692832-X) Dan SEIK YEAN YOUNG & 324 YANG LAIN … PEMOHON (No. K/P: 870730-60-5036) GROUNDS OF DECISION [1] There are altogether 4 Winding Up Petitions filed on 3/6/2017 before the Court: (i) WA-28NCC-334-06/2017, the Respondent company being True Fitness World Sdn Bhd (‘Petition 334’); (ii) WA-28NCC-336-06/2017, the Respondent company being Truest Sdn Bhd (‘Petition 336’); (iii) WA-28NCC-338-06/2017 the Respondent company being True Yoga Sdn Bhd (‘Petition 338’); and (iv) WA-28NCC-342-06/2017 the Respondent company being Fitness Growth Sdn Bhd (‘Petition 342’). [2] The Applicants have filed 2 Notice of Motions in Petition 334: (i) Encl.20 - the Applicants’ application pursuant to s.471 of the Companies Act 2016 (‘CA 2016’) and the inherent jurisdiction of the Court pursuant to O.92 r.4 of the Rules of Court 2012 (‘ROC 2012’); and (ii) Encl.10 - the Applicants’ application pursuant to ss.470(1), 502(1) and 502(3), 540(1) CA 2016 and the inherent jurisdiction of the Court pursuant to O.92 r.4 ROC 2012. [2.1] In encl.20 the Applicants prayed for - “1. Bahawa kebenaran nunc pro tunc diberikan kepada Pemohon-Pemohon di atas untuk memulakan prosiding undang-undang terhadap Responden sebagai salah satu Defendan dalam satu guaman Mahkamah Tinggi Shah Alam; 2. Bahawa kebenaran diberi untuk mana-mana ali-ahli gim Responden yang ingin memfailkan tindakan guaman terhadap Responden; 3. Kos permohonan ini dan kos-kos berkaitan dijadikan kos dalam kausa; dan 4. Sebarang perintah lain dan lanjut yang dianggap wajar dan adil oleh Mahkamah yang Mulia ini”. (‘S.471 application’) [2.2] In encl.10 the Applicants prayed for - “(a) Pemohon-Pemohon diberi kebenaran untuk memfailkan Permohonan ini; (b) Pemohon-Pemohon diberi kebenaran untuk memasuki tindakan ini sebagai pemiutang-pemiutang sah dan juga sebagai mewakili pemiutang-pemiutang sah yang lain; (c) Satu perintah penggantungan prosiding penggulungan Responden sementara menunggu pelupusan pendengaran Permohonan ini; (d) Satu perintah untuk mengarahkan kehadiran serta-merta Muhammad Redha Ahmad Bin Thaharuddin (No Kad Pengenalan: 571204-07-5469) (Pengarah), Patrick John Wee Ewe Seng (S1658841E) (Pengarah), Peter Joseph A/L Anthony Joseph Bennit (No Kad Pengenalan: 670627-04-5265) (Pengarah), Shikha Dutt A/P Delip Kumar Dutt (No Kad Pengenalan: 561205-05-5516) (Setiausaha), dan nama-nama lain yang berkaitan di Mahkamah bagi tujuan pemeriksaan di bawah seksyen 502(1) Akta Syarikat 2016 berkenaan penutupan mengejut gim-gim/cawangan-cawangan True Fitness di seluruh Malaysia tanpa notis-notis munasabah; (e) Satu perintah untuk mengarahkan kehadiran serta-merta Muhammad Redha Ahmad Bin Thaharuddin (No Kad Pengenalan: 571204-07-5469) (Pengarah), Patrick John Wee Ewe Seng (S1658841E) (Pengarah), Peter Joseph A/L Anthony Joseph Bennit (No Kad Pengenalan: 670627-04-5265) (Pengarah), Shikha Dutt A/P Delip Kumar Dutt (No Kad Pengenalan: 561205-05-5516) (Setiausaha), dan nama-nama lain yang berkaitan berserta dokumen-dokumen berkaitan di Mahkamah bagi tujuan pemeriksaan di bawah seksyen 502(3) Akta Syarikat 2016 berkenaan penutupan mengejut gim-gim/cawangan-cawangan True Fitness di seluruh Malaysia tanpa notis-notis munasabah; (f) Berikutan perintah pohonan di perenggan (d) dan (e) di atas, jika Mahkamah yang Mulia ini mendapati bahawa pihak-pihak berkenaan tidak dapat memberikan satu penjelasan yang munasabah, dipohon perintah di bawah seksyen 540(1) Akta Syarikat 2016 bahawa pihak-pihak berkenaan telah terlibat secara langsung atau tidak langsung dengan perdagangan penipuan (fraudulent trading) dengan niat untuk menipu kesemua ahli-ahli, pembekal-pembekal dan pekerja-pekerja True Fitness di Malaysia dan bahawa kesemua pihak-pihak yang dinamakan di perenggan (d) dan (e) di atas adalah bertanggungjawab secara kendiri dan tanpa batasan terhadap liabiliti bagi kesemua atau mana-mana hutang atau liabiliti-liabiliti Responden; (g) Jikalau perintah-perintah sepertimana di pohonan-pohonan di atas dibenarkan oleh Mahkamah yang Mulia ini, satu saranan (advice) dikeluarkan kepada Jabatan Peguam Negara dan Polis Diraja Malaysia untuk pihak-pihak sepertimana dinamakan di perenggan (d) dan (e) di atas dan nama-nama lain yang berkaitan dihadapkan untuk siasatan jenayah dijalankan; (h) Kos Permohonan ini dan kos-kos berkaitan ditanggung sepenuhnya oleh Responden; (i) Apa-apa perintah atau selanjutnya yang difikirkan patut dan sesuai oleh Mahkamah yang Mulia ini”. (‘Ss. 470(1), 502(1) and 502(3) and 540(1) application’) [3] The Applicants have filed identical corresponding Notice of Motions in the other 3 Petitions: (i) Petition 336- encl.15 and encl.12; (ii) Petition 338- encl.17 and encl.12; (iii) Petition 342- encl.19 and encl.12. [4] The hearing of the respective Notices of Motion in the respective Petitions proceeded on the basis of the Court hearing the submissions of the parties in respect of the 2 Notices of Motion in Petition 334 as the factual matrix and issues surrounding the other applications in the other 3 Petitions are identical as well. Background to the Notices of Motion [5] True Fitness World Sdn. Bhd. (‘True Fitness World’), Truest Sdn. Bhd. (‘Truest’), True Yoga Sdn. Bhd. (‘True Yoga’), Fitness Growth Sdn. Bhd. (‘Fitness Growth’), True Haven Sdn. Bhd. and True Fitness Sdn. Bhd. are a group of companies in Malaysia that runs a business operating gyms known as ‘True Fitness Group’ (‘TFG’) in Malaysia. TFG consist of the aforesaid 6 companies. [6] All 6 companies owned are by a holding company known as CJ Group Ltd, a Singaporean Company, whose director is Patrick John Ewe Seng (S1658841E) (‘Patrick John’) and one Cecilia Wee Chong Jin Nee (S0000008F). [7] In all of the said 6 companies, Patrick John Wee Ewe Seng, Muhammad Redha Ahmad Bin Thaharuddin (I/C No: 571204-07-5469) (‘Muhd Redha’) and Peter Joseph A/L Anthony Joseph Bennit (I/C No: 670627-04-5265) (‘Peter Joseph’) appear as directors of all of the companies which are associated with the True Fitness brand. [8] The Applicants are a small part of the large group of members of the True Fitness Brand of gyms of which they claimed they have a contractual relationship with the gym which consists of the 6 companies. [9] On 10/6/2017, the True Fitness brand of gyms suddenly and without any notice ceased all operations in Malaysia. [10] On 9/6/2017, one day before ceasing operations, True Fitness World, Truest, True Yoga and Fitness Growth had obtained a Court order to appoint an Interim Liquidator. Notwithstanding this, the members were not given any notice or information about the proceedings that were being carried out. [11] Miss Wong Shan Ty had published in the newspapers an advertisement dated 22/6/2017 that she had been appointed as an Interim Liquidator for the 6 companies. [12] One of the Directors of the True Fitness World, Patrick John Wee Ewe Seng, a Singaporean national bearing passport number (S1658841E) had provided an undertaking to a limited liability company registered in the Cayman Islands named Tongfang Kontafarma Holdings Limited to close all the operations of the True Fitness brand of gyms in Malaysia and Thailand on/or before 31/12/2017 in exchange for capital injection that will allow his holding company True Group in Singapore, wherein he is the Chief Executive Officer to expand into the Chinese market. [13] No notices were given by Patrick John, his directors or officers to the gym members, the staff nor the vendors of True Fitness World, Truest, True Yoga and Fitness Growth. [14] Up and until 10/6/2017, True Fitness World,Truest, True Yoga and Fitness Growth were still renewing the memberships and was signing up new members aggressively, some of which had signed up for lifetime memberships which require substantial fees. S.471 application [15] S.471 CA 2016 provides - “471. Action or proceeding stayed after winding up order (1) When a winding up order has been made or an interim liquidator has been appointed, no action or proceeding shall be proceeded with or commenced against the company except by leave of the Court and in accordance with such terms as the Court imposes. (2) The application for leave under subsection (1) shall be made in the Court granting the winding up order and shall be served on the liquidator. (3) The office copy of the order for leave under subsection (1) shall be lodged by the applicant referred to in subsection 470(1) with the Registrar and with the Official Receiver within fourteen days from the making of the order”. [15.1] Reading subsection 471(3), the applicant envisaged in subsection 471(1) is an applicant referred to in subsection 470(1) CA 2016, i.e, “the company or any creditor or contributory.” [16] There are altogether 321 Applicants involved in the s.471 application. I shall rely on the “Jadual Komen”, exh.A in encl.58 (Petition 334), Affidavit in Reply affirmed by Wong Shan Ty on 25/8/2017. I rule that except for Applicants no. 1, 2, 3, 4, 7, 9, 11, 16, 23, 26, 33, 36, 39, 44, 45, 46, 50, 55, 58, 60, 61, 62, 63, 64, 66, 68, 70, 71, 72, 78, 79, 80, 82, 83, 88, 89, 90, 97, 98, 99, 102, 103, 104, 105, 106, 107, 108, 110, 113, 116, 117, 121, 122, 123, 124, 127, 128, 130, 131, 132, 136, 137, 142, 145, 146, 150, 151, 154, 158, 159, 160, 165 (member since 5/6/2017 but all the 4 Petitions were filed on 3/6/2017), 168, 169, 170, 171, 172, 173, 175, 176, 179, 181, 192, 194, 200, 204, 205, 206, 207, 208, 211, 214, 215, 216, 217, 218, 219, 226, 227, 228, 229, 230, 232 (membership begins on 14/7/17 but all 4 Petitions were filed on 3/6/2017), 236, 237, 242, 243, 245, 246, 249, 250, 251, 257, 262, 263, 264, 272, 277, 280, 284, 287, 288, 290, 291, 296, 302, 306, 310, 313 and 325, the remaining Applicants are “creditors”. These Applicants have proved they are members of the relevant gyms owned by True Fitness World, Truest, True Yoga or Fitness Growth and that they have a contractual relationship with them. [17] S.471 CA 2016 is in pari materia with s.243 of CA 1965. In Mesuntung Property Sdn Bhd v Kimlin Housing Development Sdn Bhd [2014] 4 MLJ 886, David Wong Dak Wah JCA (delivering the judgment of the Court of Appeal) at p.887 held - “(1) Under s 226(3) of the Act, before leave is granted, the appellant had the burden of satisfying the court of two criteria: (a) that the appellant's claim could not be adequately dealt with by the winding up court; and (b) that the appellant had a prima facie case against the respondent. (2) There was little doubt that the appellant's claim of specific performance could not be dealt with by the winding up court in that its claim was unlike say a proof of debt. In short it was not a monetary claim (see para 24). (3) As to what amounts to prima facie in the context of s 226(3) of the Act, it is simply whether there is a serious dispute between the litigants which warrant a trial to determine the truth of the combating allegations”. It is to be noted that s.226(3) CA 1965 referred to by the Court of Appeal relates to, amongst others, the provision when a provisional liquidator has been made, leave of the Court before action or proceeding can be proceeded with or commenced against the company is required. [18] In Shencourt Sdn Bhd v Perumahan NCK Sdn Bhd [2008] 5 MLJ 191, Zulkefli JCA (now PCA) at 195 [10] and 196[11] opined - “On the guiding principle for the court to grant leave with a view to commencing action against a company that has been wound up we would like to refer to the case of Mosbert Bhd (In Liquidation) v Stella D'Cruz [1985] 2 MLJ 446 wherein Sean SCJ, in delivering the judgment of the Supreme Court at p 447 had this to say: In re Cuthbert Lead Smelting Co Ltd [1886] WN 84 it was held that if the applicant could obtain all the relief in the winding up leave would be refused. In short, the court will always give an application for leave if his claim cannot be dealt with adequately in the winding up or if the remedy he seeks cannot be given to him in a winding up proceedings. [11] It is clear based on the above cited case authority leave to proceed would only be granted when the plaintiff's claim cannot be adequately dealt with in winding up of the defendant's company or when the plaintiff is seeking a remedy which cannot be given in the winding up of the defendant's company”. [18.1] As rightly pointed out by Counsel for the Applicants, it is worth noting the Court of Appeal allowed the application for leave as - “a. There were declaratory orders prayed for; b. There were general damages to be assessed; c. There was a counterclaim and a set off; and d. The liquidators cannot adequately deal with the above prayer for relief and thus it is for the trial court to do so as”. [19] Based on the factual matrix of the instant case in my considered view, the Applicants have a prima facie cause of action against the Respondents in the 4 Petitions; there are serious issues between the litigants which warrant a trial to determine the truth of the allegations, the reliefs to be prayed for in the suits intended to be brought by the Applicants cannot be dealt with adequately in the winding up Court as it is envisaged the reliefs which they seek will include ascertainment of general damages, compensation costs, specific damages and declarations and specific performance. Hence in my judgment having satisfied the criteria for seeking leave of the Court, the Court grants OIT of prayers 1 and 3 only. Ss.470(1), 502(1) and 502(3) and 540(1) application [20] In respect of this application there are only 4 Applicants - Seik Yean Young, Lee Kwai Seng, Ho Wai Yin and Moh Lai Jing (‘1st, 2nd, 3rd and 4th Applicants’) respectively. [21] S.470(1) CA 2016 states - “At any time after the presentation of a winding up petition and before a winding up order has been made, the company or any creditor or contributory may, where any action or proceeding against the company is pending, apply to the Court for an order to stay or restrain further proceedings in the action or proceeding, and the Court may stay or restrain the action or proceeding accordingly on such terms as it thinks fit.” (2) The applicant shall lodge with the Registrar the office copy of the order within fourteen days from the making of such order under subsection (1)”. [22] The preliminary issue to be determined is whether the 1st to 4th Applicants are “creditors”. I have examined exh.LKS-2 in encl.55, Affidavit affirmed by Lee Kwai Seng on 10/8/2017 and I agree with the submission of Counsel for the Directors and proposed examinees, Mr. Srimurugan that - “(a) The 2nd applicant does not have any contractual relationship with the Respondent Company. The membership application form (agreement) exhibited by 2nd applicant is empty, with no signatures of either the Respondent company or the 2nd Applicant himself. There is also no proof that he had paid any money to the Respondent Company; (b) The 3rd applicant’s membership application form (agreement) exhibited is also doubtful as the name his name does not appear legible and no proof payment has been shown that he had paid money to the Respondent Company; (c) The 4th applicant also does not have any contractual relationship with the Respondent Company. The 4th applicant only appears to have a contract with another company known as True Fitness Sdn. Bhd. and not the Respondent Company in suit 342”. [22.1] Further, with respect to the purported “Agreement” exhibited in respect of the 1st to 4th Applicants there are “No further membership details” unlike those exhibited in Jadual A and B in encl.42, Affidavit Tambahan Ke-2 affirmed by Lee Kwai Seng on 10/8/2017. [22.2] Therefore I find the 1st to 4th Applicants are not creditors. [23] S.470(1) is in pari materia to s.222 of CA 1965. Therefore it is relevant to consider the case of Sri Jeluda Sdn Bhd v Pentalink Sdn Bhd [2008] 3 AMR 697. Ahmad Maarop JCA (now CJ Malaya) (delivering the judgment of the Court of Appeal) at p.698 held - “1.(a) The use of the words “where any action or proceeding against the company is pending” before the words “apply to the court” and the use of the words “further proceedings in the action or proceeding” after the word “restrain” in s 222 of the Act clearly evince the intention of the legislature to empower the court to stay further proceedings in the action or proceeding (other than) the hearing of the winding-up petition in question which is pending before the court. (b) The purpose of giving the court the power under s 222 of the Act to stay further proceedings in the action or proceeding (other than the hearing of the winding-up petition pending before the court), is to enable the court to ensure that no creditor shall gain priority over others of his class. (c) Section 222 of the Act does not empower the court to stay the proceeding of the winding-up petition before it”. [24] Premised on the aforesaid authority of Sri Jeluda (supra), the Applicants’ prayer for stay of proceedings under s.470(1) CA 2016 is misconceived and must fail. [25] S.502(1) CA 2016 provides - “The Court may summon before it any officer of the company or person known or suspected to have in his possession any property of the company or supposed to be indebted to the company, or any person whom the Court deems capable of giving information concerning the promotion, formation, trade dealings, affairs or property of the company”. [26] S.502(3) CA 2016 provides - “The Court may require the officer or person to produce any books and papers in his custody or power relating to the company, but if the officer or person claims any lien on books or papers, the production shall be without prejudice to that lien, and the Court shall have jurisdiction to determine all questions relating to that lien”. Ss.502(1) and 502(3) CA 2016 corresponds to s.249(1) and (3) CA 1965. [27] In Hicom Bhd v. Bukit Cahaya Country Resorts Sdn Bhd & Anor [2005] 8 CLJ 194 at pp.207-208, Ramly Ali J (now FCJ) has set out instructively the principles governing an application for examination under s.249 CA 1965 as follows: “Section 249 must be read together with r. 49, Companies (Winding Up) Rules 1972. The effect of these provisions is that they confer on the liquidator, creditor or contributory the extraordinary right to apply to court for leave to query persons on oath and to require him to produce any books and papers in his custody relating to wound up company. The persons to be queried may include officers of the company (being wound up) and any other persons (third parties) known or suspected to have in his possession any property of the company as well as any persons whom the court considers capable of giving information concerning the promotion, formation, trade dealings, affirms or property of the company. Rule 49 specifically provides that such application, if made by the liquidator, shall be made ex parte but if made by a creditor or contributory, shall be made by summons supported by an affidavit and the liquidator shall also be served. In other words, a unlike liquidator, creditor or contributory can only make such application by way of inter partes summons where the persons to be examined as well as the liquidator concerned must be served with the relevant papers. This extraordinary power serves an essential and important purpose. If used correctly it generally but not invariably redresses disadvantages without creating advantages. However if used incorrectly, it could be draconian in it's application and crushing in its consequence. Unnecessary legal costs can also be incurred by all involved and scarce fund of the company may be severely depleted, (see: Liquidator of W & P Piling Pte. Ltd. v. Chew in What & Ors. [2004] 3 SLR 164). Our legal proceedings are generally required to be conducted in the manner of an adverserial contest. The process of taking information or evidence on oath pursuant to these provisions, is an aberration which has been allowed into a fundamental tenet of an adversarial system. The court therefore plays an important and critical role in policing the exercise of these powers. In instances whether there is neither a reasonable basis for an investigation nor any real prospect of recouping loses or sustaining claims for the benefit of the company (being wound up) the court ought to be extremely cautious in allowing a proposed examination to proceed. The threshold test for information or documents is not one be of "absolute need" but that of a "reasonable requirement". The court must place on the scale of evaluation the purpose and the intent of an application on the one hand, and the oppression, inconvenience and disadvantage it may visit upon the proposed examinee one the other hand. In some instances, responses to the queries raised on oath or by way of an affidavit may be amply sufficient in place of an oral examination. If such relevant information can be procured without the exercise of this coercive power, it should not be invoked. The essential questions to be addressed are: (a) Is the procedure necessary for the business of preserving, collecting, managing or distributing the company's assets?; (b) Is the applicant (liquidator, creditor or contributory) conducting himself reasonably in the circumstances?; (c) Is it for the benefit of the company (being wound up)?; (d) Is there any alternative process to obtain such information either by way of sworn affidavit or otherwise?. (e) Is there any oppressive effect on the examinee?; (f) Does the process amount to an abuse of process?”. (Emphasis added) [27.1] Based on the emboldened parts in the passage quoted from Hicom Berhad’s case, I agree with the submission of Counsel for the Supporting Creditors, Chan Park He On, Reezal Jai, Rihan bin Abdullah, Lee Chee Lin and Chong Lei Ling in Petition 342 and Johnny Yek Hock Hai in Petition 338 that - (i) S.249 CA 1965 when read together with rule 49 of the Companies (Winding Up) Rules 1972 has the effect of limiting the applicability of s.249 of CA 1965 to wound up companies; (ii) Since the 4 Respondent companies, True Fitness World, Truest, True Yoga and Fitness Growth, have not been wound up, in my considered opinion the Applicants’ prayers for examination under ss.502(1) and 502(3) CA 2016 are premature and are accordingly dismissed by the Court. [27.2] An added reason why the 4 Applicants cannot rely on the provisions of ss.502(1) and 502(3) CA 2016 is because I have found that they are not creditors and therefore they do not have the locus standi to seek for examination of the proposed examinees and for the production of relevant documents in Court for examination. [28] Prayer (f) of ss.470(1), 502(1) and 502(3) and 540(1) application (encl.10) has been framed in such a manner that it is contingent on the Court making a finding that if it is not satisfied with the explanations to be proffered by the proposed examinees, then the Court is urged to make an order under s.540(1) CA 2016 against the proposed examinees that they are directly or indirectly involved in fraudulent trading with intent to defraud the members, suppliers and the employees of True Fitness in Malaysia and for the proposed examinees to be personally responsible, without any limitation of liability for the debts or liabilities of the Respondent company. [28.1] Since it is my finding that the Applicants cannot rely on ss.502(1) and 502(3) CA 2016, therefore prayer (f) is a non starter. Whether the Court has the jurisdiction to advise the Attorney General Chambers or the Royal Malaysian Police on the proposed examinees [29] This relates to prayer (g) of the said Notice of Motion (encl.10). The Applicants are seeking for an order that the Court advise the Attorney General Chambers or the Royal Malaysian Police to investigate the proposed examinees, Muhammad Redha Ahmad Bin Thaharuddin, Peter Joseph A/L Anthony Joseph Bennit, Patrick John Wee Ewe Seng, Shikha Dutt and other named person. [29.1] In this regard I agree with Mr. Srimurugan’s submission that - (i) the Attorney General has the discretion whether to institute proceedings at all and, if so, with what offence to charge the accused by virtue of s.145(3) of the Federal Constitution (Teh Cheng Poh v. PP [1979] 1 MLJ 50); and (ii) the Court does not have any power to make an order be it in the nature of advice against any party who is not a party in this proceedings. In Kheng Chwee Lian v. Wong Tak Thong [1983] 1 MLRA 66 at p.70, the Federal Court held - “In our judgment, the Court, below has no jurisdiction inherent or otherwise, over any person other than those properly brought before it, as parties or as persons treated as if they were parties under statutory provisions (Brydges v. Brydges & Wood [1909] p.187; Re Shephared [1890] 43 Ch D 131 and Coleman v. Coleman [1920] p.71)”. [29.2] In any event prayer (g) is a non starter as this prayer is only triggered if the orders in respect of prayers (a) to (f) above in encl.10 are granted. Conclusion [30] For the reasons enumerated above, I make the following order: (i) O.I.T of prayers 1 and 3 for - Petition 334- encl.20 Petition 336- encl.15 Petition 338- encl.17 Petition 342- encl. 9. (ii) Dismiss the following with no order as to cost: Petition 334- encl.10 Petition 336- encl.12 Petition 338- encl.12 Petition 342- encl.12. [30.1] I make no order as to cost having regard to the fact that the 4 Respondent companies ceased operations in Malaysia suddenly and without notice on 10/6/2017 and which was one day after the appointment of an Interim Liquidator on 9/6/2017 upon the Petitioner’s application pursuant to s.476 CA 2016 in the 4 Petitions. Dated: 9/11/2017 SGD. (LAU BEE LAN) Judge WA-28NCC-334-06/2017 WA-28NCC-336-06/2017 WA-28NCC-338-06/2017 WA-28NCC-342-06/2017 Counsel for the Petitioners: Cik Melanie Ho Mei Yee together with Encik C.J. Ooi Messrs Melanie Advocates & Solicitors C-3A- 3, Colonial @ Empire City Bukit Lanjan 47820 Petaling Jaya Selangor Darul Ehsan Counsel for the Applicants/Proposed Interveners: Encik Alex Netto together with Encik Chen Yu Szen Messrs Dee, Netto, Fatimah & Ng Advocates & Solicitors A- 3-19, Megan Phoenix Jalan 2/142A, Cheras 56000 Kuala Lumpur WA-28NCC-338-06/2017 WA-28NCC-342-06/2017 Counsel for the Supporting Creditors: Encik Bryan Ho Messrs Ho Partnership Advocates & Solicitors Suite A-11-3A, Level 11, Plaza Taragon Kelana No.3, Jalan SS 6/6 Kelana Jaya 47301 Petaling Jaya Selangor Darul Ehsan WA-28NCC-334-06/2017 WA-28NCC-336-06/2017 WA-28NCC-338-06/2017 WA-28NCC-342-06/2017 Counsel for the Liquidators for Respondents: Encik C J Ooi together with Encik E K Khaw Messrs Chih-Jen & Associates Advocates & Solicitors No.7-19-M (Mezzanine Floor) Jalan Jalil Perkasa 14/155B Aked Esplanad Bukit Jalil 57000 Kuala Lumpur WA-28NCC-334-06/2017 WA-28NCC-336-06/2017 WA-28NCC-338-06/2017 WA-28NCC-342-06/2017 Counsel for the Directors & Proposed Examinees Encik Srimurugan a/l Alagan Messrs SRIMURUGAN & CO Advocates & Solicitors No.33-5-3A Block C Jaya One No.72A Jalan University 46200 Petaling Jaya Selangor Darul Ehsan 33

Tika 2.6.0

WA-28NCC-334-06/2017

PLAINTIF Cheah Chin Kean DEFENDAN True Fitness World Sdn Bhd

09/11/2017

YA DATUK LAU BEE LAN

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=51376f34-9cdc-43c4-babc-c5a914c3155b&Inline=true

DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR (BAHAGIAN DAGANG) PENGGULUNGAN SYARIKAT NO: WA-28NCC-334-06/2017 Dalam perkara mengenai True Fitness World Sdn Bhd (No. Syarikat: 713263-U) Dan Dalam perkara Seksyen 465(1)(e) dan 466(1)(a) Akta Syarikat 2016 Antara CHEAH CHIN KEAN … PEMPETISYEN (No. K/P: 681206-08-5203) Dan TRUE FITNESS WORLD SDN. BHD. … RESPONDEN (No. Syarikat: 713263-U) Dan 1. SEIK YEAN YOUNG (No. K/P: 870730-60-5036) 2. LEE KWAI SENG (No. K/P: 860628-43-6838) 3. HO WAI YIN (No. K/P: 860327-56-5696) 4. MOH LAI JING (No. K/P: 680114-06-5171) 5. ABBY TAN BOON YEE (No. K/P: 811004-01-6376) 6. ALAN BASIL PETER (No. K/P: 810114-14-6089) 7. ANURATHA RAMANAIDU (No. K/P: 770518-08-7288) 8. BEH TUCK WOOI (No. K/P: 720924-07-5383 9. CHANDRA MOHGAN A/L G DEMUDU (No. K/P: 700403-08-5959) 10. CHEAH WENG KEAT (No. K/P: 790803-06-5481) 11. CHEE SHOO KEONG (No. K/P: 571228-08-5565) 12. CHEN CHEW HAR (No. K/P: 740902-14-5764) 13. CHEN FOOK YEIN (No. K/P: 811213-12-5181) 14. CHEW WAI HOE (No. K/P: 830526-14-5275) 15. CHIA SIN LIY (No. K/P: 810623-06-5404) 16. CHIA TIANG KIANG (No. K/P: 731009-14-5273) 17. CHONG PEI NEE (No. K/P: 731013-14-5292) 18. CHOO WEE LING (No. K/P: 770522-14-5532) 19. CHOW WAI FOO (No. K/P: 791210-06-5325 ) 19. CHOW WAI FOO (No. K/P: 791210-06-5325 ) 20. CHOY CHEE KHONG (No. K/P: 840920-05-5285) 21. CORNELIA TAY SUET CHENG (No. K/P: 690710-10-5706) 22. DENNIS YEOH GWAN JIN (No. K/P: 730215105403) 23. EDMOND LIM GIN SHENG (No. K/P: 821006-08-5411) 24. EDMUND WONG CHEE MUN (No. K/P: 861117-56-6193) 25. EE CHEE WAN (No. K/P: 790512-01-6057) 26. NG JING YI (No. K/P: 850529-02-5605) 27. FONG SOON WAI (No. K/P: 811031-14-6395) 28. FOO PUI SAN TAMMIE (No. K/P: 920604-10-6036) 29. FOONG YEE CHING (No. K/P: 900722-10-5298) 30. GOH YIN LIN (No. K/P: 890420-01-5792) 31. HIA NGEE YEOW (No. K/P: 720403-14-5091) 32. HOH YEAN MUN (No. K/P: 690227-10-6012) 33. HOO HUI NGOH (No. K/P: 740809-08-5090) 34. HOO SZE YEN (No. K/P: 790708-14-5342) 35. KEITH YEW SZE HAM (No. K/P: 780411-05-5365) 36. KHOR JIE QI (No. K/P: 940322-14-6396) 37. KHOR JIE YI (No. K/P: 920428-14-5334) 38. KIRAN KAUR A/P JOGINDAR SINGH (No. K/P: 580925-07-5180 ) 39. KOAY HOOI LIN (No. K/P: 640605-07-5466) 40. KOH BOON WEI (No. K/P: 850924-01-5407) 41. KOON WEI LEONG (No. K/P: 850121-14-5785) 42. KU WAI FOONG (No. K/P: 850205-14-5491) 43. LAI PUI KHEONG (No. K/P: 730331-10-5291) 44. LEE KIT SENG (No. K/P: 761211-14-5645) 45. LEE WAT NGO (No. K/P: 620910-10-5766) 46. LEE YEK PENG (No. K/P: 851121-14-5201) 47. LEE YI TIAN (No. K/P: 901008-05-5486) 48. LEE YOKE CHIN (No. K/P: 660227-10-6656) 49. LEUK KENG MING (No. K/P: 860616-38-6547) 50. LIAN THNG KAIH (No. K/P: 790917-14-5471) 51. LIEW CHIAN KEONG (No. K/P: 770804-14-5215) 52. LIEW CHIN DWO (No. K/P: 780312-08-5665) 53. LIEW SOON FATT (No. K/P: 821205-14-5501) 54. LIM CHER (No. K/P: 630702-01-5984) 55. LIM FONG NYEE (No. K/P: 781115-14-5336) 56. LIM PHAN YUEN (No. K/P: 840730-14-5191) 57. LIM SUI JIN (No. K/P: 801031-05-5013) 58. LIM ZHI SAM (No. K/P: 950713-05-5191) 59. LINDA TEOH OON CHENG (No. K/P: 580515-07-5364) 60. LIONEL A/L ALFRED (No. K/P: 850604-10-5999) 61. LOKE FOO SOON (No. K/P: 851206-05-5513) 62. LOKE PHAIK POH (No. K/P: 580402-07-5528) 63. LOW LAI HOE (No. K/P: 810303-10-5262) 64. LUM POH PENG (No. K/P: 750409-10-5004) 65. MAH SENG WAI (No. K/P: 830510-14-5211) 66. MARGATHA MANY A/P ATHANARI (No. K/P: 550430-05-5316) 67. MARK YEOH GWAN HIN (No. K/P: 750422-14-5393) 68. MICHAEL CHEAH SENG JIN (No. K/P: 720520-07-5213) 69. MOHD AZMI BIN ZAHARAI (No. K/P: 791122-06-5903) 70. MONICA CHANG MUN YEE (No. K/P: 880916-08-5488) 71. NG PIO BERN (No. K/P: 760121-07-5589) 72. NG SIEW YEAN (No. K/P: 720426-09-5066) 73. NG WAN WOEI (No. K/P: 810808-02-5654) 74. NG WEE MING (No. K/P: 720719-14-5151) 75. NG WEI YEN (No. K/P: 590213-10-6152) 76. NITHYANANTHAN A/L NESADURAI (No. K/P: 591229-02-5669 77. NORLISAH BINTI MOHD RAMLI (No. K/P: 670910-01-5942) 78. ONG HOW BENG (No. K/P: 691118-08-5659) 79. PAUL WONG YEE KEONG (No. K/P: 7230418-10-5729)(sic) 80. PHANG KOK WENG (No. K/P: 820104-08-5437) 81. PHILIP SOON WEI-JUN (No. K/P: 851004-10-5455) 82. PHYLICIA YEO YEE SIEN (No. K/P: 860122-14-5540) 83. QUAH SEAN HUAY (No. K/P: 810609-10-5780) 84. QUAH WAN ER (No. K/P: 840422-10-5884) 85. QUAH WAN THENG (No. K/P: 860501-43-6284) 86. REUBEN PAUL (No. K/P: 720731-14-5445) 87. RICHARD BOAK (No. K/P: 710208-10-5239) 88. ROHANI BINTI HASHIM (No. K/P: 670103-11-5074) 89. SEE AI LING (No. K/P: 740421-14-5632) 90. SEK MAY LING (No. K/P: 630312-10-7410) 91. SELVARAJA A/L MURUGESU (No. K/P: 550422-10-6529) 92. SEM YONG HAO (No. K/P: 960531-56-5261) 93. SIAU CHO DIONG (No. K/P: 631113-08-6009) 94. SIVAKUMAR PARAURAMAN (No. K/P: 790812-06-5635) 95. SOONG CHEE HOE (No. K/P: 720303-08-5415) 96. SUTHICHANA THARMAPALAN (No. K/P: 740312-14-5158 ) 97. SWAN SIEW FONG (No. K/P: 671024-10-6334) 98. TAI YOKE CHENG (No. K/P: 670208-08-5828) 99. TAN AI SIM (No. K/P: 660314-05-5324) 100. TAN CHOON YIT (No. K/P: 841009-08-6063) 101. TAN KAM LIN (No. K/P: 630911-08-6236) 102. TAN KIM FONG (No. K/P: 570804-08-5666) 103. TAN KUANG MING (No. K/P: 840322-14-5547) 104. TAN SIU NI (No. K/P: 880801-56-5326) 105. TAN TING SIN (No. K/P: 790809-07-5197) 106. TAN XIN NING (No. K/P: 900724-10-5574) 107. TAN YOKE SIM (No. K/P: 631209-08-5246) 108. TAY BEE HOON (No. K/P: 621027-07-5988) 109. TEOH PIT YIN (No. K/P: 751130-07-5367) 110. THAM CHUAN SIONG (No. K/P: 830314-10-5175) 111. THOO MEE LEE (No. K/P: 591019-03-5260) 112. TOMOKO MATSUI (No. Paspot: TZ0764239) 113. TRACY CHAN YEE LI (No. K/P: 770914-14-5654) 114. WONG CHOON EE (No. K/P: 771004-08-6071) 115. WONG CHUAN MEIN (No. K/P: 830401-10-5165) 116. WONG JAY KIE (No. K/P: 851117-14-5496) 117. WONG MOOI LEE (No. K/P: 740827-09-5022) 118. WONG TEE FATT (No. K/P: 751105-11-5275) 119. WOO BEE TING (No. K/P: 780912-14-5828) 120. WU CHEE KEONG (No. K/P: 650118-10-6957) 121. YAP POH LIN (No. K/P: 800101-08-6348) 122. YAU SUN FONG (No. K/P: 570611-05-5110) 123. YEE BEE LING (No. K/P: 631001-02-5594) 124. YEE PIK NGAN (No. K/P: 800228-14-5392) 125. YEE YOKE LIN (No. K/P: 640606-10-7490) 126. YEOH AIK CHEONG (No. K/P: 720703-07-5371) 127. YEOW CHEW SEONG (No. K/P: 630927-04-5332) 128. YIO LIM CHOONG (No. K/P: 860215-56-5181) 129. YONG MUI YUEN (No. K/P: 781010-14-5946) 130. YONG WEI CHEONG (No. K/P: 780605-14-5967) 131. ABDUL HADI BIN ABDUL MANAF (No. K/P: 900310-04-5321) 132. ANG YEE SHIN (No. K/P: 930421-07-5328) 133. CHAI HOOI JETT (No. K/P: 911003-14-5916) 134. CHAN FUN SHIN (No. K/P: 850627-05-5381) 135. CHEAH TEIK CHUAN (No. K/P: 841106-14-5133) 136. CHEAH YEE YANG (No. K/P: 900927-10-5785) 137. CHEE MEI LIN (No. K/P: 650318-04-5124) 138. CHEN CHEE MOON (No. K/P: 860419-43-5215) 139. CHEN TZE HUAYU (No. K/P: 860617-43-6120) 140. CHEONG PIK YIN (No. K/P: 900516-05-5305) 141. CHEW LI SA (No. K/P: 690824-01-5004) 142. `CHEW PING KEE (No. K/P: 860825-35-5560) 143. CHIA WEI HAW (No. K/P: 940814-14-6501) 144. CHIN ZE WEI (No. K/P: 890125-14-6167) 145. CHONG HOONG SERN (No. K/P: 880924-14-5081) 146. CHONG LAI PING (No. K/P: 680819-08-5762) 147. CHONG TONG SEONG (No. K/P: 461006-10-5199) 148. CHOO SLIM MEI (No. K/P: 881026-35-5612 ) 149. CHOO SOOK LING (No. K/P: 910421-14-5164) 150. CHOONG WAI KIT (No. K/P: 801130-08-5111) 151. CHOY WAI HUN (No. K/P: 710527-10-5359) 152. CHRISTINE LOY SOK CHING (No. K/P: 930319-07-6076) 153. CHUA YIH CHING (No. K/P: 820918-07-5078) 154. DAVID LOH JIAN WEI (No. K/P: 911231-10-5465 ) 155. DAVID TNEH CHENG ENG (No. K/P: 780825-07-5331) 156. DESMOND TAN CHIAM WEI (No. K/P: 851203-07-5869) 157. DHAMAYANTI A/P REGUNATHAN (No. K/P: 791209-14-5424) 158. DINESHWARAN A/L UMAKANTHAN (No. K/P: 810501-07-5073) 159. EE MENG SHI (No. K/P: 871224-06-5959) 160. ELIZABETH TAY (No. K/P: 670816-10-5562) 161. TAN LAY LAY (No. K/P: 800318-14-5070) 162. EOW WAI YEN (No. K/P: 860517-10-5125) 163. FAM YOKE LING (No. K/P: 710927-10-5366) 164. FAZIL AHMAD BIN TAUIDDIN (No. K/P: 820706-14-6225) 165. HENG FOONG YI @ WENDY (No. K/P: 660716-10-6454) 166. HEW CHUNG KEAT (No. K/P: 900816-10-5379) 167. HO CE-YI (No. K/P: 870125-10-5412) 168. HO CHING YI (No. K/P: 9910103-43-5230)(sic) 169. HO CHONG SIANG (No. K/P: 630707-08-5033) 170. HO YAN KANG (No. K/P: 01020-10-1463)(sic) 171. HUI YOONG SEONG (No. K/P: 820507-14-5991) 172. JAIKRISHEN SINGH A/L BHAGVINDER SINGH (No. K/P: 900208-14-6345) 173. JAIKRISHEN SINGH A/L BHAGVINDER SINGH (No. K/P: 900208-14-6345) menyaman bagi pihak MANDEV SINGH SOHAN (No. K/P: 020203-14-0897) 174. JAYNE TSUTSUMI @ CHEONG KIT BUNN (No. K/P: 670315-08-6260) 175. JOSEPHINE KOH YUNG AI (No. K/P: 650215-04-5316) 176. JULIAN OOI HOCK SENG (No. K/P: 670606-08-5487) 177. JUSTINE TAN MEI-ERN (No. K/P: 920210-14-6078) 178. K. SUNITA A/P T. VINAYAKA DAS (No. K/P: 760324-10-5426) 179. KOH POH LI (No. K/P: 771216-07-5892) 180. KOK SHWU JIUN (No. K/P: 860918-43-5682) 181. LAWRENCE ANDERSON BURLEY (No. Paspot: 537383077) 182. LEE CAI FOONG (No. K/P: 891126-10-5644) 183. LEE CHAI HOONG (No. K/P: 910205-10-5870) 184. LEE KHAI CHUN (No. K/P: 920129-10-5471) 185. LEE LAY NEE (No. K/P: 760322-03-5268) 186. LEE SIAO YEN (No. K/P: 640629-10-6570) 187. LEE SOOK FONG (No. K/P: 730309-06-5262) 188. LEE YEK PENG (No. K/P: 851121-14-5201) 189. LEONG EE MUN (No. K/P: 861225-43-6310) 190. LEONG HO FUN (No. K/P: 761202-08-5142) 191. LEONG MEI YEN (No. K/P: 840307-14-6488) 192. LI CHEE WAH (No. K/P: 910301-06-5995) 193. LIEW YIN WEI (No. K/P: 850214-08-6593) 194. LIM EE HARN (No. K/P: 941002-14-6914) 195. LIM GIAN SENG (No. K/P: 700110-10-5629) 196. LIM JIA HUI (No. K/P: 851206-14-6124) 197. LIM KEY YEE (No. K/P: 841207-10-5405) 198. LIM PUI MUN (No. K/P: 871113-35-5080) 199. LIM SZE YEUN (No. K/P: 870914-14-5812) 200. LIM YAU CHOY (No. K/P: 621227-06-5207) 201. LIM YOKE TOH (No. K/P: 670510-10-6036) 202. LIM YONG YAN (No. K/P: 860606-43-6387) 203. LING KUOK YONG (No. K/P: 880505-13-5081) 204. LIZA ROSEYLN KONG SIEW LING (No. K/P: 910930-14-5981) 205. LOH SIEW KHOUNG (No. K/P: 561211-07-5337) 206. LOO MENG FATT (No. K/P: 740915-14-5819) 207. LOW JIA SERN (No. K/P: 901216-04-5047) 208. LOW SOU FOONG (No. K/P: 750924-14-5748) 209. MAK PUI CHING (No. K/P: 840918-14-6444) 210. MICHAEL LIM CHUNG KEAT (No. K/P: 780822-07-5221) 211. MOHAMAD FAHMI BIN BASAR (No. K/P: 870328-52-5871) 212. MOHAMED EFTAL BIN MOHAMED EBRHAIM (No. K/P: 891229-14-6561) 213. MOHAMMAD NAJMI BIN MOHD NADZRI (No. K/P: 920221-14-6161) 214. MOHD MAZLAN BIN ABDUL RAZAK (No. K/P: 731013-01-6191) 215. NAH KAH HO (No. K/P: 900810-14-5505) 216. NAJWA BINTI MOHD NADZRI (No. K/P: 891118-14-6008) 217. NASHA BINTI MOHD NADZRI (No. K/P: 880619-87-5002) 218. NG SIAO CHI (No. K/P: 840412-14-6332) 219. NGU MEE KING (No. K/P: 651122-13-5528) menyaman bagi pihak TAY JIAN HUI (No. K/P: 010117-10-1147) 220. ONG BEAK TEIK (No. K/P: 650924-02-5369) 221. ONPIMOL BORIWAN (No. Paspot: AA493056) 222. OOI CHIEW BEE (No. K/P: 91094-10-5210) 223. OOI CHIEW EAN (No. K/P: 841228-07-5030) 224. PHANG KOK NENG (No. K/P: 820104-08-5437) 225. PHUAH SIEW KEAM (No. K/P: 630129-10-7578) 226. PHUNG HON KEAT (No. K/P: 910930-14-5891) 227. PUAN JIA HUI (No. K/P: 910901-91-5017 228. QUAH MIN SEE (No. K/P: 870706-14-6124) 229. QUAH MUI LENG (No. K/P: 730109-10-5012) 230. RAMES A/L SIVAPATHAM (No. K/P: 700726-08-6497) 231. RENUKA KUNATHEVAN (No. K/P: 770118-10-5280) 232. ROZARIO AUGUSTIN LAURENCE (No. K/P: 4611118-10-5505) 233. SEE WAI LIK (No. K/P: 901130-14-6779) 234. SEOW JOANNE (No. K/P: 991015-07-5436) 235. SEOW LAI HUAT (No. K/P: 620909-07-5459) 236. SUDESH A/L PRABHAKARAN (No. K/P: 800610-01-6064) 237. TAN AI SIM (No. K/P: 660314-05-5324) 238. TAN AY YONG (No. K/P: 731219-01-5813) 239. TAN CHIN KWEE (No. K/P: 711018-10-5275) 240. TAN ECHUN (No. K/P: 900130-01-6726) 241. TAN GEOK THIN (No. K/P: 840329-12-5020) 242. TAN NAM HONG (No. K/P: 570927-08-6407) 243. TAN PEI LI (No. K/P: 651107-06-5066) 244. TAN RICHARD (No. K/P: 840708-05-5173) 245. TAN SIAU WEI (No. K/P: 900328-12-5928) 246. TAN SIEW KUAN (No. K/P: 840328-08-5290 ) 247. TAN SIEW PENG (No. K/P: 670907-07-5004) 248. TAN WEI WANG (No. K/P: 880924-04-5531) 249. TAN YAW HAN (No. K/P: 850120-10-5263 ) 250. TANG EE THONG (No. K/P: 860912-56-5152) 251. TANG YEE LENG (No. K/P: 671222-08-5052) 252. TASHA LAI SOOK YEE (No. K/P: 921215-10-6176) 253. TAY SZE YANG (No. K/P: 931108-66-5035) 254. TEE CHOON PEI (No. K/P: 840121-01-6126) 255. TEE WEI JUN (No. K/P: 860720-59-5007 ) 256. TEE WEI LUN (No. K/P: 830901-05-5379 ) 257. TEH KOK WEI (No. K/P: 820622-14-5735 ) 258. TEOH PING WAI (No. K/P: 721112-08-5310) 259. TERRY DIONY (No. K/P: 710620-12-5450 ) 260. THINESSHWARY A/P YOGARAJAH (No. K/P: 891224-07-5514) 261. TOH HUI XING (No. K/P: 930105-04-5100) 262. UNGKU NAZLI BINTI UNGKU ISMAIL (No. K/P: 701017-71-5160) 263. UVANESAN KATHIRAVELU (No. K/P: 860911-43-7669 ) 264. VENESE CHANG WAI YEE (No. K/P: 860820-38-5234) 265. VIMALA DEVI NAIDU A/P SADASIVAN (No. K/P: 811113-01-6148) 266. VISHNU A/L GOVINDASAMY (No. K/P: 800117-01-6475) 267. WILSON LIEW YEONG (No. K/P: 901207-07-5025) 268. WONG AN JIE (No. K/P: 890127-14-5117) 269. WONG KEAN YIP (No. K/P: 901207-07-5025) 270. WONG LEE YUNG (No. K/P: 830824-14-5476) 271. WOON HOOI YIN (No. K/P: 9201016-14-5868) 272. WOON YEN YEN (No. K/P: 900522-10-5744) 273. YANG KUOH YEONG (No. K/P: 930804-05-5228) 274. YAP BEE LIN (No. K/P: 710820-10-5956) 275. YAP CHUI TENG (No. K/P: 861113-56-6110) 276. YAP JIAN HEUNG (No. K/P: 801228-12-5505) 277. YAP KWEI MOI (No. K/P: 790219-14-5298) 278. YAP LEE TENG (No. K/P: 881227-56-6264 279. YAP POH AIK (No. K/P: 870511-10-5699 ) 280. YAP SHOON YEE (No. K/P: 961021-10-5833) 281. YEAH HSING YEE (No. K/P: 900726-14-6273) 282. YEE WAI SEE (No. K/P: 910518-08-5532) 283. YEO KHENG GEE (No. K/P: 650228-04-5382) 284. YEOH CHEE CHUEN (No. K/P: 850420-08-5401) 285. YEW TUCK SENG (No. K/P: 741210-07-5077) 286. YONG HUI LING (No. K/P: 790710-06-5212) 287. YONG JEN SHIUN (No. K/P: 810622-14-5015) 288. YONG MUI YUEN (No. K/P: 781010-14-5946) 289. YONG SHIEW FHUI (No. K/P: 820709-14-5228) 290. YONG WEI CHEONG (No. K/P: 780605-14-5967) 291. YONG ZHI SHIUN (No. K/P: 941204-10-5491) 292. YUEN YOKE SIEW (No. K/P: 600226-08-5676) 293. ZIKRA BINTI ISMAIL (No. K/P: 791204-14-5628) 294. ALAN YEO (No. K/P: 760912-04-5167) 295. BALRAJ RAMANATHAN (No. K/P: 540227-07-5435) 296. BERNARD LIM SOO HAN (No. K/P: 720507-10-5203) 297. CHEAH POH YEN (No. K/P: 861014-14-5046) 298. CHEN FAWN KEONG (No. K/P: 730408-14-5081) 299. DING LIANG WONG (No. K/P: 451218-08-5063) 300. ELLEN HUI YUEN FONG (No. K/P: 681012-12-5246) 301. GAN LI YING (No. K/P: 730210-01-5580) 302. GUO YUAN YUAN (No. K/P: 751221-74-5012) 303. GURDIP KAUR A/P AMAR SINGH (No. K/P: 521114-10-5972) 304. HARITH MENON (No. K/P: 690914-10-5345) 305. HARITH MENON (No. K/P: 690914-10-5345) menyaman bagi pihak SHREYA MENON (No. K/P: 001126-66-0114) 306. INDYRANY A/P G. KANNAIYA (No. K/P: 600719-11-5212) 307. LEE HUI WAH (No. K/P: 731005-14-5612) 308. LIONG FUH CHANG (No. K/P: 830628-12-5013) 309. LOH KOK HOONG (No. K/P: 640602-06-5537) 310. LYNNDY LEE LI PING (No. K/P: 791017-04-5410) 311. MARCUS NG LOONG HONG (No. K/P: 841012-10-5157) 312. NG FAN HUA (No. K/P: 880330-02-5250) 313. PETER RAJ A/L ADAIKALAM (No. K/P: 680815-05-5195) 314. SANGEETHA A/P CHELLADORAI (No. K/P: 800917-07-5748) 315. SHEILA GAN YEEN LIANG (No. K/P: 850415-13-5304) 316. SHEILA RS NATHAN (No. K/P: 630301-10-8346) 317. SUGITHA A/P SELVARAJA SINGAM (No. K/P: 761207-05-5452) 318. TAN CHUN KEAT (No. K/P: 890508-07-5757) 319. TAN HONG JIE (No. K/P: 930905-10-5503) 320. THIVAKARAN A/L SIVARAMAN (No. K/P: 780720-06-5401) 321. VICTOR LIM FUNG TUANG (No. K/P: 720124-10-5177) 322. WAI SUE LENG (No. K/P: 840527-10-5100) 323. YONG JUNE FOOK (No. K/P: 741103-13-5249) 324. GIAM SZE SEONG MERVYN (No. K/P: 770607-14-5005) 325. LIM KEE HUAT … PEMOHON- (No. K/P: 670725-10-5313) PEMOHON DAN PENGGULUNGAN SYARIKAT NO: WA-28NCC-336-06/2017 Dalam perkara mengenai Truest Sdn Bhd (No. Syarikat: 711894-T) Dan Dalam perkara Seksyen 465(1)(e) dan 466(1)(a) Akta Syarikat 2016 Antara CHEAH CHIN KEAN … PEMPETISYEN (No. K/P: 681206-08-5203) Dan TRUEST SDN BHD … RESPONDEN (No. Syarikat: 711894-T) Dan SEIK YEAN YOUNG & 324 YANG LAIN … PEMOHON (No. K/P: 870730-60-5036) DAN PENGGULUNGAN SYARIKAT NO: WA-28NCC-338-06/2017 Dalam perkara mengenai True Yoga Sdn Bhd (No. Syarikat: 673491-K) Dan Dalam perkara Seksyen 465(1)(e) dan 466(1)(a) Akta Syarikat 2016 Antara CHEAH CHIN KEAN … PEMPETISYEN (No. K/P: 681206-08-5203) Dan TRUE YOGA SDN BHD … RESPONDEN (No. Syarikat: 673491-K) Dan SEIK YEAN YOUNG & 324 YANG LAIN … PEMOHON (No. K/P: 870730-60-5036) DAN PENGGULUNGAN SYARIKAT NO: WA-28NCC-342-06/2017 Dalam perkara mengenai Fitness Growth Sdn Bhd (No. Syarikat: 692832-X) Dan Dalam perkara Seksyen 465(1)(e) dan 466(1)(a) Akta Syarikat 2016 Antara CHEAH CHIN KEAN … PEMPETISYEN (No. K/P: 681206-08-5203) Dan FITNESS GROWTH SDN BHD … RESPONDEN (No. Syarikat: 692832-X) Dan SEIK YEAN YOUNG & 324 YANG LAIN … PEMOHON (No. K/P: 870730-60-5036) GROUNDS OF DECISION [1] There are altogether 4 Winding Up Petitions filed on 3/6/2017 before the Court: (i) WA-28NCC-334-06/2017, the Respondent company being True Fitness World Sdn Bhd (‘Petition 334’); (ii) WA-28NCC-336-06/2017, the Respondent company being Truest Sdn Bhd (‘Petition 336’); (iii) WA-28NCC-338-06/2017 the Respondent company being True Yoga Sdn Bhd (‘Petition 338’); and (iv) WA-28NCC-342-06/2017 the Respondent company being Fitness Growth Sdn Bhd (‘Petition 342’). [2] The Applicants have filed 2 Notice of Motions in Petition 334: (i) Encl.20 - the Applicants’ application pursuant to s.471 of the Companies Act 2016 (‘CA 2016’) and the inherent jurisdiction of the Court pursuant to O.92 r.4 of the Rules of Court 2012 (‘ROC 2012’); and (ii) Encl.10 - the Applicants’ application pursuant to ss.470(1), 502(1) and 502(3), 540(1) CA 2016 and the inherent jurisdiction of the Court pursuant to O.92 r.4 ROC 2012. [2.1] In encl.20 the Applicants prayed for - “1. Bahawa kebenaran nunc pro tunc diberikan kepada Pemohon-Pemohon di atas untuk memulakan prosiding undang-undang terhadap Responden sebagai salah satu Defendan dalam satu guaman Mahkamah Tinggi Shah Alam; 2. Bahawa kebenaran diberi untuk mana-mana ali-ahli gim Responden yang ingin memfailkan tindakan guaman terhadap Responden; 3. Kos permohonan ini dan kos-kos berkaitan dijadikan kos dalam kausa; dan 4. Sebarang perintah lain dan lanjut yang dianggap wajar dan adil oleh Mahkamah yang Mulia ini”. (‘S.471 application’) [2.2] In encl.10 the Applicants prayed for - “(a) Pemohon-Pemohon diberi kebenaran untuk memfailkan Permohonan ini; (b) Pemohon-Pemohon diberi kebenaran untuk memasuki tindakan ini sebagai pemiutang-pemiutang sah dan juga sebagai mewakili pemiutang-pemiutang sah yang lain; (c) Satu perintah penggantungan prosiding penggulungan Responden sementara menunggu pelupusan pendengaran Permohonan ini; (d) Satu perintah untuk mengarahkan kehadiran serta-merta Muhammad Redha Ahmad Bin Thaharuddin (No Kad Pengenalan: 571204-07-5469) (Pengarah), Patrick John Wee Ewe Seng (S1658841E) (Pengarah), Peter Joseph A/L Anthony Joseph Bennit (No Kad Pengenalan: 670627-04-5265) (Pengarah), Shikha Dutt A/P Delip Kumar Dutt (No Kad Pengenalan: 561205-05-5516) (Setiausaha), dan nama-nama lain yang berkaitan di Mahkamah bagi tujuan pemeriksaan di bawah seksyen 502(1) Akta Syarikat 2016 berkenaan penutupan mengejut gim-gim/cawangan-cawangan True Fitness di seluruh Malaysia tanpa notis-notis munasabah; (e) Satu perintah untuk mengarahkan kehadiran serta-merta Muhammad Redha Ahmad Bin Thaharuddin (No Kad Pengenalan: 571204-07-5469) (Pengarah), Patrick John Wee Ewe Seng (S1658841E) (Pengarah), Peter Joseph A/L Anthony Joseph Bennit (No Kad Pengenalan: 670627-04-5265) (Pengarah), Shikha Dutt A/P Delip Kumar Dutt (No Kad Pengenalan: 561205-05-5516) (Setiausaha), dan nama-nama lain yang berkaitan berserta dokumen-dokumen berkaitan di Mahkamah bagi tujuan pemeriksaan di bawah seksyen 502(3) Akta Syarikat 2016 berkenaan penutupan mengejut gim-gim/cawangan-cawangan True Fitness di seluruh Malaysia tanpa notis-notis munasabah; (f) Berikutan perintah pohonan di perenggan (d) dan (e) di atas, jika Mahkamah yang Mulia ini mendapati bahawa pihak-pihak berkenaan tidak dapat memberikan satu penjelasan yang munasabah, dipohon perintah di bawah seksyen 540(1) Akta Syarikat 2016 bahawa pihak-pihak berkenaan telah terlibat secara langsung atau tidak langsung dengan perdagangan penipuan (fraudulent trading) dengan niat untuk menipu kesemua ahli-ahli, pembekal-pembekal dan pekerja-pekerja True Fitness di Malaysia dan bahawa kesemua pihak-pihak yang dinamakan di perenggan (d) dan (e) di atas adalah bertanggungjawab secara kendiri dan tanpa batasan terhadap liabiliti bagi kesemua atau mana-mana hutang atau liabiliti-liabiliti Responden; (g) Jikalau perintah-perintah sepertimana di pohonan-pohonan di atas dibenarkan oleh Mahkamah yang Mulia ini, satu saranan (advice) dikeluarkan kepada Jabatan Peguam Negara dan Polis Diraja Malaysia untuk pihak-pihak sepertimana dinamakan di perenggan (d) dan (e) di atas dan nama-nama lain yang berkaitan dihadapkan untuk siasatan jenayah dijalankan; (h) Kos Permohonan ini dan kos-kos berkaitan ditanggung sepenuhnya oleh Responden; (i) Apa-apa perintah atau selanjutnya yang difikirkan patut dan sesuai oleh Mahkamah yang Mulia ini”. (‘Ss. 470(1), 502(1) and 502(3) and 540(1) application’) [3] The Applicants have filed identical corresponding Notice of Motions in the other 3 Petitions: (i) Petition 336- encl.15 and encl.12; (ii) Petition 338- encl.17 and encl.12; (iii) Petition 342- encl.19 and encl.12. [4] The hearing of the respective Notices of Motion in the respective Petitions proceeded on the basis of the Court hearing the submissions of the parties in respect of the 2 Notices of Motion in Petition 334 as the factual matrix and issues surrounding the other applications in the other 3 Petitions are identical as well. Background to the Notices of Motion [5] True Fitness World Sdn. Bhd. (‘True Fitness World’), Truest Sdn. Bhd. (‘Truest’), True Yoga Sdn. Bhd. (‘True Yoga’), Fitness Growth Sdn. Bhd. (‘Fitness Growth’), True Haven Sdn. Bhd. and True Fitness Sdn. Bhd. are a group of companies in Malaysia that runs a business operating gyms known as ‘True Fitness Group’ (‘TFG’) in Malaysia. TFG consist of the aforesaid 6 companies. [6] All 6 companies owned are by a holding company known as CJ Group Ltd, a Singaporean Company, whose director is Patrick John Ewe Seng (S1658841E) (‘Patrick John’) and one Cecilia Wee Chong Jin Nee (S0000008F). [7] In all of the said 6 companies, Patrick John Wee Ewe Seng, Muhammad Redha Ahmad Bin Thaharuddin (I/C No: 571204-07-5469) (‘Muhd Redha’) and Peter Joseph A/L Anthony Joseph Bennit (I/C No: 670627-04-5265) (‘Peter Joseph’) appear as directors of all of the companies which are associated with the True Fitness brand. [8] The Applicants are a small part of the large group of members of the True Fitness Brand of gyms of which they claimed they have a contractual relationship with the gym which consists of the 6 companies. [9] On 10/6/2017, the True Fitness brand of gyms suddenly and without any notice ceased all operations in Malaysia. [10] On 9/6/2017, one day before ceasing operations, True Fitness World, Truest, True Yoga and Fitness Growth had obtained a Court order to appoint an Interim Liquidator. Notwithstanding this, the members were not given any notice or information about the proceedings that were being carried out. [11] Miss Wong Shan Ty had published in the newspapers an advertisement dated 22/6/2017 that she had been appointed as an Interim Liquidator for the 6 companies. [12] One of the Directors of the True Fitness World, Patrick John Wee Ewe Seng, a Singaporean national bearing passport number (S1658841E) had provided an undertaking to a limited liability company registered in the Cayman Islands named Tongfang Kontafarma Holdings Limited to close all the operations of the True Fitness brand of gyms in Malaysia and Thailand on/or before 31/12/2017 in exchange for capital injection that will allow his holding company True Group in Singapore, wherein he is the Chief Executive Officer to expand into the Chinese market. [13] No notices were given by Patrick John, his directors or officers to the gym members, the staff nor the vendors of True Fitness World, Truest, True Yoga and Fitness Growth. [14] Up and until 10/6/2017, True Fitness World,Truest, True Yoga and Fitness Growth were still renewing the memberships and was signing up new members aggressively, some of which had signed up for lifetime memberships which require substantial fees. S.471 application [15] S.471 CA 2016 provides - “471. Action or proceeding stayed after winding up order (1) When a winding up order has been made or an interim liquidator has been appointed, no action or proceeding shall be proceeded with or commenced against the company except by leave of the Court and in accordance with such terms as the Court imposes. (2) The application for leave under subsection (1) shall be made in the Court granting the winding up order and shall be served on the liquidator. (3) The office copy of the order for leave under subsection (1) shall be lodged by the applicant referred to in subsection 470(1) with the Registrar and with the Official Receiver within fourteen days from the making of the order”. [15.1] Reading subsection 471(3), the applicant envisaged in subsection 471(1) is an applicant referred to in subsection 470(1) CA 2016, i.e, “the company or any creditor or contributory.” [16] There are altogether 321 Applicants involved in the s.471 application. I shall rely on the “Jadual Komen”, exh.A in encl.58 (Petition 334), Affidavit in Reply affirmed by Wong Shan Ty on 25/8/2017. I rule that except for Applicants no. 1, 2, 3, 4, 7, 9, 11, 16, 23, 26, 33, 36, 39, 44, 45, 46, 50, 55, 58, 60, 61, 62, 63, 64, 66, 68, 70, 71, 72, 78, 79, 80, 82, 83, 88, 89, 90, 97, 98, 99, 102, 103, 104, 105, 106, 107, 108, 110, 113, 116, 117, 121, 122, 123, 124, 127, 128, 130, 131, 132, 136, 137, 142, 145, 146, 150, 151, 154, 158, 159, 160, 165 (member since 5/6/2017 but all the 4 Petitions were filed on 3/6/2017), 168, 169, 170, 171, 172, 173, 175, 176, 179, 181, 192, 194, 200, 204, 205, 206, 207, 208, 211, 214, 215, 216, 217, 218, 219, 226, 227, 228, 229, 230, 232 (membership begins on 14/7/17 but all 4 Petitions were filed on 3/6/2017), 236, 237, 242, 243, 245, 246, 249, 250, 251, 257, 262, 263, 264, 272, 277, 280, 284, 287, 288, 290, 291, 296, 302, 306, 310, 313 and 325, the remaining Applicants are “creditors”. These Applicants have proved they are members of the relevant gyms owned by True Fitness World, Truest, True Yoga or Fitness Growth and that they have a contractual relationship with them. [17] S.471 CA 2016 is in pari materia with s.243 of CA 1965. In Mesuntung Property Sdn Bhd v Kimlin Housing Development Sdn Bhd [2014] 4 MLJ 886, David Wong Dak Wah JCA (delivering the judgment of the Court of Appeal) at p.887 held - “(1) Under s 226(3) of the Act, before leave is granted, the appellant had the burden of satisfying the court of two criteria: (a) that the appellant's claim could not be adequately dealt with by the winding up court; and (b) that the appellant had a prima facie case against the respondent. (2) There was little doubt that the appellant's claim of specific performance could not be dealt with by the winding up court in that its claim was unlike say a proof of debt. In short it was not a monetary claim (see para 24). (3) As to what amounts to prima facie in the context of s 226(3) of the Act, it is simply whether there is a serious dispute between the litigants which warrant a trial to determine the truth of the combating allegations”. It is to be noted that s.226(3) CA 1965 referred to by the Court of Appeal relates to, amongst others, the provision when a provisional liquidator has been made, leave of the Court before action or proceeding can be proceeded with or commenced against the company is required. [18] In Shencourt Sdn Bhd v Perumahan NCK Sdn Bhd [2008] 5 MLJ 191, Zulkefli JCA (now PCA) at 195 [10] and 196[11] opined - “On the guiding principle for the court to grant leave with a view to commencing action against a company that has been wound up we would like to refer to the case of Mosbert Bhd (In Liquidation) v Stella D'Cruz [1985] 2 MLJ 446 wherein Sean SCJ, in delivering the judgment of the Supreme Court at p 447 had this to say: In re Cuthbert Lead Smelting Co Ltd [1886] WN 84 it was held that if the applicant could obtain all the relief in the winding up leave would be refused. In short, the court will always give an application for leave if his claim cannot be dealt with adequately in the winding up or if the remedy he seeks cannot be given to him in a winding up proceedings. [11] It is clear based on the above cited case authority leave to proceed would only be granted when the plaintiff's claim cannot be adequately dealt with in winding up of the defendant's company or when the plaintiff is seeking a remedy which cannot be given in the winding up of the defendant's company”. [18.1] As rightly pointed out by Counsel for the Applicants, it is worth noting the Court of Appeal allowed the application for leave as - “a. There were declaratory orders prayed for; b. There were general damages to be assessed; c. There was a counterclaim and a set off; and d. The liquidators cannot adequately deal with the above prayer for relief and thus it is for the trial court to do so as”. [19] Based on the factual matrix of the instant case in my considered view, the Applicants have a prima facie cause of action against the Respondents in the 4 Petitions; there are serious issues between the litigants which warrant a trial to determine the truth of the allegations, the reliefs to be prayed for in the suits intended to be brought by the Applicants cannot be dealt with adequately in the winding up Court as it is envisaged the reliefs which they seek will include ascertainment of general damages, compensation costs, specific damages and declarations and specific performance. Hence in my judgment having satisfied the criteria for seeking leave of the Court, the Court grants OIT of prayers 1 and 3 only. Ss.470(1), 502(1) and 502(3) and 540(1) application [20] In respect of this application there are only 4 Applicants - Seik Yean Young, Lee Kwai Seng, Ho Wai Yin and Moh Lai Jing (‘1st, 2nd, 3rd and 4th Applicants’) respectively. [21] S.470(1) CA 2016 states - “At any time after the presentation of a winding up petition and before a winding up order has been made, the company or any creditor or contributory may, where any action or proceeding against the company is pending, apply to the Court for an order to stay or restrain further proceedings in the action or proceeding, and the Court may stay or restrain the action or proceeding accordingly on such terms as it thinks fit.” (2) The applicant shall lodge with the Registrar the office copy of the order within fourteen days from the making of such order under subsection (1)”. [22] The preliminary issue to be determined is whether the 1st to 4th Applicants are “creditors”. I have examined exh.LKS-2 in encl.55, Affidavit affirmed by Lee Kwai Seng on 10/8/2017 and I agree with the submission of Counsel for the Directors and proposed examinees, Mr. Srimurugan that - “(a) The 2nd applicant does not have any contractual relationship with the Respondent Company. The membership application form (agreement) exhibited by 2nd applicant is empty, with no signatures of either the Respondent company or the 2nd Applicant himself. There is also no proof that he had paid any money to the Respondent Company; (b) The 3rd applicant’s membership application form (agreement) exhibited is also doubtful as the name his name does not appear legible and no proof payment has been shown that he had paid money to the Respondent Company; (c) The 4th applicant also does not have any contractual relationship with the Respondent Company. The 4th applicant only appears to have a contract with another company known as True Fitness Sdn. Bhd. and not the Respondent Company in suit 342”. [22.1] Further, with respect to the purported “Agreement” exhibited in respect of the 1st to 4th Applicants there are “No further membership details” unlike those exhibited in Jadual A and B in encl.42, Affidavit Tambahan Ke-2 affirmed by Lee Kwai Seng on 10/8/2017. [22.2] Therefore I find the 1st to 4th Applicants are not creditors. [23] S.470(1) is in pari materia to s.222 of CA 1965. Therefore it is relevant to consider the case of Sri Jeluda Sdn Bhd v Pentalink Sdn Bhd [2008] 3 AMR 697. Ahmad Maarop JCA (now CJ Malaya) (delivering the judgment of the Court of Appeal) at p.698 held - “1.(a) The use of the words “where any action or proceeding against the company is pending” before the words “apply to the court” and the use of the words “further proceedings in the action or proceeding” after the word “restrain” in s 222 of the Act clearly evince the intention of the legislature to empower the court to stay further proceedings in the action or proceeding (other than) the hearing of the winding-up petition in question which is pending before the court. (b) The purpose of giving the court the power under s 222 of the Act to stay further proceedings in the action or proceeding (other than the hearing of the winding-up petition pending before the court), is to enable the court to ensure that no creditor shall gain priority over others of his class. (c) Section 222 of the Act does not empower the court to stay the proceeding of the winding-up petition before it”. [24] Premised on the aforesaid authority of Sri Jeluda (supra), the Applicants’ prayer for stay of proceedings under s.470(1) CA 2016 is misconceived and must fail. [25] S.502(1) CA 2016 provides - “The Court may summon before it any officer of the company or person known or suspected to have in his possession any property of the company or supposed to be indebted to the company, or any person whom the Court deems capable of giving information concerning the promotion, formation, trade dealings, affairs or property of the company”. [26] S.502(3) CA 2016 provides - “The Court may require the officer or person to produce any books and papers in his custody or power relating to the company, but if the officer or person claims any lien on books or papers, the production shall be without prejudice to that lien, and the Court shall have jurisdiction to determine all questions relating to that lien”. Ss.502(1) and 502(3) CA 2016 corresponds to s.249(1) and (3) CA 1965. [27] In Hicom Bhd v. Bukit Cahaya Country Resorts Sdn Bhd & Anor [2005] 8 CLJ 194 at pp.207-208, Ramly Ali J (now FCJ) has set out instructively the principles governing an application for examination under s.249 CA 1965 as follows: “Section 249 must be read together with r. 49, Companies (Winding Up) Rules 1972. The effect of these provisions is that they confer on the liquidator, creditor or contributory the extraordinary right to apply to court for leave to query persons on oath and to require him to produce any books and papers in his custody relating to wound up company. The persons to be queried may include officers of the company (being wound up) and any other persons (third parties) known or suspected to have in his possession any property of the company as well as any persons whom the court considers capable of giving information concerning the promotion, formation, trade dealings, affirms or property of the company. Rule 49 specifically provides that such application, if made by the liquidator, shall be made ex parte but if made by a creditor or contributory, shall be made by summons supported by an affidavit and the liquidator shall also be served. In other words, a unlike liquidator, creditor or contributory can only make such application by way of inter partes summons where the persons to be examined as well as the liquidator concerned must be served with the relevant papers. This extraordinary power serves an essential and important purpose. If used correctly it generally but not invariably redresses disadvantages without creating advantages. However if used incorrectly, it could be draconian in it's application and crushing in its consequence. Unnecessary legal costs can also be incurred by all involved and scarce fund of the company may be severely depleted, (see: Liquidator of W & P Piling Pte. Ltd. v. Chew in What & Ors. [2004] 3 SLR 164). Our legal proceedings are generally required to be conducted in the manner of an adverserial contest. The process of taking information or evidence on oath pursuant to these provisions, is an aberration which has been allowed into a fundamental tenet of an adversarial system. The court therefore plays an important and critical role in policing the exercise of these powers. In instances whether there is neither a reasonable basis for an investigation nor any real prospect of recouping loses or sustaining claims for the benefit of the company (being wound up) the court ought to be extremely cautious in allowing a proposed examination to proceed. The threshold test for information or documents is not one be of "absolute need" but that of a "reasonable requirement". The court must place on the scale of evaluation the purpose and the intent of an application on the one hand, and the oppression, inconvenience and disadvantage it may visit upon the proposed examinee one the other hand. In some instances, responses to the queries raised on oath or by way of an affidavit may be amply sufficient in place of an oral examination. If such relevant information can be procured without the exercise of this coercive power, it should not be invoked. The essential questions to be addressed are: (a) Is the procedure necessary for the business of preserving, collecting, managing or distributing the company's assets?; (b) Is the applicant (liquidator, creditor or contributory) conducting himself reasonably in the circumstances?; (c) Is it for the benefit of the company (being wound up)?; (d) Is there any alternative process to obtain such information either by way of sworn affidavit or otherwise?. (e) Is there any oppressive effect on the examinee?; (f) Does the process amount to an abuse of process?”. (Emphasis added) [27.1] Based on the emboldened parts in the passage quoted from Hicom Berhad’s case, I agree with the submission of Counsel for the Supporting Creditors, Chan Park He On, Reezal Jai, Rihan bin Abdullah, Lee Chee Lin and Chong Lei Ling in Petition 342 and Johnny Yek Hock Hai in Petition 338 that - (i) S.249 CA 1965 when read together with rule 49 of the Companies (Winding Up) Rules 1972 has the effect of limiting the applicability of s.249 of CA 1965 to wound up companies; (ii) Since the 4 Respondent companies, True Fitness World, Truest, True Yoga and Fitness Growth, have not been wound up, in my considered opinion the Applicants’ prayers for examination under ss.502(1) and 502(3) CA 2016 are premature and are accordingly dismissed by the Court. [27.2] An added reason why the 4 Applicants cannot rely on the provisions of ss.502(1) and 502(3) CA 2016 is because I have found that they are not creditors and therefore they do not have the locus standi to seek for examination of the proposed examinees and for the production of relevant documents in Court for examination. [28] Prayer (f) of ss.470(1), 502(1) and 502(3) and 540(1) application (encl.10) has been framed in such a manner that it is contingent on the Court making a finding that if it is not satisfied with the explanations to be proffered by the proposed examinees, then the Court is urged to make an order under s.540(1) CA 2016 against the proposed examinees that they are directly or indirectly involved in fraudulent trading with intent to defraud the members, suppliers and the employees of True Fitness in Malaysia and for the proposed examinees to be personally responsible, without any limitation of liability for the debts or liabilities of the Respondent company. [28.1] Since it is my finding that the Applicants cannot rely on ss.502(1) and 502(3) CA 2016, therefore prayer (f) is a non starter. Whether the Court has the jurisdiction to advise the Attorney General Chambers or the Royal Malaysian Police on the proposed examinees [29] This relates to prayer (g) of the said Notice of Motion (encl.10). The Applicants are seeking for an order that the Court advise the Attorney General Chambers or the Royal Malaysian Police to investigate the proposed examinees, Muhammad Redha Ahmad Bin Thaharuddin, Peter Joseph A/L Anthony Joseph Bennit, Patrick John Wee Ewe Seng, Shikha Dutt and other named person. [29.1] In this regard I agree with Mr. Srimurugan’s submission that - (i) the Attorney General has the discretion whether to institute proceedings at all and, if so, with what offence to charge the accused by virtue of s.145(3) of the Federal Constitution (Teh Cheng Poh v. PP [1979] 1 MLJ 50); and (ii) the Court does not have any power to make an order be it in the nature of advice against any party who is not a party in this proceedings. In Kheng Chwee Lian v. Wong Tak Thong [1983] 1 MLRA 66 at p.70, the Federal Court held - “In our judgment, the Court, below has no jurisdiction inherent or otherwise, over any person other than those properly brought before it, as parties or as persons treated as if they were parties under statutory provisions (Brydges v. Brydges & Wood [1909] p.187; Re Shephared [1890] 43 Ch D 131 and Coleman v. Coleman [1920] p.71)”. [29.2] In any event prayer (g) is a non starter as this prayer is only triggered if the orders in respect of prayers (a) to (f) above in encl.10 are granted. Conclusion [30] For the reasons enumerated above, I make the following order: (i) O.I.T of prayers 1 and 3 for - Petition 334- encl.20 Petition 336- encl.15 Petition 338- encl.17 Petition 342- encl. 9. (ii) Dismiss the following with no order as to cost: Petition 334- encl.10 Petition 336- encl.12 Petition 338- encl.12 Petition 342- encl.12. [30.1] I make no order as to cost having regard to the fact that the 4 Respondent companies ceased operations in Malaysia suddenly and without notice on 10/6/2017 and which was one day after the appointment of an Interim Liquidator on 9/6/2017 upon the Petitioner’s application pursuant to s.476 CA 2016 in the 4 Petitions. Dated: 9/11/2017 SGD. (LAU BEE LAN) Judge WA-28NCC-334-06/2017 WA-28NCC-336-06/2017 WA-28NCC-338-06/2017 WA-28NCC-342-06/2017 Counsel for the Petitioners: Cik Melanie Ho Mei Yee together with Encik C.J. Ooi Messrs Melanie Advocates & Solicitors C-3A- 3, Colonial @ Empire City Bukit Lanjan 47820 Petaling Jaya Selangor Darul Ehsan Counsel for the Applicants/Proposed Interveners: Encik Alex Netto together with Encik Chen Yu Szen Messrs Dee, Netto, Fatimah & Ng Advocates & Solicitors A- 3-19, Megan Phoenix Jalan 2/142A, Cheras 56000 Kuala Lumpur WA-28NCC-338-06/2017 WA-28NCC-342-06/2017 Counsel for the Supporting Creditors: Encik Bryan Ho Messrs Ho Partnership Advocates & Solicitors Suite A-11-3A, Level 11, Plaza Taragon Kelana No.3, Jalan SS 6/6 Kelana Jaya 47301 Petaling Jaya Selangor Darul Ehsan WA-28NCC-334-06/2017 WA-28NCC-336-06/2017 WA-28NCC-338-06/2017 WA-28NCC-342-06/2017 Counsel for the Liquidators for Respondents: Encik C J Ooi together with Encik E K Khaw Messrs Chih-Jen & Associates Advocates & Solicitors No.7-19-M (Mezzanine Floor) Jalan Jalil Perkasa 14/155B Aked Esplanad Bukit Jalil 57000 Kuala Lumpur WA-28NCC-334-06/2017 WA-28NCC-336-06/2017 WA-28NCC-338-06/2017 WA-28NCC-342-06/2017 Counsel for the Directors & Proposed Examinees Encik Srimurugan a/l Alagan Messrs SRIMURUGAN & CO Advocates & Solicitors No.33-5-3A Block C Jaya One No.72A Jalan University 46200 Petaling Jaya Selangor Darul Ehsan 33

Tika 2.6.0

S-02-395-02 OF 2012

PERAYU CHUA YUNG KIM … APPELLANT RESPONDEN MADLIS BIN AZID @ AZIZ & 97 OTHERS … RESPONDEN TS

Land — Appeal— Recovery of lands' ownership — Transfer —Whether the transfers of ownership and related transactions of the respective approved lands from each or any one of the 1st to 98th respondents to the appellant ought to be set aside — Misrepresentation — Forgery of documents — Non est factum — Whether the circumstances of the case would attract the common law doctrine of inequality of bargaining power — Whether doctrine of unconscionable bargain applicable — Whether law applicable is “undue influence” — Whether the 1st to 98th respondents’ causes of action against the appellant were statute barred — Civil Law Act 1956, s 3(1)(b);Contracts Act 1950, s 16(2);Evidence Act 1950, s 114(g); Interpretation (Definition of Native) Ordinance, s 3(3);Land Ordinance (Sabah) (Cap 68), s 97(1)

09/11/2017

YA DATO' ABDUL RAHMAN BIN SEBLIKorumYA DATUK LIM YEE LANYA DATO' ABDUL RAHMAN BIN SEBLIYA PUAN SRI DATO' ZALEHA BINTI YUSOF

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=f34cc5bb-683b-4e78-a678-4e3215806ad8&Inline=true

1 IN THE COURT OF APPEAL OF MALAYSIA (APPELLATE CIVIL JURISDICTION) CIVIL APPEAL NO. S-02-395-02 OF 2012 BETWEEN CHUA YUNG KIM … APPELLANT AND MADLIS BIN AZID @ AZIZ & 97 OTHERS … RESPONDENTS [In the matter of the High Court in Sabah and Sarawak at Sandakan Suit No. S-21-62 of 2009 Between Madlis bin Azid @ Aziz & 97 Others … Plaintiffs And Chua Yung Kim … 1st Defendant Assistant Collector of Land Revenue at Beluran, Sabah … 2nd Defendant Director of Lands and Survey, Sabah … 3rd Defendant The State Government of Sabah … 4th Defendant] CORAM LIM YEE LAN, JCA ABDUL RAHMAN SEBLI, JCA ZALEHA YUSOF, JCA JUDGMENT OF THE COURT [1] One of the issues raised in this appeal was whether the English common law doctrine of inequality of bargaining power applies in the State of Sabah. The appellant contended that it does not and that the applicable law is our written law on undue influence as provided by section 16 of the Contracts Act 1950 (“the Contracts Act”). 2 [2] For the facts of the case, we shall rely on those that the learned trial judge had set out in his grounds of judgment, with the necessary modifications. They are as follows. All 98 respondents (Plaintiffs at the trial) are natives of Sabah from a remote village on an island off the east coast of Sabah called Kampung Keniogan. The 1st respondent, Madlis Bin Azid @ Aziz is the Ketua Kampung of the village. He was only educated up to primary 6. The 97 other respondents are all related to him either by blood or by marriage. They were by and large fishermen or housewives and were illiterate. Only a handful of them could read and write in Bahasa Malaysia. [3] In 1979, the respondents each applied for alienation of individual lots of land measuring about 15 acres in the Sungai Sugut area for agricultural purposes. The lands were approved in 1983, to be alienated as native lands and the respondents were given 395.62 hectares in total (“the lands”), which worked up to approximately 4.037 hectares (about 10 acres) each. [4] The lands were required to be collectively surveyed by a licenced surveyor before they could be alienated and individual titles issued to each of the respondents. But the respondents did not have money to pay for the survey fee of RM147,950.00 even after the final extension was given by the Lands and Survey Department to pay the fee within 6 months, failing which their land application approvals would be cancelled. [5] The 1st respondent on behalf of all the respondents then urgently approached the appellant, Chua Yung Kim a.k.a. “Angti” for financial assistance. The appellant was a businessman who owned a petrol station at Beluran with whom the 1st respondent had past business dealings. 3 [6] The 1st respondent asked the appellant whether he could help with the survey fee that he and the other respondents so badly needed. The appellant said he could help. They then discussed the terms on which the appellant could assist the respondents to pay for the survey fee. [7] After the discussions, it was agreed that the appellant would advance the survey fee on behalf of the respondents. It was also agreed that upon issuance of the title deeds of the lands, the respondents would then negotiate with the appellant for a possible sale of the lands to the appellant. [8] The appellant told the 1st respondent that to enable him to liase with the relevant authorities on matters relating to the survey of the lands, certain agreements and power of attorneys would have to be executed in his favour by the respondents. [9] About a week later, the appellant visited the respondents at Kampung Keniogan and brought with him copies of various documents for each of the respondents to execute. Not all but only some of the respondents executed the documents, which comprised the power of attorneys, sale and purchase agreements and memorandums of transfer for each land and for each respondent. They were in fact documents to effect transfer and sale of their beneficial interest in lands to the appellant. [10] Not all the respondents knew the appellant, and only some could remember receiving RM100.00 (One Hundred Ringgit Only) from the appellant at Kampung Keniogan and signing documents for the purpose of the survey and issuance of titles to the lands. None of the respondents 4 admitted that they sold their respective lots to the appellant for a paltry sum of RM100.00 per lot. Those who admitted receiving the RM100.00 said it was meant as “saguhati”. [11] The appellant’s version was diametrically opposed to the 1st respondent’s version. His story was that at the meeting with the 1st respondent, the 1st respondent expressed his desire to give the lands to him for free as he was not sure whether the lands were still available. However, the appellant said he would not take the lands for free and instead offered to buy them for RM100.00 per lot and that he would take all the risks and check whether the lands were still available and then pay for the survey fee, premium and other expenses. [12] According to the appellant, he gave the 1st respondent a sample of the power of attorney, the sale and purchase agreement and the memorandum of transfer, with the instruction that if the 1st respondent was satisfied with them, the 1st respondent could arrange for the documents to be prepared and signed by him and the other respondents. [13] The appellant said it was the 1st respondent who got the power of attorneys, the sale and purchase agreements and the memorandums of transfer prepared and signed or thumb-printed before they were handed over to him. In other words, the preparation of the documents and their execution by the respondents were all arranged by the 1st respondent. Thus, the appellant’s version was that it was a straightforward sale by the respondents of their lands to him for the purchase price of RM100.00 per lot. As we mentioned, the size of each lot was about 10 acres. 5 [14] When the present action was filed on 14.10.2009, many of the respondents who applied for the lands had passed away. The action was taken by their respective administrators who had been issued with the Jadual 3 to the Administration of Native and Small Estates Ordinance and section 74 of the Sabah Land Ordinance (“the Land Ordinance”). [15] The agreed issues to be tried by the High Court were as follows: (1) Whether the transfers of ownership and related transactions of the respective approved lands from each or any one of the 1st to 98th respondents to the appellant ought to be set aside on any or all or a combination of the following grounds, namely: (a) Misrepresentation as pleaded by the 1st to 48th respondents; (b) Forgery as pleaded by the 49th to 98th respondents; (c) Non est factum as pleaded by any or all of the respondents; (d) Inequality of bargaining power as pleaded in the statement of claim and in particular at paragraphs 1, 2, 8, 9, 10, 11, 18, 21, 22 and 25; (e) Material irregularities or anomalies for individual approved lands as pleaded in paragraph 21 (f) of the statement of claim; and/or (f) Further or alternatively to the above grounds, the appellant, being a Chinese businessman, was not able to deal with or own native lands alienated to the native plaintiffs. (2) Whether the 1st to 98th respondents’ causes of action against the appellant were statute barred under the Sabah Limitation Ordinance (“the Limitation Ordinance”) in that the respondents 6 ought to have commenced their action within 3 years either of receipt of the payment of the alleged purchase price or knowledge that the 1st respondent had collected the title deeds as respectively pleaded in paragraph 11 and 14(b) of the amended defence of the appellant. [16] Before us however, the native status of the appellant (Ground 1(f)) was no longer in issue as the respondents accepted that the appellant is a holder of an Anak Negeri certificate and as such is recognized as a native of Sabah. The appellant had earlier written to the court for an adjournment of this appeal pending the determination of his status as a native of Sabah by the Board of Officers pursuant to section 3(3) of the Interpretation (Definition of Native) Ordinance. [17] It was agreed between the parties that the evidence of PW1 to PW27 all of whom were the respective respondents, would be representative of the other respondents save for the 1st respondent, and that to save judicial time there was no need to call them individually. [18] In resisting the respondents’ claim, the appellant relied on the power of attorneys, the sale and purchase agreements, the memorandums of transfer executed by each of the respondents and the registration of interest in his name in the land registry based on such documents and dealings. The appellant is now holding on to the 98 land titles and defends his registration of interest as owner of the lands based on these documents and dealings. [19] After a full trial of the action, the learned judge allowed the respondents’ claim in terms of prayers (a)(i) to (iv) & (ix), (b)(i) and (c)(i) 7 of the statement of claim, hence the present appeal by the appellant. Having heard arguments by both sides, we reserved judgment to a date to be fixed. We have now reached a unanimous decision and this is our judgment. [20] We must point out at the outset that on all crucial issues of fact, there was a sharp conflict of evidence between the appellant and the respondents and the learned judge made it clear in his grounds of judgment that he preferred the evidence of the respondents. We reproduce below what the learned judge said at paragraph 15 of his judgment: 15. Having heard and considered the evidence and the conflicting versions of the events and witnesses of the Plaintiffs and the 1st Defendant, I prefer the evidence of the Plaintiffs over that of the 1st Defendant, as I find that the 1st Defendant’s version of events is not credible. I noted that the Plaintiffs denied that they agreed to sell the Lands to the 1st Defendant. I find that it is most unlikely that any person who wanted to give away land for free, would for RM100 each piece of land take the trouble to prepare so many sets of documents and to get them executed, for the benefit and advantage of the other party, in a language which he does not understand at all and which none of the plaintiffs understand. [21] Of particular significance to note is the learned judge’s finding that the appellant was an “evasive and untruthful” witness. We have no basis to disagree with the learned judge’s assessment of the appellant’s credibility as a witness. Nor do we have any basis to say that his assessment of the appellant’s credibility was plainly wrong and that he had failed to take proper advantage of his having seen and heard the appellant giving evidence first hand and in real time. 8 [22] This appeal therefore involved, at its core, the issue of the credibility of the witnesses. The principles on which an appellate court should act in reviewing the decision of a judge of first instance on a question of fact, especially where the question involves the issue of the credibility of the witnesses are well settled. Suffice it if we refer to the oft-cited judgment of the House of Lords in Powell and wife v Streatham Manor Nursing Home [1935] AC 243, 249 where Viscount Sankey LC said this: What then should be the attitude of the Court of Appeal towards the judgment arrived at in the court below under such circumstances as the present? It is perfectly true that an appeal is by way of rehearing, but it must not be forgotten that the Court of Appeal does not rehear the witnesses. It only reads the evidence and rehears the counsel. Neither is it a reseeing court. There are different meanings to be attached to the word 'rehearing' For example, the rehearing at Quarter Sessions is a perfect rehearing because, although it may be the defendant who is appealing, the complainant starts again and has to make out his case and call his witnesses. The matter is rather different in the case of an appeal to the Court of Appeal. There the onus is upon the appellant to satisfy the court that his appeal should be allowed. There have been a very large number of cases in which the law on this subject has been canvassed and laid down. There is a difference between the manner in which the Court of Appeal deals with a judgment after a trial before a judge alone and a verdict after a trial before a judge and jury. On an appeal against a judgment of a judge sitting alone, the Court of Appeal will not set aside the judgment unless the appellant satisfies the court that the judge was wrong and that his decision ought to have been the other way. Where there is a conflict of evidence the Court of Appeal will have special regard to the fact that the judge saw the witnesses: see Clarke v. Edinburgh Tramways Co. per Lord Shaw, 1919 S.C. (H.L.) 35, 36, where he says: When a judge hears and sees witnesses and makes a conclusion or inference with regard to what on balance is the weight of their evidence, that judgment is entitled to great respect, and that quite irrespective of whether the judge makes any observations with regard to credibility or not. I can of course quite understand a Court of Appeal that says that it will not interfere in a case in which the judge has announced as part of his judgment that he believes one set of witnesses, having seen them and heard them, and does not believe another. But that is not the ordinary case of a cause in a court of justice. In courts of justice in the ordinary case things are much more evenly divided; witnesses without any conscious 9 bias towards a conclusion may have in their demeanour, in their manner, in their hesitation, in the nuance of their expressions, in even the turns of the eyelid, left an impression upon the man who saw and heard them which can never be reproduced in the printed page. What in such circumstances, thus psychologically put, is the duty of an appellate court? In my opinion, the duty of the appellate court in those circumstances is for each judge of it to put to himself, as I do now in this case, the question, Am I - who sit here without those advantages, sometimes broad and sometimes subtle, which are the privilege of the judge who heard and tried the case - in a position, not having those privileges, to come to a clear conclusion that the judge who had them was plainly wrong? If I cannot be satisfied in my own mind that the judge with those privileges was plainly wrong, then it appears to me to be my duty to defer to his judgment. [23] From paragraph 16 onwards of his grounds of judgment, the learned trial judge had explained in great detail why he found the 1st respondent’s version of events to be credible and why he disbelieved the appellant’s version of events. It is clear to us that there was no mishandling of the facts or the law by the learned judge to warrant appellate intervention. [24] As for the appellant’s claim that it was the 1st respondent who arranged for the preparation and execution of the documents, i.e. the power of attorneys, the sale and purchase agreements and the memorandums of transfer, the learned judge’s firm finding of fact was that the documents were prepared by third parties on the instruction of the appellant. [25] The evidence in fact shows that the appellant instructed the law firm of Messrs Tan Pang Tsen & Co, the same law firm that represented him in the High Court and before us in this appeal, to prepare the legal documents for him. The respondents on their part did not have the benefit of professional legal advise. [26] Now we come to the crucial point of law. The learned judge’s view was that even if the respondents had knowingly and willingly executed the 10 various legal documents, i.e. with eyes wide open, the circumstances of the case would attract the common law doctrine of inequality of bargaining power, citing the following passages in the judgment of this court in Saad bin Marwi v Chan Hwan Hua & Anor [2001] 2 AMR 2010; [2001] 3 CLJ 98 where Gopal Sri Ram JCA (as he then was) delivering the judgment of the court said: Suffice that I refer to what I think is the leading case upon the subject. It is Credit Lyonnais Bank Nederland NV v Burch [1997] 1 All ER 144. In that case, Nourse LJ said (a p 151): “On that state of facts it must, I think, have been very well arguable that Miss Burch could, directly against the bank, have had the legal charge set aside as an unconscionable bargain. Equity’s jurisdiction to relieve against such transactions, although rarely exercised in modern times, is at least as venerable as its jurisdiction to relieve against those procured by undue influence. In Fry v Lane, re Fry, Whittet v Bush (1889) 40 Ch D 312 at 322; [1886- 90] All ER Rep 1084 at 1089, where sales of reversionary interest at considerable undervalues by poor and ignorant persons were set aside, Kay J, having reviewed the earlier authorities, said: ‘The result of the decisions is that where a purchase is made from a poor and ignorant man at a considerable undervalue, the vendor having no independent advise, a Court of Equity will set aside the transaction. This will be done even in the case of property in possession, and a fortiori if the interest be reversionary. The circumstances of poverty and ignorance of the vendor, and absence of independent advise, throw upon the purchaser, when the transaction is impeached, the onus of proving, in Lord Selbourne’s words, that the purchase was “fair, just and reasonable”.’ ………………………………. The position in Australia is the same as that in England. It is exemplified by the decision of the High Court in Commercial Bank of Australia Ltd v Amadio (1983) 152 CLR 447. It is sufficient that I quote from two passages in the report. The first is in the judgment of Gibbs CJ at p 459: ‘In my opinion it should not be held that this was the case of an unconscientious bargain of the kind which equity would set aside, even in the absence of fraud, misrepresentation or 11 undue influence. Of course, the bank and the respondents did not meet on equal terms, but that circumstance alone does not call for the intervention of equity, as Lord Denning MR clearly illustrated in Lloyds Bank v Bundy [1975] QB 326, 336. A transaction will be unconscientious within the meaning of the relevant equitable principles only if the party seeking to enforce the transaction has taken an unfair advantage of his own superior bargaining power, or of the position of disadvantage in which the other party was placed.’ (emphasis added) [27] Learned counsel for the appellant however contended that the court in that case did not expound and apply the common law doctrine of inequality of bargaining power, but rather the more established doctrine of unconscionable bargain. With due respect to the learned counsel, although Gopal Sri Ram JCA spoke of unconscionable bargain, the unanimous decision must be understood in the context of the following pronouncement by the learned judge at page 114: In my judgment, the time has arrived when we should recognize the wider doctrine of inequality of bargaining power. And we have a fairly wide choice on the route that we may take in our attempt to cystallise the law upon the subject. The position is that after 1956, we are at liberty to fashion rules of common law and equity to suit our own needs and are not to treat ourselves as being bound hand and foot by English cases. [28] It was contended that in any event Saad bin Marwi was wrongly decided as the court did not consider the fact that the Contracts Act does not provide for rescission of a contract on the ground of inequality of bargaining power. It was argued that the Contracts Act only provides for rescission of a contract where there was “undue influence” as stipulated by section 16 which reads: “Undue influence” 12 16. (1) A contract is said to be induced by “undue influence” where the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other and uses that position to obtain an unfair advantage over the other. (2) In particular and without prejudice to the generality of the foregoing principle a person is deemed to be in a position to dominate the will of another- (a) Where he holds a real or apparent authority over the other, or where he stands in a fiduciary relation to the other; or (b) Where he makes a contract with a person whose mental capacity is temporarily or permanently affected by reason of age, or mental or bodily distress. (3) (a) Where a person who is in a position to dominate the will of another, enters into a contract with him, and the transaction appears, on the face of it or on the evidence adduced, to be unconscionable, the burden of proving that the contract was not induced by undue influence shall lie upon the person in a position to dominate the will of the other. (b) Nothing in this subsection shall affect section III of the Evidence Act 1950 [Act 56]. [29] According to learned counsel, what one has to establish to prove “undue influence” under section 16 of the Contracts Act is unconscionable conduct and not inequality of bargaining power. The argument presupposes that the doctrine of inequality of bargaining power comes under the regime of undue influence, with respect to which there is already a written law in force in Malaysia, namely section 16 of the Contracts Act. With due respect to learned counsel we do not think that is correct. While unconscionable conduct is a necessary component of the doctrine of inequality of bargaining power, inequality of bargaining power is not a component of undue influence. 13 [30] Therefore section 16 of the Contracts Act, which deals with undue influence, is not such written law within the meaning of section 3(1)(b) of the Civil Law Act 1956 (“the Civil Law Act”) that has the effect of excluding the application of the common law doctrine of inequality of bargaining power in Sabah. We shall come back to this provision later in this judgment. [31] Section 16 of the Contracts Act speaks of a relationship where one party is in a position to “dominate the will” of the other and uses that position to obtain unfair advantage over that other. It is not a section that deals with inequality of bargaining power between two contracting parties. [32] There is a subtle but real difference between dominating a person’s will and taking unfair advantage of one’s superior bargaining power over that person. It was not the respondents’ case that the appellant dominated their will. Their complaint was that the appellant had taken unfair advantage of his superior bargaining power over them. [33] Perhaps we should reproduce again subsection 16(2) of the Contracts Act to illustrate the point: (2) In particular and without prejudice to the generality of the foregoing principle a person is deemed to be in a position to dominate the will of another- (a) Where he holds a real or apparent authority over the other, or where he stands in a fiduciary relation to the other; or (b) Where he makes a contract with a person whose mental capacity is temporarily or permanently affected by reason of age, or mental or bodily distress. 14 [34] Paragraph (a) speaks of authority over the other or standing in a fiduciary relation to the other. Paragraph (b) speaks of mental incapacity. Both have nothing to do with inequality of bargaining power. The common law doctrine of inequality of bargaining power is not only about domination of will by one person over another. Over and above that, the doctrine is concerned with unconscionable bargain, of taking unfair advantage of a person’s superior bargaining power, or of the position of disadvantage in which the other party was placed: Commercial Bank of Australia Ltd v Amadio (1983) 152 CLR 447; [1983 HCA 14. [35] It was urged upon us not to follow Saad bin Marwi but to follow the decision of another panel of this court in American International Assurance Company Ltd v Koh Yen Bee [2002] 4 CLJ 49; [2002] 4 MLJ 301 where Abdul Hamid Mohamad JCA (as he then was) writing for the majority said at page 67: Learned counsel for the respondent relied heavily on the provision of s. 3(1) of the Civil Law Act 1956 and the decision of this court in Saad bin Marwi v Chan Hwan Hua & Anor [2001] 3 CLJ 98. That case appears to be the first case in this country in which the court applied the doctrine of inequality of bargaining power independently of the well-established doctrine of undue influence. In Datuk Joginder Singh & Ors v Tara Rajaratnam [1983] 2 MLJ 196 (FC) a case involving a solicitor and his client, where the word “unconscionable” was used in passing, the issue was considered under the head of “undue influence”. We do not wish to enter into an argument whether the doctrine of inequality of bargaining power or unconscionable contract may be imported to be part of our law. However, we must say that we have some doubts about it for the following reasons. First is the specific provisions of s. 14 of the Contracts Act 1950 which only recognizes coercion, undue influence, fraud, misrepresentation and mistake as a factor that affect free consent. Secondly, the restrictive wording of s.3(1) of the Civil Law Act 1956, in particular, the opening words of that subsection, the cut-off date and the proviso thereto. Thirdly, that fact 15 the court by introducing such principles is in effect “legislating” on substantive law with retrospective effect. Fourthly, the uncertainty of the law that it may cause. [36] What needs to be pointed out first and foremost with regard to this case is that the majority did not decide that the common law doctrine of inequality of bargaining power does not apply in Malaysia. They merely had “some doubts” about it. Secondly, although the majority had “some doubts” about the doctrine, they acknowledged that the facts in Saad bin Marwi clearly support such a decision “if justice were to prevail”. [37] Thirdly and perhaps more importantly, under section 3(1)(b) of the Civil Law Act, the common law of England and the rules of equity, together with statutes of general application as administered or in force in England on 1 December 1951 “shall” be applied by the court in the State of Sabah “save so far as other provision has been made or may hereafter be made” by any written law in force in Malaysia. [38] To provide context, we reproduce in full below section 3(1) of the Civil Law Act: Application of U.K. common law, rules of equity and certain statutes 3. (1) Save so far as other provision has been made or may hereafter be made by any written law in force in Malaysia, the Court shall – (a) in Peninsular Malaysia or any part thereof, apply the common law of England and the rules of equity as administered in England on the 7 April 1956; (b) in Sabah, apply the common law of England and the rules of equity, together with statutes of general application, as administered or in force in England on 12 December 1951; 16 (c) in Sarawak, apply the common law of England and the rules of equity, together with statutes of general application, as administered or in force in England on 12 December 1949, subject however to subparagraph (3)(ii): Provided always that the said common law, rules of equity and statutes of general application shall be applied so far only as the circumstances of the States of Malaysia and their respective inhabitants permit and subject to such qualifications as local circumstances render necessary. (emphasis added) [39] What the provision means in its application to Sabah is that if there is no written law in force in Malaysia on the common law doctrine of inequality of bargaining power or any other common law doctrine after the coming into force of the Civil Law Act in Sabah on 1 April 1972, the court “shall” apply such common law of England as administered or in force in England on 1 December 1951, subject to the proviso to the section. [40] In dealing with this provision in Chung Khiaw Bank Ltd v Hotel Rasa Sayang Sdn Bhd & Anor [1990] 1 MLJ 356; [1990] 1 CLJ 675; [1990] 1 CLJ (Rep) 57 Hashim Yeop Sani CJ (Malaya) delivering the judgment of the Supreme Court said at page 66: Section 3 of the Civil Law Act, 1956 directs the Courts to apply the common law of England only in so far as the circumstances permit and save where no provision has been made by statute law. The development of the common law after 7 April 1956 (for the States of Malaya) is entirely in the hands of the Courts of this country. We cannot just accept the development of the common law in England. [41] If today Parliament were to amend the Contracts Act by including the doctrine of inequality of bargaining power as part of Malaysian contract law, then the common law doctrine would still apply throughout Malaysia but in the form of a written law. In fact, the law on undue influence which 17 learned counsel for the appellant referred to is a common law doctrine which has since been made our written law through section 16 of the Contracts Act. [42] It must be remembered that the common law doctrine of inequality of bargaining power had been administered or in force in England even before 1 December 1951, the cut-off date for the application of such common law in Sabah. This can be deduced from the case of Fry v Lane, re Fry, Whittet v Bush (1889) 40 Ch D 312; [1886-90] All ER 1084. The case citation indicates that it was decided in the late 1880’s. [43] Although the court in that case did not use the term “inequality of bargaining power”, it is obvious that Kay J was speaking in terms of the doctrine. We do not agree with learned counsel for the appellant that the notion of “inequality of bargaining power” first arose from the English Court of Appeal case of Lloyds Bank Ltd v Bundy [1975] QB 326 where Lord Denning MR used the term “inequality of bargaining power” but which the House of Lords 10 years later in Natwest Bank Plc v Morgan [1985] 1 AC 686 rejected outright by saying that if any such view had gained currency, “let it be destroyed now once and for all”. [44] It was on the strength of this indictment by the House of Lords that learned counsel for the appellant contended that the common law doctrine of inequality of bargaining power does not exist. But there has been no outright rejection of the doctrine in Malaysia. In the Federal Court case of Affin Bank Berhad v Mohd Kassim Ibrahim [2013] 1 CLJ 465, the majority did not touch on the doctrine of inequality of bargaining power but Zainun Ali FCJ in her dissenting judgment adopted the English and Australian positions when Her Ladyship said: 18 [130] On the facts it is clear that the appellant and the respondent did not meet on equal terms, although that circumstance alone does not call for the court's intervention on equitable or other grounds and whilst this doctrine (of the inequality of bargaining power) may be a new jurisprudential approach in our jurisdiction, it has gained popular approval in both England and Australia. [131] In Australia (at least), the test to be applied as to whether equitable relief is applicable if unconscientious advantage is taken of a party who is at a special disadvantage in a contractual dealing (as happened in the instant appeal) is manifold. The first requirement is that there has to be existence of circumstances which amount to a special disadvantage; the second is that the court concerns itself with the conduct of the stronger party, rather than with the reality of the weaker party’s consent. In other words, the conduct of the stronger party will be seen as being unconscionable if he knew or ought to have known of the special disadvantage and took advantage of it to further his interests. Thirdly, it relates to evidence of the value of the transaction; fourthly to lack of independent advise and lastly if it can be shown that the stronger party can clearly discern, at the time of the contract, that the weaker party is sufficiently weak, as to make it prima facie unfair for the stronger party to accept the contract. [132] The above situation was described neatly as a form of “contractual imbalance” by Lord Brightman in Hart v O’Connor [1985] AC 1000. [45] The position in Singapore can be seen from the High Court case of Lim Geok Hian v Lim Guan Chin [1994] 1 SLR 203. There too the court did not reject the doctrine of inequality of bargaining power when it said: The concept of ‘inequality of bargaining power’ was insufficient in itself, in the absence of any unconscionable conduct, to justify the setting aside of a contract. Three principles in deciding whether an agreement was unconscionable and should be set aside are: (a) poverty (as in a member of a lower income group) and ignorance (as in less highly educated), (b) sale at an undervalue and (c) lack of independent advise. 19 [46] Presently there is, as far as we are aware, no written law in force in Malaysia on inequality of bargaining power after the coming into force of the Civil Law Act in Sabah on 1 April 1972, nor does Sabah have its own common law on such doctrine of law after that date. Therefore, the common law doctrine of inequality of bargaining power, being the common law that was administered or in force in England on 1 December 1951, is the law to be applied in Sabah, subject of course to the proviso to section 3(1) of the Civil Law Act. [47] In the absence of any written law in force in Malaysia on inequality of bargaining power after the coming into force of the Civil Law Act in Sabah on 1 April 1972, there is no reason why in our view the common law doctrine of inequality of bargaining power should not be adopted as the common law of Sabah. The factual matrix of the present case fits in perfectly well with the doctrine. [48] The proviso to section 3(1) of the Civil Law Act provides that the said common law of England shall be applied so far only as the circumstances of the States of Malaysia and their respective inhabitants permit and subject to such qualifications as local circumstances render necessary. We do not see how it can be said that the common law doctrine of inequality of bargaining power does not meet those requirements in so far as the State of Sabah is concerned. [49] On the contrary, we are inclined to think that the application of the doctrine in Sabah is necessary if justice were to prevail. It will prevent unscrupulous and unconscientious parties from taking unfair advantage of their superior bargaining power over the inhabitants of Sabah in their hour of need, such as had happened in the present case. 20 [50] The application of the common law doctrine in Sabah will, in our opinion, ensure that those with superior bargaining power will act conscientiously, fairly, justly and reasonably in their contractual dealings with those whom they know are in weak bargaining positions. Whether those having superior bargaining power have taken unfair advantage of their superior bargaining power to warrant intervention by equity must be determined based on the facts and circumstances of each case. [51] We have mentioned earlier that the House of Lords in Natwest Bank Plc shot down Lord Denning’s attempt to propagate the doctrine of inequality of bargaining power by destroying it “once and for all”. The House of Lords had its own reasons for taking that stand, but in its application to the circumstances of the State of Sabah and its inhabitants, we think that the common law doctrine will serve justice rather than stultify it. It will promote fair play in the market place. [52] In the present case, the reasons why the learned trial judge found the doctrine to be applicable to the facts and circumstances of the case can best be explained in his own words, which we reproduce below: [a] The plaintiffs are by and large fishermen or housewives who are illiterate. Only a handful of them read and write Bahasa Malaysia. The 1st Plaintiff as their ketua kampong and leader in the dealing with the 1st Defendant, was educated up to primary 6 only. The Plaintiffs were under financial pressure and time constraint to find the necessary funds to pay for survey of the Lands before the titles to the Lands could be issued to them. [b] The 1st Defendant admitted in cross-examination that at the meeting in the year 2002, the 1st Plaintiff requested him to advance a sum of money to pay the survey fees for the Lands and that he, the 1st Defendant had agreed to advance the money. The 1st 21 Defendant also admitted that he had informed the 1st Plaintiff that he would require the Plaintiffs to sign some agreements and power of attorney and that these documents were required to enable him to liase with the relevant authorities. I find the nature of the agreements signed by the Plaintiffs in response to the 1st Defendant’s said request is radically different from what was represented as the Plaintiff were asked to sign sale and purchase agreements for the said Lands when they did not intend to sell the Lands to the 1st Defendant, at that material time. [c] The 1st Defendant testified that the price for each of the Plaintiffs’ respective individual land measuring approximately 10 acres is RM100. I find that such value of the Lands was grossly undervalued, unrealistic and not capable of belief. I prefer the evidence of the Plaintiffs that the sum of RM100 was “saguhati” and were given as inducement to the Plaintiffs, to sign the various documents and not meant as the purchase price for the Lands. [d] There was no independent advise offered to any of the Plaintiffs before the documents were given to some of them to sign or thumbprint. I find that various documents were not prepared by the Plaintiffs but by third parties under the directions of the 1st Defendant and furthermore the various documents were in the English language, I find that there was also no evidence that someone explained the true contents to those of the Plaintiffs who had signed the documents. I do not believe that the 1st Plaintiff and/or the other Plaintiffs would take the trouble to prepare the various documents if the purchase price for their individual lot of lands is only RM100. [e] I find that the Statutory Declarations of nearly all the Plaintiffs, which were affirmed in the months of September and October 2006, and attested by Encik Rashid [DW2] who is a 2nd Class magistrate at Beluran, declaring that the 1st Defendant had purchased the Lands from each plaintiff for the price of RM100 which he had paid and that each of the respective plaintiffs had no claim against him, to be no evidential value as I find that there was no credible evidence that those Plaintiffs who signed the said Statutory Declaration knew what they were signing nor was there any credible evidence that the contents of the said Statutory Declarations were explained to the relevant Plaintiffs. Further I find the demeanour and testimony of DW2, unconvincing and not credible. [f] I find that the evidence showed the survey fees were paid by one Ayub Khan through his company Pembinaan Klias Sdn Bhd and that the quit rent was paid by the 1st Plaintiff, from money borrowed from Ayub Khan, and not by the 1st Defendant. 22 [53] Learned counsel for the appellant raised the point that the learned judge should not have allowed the respondents to raise the defence of inequality of bargaining power as it was not pleaded in the first place. In response, learned counsel for the respondents pointed out that although it was not pleaded, it was an agreed issue to be tried as set out in paragraph 1(d) of the Agreed Issues. We agree with the respondents. The appellant cannot approbate and reprobate. [54] It was further submitted by learned counsel for the respondents that they did not depart from their pleaded case of misrepresentation, forgery, non est factum and inequality of bargaining power and that the evidence at the trial was a necessary development of their pleaded case. Reference was made to the then Supreme Court case of Superintendant of Lands and Surveys, 4th Division & Anor v Hamit B. Matusin & Ors [1994] 3 CLJ 567, where it was held as follows: (2) the rule that if a party is taken by surprise by evidence which departs from pleaded material facts, he must object then and there at the point of time when such evidence emerges, in order for such evidence to be disregarded by the Court. It will be too late when it is objected to later on, as in final submission at the close of the evidence, as happened in the instant case. [55] In the present case, no objection was taken by the appellant when evidence of inequality of bargaining power was introduced by the respondents at the trial. It is therefore too late for the appellant to raise the objection now. [56] With regard to the issue of forgery, the 9th, 14th, 16th, 21st, 34th, 49th, 52nd, 61st and 62nd respondents testified in unequivocal terms that they 23 never thumb-printed the documents that the appellant brought over to Kampung Keniogan for them to execute, yet the appellant without any reasonable explanation, chose not to call the person who purportedly attested the documents to give evidence. The evidence was that this person was an unnamed second class magistrate of the District of Paitan. [57] The learned judge was therefore entitled to draw adverse inference against the appellant under section 114(g) of the Evidence Act 1950 for not calling the mysterious second class magistrate as a witness. The adverse inference would be that this person is either not a magistrate or if he is a magistrate, he never attested to the signing or thumb-printing of the documents by the aforesaid respondents. [58] The learned judge had further found the appellant’s act of signing each of the land titles as holder of the power of attorneys to be in breach of section 97(1) of the Land Ordinance as his signature on the power of attorneys was not attested by a person duly qualified under that provision. We reproduce below section 97(1) for ease of reference: 97. (1) The signature of each party to every memorandum and title shall be attested by any officer specially appointed by the Minister or by one of the following persons – (a) in Sabah – a Magistrate, Justice of the Peace, Notary Public, Commissioner for Oaths, an Advocate or the Collector; (b) in any place within Malaysia other than Sabah or in any place within the Commonwealth - a Magistrate, Justice of the Peace, Notary Public or Commissioner for Oaths; (c) in any other place – a Malaysian Consular Officer; 24 Provided that in the case of a document executed under seal of a company incorporated or registered under the laws of Malaysia and bearing the signature of the secretary and at least one director of the company, attestation shall not be required. [59] The person before whom the appellant purportedly signed the power of attorneys was one “Johny S Maling, Kerani Tanah, Beluran”, i.e. a land clerk and therefore not a qualified person under section 97(1) of the Land Ordinance. It is interesting to note that the title deeds for all 98 pieces of land were registered in one day by this person on 22.8.2006. [60] Each of the title deeds has an express term that the transfer or sublease of the title is prohibited unless the written consent of the Director of Lands and Survey was first obtained. There was no such consent by the Director in the present case. The purported registrar of native lands had apparently signed a blank memorial with no particulars on each of the land titles. [61] Despite the defects, the appellant somehow managed to register the purported approval by the Director of the amendment to the terms of all 98 pieces of land and to register the transfer of all 98 titles into his name in one day on 15.9.2006. Clearly something was seriously wrong with the registration of the lands into the appellant’s name. It is therefore not surprising that the learned judge found the registration of the memorandums of transfer to be “plainly unlawful and invalid”. [62] The appellant had also raised the issue of limitation. It was his contention that the respondents’ causes of action against him were statute barred by virtue of the Sabah Limitation Ordinance (“the Limitation Ordinance”) in that the respondents failed to commence their action within 25 3 years either after receipt of the payments of the alleged purchase price or knowledge that the appellant had collected the title deeds. The appellant’s argument was that items 93 and 94 of the Schedule to the Limitation Ordinance should apply to bar the respondents from prosecuting the action. [63] In rejecting the defence, the learned judge found that the respondents’ claim did not fall under items 93 and 94 of the Schedule to the Limitation Ordinance. He opined, rightly in our view, that the item that applied is the omnibus item 97, which provides that the limitation period is 6 years from the time the right to sue accrues, citing Asia General Equipment and Supplies Sdn Bhd & Ors v Mohd Sari bin Datuk OKK Hj Nuar [2011] 1 LNS 833 and Nasri v Mesah [1971] 1 MLJ 32. [64] Thus, the earliest date for the respondents to sue would be when the appellant signed as owner of the lands on 22.8.2006 or the registration of the appellant’s interest as owner on 15.9.2006. The 6 year period which commenced from that date would only expire on 22.8.2012 or 15.9.2012. The respondents’ action was therefore filed within time. [65] For all the reasons aforesaid, the appeal is dismissed with costs of RM20,000.00 to the respondents, subject to payment of the allocator fee. The deposit is refunded to the appellant. ABDUL RAHMAN SEBLI Judge Court of Appeal Malaysia. Dated: 9 November 2017. 26 For the Appellant: Edwin Tsen of Messrs Tan Pang Tsen & Co. For the Respondents: Roland Cheng and Nadia Chung of Messrs Roland Cheng & Co.

Tika 2.6.0

02(f)-45-07-2016(W)

PERAYU RINOTA CONSTRUCTION SDN BHD … Appellant/ Petitioner RESPONDEN 1. MASCON RINOTA SDN BHD … Respondents 2. MASCON SDN BHD 3. OLYMPIA INDUSTRIES BHD 4. DATO’ YAP YONG SEONG 5. YAP WEE KEAAT 6. MASCON CONSTRUCTION SDN BHD

Companies and Corporations — Appeal — Oppression — Purchase of shares of minority shareholder — Whether petitioner’s gross delay in filing ‘oppression petition’ inexcusable and fatal — Whether in the circumstances of this case, the Applicant’s only remedy lay in a derivative action in the name of the 1st Respondent Company to the exclusion of any remedy for minority oppression — Whether in the circumstances of this case, the reflective loss principle had any application — Companies Act 1965 [Act 125], section 181

09/11/2017

YAA TAN SRI DATO' SERI ZULKEFLI BIN AHMAD MAKINUDINKorumYAA TAN SRI DATO' SERI ZULKEFLI BIN AHMAD MAKINUDINYA TAN SRI DATUK SURIYADI BIN HALIM OMARYA TAN SRI DATUK RAMLY BIN HAJI ALIYA DATO' BALIA YUSOF BIN HAJI WAHIYA TAN SRI JEFFREY TAN KOK WHA

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=7879364c-1526-4abf-bbcf-ee9cc65c630d&Inline=true

1 IN THE FEDERAL COURT OF MALAYSIA (APPELLATE JURISDICTION) CIVIL APPEAL NO. 02(f)-45-07-2016(W) BETWEEN RINOTA CONSTRUCTION SDN BHD … Appellant/ Petitioner AND 1. MASCON RINOTA SDN BHD … Respondents 2. MASCON SDN BHD 3. OLYMPIA INDUSTRIES BHD 4. DATO’ YAP YONG SEONG 5. YAP WEE KEAAT 6. MASCON CONSTRUCTION SDN BHD Coram: Zulkefli bin Ahmad Makinudin, PCA Suriyadi Halim Omar, FCJ Ramly bin Hj. Ali, FCJ Balia Yusof bin Hj. Wahi, FCJ Jeffrey Tan Kok Wha, FCJ JUDGMENT OF THE COURT Introduction 1. This is an appeal by the Appellant against the decision of the Court of Appeal in allowing the appeal by the Respondents against the decision of the High Court. The Appellant was the Petitioner in 2 the section 181 Petition of the Companies Act 1965 at the High Court and the Respondents in the present appeal were the Respondents. We shall refer to the respective parties as they were before the High Court. 2. The The learned High Court judge allowed the Petitioner’s section 181 Petition and made the following orders: (a) An order that the 2nd, 4th, 5th, 6th and 7th Respondents jointly and severally purchase the shares owned by the Petitioner in the Company at such price and terms determined by the Court; after making all necessary adjustments to the accounts of the Company to compensate for the acts and oppression of the Respondents; (b) An order that the 2nd and 4th Respondent pay, or cause its subsidiaries or associated companies to pay the 1st Respondent all debts owed to it by the 2nd and 4th Respondent or its subsidiaries or associated companies in connection to the lease agreement and loans extended to the undisclosed “fellow subsidiaries”; (c) An order that a certified public accountant be appointed to inspect the accounts of the 1st Respondent for the period beginning June 1995 to the date of this order, and to report to this Honourable Court of the results of the inspection. 3 3. On appeal, the Respondents’ appeal was allowed with costs. The orders of the High Court judge were set aside. Questions of Law 4. This Court had granted the Petitioner leave to appeal on 21.6.2016 on the following questions of law: i. Whether in the circumstances of this case, the Applicant’s only remedy lay in a derivative action in the name of the 1st Respondent Company to the exclusion of any remedy for minority oppression under section 181 of the Companies Act? ii. Whether in the circumstances of this case, the reflective loss principle had any application? Background Facts 5. (1) The Petitioner [“Rinota Construction Sdn Bhd”] and the 2nd Respondent [“Mascon Sdn Bhd”] had in early 1995 agreed to carry out construction business through a joint-venture company, the 1st Respondent (Mascon Rinota Sdn Bhd) [“the Company”]. 4 (2) The Petitioner and the 2nd Respondent contributed RM200,000 and RM300,000 respectively to the issued and paid-up capital of the Company. (3) There was however no written “Shareholders Agreement” or “Joint Venture Agreemet”' entered into by the parties. Accordingly the relationship between the shareholders inter se and the operations of the Company were solely dictated by the Company Memorandum and Articles of Association. (4) The 2nd Respondent is a subsidiary of the 3rd Respondent [“Olympia Industries Bhd”]. The 3rd Respondent holds 71% of the equity of the 2nd Respondent. The controlling shareholders of the 3rd Respondent are the 4th Respondent [“Dato’ Yap Yong Seong, his son the 5th Respondent [“Yap Wee Keat”] and other family members. (5) The 3rd Respondent has other wholly owned subsidiaries that is Jupiter Securities Sdn. Bhd. (Jupiter), Olympia Leisure Sdn. Bhd. (Olympia Leisure) and Olympia Land Berhad (Olympia Land). The 6th Respondent [“Mascon Construction Sdn Bhd”] is a wholly owned subsidiary of the 2nd Respondent. (6) At all material times the 2nd Respondent remains as the controlling shareholder of the Company. The particulars of the Board of Directors of the Company are as follows: (a) The 5th Respondent (nominated by the 2nd Respondent); 5 (b) Ng Chee Hua (nominated by the 2nd Respondent); (c) Ng Poh Hwa (nominated by the 2nd Respondent); (d) Richard Tankersley (nominated by the Petitioner); and (e) Lau Luen Wah (nominated by the Petitioner). (7) Sometime in 1995, Ng Kwee Ying (f) replaced Lau Luen Wah as the Petitioner's second nominee on the Board of the Company. Subsequently Ng Chee Hua and Ng Poh Hwa both resigned from the board on 1st July 1996, and were replaced by Yeoh Sek Phin as a Director nominated by the 2nd Respondent. (8) The 5th Respondent resigned from the board on 6.9.1999. Richard Tankersley, Ng Kwee Ying and Yeoh Sek Phin remained as the Directors of the Company. (9) On 1.11.1995, Yeoh Sek Phin was appointed as Executive Director of the 2nd Respondent and also took over as Director in charge of the Company. Richard Tankersley is the Managing Director and controlling shareholder of the Petitioner. (10) It was agreed between the 5th Respondent and Richard Tankersley that the Company would be given the opportunity to carry out a minimum of five projects on a negotiated managing contractor cost plus basis to be provided by the Olympia group, namely: (i) Casa Lago Condominium project; 6 (ii) the Harbour Club project; (iii) the Hyatt Hotel (Malacca) project; (iv) two more proposed blocks of condominiums immediately adjacent to the Casa Lago project; and (v) a minimum of one tower block at Olympia's project site in Sentul, Kuala Lumpur. (11) It was also agreed that the Petitioner and Richard Tankersley would participate actively in the project. It was further agreed by the Parties that the 3rd Respondent would provide the budget for each project and that the contracts would be negotiated within the project budgets on a managing contractor cost plus basis. (12) In consideration of the aforesaid agreements, the Petitioner agreed to take a minority stake in the Company. The Parties agreed that from the commencement of the business of the Company, Richard Tankersley would initially act as the Director supervising the Project Manager. The 2nd Respondent would be in charge of the administration and finance of the Company. (13) On the basis of the above understandings, the Company was duly incorporated. (14) In 1995, the Casa Lago and the Harbour Club projects was awarded to the Company by Olympia Land Berhad (OLB). The said development was completed in December 1996. The Final 7 Accounts related to the two said projects for OLB were signed of in January 1999. (15) The main complaint raised by the Petitioner could be summarised as follows: i) The non-award of further “negotiated construction contracts” allegedly expected by the Company, and ii) Those financial or accounting discrepancies which arguably meant that the Audited Annual Accounts of the Company as drawn up did not reflect the true value of or the proper financial state of the Company. (16) In 2006, the Petitioner filed a section 181 Petition. The Petitioner’s cause of action alleges oppression by the majority shareholders of the minority shareholders’ interest. The Petitioner sought the following reliefs: i) An order that the 2nd to 7th Respondents do jointly and severally purchase the shares owned by the Petitioner in the Company at such price and terms determined by the Court; after making all necessary adjustments to the accounts of the Company to compensate for the acts and oppression of the Respondents; (ii) An order that the 2nd and 4th Respondents pay, or cause its subsidiaries or associated companies to pay the 1st Respondent all debts owed to it by the 2nd and 4th 8 Respondents or its subsidiaries or associated companies in connection to the lease agreement and loans extended to the undisclosed "fellow subsidiaries"; and (iii) An order that a certified public accountant be appointed to inspect the accounts of the 1st Respondent for the period beginning June 1995 to the date of this order, and to report to the Court of the results of the inspection. Proceedings in the High Court 6. The learned High Court Judge allowed the Petitioner’s section 181 Petition. In Her Ladyship’s judgment she alluded that the acts of the respective Respondents have unfairly discriminated and are prejudicial to the Petitioner as a member and shareholder of the Company. The affairs of the Company were conducted in an oppressive manner adversely affecting the financial interest of the Petitioner. 7. The learned High Court Judge accepted the Petitioner's version of the oppressive conduct as the reasonable, credible and probable version, on the ground that it is cogently supported by both oral and documentary evidence. Her Ladyship found that the evidence adduced for the Respondents were self-destructive and clearly contradicts their own contemporaneous documents and oral evidence. 9 8. The learned High Court Judge found the following to be oppressive conduct, namely: a. Olympia Group/2ndRespondent taking over the 1st Respondent’s (“the Company”) construction equipment and using it in their own projects without paying commercial rental to the Company; b. unauthorized disposal of the principle assets of the Company without consent or knowledge of the Petitioner or its directors on the Company’s Board; c. the accounting treatment of the construction equipment whereby the 2nd Respondent claimed beneficial ownership of the whole of the same by virtue of having paid the third to fifth years of the lease instalments (roughly 3/5th of same, the remaining 2/5th having been paid by the Company); while at the same time debiting back to the Company (without the knowledge of the Petitioner) all these instalment payments without giving credit in the form of commercial rental for the use by the 2nd Respondent of the equipment and thereby putting the Company into what appears to be a heavily insolvent position; d. discrimination in charging of interest on moneys owing by the Company to the 2nd Respondent (including the instalment payments) while no interest was claimed on behalf of the Company for moneys owing to it by other subsidiaries; 10 e. completely ignoring all the Petitioner’s legitimate complaints; f. the accounting treatment of the Company whereby debit notes were continuously raised by the 2nd Respondent against the Company without the knowledge of the Petitioner or their representatives in the Board of the Company and without any independent acknowledgment for or on behalf of the Company ; g. using their control over the Company as contractor and Olympia Land Bhd as employer in respect of the contracts for the Casa Lago and Harbour Club projects to deprive the Company of cash flow to which they were entitled; h. disregard by the controllers of the Company of the agreement and/or understanding arising from the discussions which led to the formation of the Company and disregard of the legitimate expectations of the Petitioner arising from the same; and i. having formed the Company as a subsidiary of the 2nd Respondent operating in the same class of business, failing in its obligation to deal fairly with the Company and in adopting a policy of leaving the Company to die. 11 Proceedings in the Court of Appeal 9. Aggrieved by the High Court decision the Respondents appealed to the Court of Appeal. The Court of Appeal allowed the Respondents’ appeal. 10. The issues which arose before the Court of Appeal were: (i) whether the given facts amounted to 'oppressive acts' or 'conduct in disregard' to the Petitioner's interest such as would be sufficient to warrant the granting of any relief under s. 181 of the Companies Act 1965; and (ii) Whether the existence of those facts ipso facto meant that the remedies under s. 181 Companies Act 1965 should be granted to the Petitioner as was done by the High Court. 11. The Court of Appeal found that there was no legal or sustainable basis for the exercise of the court's discretion under s. 181 of the Companies Act, to allow the Petition and make the orders for a reassessment of the company's financial records/state and thereafter for a buyout of the Petitioner's shares in the company by the 2nd, 4th, 5th, 6th, and 7th Respondents. The Court of Appeal inter alia held that: i. The question of delay in filing the Petition was of paramount importance in any consideration of the exercise of the court's discretion under s. 181 of the Companies Act. Herein, this Petition was only filed in 2006, i.e. ten years after those javascript:DispAct=window.open('/Members/DisplayAct.aspx?CaseActCode=MY_FS_ACT_1973_125&ActSectionNo=181.&SearchId=2hakim2','_DisplayAct','');DispAct.focus() javascript:DispAct=window.open('/Members/DisplayAct.aspx?CaseActCode=MY_FS_ACT_1973_125&ActSectionNo=181.&SearchId=2hakim2','_DisplayAct','');DispAct.focus() javascript:DispAct=window.open('/Members/DisplayAct.aspx?CaseActCode=MY_FS_ACT_1973_125&ActSectionNo=181.&SearchId=2hakim2','_DisplayAct','');DispAct.focus() javascript:DispAct=window.open('/Members/DisplayAct.aspx?CaseActCode=MY_FS_ACT_1973_125&ActSectionNo=181.&SearchId=2hakim2','_DisplayAct','');DispAct.focus() javascript:DispAct=window.open('/Members/DisplayAct.aspx?CaseActCode=MY_FS_ACT_1973_125&ActSectionNo=181.&SearchId=2hakim2','_DisplayAct','');DispAct.focus() javascript:DispAct=window.open('/Members/DisplayAct.aspx?CaseActCode=MY_FS_ACT_1973_125&ActSectionNo=181.&SearchId=2hakim2','_DisplayAct','');DispAct.focus() 12 matters complained of had first occurred. Acting without expediency to protect or further one's rights when an alleged breach or violation of such right arose amounted to acquiescence, meaning acceptance or consent to that situation. The court should deny relief to an interested party who had sat on his rights and accepted tacitly such practices or decisions adopted by a company in its business affairs over time, but who now wished to advance matters related to or arising therefrom as a grievance for relief under s. 181 of the Companies Act. [See page 11 of the Court of Appeal Grounds of Judgment]. ii. The Petitioner qua shareholder of the company was seeking for a buyout of the Petitioner's shares by, not just the 2nd Respondent, but others who were not members of the company. It was trite that relief to be allowed under s. 181 of the Companies Act was discretionary to be determined by the court upon equitable principles, inclusive of the conduct of the parties taken in its totality. The Petitioner here was also restricting the relief that was being sought to a forced buyout of their shares in the company which, admittedly for all intents and purposes, was a dormant entity as at the date the Petition was filed. [See pages 11 & 12 of the Court of Appeal Grounds of Judgment]. iii. There is a well-established principle in corporate law that bars a shareholder from directly bringing or relying on javascript:DispAct=window.open('/Members/DisplayAct.aspx?CaseActCode=MY_FS_ACT_1973_125&ActSectionNo=181.&SearchId=2hakim2','_DisplayAct','');DispAct.focus() javascript:DispAct=window.open('/Members/DisplayAct.aspx?CaseActCode=MY_FS_ACT_1973_125&ActSectionNo=181.&SearchId=2hakim2','_DisplayAct','');DispAct.focus() javascript:DispAct=window.open('/Members/DisplayAct.aspx?CaseActCode=MY_FS_ACT_1973_125&ActSectionNo=181.&SearchId=2hakim2','_DisplayAct','');DispAct.focus() javascript:DispAct=window.open('/Members/DisplayAct.aspx?CaseActCode=MY_FS_ACT_1973_125&ActSectionNo=181.&SearchId=2hakim2','_DisplayAct','');DispAct.focus() 13 'losses' of the company to seek relief for himself unless by way of derivative action. This was known as the 'reflective loss principle'. The principle applied where the shareholder's alleged loss was merely a reflection of the company's loss, such as where the shareholder's loss was a diminution in the value of his shares as a result of those alleged wrong to the company. In such situations, recovery by the shareholder of the loss he suffered was precluded, as this would mean making the wrongdoer liable for the same wrong twice over. [See pages 17 & 18 of the Court of Appeal Grounds of Judgment] iv. The recourses available to the Petitioner having such complaints (of loss caused to the company) was by way of derivative action brought under s. 181A of the Companies Act to recover first monies due to the company and/or effect appropriate corrections to the company's financial statements. Another avenue that was open to the Petitioner was to go for outright winding up of the company on just and equitable grounds. In the latter event, the liquidator is empowered to examine the company's account, investigate wrong doings, rectify errors in accounting and even bring needful proceedings against those that had caused the 'losses' to the company (ss. 300, 303, 304, 305 and 306 of the Companies Act) including recovery action against delinquent officers or shareholders of the company. [See page 20 of the Court of Appeal Grounds of Judgment]. javascript:DispAct=window.open('/Members/DisplayAct.aspx?CaseActCode=MY_FS_ACT_1973_125&ActSectionNo=181A.&SearchId=2hakim2','_DisplayAct','');DispAct.focus() javascript:DispAct=window.open('/Members/DisplayAct.aspx?CaseActCode=MY_FS_ACT_1973_125&ActSectionNo=181A.&SearchId=2hakim2','_DisplayAct','');DispAct.focus() javascript:DispAct=window.open('/Members/DisplayAct.aspx?CaseActCode=MY_FS_ACT_1973_125&ActSectionNo=300.&SearchId=2hakim2','_DisplayAct','');DispAct.focus() javascript:DispAct=window.open('/Members/DisplayAct.aspx?CaseActCode=MY_FS_ACT_1973_125&ActSectionNo=303.&SearchId=2hakim2','_DisplayAct','');DispAct.focus() javascript:DispAct=window.open('/Members/DisplayAct.aspx?CaseActCode=MY_FS_ACT_1973_125&ActSectionNo=304.&SearchId=2hakim2','_DisplayAct','');DispAct.focus() javascript:DispAct=window.open('/Members/DisplayAct.aspx?CaseActCode=MY_FS_ACT_1973_125&ActSectionNo=305.&SearchId=2hakim2','_DisplayAct','');DispAct.focus() javascript:DispAct=window.open('/Members/DisplayAct.aspx?CaseActCode=MY_FS_ACT_1973_125&ActSectionNo=306.&SearchId=2hakim2','_DisplayAct','');DispAct.focus() javascript:DispAct=window.open('/Members/DisplayAct.aspx?CaseActCode=MY_FS_ACT_1973_125&ActSectionNo=306.&SearchId=2hakim2','_DisplayAct','');DispAct.focus() 14 Decision of this Court 12. At the outset we would like to state that it is quite clear from the Court of Appeal’s Grounds of Judgment that the Court of Appeal made no attempt to scrutinize the findings of fact made by the High Court Judge. The Court of Appeal failed to carry out the required analysis and the test laid down by established principles and case authorities as being necessary before a Court of Appeal as an appellate court can reverse the findings of fact of a High Court Judge who had the benefit of hearing the oral testimony of the witnesses. [See the case of Gan Yook Chin v. Lee Ing Chai (2005) 2 MLJ 1]. On the contrary the Court of Appeal’s Judges in the present case were contented to rely on the delay point and the derivative action point which in their view made it unnecessary to go any further. 13. We are of the view since the Court of Appeal was moved to intervene basically only on the two grounds and in the absence of any attempt by the Court of Appeal to critically analyse and then overrule the High Court Judge’s findings of fact, we take the position that there is no burden on the Petitioner to reopen and justify these findings. It is our considered view that the Court of Appeal had wrongly applied their powers of appellate intervention in reversing the finding of facts of the High Court. In the circumstances we will deal with only the two issues of the delay point and the derivative action point as raised and dealt with by the Court of Appeal. 15 The Delay Point 14. We are of the view the Court of Appeal have wrongly held that there was acquiescence as well as delay by the Petitioner in bringing the Petition where there was no evidence of acquiescence and where the evidence showed that the Petitioner had persistently pursued its claims and received no answers from the Respondents. 15. It is also to be noted that this issue of delay was never raised in the affidavits or submissions of parties until after the completion of the trial. The issue was also never put in cross-examination to the Petitioner’s witness by the Respondents. In fact the Petitioner’s main witness, Mr. Richard Tankersley had written a total of 10 letters to the Respondents setting out in detail the substance of his complaints and these covered the entire period from 18.12.1997 to 30.3.2005. These letters showed clearly and positively that there was never any acquiescence. A reply from the Respondents to the Petitioner on the complaints made was merely for the Petitioner to be patient and wait while they look into the complaints. 16. It is our considered view that the minority oppression petition is an equitable remedy and equitable defences as distinguished from legal defences have to be considered. Mere delay without acquiescence is not a defence in equity. [See the case of Fitzerald v. Masters (1956) 5 CLR 420 at 433]. 16 17. It is always a question of fact in each case whether inferences can be drawn of release or waiver of the claim. On the evidence in the present case, it is clear that there was never any conduct of the Petitioner which could amount to waiver. There is positive evidence that there was no waiver or acquiescence. The Derivative Action Point 18. We shall now deal with the derivative action point. The derivative action and the minority oppression petition are not mutually exclusive and there may be circumstances which give rise to both a derivative action and an oppression proceeding, but they remain distinct remedies with separate rationales and statutory functions. [See the case of Kok Jui Hiong v. Kit Tak Sang (2014) 2 CLJ 401]. 19. The essential difference between the derivative action and the minority oppression petition is that: (a) a minority oppression petition deals with action by the minority shareholder of a company against the majority controllers where the company cannot be the petitioner and is only a nominal defendant; (b) by contrast a derivative action is brought by a minority shareholder for and on behalf of the company to deal with wrongs done to the company and for the benefit of the company e.g. to recover for the company assets which may have been unlawfully siphoned off from the company. 17 20. The Petitioner’s claims in this petition relate to the oppressive conduct of the Respondents who have benefitted as the majority shareholder to the detriment of the Petitioner as the minority shareholder. We agree with the submission of learned counsel for the Petitioner that the claims have all the hallmarks of a minority oppression petition and none of the hallmarks of a derivative action for the following reasons: (a) The wrongful conduct in this case does not affect all the shareholders equally. They benefit the majority shareholder and its affiliates at the expense of the minority shareholder; (b) In a derivative action, the relief is sought on behalf of a company for the benefit of that company e.g. to return to that company funds misappropriated by third parties. This is not the case here where the Petitioner is seeking compensation for assets misappropriated by the majority shareholders. (c) There is a personal element i.e. the Petitioner’s personal interest as minority shareholder is uniquely and directly affected by the alleged wrongful conduct. (d) A derivative action would serve no purpose for the Petitioner since it could only seek to restore benefits to the joint venture company. 21. On the “reflective loss” principle as raised by the Court of Appeal in their Judgment we are of the view that this principle can 18 have no application to this case where there is no claim by the Company. The reflective loss principle only applies when a company suffers loss caused by the breach of duty owed both to the Company and the shareholder. On this point in the case of Johnson v. Gore Wood & Co. [2002] 2 AC 1 at page 62 it had this to say: “In such a case the shareholders loss, in so far as this is measured by the diminution in value of his shareholding or the loss of dividends merely reflects the loss suffered by the company in respect of which the company has its own cause of action. If the shareholder is allowed to recover in respect of such loss, then either there will be double recovery at the expense of the defendant or the shareholder will recover at the expense of the Company and its creditors and other shareholders. Neither course can be permitted.” 22. We are also of the view that the “reflective loss” principle has absolutely no application in a minority oppression petition where the diminution in value of the minority share can be attributed as in this case to the oppressive conduct of the majority shareholders and its affiliates. The loss is not a loss in respect of which the 1st Respondent’s company has a claim of its own and there is no question of double recovery. Conclusion 23. For the reasons abovestated we allow this appeal by the Petitioner with costs here and below. We answer both the Questions posed in this Appeal in the negative. The decision and orders of the 19 Court of Appeal are hereby set aside. We affirm the decision of the High Court and orders made by the High Court are restored. Deposit is to be refunded to the Petitioner. (ZULKEFLI BIN AHMAD MAKINUDIN) President Court of Appeal Dated: 9th November 2017 Counsel for the Appellant Dato’ WSW Davidson, Karen Ng Yueh Ying and Kenny Chan Yew Hoong Solicitors for the Appellant Messrs. Azman Davidson & Co. Counsel for the Respondents Porres Royan and Prem Ramachandran Solicitors for the Respondents Messrs. Kumar Partnership

Tika 2.6.0

WA-28NCC-334-06/2017

PLAINTIF Cheah Chin Kean DEFENDAN True Fitness World Sdn Bhd

09/11/2017

YA DATUK LAU BEE LAN

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=51376f34-9cdc-43c4-babc-c5a914c3155b&Inline=true

DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR (BAHAGIAN DAGANG) PENGGULUNGAN SYARIKAT NO: WA-28NCC-334-06/2017 Dalam perkara mengenai True Fitness World Sdn Bhd (No. Syarikat: 713263-U) Dan Dalam perkara Seksyen 465(1)(e) dan 466(1)(a) Akta Syarikat 2016 Antara CHEAH CHIN KEAN … PEMPETISYEN (No. K/P: 681206-08-5203) Dan TRUE FITNESS WORLD SDN. BHD. … RESPONDEN (No. Syarikat: 713263-U) Dan 1. SEIK YEAN YOUNG (No. K/P: 870730-60-5036) 2. LEE KWAI SENG (No. K/P: 860628-43-6838) 3. HO WAI YIN (No. K/P: 860327-56-5696) 4. MOH LAI JING (No. K/P: 680114-06-5171) 5. ABBY TAN BOON YEE (No. K/P: 811004-01-6376) 6. ALAN BASIL PETER (No. K/P: 810114-14-6089) 7. ANURATHA RAMANAIDU (No. K/P: 770518-08-7288) 8. BEH TUCK WOOI (No. K/P: 720924-07-5383 9. CHANDRA MOHGAN A/L G DEMUDU (No. K/P: 700403-08-5959) 10. CHEAH WENG KEAT (No. K/P: 790803-06-5481) 11. CHEE SHOO KEONG (No. K/P: 571228-08-5565) 12. CHEN CHEW HAR (No. K/P: 740902-14-5764) 13. CHEN FOOK YEIN (No. K/P: 811213-12-5181) 14. CHEW WAI HOE (No. K/P: 830526-14-5275) 15. CHIA SIN LIY (No. K/P: 810623-06-5404) 16. CHIA TIANG KIANG (No. K/P: 731009-14-5273) 17. CHONG PEI NEE (No. K/P: 731013-14-5292) 18. CHOO WEE LING (No. K/P: 770522-14-5532) 19. CHOW WAI FOO (No. K/P: 791210-06-5325 ) 19. CHOW WAI FOO (No. K/P: 791210-06-5325 ) 20. CHOY CHEE KHONG (No. K/P: 840920-05-5285) 21. CORNELIA TAY SUET CHENG (No. K/P: 690710-10-5706) 22. DENNIS YEOH GWAN JIN (No. K/P: 730215105403) 23. EDMOND LIM GIN SHENG (No. K/P: 821006-08-5411) 24. EDMUND WONG CHEE MUN (No. K/P: 861117-56-6193) 25. EE CHEE WAN (No. K/P: 790512-01-6057) 26. NG JING YI (No. K/P: 850529-02-5605) 27. FONG SOON WAI (No. K/P: 811031-14-6395) 28. FOO PUI SAN TAMMIE (No. K/P: 920604-10-6036) 29. FOONG YEE CHING (No. K/P: 900722-10-5298) 30. GOH YIN LIN (No. K/P: 890420-01-5792) 31. HIA NGEE YEOW (No. K/P: 720403-14-5091) 32. HOH YEAN MUN (No. K/P: 690227-10-6012) 33. HOO HUI NGOH (No. K/P: 740809-08-5090) 34. HOO SZE YEN (No. K/P: 790708-14-5342) 35. KEITH YEW SZE HAM (No. K/P: 780411-05-5365) 36. KHOR JIE QI (No. K/P: 940322-14-6396) 37. KHOR JIE YI (No. K/P: 920428-14-5334) 38. KIRAN KAUR A/P JOGINDAR SINGH (No. K/P: 580925-07-5180 ) 39. KOAY HOOI LIN (No. K/P: 640605-07-5466) 40. KOH BOON WEI (No. K/P: 850924-01-5407) 41. KOON WEI LEONG (No. K/P: 850121-14-5785) 42. KU WAI FOONG (No. K/P: 850205-14-5491) 43. LAI PUI KHEONG (No. K/P: 730331-10-5291) 44. LEE KIT SENG (No. K/P: 761211-14-5645) 45. LEE WAT NGO (No. K/P: 620910-10-5766) 46. LEE YEK PENG (No. K/P: 851121-14-5201) 47. LEE YI TIAN (No. K/P: 901008-05-5486) 48. LEE YOKE CHIN (No. K/P: 660227-10-6656) 49. LEUK KENG MING (No. K/P: 860616-38-6547) 50. LIAN THNG KAIH (No. K/P: 790917-14-5471) 51. LIEW CHIAN KEONG (No. K/P: 770804-14-5215) 52. LIEW CHIN DWO (No. K/P: 780312-08-5665) 53. LIEW SOON FATT (No. K/P: 821205-14-5501) 54. LIM CHER (No. K/P: 630702-01-5984) 55. LIM FONG NYEE (No. K/P: 781115-14-5336) 56. LIM PHAN YUEN (No. K/P: 840730-14-5191) 57. 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ONG HOW BENG (No. K/P: 691118-08-5659) 79. PAUL WONG YEE KEONG (No. K/P: 7230418-10-5729)(sic) 80. PHANG KOK WENG (No. K/P: 820104-08-5437) 81. PHILIP SOON WEI-JUN (No. K/P: 851004-10-5455) 82. PHYLICIA YEO YEE SIEN (No. K/P: 860122-14-5540) 83. QUAH SEAN HUAY (No. K/P: 810609-10-5780) 84. QUAH WAN ER (No. K/P: 840422-10-5884) 85. QUAH WAN THENG (No. K/P: 860501-43-6284) 86. REUBEN PAUL (No. K/P: 720731-14-5445) 87. RICHARD BOAK (No. K/P: 710208-10-5239) 88. ROHANI BINTI HASHIM (No. K/P: 670103-11-5074) 89. SEE AI LING (No. K/P: 740421-14-5632) 90. SEK MAY LING (No. K/P: 630312-10-7410) 91. SELVARAJA A/L MURUGESU (No. K/P: 550422-10-6529) 92. SEM YONG HAO (No. K/P: 960531-56-5261) 93. SIAU CHO DIONG (No. K/P: 631113-08-6009) 94. SIVAKUMAR PARAURAMAN (No. K/P: 790812-06-5635) 95. SOONG CHEE HOE (No. K/P: 720303-08-5415) 96. SUTHICHANA THARMAPALAN (No. K/P: 740312-14-5158 ) 97. SWAN SIEW FONG (No. K/P: 671024-10-6334) 98. TAI YOKE CHENG (No. K/P: 670208-08-5828) 99. TAN AI SIM (No. K/P: 660314-05-5324) 100. TAN CHOON YIT (No. K/P: 841009-08-6063) 101. TAN KAM LIN (No. K/P: 630911-08-6236) 102. TAN KIM FONG (No. K/P: 570804-08-5666) 103. TAN KUANG MING (No. K/P: 840322-14-5547) 104. TAN SIU NI (No. K/P: 880801-56-5326) 105. TAN TING SIN (No. K/P: 790809-07-5197) 106. TAN XIN NING (No. K/P: 900724-10-5574) 107. TAN YOKE SIM (No. K/P: 631209-08-5246) 108. TAY BEE HOON (No. K/P: 621027-07-5988) 109. TEOH PIT YIN (No. K/P: 751130-07-5367) 110. THAM CHUAN SIONG (No. K/P: 830314-10-5175) 111. THOO MEE LEE (No. K/P: 591019-03-5260) 112. TOMOKO MATSUI (No. Paspot: TZ0764239) 113. TRACY CHAN YEE LI (No. K/P: 770914-14-5654) 114. WONG CHOON EE (No. K/P: 771004-08-6071) 115. WONG CHUAN MEIN (No. K/P: 830401-10-5165) 116. WONG JAY KIE (No. K/P: 851117-14-5496) 117. WONG MOOI LEE (No. K/P: 740827-09-5022) 118. WONG TEE FATT (No. K/P: 751105-11-5275) 119. WOO BEE TING (No. K/P: 780912-14-5828) 120. WU CHEE KEONG (No. K/P: 650118-10-6957) 121. YAP POH LIN (No. K/P: 800101-08-6348) 122. YAU SUN FONG (No. K/P: 570611-05-5110) 123. YEE BEE LING (No. K/P: 631001-02-5594) 124. YEE PIK NGAN (No. K/P: 800228-14-5392) 125. YEE YOKE LIN (No. K/P: 640606-10-7490) 126. YEOH AIK CHEONG (No. K/P: 720703-07-5371) 127. YEOW CHEW SEONG (No. K/P: 630927-04-5332) 128. YIO LIM CHOONG (No. K/P: 860215-56-5181) 129. YONG MUI YUEN (No. K/P: 781010-14-5946) 130. YONG WEI CHEONG (No. K/P: 780605-14-5967) 131. ABDUL HADI BIN ABDUL MANAF (No. K/P: 900310-04-5321) 132. ANG YEE SHIN (No. K/P: 930421-07-5328) 133. CHAI HOOI JETT (No. K/P: 911003-14-5916) 134. CHAN FUN SHIN (No. K/P: 850627-05-5381) 135. CHEAH TEIK CHUAN (No. K/P: 841106-14-5133) 136. CHEAH YEE YANG (No. K/P: 900927-10-5785) 137. CHEE MEI LIN (No. K/P: 650318-04-5124) 138. CHEN CHEE MOON (No. K/P: 860419-43-5215) 139. CHEN TZE HUAYU (No. K/P: 860617-43-6120) 140. CHEONG PIK YIN (No. K/P: 900516-05-5305) 141. CHEW LI SA (No. K/P: 690824-01-5004) 142. `CHEW PING KEE (No. K/P: 860825-35-5560) 143. CHIA WEI HAW (No. K/P: 940814-14-6501) 144. CHIN ZE WEI (No. K/P: 890125-14-6167) 145. CHONG HOONG SERN (No. K/P: 880924-14-5081) 146. CHONG LAI PING (No. K/P: 680819-08-5762) 147. CHONG TONG SEONG (No. K/P: 461006-10-5199) 148. CHOO SLIM MEI (No. K/P: 881026-35-5612 ) 149. CHOO SOOK LING (No. K/P: 910421-14-5164) 150. CHOONG WAI KIT (No. K/P: 801130-08-5111) 151. CHOY WAI HUN (No. K/P: 710527-10-5359) 152. CHRISTINE LOY SOK CHING (No. K/P: 930319-07-6076) 153. CHUA YIH CHING (No. K/P: 820918-07-5078) 154. DAVID LOH JIAN WEI (No. K/P: 911231-10-5465 ) 155. DAVID TNEH CHENG ENG (No. K/P: 780825-07-5331) 156. DESMOND TAN CHIAM WEI (No. K/P: 851203-07-5869) 157. DHAMAYANTI A/P REGUNATHAN (No. K/P: 791209-14-5424) 158. DINESHWARAN A/L UMAKANTHAN (No. K/P: 810501-07-5073) 159. EE MENG SHI (No. K/P: 871224-06-5959) 160. ELIZABETH TAY (No. K/P: 670816-10-5562) 161. TAN LAY LAY (No. K/P: 800318-14-5070) 162. EOW WAI YEN (No. K/P: 860517-10-5125) 163. FAM YOKE LING (No. K/P: 710927-10-5366) 164. FAZIL AHMAD BIN TAUIDDIN (No. K/P: 820706-14-6225) 165. HENG FOONG YI @ WENDY (No. K/P: 660716-10-6454) 166. HEW CHUNG KEAT (No. K/P: 900816-10-5379) 167. HO CE-YI (No. K/P: 870125-10-5412) 168. HO CHING YI (No. K/P: 9910103-43-5230)(sic) 169. HO CHONG SIANG (No. K/P: 630707-08-5033) 170. HO YAN KANG (No. K/P: 01020-10-1463)(sic) 171. HUI YOONG SEONG (No. K/P: 820507-14-5991) 172. JAIKRISHEN SINGH A/L BHAGVINDER SINGH (No. K/P: 900208-14-6345) 173. JAIKRISHEN SINGH A/L BHAGVINDER SINGH (No. K/P: 900208-14-6345) menyaman bagi pihak MANDEV SINGH SOHAN (No. K/P: 020203-14-0897) 174. JAYNE TSUTSUMI @ CHEONG KIT BUNN (No. K/P: 670315-08-6260) 175. JOSEPHINE KOH YUNG AI (No. K/P: 650215-04-5316) 176. JULIAN OOI HOCK SENG (No. K/P: 670606-08-5487) 177. JUSTINE TAN MEI-ERN (No. K/P: 920210-14-6078) 178. K. SUNITA A/P T. VINAYAKA DAS (No. K/P: 760324-10-5426) 179. KOH POH LI (No. K/P: 771216-07-5892) 180. KOK SHWU JIUN (No. K/P: 860918-43-5682) 181. LAWRENCE ANDERSON BURLEY (No. Paspot: 537383077) 182. LEE CAI FOONG (No. K/P: 891126-10-5644) 183. LEE CHAI HOONG (No. K/P: 910205-10-5870) 184. LEE KHAI CHUN (No. K/P: 920129-10-5471) 185. LEE LAY NEE (No. K/P: 760322-03-5268) 186. LEE SIAO YEN (No. K/P: 640629-10-6570) 187. LEE SOOK FONG (No. K/P: 730309-06-5262) 188. LEE YEK PENG (No. K/P: 851121-14-5201) 189. LEONG EE MUN (No. K/P: 861225-43-6310) 190. LEONG HO FUN (No. K/P: 761202-08-5142) 191. LEONG MEI YEN (No. K/P: 840307-14-6488) 192. LI CHEE WAH (No. K/P: 910301-06-5995) 193. LIEW YIN WEI (No. K/P: 850214-08-6593) 194. LIM EE HARN (No. K/P: 941002-14-6914) 195. LIM GIAN SENG (No. K/P: 700110-10-5629) 196. LIM JIA HUI (No. K/P: 851206-14-6124) 197. LIM KEY YEE (No. K/P: 841207-10-5405) 198. LIM PUI MUN (No. K/P: 871113-35-5080) 199. LIM SZE YEUN (No. K/P: 870914-14-5812) 200. LIM YAU CHOY (No. K/P: 621227-06-5207) 201. LIM YOKE TOH (No. K/P: 670510-10-6036) 202. LIM YONG YAN (No. K/P: 860606-43-6387) 203. LING KUOK YONG (No. K/P: 880505-13-5081) 204. LIZA ROSEYLN KONG SIEW LING (No. K/P: 910930-14-5981) 205. LOH SIEW KHOUNG (No. K/P: 561211-07-5337) 206. LOO MENG FATT (No. K/P: 740915-14-5819) 207. LOW JIA SERN (No. K/P: 901216-04-5047) 208. LOW SOU FOONG (No. K/P: 750924-14-5748) 209. MAK PUI CHING (No. K/P: 840918-14-6444) 210. MICHAEL LIM CHUNG KEAT (No. K/P: 780822-07-5221) 211. MOHAMAD FAHMI BIN BASAR (No. K/P: 870328-52-5871) 212. MOHAMED EFTAL BIN MOHAMED EBRHAIM (No. K/P: 891229-14-6561) 213. MOHAMMAD NAJMI BIN MOHD NADZRI (No. K/P: 920221-14-6161) 214. MOHD MAZLAN BIN ABDUL RAZAK (No. K/P: 731013-01-6191) 215. NAH KAH HO (No. K/P: 900810-14-5505) 216. NAJWA BINTI MOHD NADZRI (No. K/P: 891118-14-6008) 217. NASHA BINTI MOHD NADZRI (No. K/P: 880619-87-5002) 218. NG SIAO CHI (No. K/P: 840412-14-6332) 219. NGU MEE KING (No. K/P: 651122-13-5528) menyaman bagi pihak TAY JIAN HUI (No. K/P: 010117-10-1147) 220. ONG BEAK TEIK (No. K/P: 650924-02-5369) 221. ONPIMOL BORIWAN (No. Paspot: AA493056) 222. OOI CHIEW BEE (No. K/P: 91094-10-5210) 223. OOI CHIEW EAN (No. K/P: 841228-07-5030) 224. PHANG KOK NENG (No. K/P: 820104-08-5437) 225. PHUAH SIEW KEAM (No. K/P: 630129-10-7578) 226. PHUNG HON KEAT (No. K/P: 910930-14-5891) 227. PUAN JIA HUI (No. K/P: 910901-91-5017 228. QUAH MIN SEE (No. K/P: 870706-14-6124) 229. QUAH MUI LENG (No. K/P: 730109-10-5012) 230. RAMES A/L SIVAPATHAM (No. K/P: 700726-08-6497) 231. RENUKA KUNATHEVAN (No. K/P: 770118-10-5280) 232. ROZARIO AUGUSTIN LAURENCE (No. K/P: 4611118-10-5505) 233. SEE WAI LIK (No. K/P: 901130-14-6779) 234. SEOW JOANNE (No. K/P: 991015-07-5436) 235. SEOW LAI HUAT (No. K/P: 620909-07-5459) 236. SUDESH A/L PRABHAKARAN (No. K/P: 800610-01-6064) 237. TAN AI SIM (No. K/P: 660314-05-5324) 238. TAN AY YONG (No. K/P: 731219-01-5813) 239. TAN CHIN KWEE (No. K/P: 711018-10-5275) 240. TAN ECHUN (No. K/P: 900130-01-6726) 241. TAN GEOK THIN (No. K/P: 840329-12-5020) 242. TAN NAM HONG (No. K/P: 570927-08-6407) 243. TAN PEI LI (No. K/P: 651107-06-5066) 244. TAN RICHARD (No. K/P: 840708-05-5173) 245. TAN SIAU WEI (No. K/P: 900328-12-5928) 246. TAN SIEW KUAN (No. K/P: 840328-08-5290 ) 247. TAN SIEW PENG (No. K/P: 670907-07-5004) 248. TAN WEI WANG (No. K/P: 880924-04-5531) 249. TAN YAW HAN (No. K/P: 850120-10-5263 ) 250. TANG EE THONG (No. K/P: 860912-56-5152) 251. TANG YEE LENG (No. K/P: 671222-08-5052) 252. TASHA LAI SOOK YEE (No. K/P: 921215-10-6176) 253. TAY SZE YANG (No. K/P: 931108-66-5035) 254. TEE CHOON PEI (No. K/P: 840121-01-6126) 255. TEE WEI JUN (No. K/P: 860720-59-5007 ) 256. TEE WEI LUN (No. K/P: 830901-05-5379 ) 257. TEH KOK WEI (No. K/P: 820622-14-5735 ) 258. TEOH PING WAI (No. K/P: 721112-08-5310) 259. TERRY DIONY (No. K/P: 710620-12-5450 ) 260. THINESSHWARY A/P YOGARAJAH (No. K/P: 891224-07-5514) 261. TOH HUI XING (No. K/P: 930105-04-5100) 262. UNGKU NAZLI BINTI UNGKU ISMAIL (No. K/P: 701017-71-5160) 263. UVANESAN KATHIRAVELU (No. K/P: 860911-43-7669 ) 264. VENESE CHANG WAI YEE (No. K/P: 860820-38-5234) 265. VIMALA DEVI NAIDU A/P SADASIVAN (No. K/P: 811113-01-6148) 266. VISHNU A/L GOVINDASAMY (No. K/P: 800117-01-6475) 267. WILSON LIEW YEONG (No. K/P: 901207-07-5025) 268. WONG AN JIE (No. K/P: 890127-14-5117) 269. WONG KEAN YIP (No. K/P: 901207-07-5025) 270. WONG LEE YUNG (No. K/P: 830824-14-5476) 271. WOON HOOI YIN (No. K/P: 9201016-14-5868) 272. WOON YEN YEN (No. K/P: 900522-10-5744) 273. YANG KUOH YEONG (No. K/P: 930804-05-5228) 274. YAP BEE LIN (No. K/P: 710820-10-5956) 275. YAP CHUI TENG (No. K/P: 861113-56-6110) 276. YAP JIAN HEUNG (No. K/P: 801228-12-5505) 277. YAP KWEI MOI (No. K/P: 790219-14-5298) 278. YAP LEE TENG (No. K/P: 881227-56-6264 279. YAP POH AIK (No. K/P: 870511-10-5699 ) 280. YAP SHOON YEE (No. K/P: 961021-10-5833) 281. YEAH HSING YEE (No. K/P: 900726-14-6273) 282. YEE WAI SEE (No. K/P: 910518-08-5532) 283. YEO KHENG GEE (No. K/P: 650228-04-5382) 284. YEOH CHEE CHUEN (No. K/P: 850420-08-5401) 285. YEW TUCK SENG (No. K/P: 741210-07-5077) 286. YONG HUI LING (No. K/P: 790710-06-5212) 287. YONG JEN SHIUN (No. K/P: 810622-14-5015) 288. YONG MUI YUEN (No. K/P: 781010-14-5946) 289. YONG SHIEW FHUI (No. K/P: 820709-14-5228) 290. YONG WEI CHEONG (No. K/P: 780605-14-5967) 291. YONG ZHI SHIUN (No. K/P: 941204-10-5491) 292. YUEN YOKE SIEW (No. K/P: 600226-08-5676) 293. ZIKRA BINTI ISMAIL (No. K/P: 791204-14-5628) 294. ALAN YEO (No. K/P: 760912-04-5167) 295. BALRAJ RAMANATHAN (No. K/P: 540227-07-5435) 296. BERNARD LIM SOO HAN (No. K/P: 720507-10-5203) 297. CHEAH POH YEN (No. K/P: 861014-14-5046) 298. CHEN FAWN KEONG (No. K/P: 730408-14-5081) 299. DING LIANG WONG (No. K/P: 451218-08-5063) 300. ELLEN HUI YUEN FONG (No. K/P: 681012-12-5246) 301. GAN LI YING (No. K/P: 730210-01-5580) 302. GUO YUAN YUAN (No. K/P: 751221-74-5012) 303. GURDIP KAUR A/P AMAR SINGH (No. K/P: 521114-10-5972) 304. HARITH MENON (No. K/P: 690914-10-5345) 305. HARITH MENON (No. K/P: 690914-10-5345) menyaman bagi pihak SHREYA MENON (No. K/P: 001126-66-0114) 306. INDYRANY A/P G. KANNAIYA (No. K/P: 600719-11-5212) 307. LEE HUI WAH (No. K/P: 731005-14-5612) 308. LIONG FUH CHANG (No. K/P: 830628-12-5013) 309. LOH KOK HOONG (No. K/P: 640602-06-5537) 310. LYNNDY LEE LI PING (No. K/P: 791017-04-5410) 311. MARCUS NG LOONG HONG (No. K/P: 841012-10-5157) 312. NG FAN HUA (No. K/P: 880330-02-5250) 313. PETER RAJ A/L ADAIKALAM (No. K/P: 680815-05-5195) 314. SANGEETHA A/P CHELLADORAI (No. K/P: 800917-07-5748) 315. SHEILA GAN YEEN LIANG (No. K/P: 850415-13-5304) 316. SHEILA RS NATHAN (No. K/P: 630301-10-8346) 317. SUGITHA A/P SELVARAJA SINGAM (No. K/P: 761207-05-5452) 318. TAN CHUN KEAT (No. K/P: 890508-07-5757) 319. TAN HONG JIE (No. K/P: 930905-10-5503) 320. THIVAKARAN A/L SIVARAMAN (No. K/P: 780720-06-5401) 321. VICTOR LIM FUNG TUANG (No. K/P: 720124-10-5177) 322. WAI SUE LENG (No. K/P: 840527-10-5100) 323. YONG JUNE FOOK (No. K/P: 741103-13-5249) 324. GIAM SZE SEONG MERVYN (No. K/P: 770607-14-5005) 325. LIM KEE HUAT … PEMOHON- (No. K/P: 670725-10-5313) PEMOHON DAN PENGGULUNGAN SYARIKAT NO: WA-28NCC-336-06/2017 Dalam perkara mengenai Truest Sdn Bhd (No. Syarikat: 711894-T) Dan Dalam perkara Seksyen 465(1)(e) dan 466(1)(a) Akta Syarikat 2016 Antara CHEAH CHIN KEAN … PEMPETISYEN (No. K/P: 681206-08-5203) Dan TRUEST SDN BHD … RESPONDEN (No. Syarikat: 711894-T) Dan SEIK YEAN YOUNG & 324 YANG LAIN … PEMOHON (No. K/P: 870730-60-5036) DAN PENGGULUNGAN SYARIKAT NO: WA-28NCC-338-06/2017 Dalam perkara mengenai True Yoga Sdn Bhd (No. Syarikat: 673491-K) Dan Dalam perkara Seksyen 465(1)(e) dan 466(1)(a) Akta Syarikat 2016 Antara CHEAH CHIN KEAN … PEMPETISYEN (No. K/P: 681206-08-5203) Dan TRUE YOGA SDN BHD … RESPONDEN (No. Syarikat: 673491-K) Dan SEIK YEAN YOUNG & 324 YANG LAIN … PEMOHON (No. K/P: 870730-60-5036) DAN PENGGULUNGAN SYARIKAT NO: WA-28NCC-342-06/2017 Dalam perkara mengenai Fitness Growth Sdn Bhd (No. Syarikat: 692832-X) Dan Dalam perkara Seksyen 465(1)(e) dan 466(1)(a) Akta Syarikat 2016 Antara CHEAH CHIN KEAN … PEMPETISYEN (No. K/P: 681206-08-5203) Dan FITNESS GROWTH SDN BHD … RESPONDEN (No. Syarikat: 692832-X) Dan SEIK YEAN YOUNG & 324 YANG LAIN … PEMOHON (No. K/P: 870730-60-5036) GROUNDS OF DECISION [1] There are altogether 4 Winding Up Petitions filed on 3/6/2017 before the Court: (i) WA-28NCC-334-06/2017, the Respondent company being True Fitness World Sdn Bhd (‘Petition 334’); (ii) WA-28NCC-336-06/2017, the Respondent company being Truest Sdn Bhd (‘Petition 336’); (iii) WA-28NCC-338-06/2017 the Respondent company being True Yoga Sdn Bhd (‘Petition 338’); and (iv) WA-28NCC-342-06/2017 the Respondent company being Fitness Growth Sdn Bhd (‘Petition 342’). [2] The Applicants have filed 2 Notice of Motions in Petition 334: (i) Encl.20 - the Applicants’ application pursuant to s.471 of the Companies Act 2016 (‘CA 2016’) and the inherent jurisdiction of the Court pursuant to O.92 r.4 of the Rules of Court 2012 (‘ROC 2012’); and (ii) Encl.10 - the Applicants’ application pursuant to ss.470(1), 502(1) and 502(3), 540(1) CA 2016 and the inherent jurisdiction of the Court pursuant to O.92 r.4 ROC 2012. [2.1] In encl.20 the Applicants prayed for - “1. Bahawa kebenaran nunc pro tunc diberikan kepada Pemohon-Pemohon di atas untuk memulakan prosiding undang-undang terhadap Responden sebagai salah satu Defendan dalam satu guaman Mahkamah Tinggi Shah Alam; 2. Bahawa kebenaran diberi untuk mana-mana ali-ahli gim Responden yang ingin memfailkan tindakan guaman terhadap Responden; 3. Kos permohonan ini dan kos-kos berkaitan dijadikan kos dalam kausa; dan 4. Sebarang perintah lain dan lanjut yang dianggap wajar dan adil oleh Mahkamah yang Mulia ini”. (‘S.471 application’) [2.2] In encl.10 the Applicants prayed for - “(a) Pemohon-Pemohon diberi kebenaran untuk memfailkan Permohonan ini; (b) Pemohon-Pemohon diberi kebenaran untuk memasuki tindakan ini sebagai pemiutang-pemiutang sah dan juga sebagai mewakili pemiutang-pemiutang sah yang lain; (c) Satu perintah penggantungan prosiding penggulungan Responden sementara menunggu pelupusan pendengaran Permohonan ini; (d) Satu perintah untuk mengarahkan kehadiran serta-merta Muhammad Redha Ahmad Bin Thaharuddin (No Kad Pengenalan: 571204-07-5469) (Pengarah), Patrick John Wee Ewe Seng (S1658841E) (Pengarah), Peter Joseph A/L Anthony Joseph Bennit (No Kad Pengenalan: 670627-04-5265) (Pengarah), Shikha Dutt A/P Delip Kumar Dutt (No Kad Pengenalan: 561205-05-5516) (Setiausaha), dan nama-nama lain yang berkaitan di Mahkamah bagi tujuan pemeriksaan di bawah seksyen 502(1) Akta Syarikat 2016 berkenaan penutupan mengejut gim-gim/cawangan-cawangan True Fitness di seluruh Malaysia tanpa notis-notis munasabah; (e) Satu perintah untuk mengarahkan kehadiran serta-merta Muhammad Redha Ahmad Bin Thaharuddin (No Kad Pengenalan: 571204-07-5469) (Pengarah), Patrick John Wee Ewe Seng (S1658841E) (Pengarah), Peter Joseph A/L Anthony Joseph Bennit (No Kad Pengenalan: 670627-04-5265) (Pengarah), Shikha Dutt A/P Delip Kumar Dutt (No Kad Pengenalan: 561205-05-5516) (Setiausaha), dan nama-nama lain yang berkaitan berserta dokumen-dokumen berkaitan di Mahkamah bagi tujuan pemeriksaan di bawah seksyen 502(3) Akta Syarikat 2016 berkenaan penutupan mengejut gim-gim/cawangan-cawangan True Fitness di seluruh Malaysia tanpa notis-notis munasabah; (f) Berikutan perintah pohonan di perenggan (d) dan (e) di atas, jika Mahkamah yang Mulia ini mendapati bahawa pihak-pihak berkenaan tidak dapat memberikan satu penjelasan yang munasabah, dipohon perintah di bawah seksyen 540(1) Akta Syarikat 2016 bahawa pihak-pihak berkenaan telah terlibat secara langsung atau tidak langsung dengan perdagangan penipuan (fraudulent trading) dengan niat untuk menipu kesemua ahli-ahli, pembekal-pembekal dan pekerja-pekerja True Fitness di Malaysia dan bahawa kesemua pihak-pihak yang dinamakan di perenggan (d) dan (e) di atas adalah bertanggungjawab secara kendiri dan tanpa batasan terhadap liabiliti bagi kesemua atau mana-mana hutang atau liabiliti-liabiliti Responden; (g) Jikalau perintah-perintah sepertimana di pohonan-pohonan di atas dibenarkan oleh Mahkamah yang Mulia ini, satu saranan (advice) dikeluarkan kepada Jabatan Peguam Negara dan Polis Diraja Malaysia untuk pihak-pihak sepertimana dinamakan di perenggan (d) dan (e) di atas dan nama-nama lain yang berkaitan dihadapkan untuk siasatan jenayah dijalankan; (h) Kos Permohonan ini dan kos-kos berkaitan ditanggung sepenuhnya oleh Responden; (i) Apa-apa perintah atau selanjutnya yang difikirkan patut dan sesuai oleh Mahkamah yang Mulia ini”. (‘Ss. 470(1), 502(1) and 502(3) and 540(1) application’) [3] The Applicants have filed identical corresponding Notice of Motions in the other 3 Petitions: (i) Petition 336- encl.15 and encl.12; (ii) Petition 338- encl.17 and encl.12; (iii) Petition 342- encl.19 and encl.12. [4] The hearing of the respective Notices of Motion in the respective Petitions proceeded on the basis of the Court hearing the submissions of the parties in respect of the 2 Notices of Motion in Petition 334 as the factual matrix and issues surrounding the other applications in the other 3 Petitions are identical as well. Background to the Notices of Motion [5] True Fitness World Sdn. Bhd. (‘True Fitness World’), Truest Sdn. Bhd. (‘Truest’), True Yoga Sdn. Bhd. (‘True Yoga’), Fitness Growth Sdn. Bhd. (‘Fitness Growth’), True Haven Sdn. Bhd. and True Fitness Sdn. Bhd. are a group of companies in Malaysia that runs a business operating gyms known as ‘True Fitness Group’ (‘TFG’) in Malaysia. TFG consist of the aforesaid 6 companies. [6] All 6 companies owned are by a holding company known as CJ Group Ltd, a Singaporean Company, whose director is Patrick John Ewe Seng (S1658841E) (‘Patrick John’) and one Cecilia Wee Chong Jin Nee (S0000008F). [7] In all of the said 6 companies, Patrick John Wee Ewe Seng, Muhammad Redha Ahmad Bin Thaharuddin (I/C No: 571204-07-5469) (‘Muhd Redha’) and Peter Joseph A/L Anthony Joseph Bennit (I/C No: 670627-04-5265) (‘Peter Joseph’) appear as directors of all of the companies which are associated with the True Fitness brand. [8] The Applicants are a small part of the large group of members of the True Fitness Brand of gyms of which they claimed they have a contractual relationship with the gym which consists of the 6 companies. [9] On 10/6/2017, the True Fitness brand of gyms suddenly and without any notice ceased all operations in Malaysia. [10] On 9/6/2017, one day before ceasing operations, True Fitness World, Truest, True Yoga and Fitness Growth had obtained a Court order to appoint an Interim Liquidator. Notwithstanding this, the members were not given any notice or information about the proceedings that were being carried out. [11] Miss Wong Shan Ty had published in the newspapers an advertisement dated 22/6/2017 that she had been appointed as an Interim Liquidator for the 6 companies. [12] One of the Directors of the True Fitness World, Patrick John Wee Ewe Seng, a Singaporean national bearing passport number (S1658841E) had provided an undertaking to a limited liability company registered in the Cayman Islands named Tongfang Kontafarma Holdings Limited to close all the operations of the True Fitness brand of gyms in Malaysia and Thailand on/or before 31/12/2017 in exchange for capital injection that will allow his holding company True Group in Singapore, wherein he is the Chief Executive Officer to expand into the Chinese market. [13] No notices were given by Patrick John, his directors or officers to the gym members, the staff nor the vendors of True Fitness World, Truest, True Yoga and Fitness Growth. [14] Up and until 10/6/2017, True Fitness World,Truest, True Yoga and Fitness Growth were still renewing the memberships and was signing up new members aggressively, some of which had signed up for lifetime memberships which require substantial fees. S.471 application [15] S.471 CA 2016 provides - “471. Action or proceeding stayed after winding up order (1) When a winding up order has been made or an interim liquidator has been appointed, no action or proceeding shall be proceeded with or commenced against the company except by leave of the Court and in accordance with such terms as the Court imposes. (2) The application for leave under subsection (1) shall be made in the Court granting the winding up order and shall be served on the liquidator. (3) The office copy of the order for leave under subsection (1) shall be lodged by the applicant referred to in subsection 470(1) with the Registrar and with the Official Receiver within fourteen days from the making of the order”. [15.1] Reading subsection 471(3), the applicant envisaged in subsection 471(1) is an applicant referred to in subsection 470(1) CA 2016, i.e, “the company or any creditor or contributory.” [16] There are altogether 321 Applicants involved in the s.471 application. I shall rely on the “Jadual Komen”, exh.A in encl.58 (Petition 334), Affidavit in Reply affirmed by Wong Shan Ty on 25/8/2017. I rule that except for Applicants no. 1, 2, 3, 4, 7, 9, 11, 16, 23, 26, 33, 36, 39, 44, 45, 46, 50, 55, 58, 60, 61, 62, 63, 64, 66, 68, 70, 71, 72, 78, 79, 80, 82, 83, 88, 89, 90, 97, 98, 99, 102, 103, 104, 105, 106, 107, 108, 110, 113, 116, 117, 121, 122, 123, 124, 127, 128, 130, 131, 132, 136, 137, 142, 145, 146, 150, 151, 154, 158, 159, 160, 165 (member since 5/6/2017 but all the 4 Petitions were filed on 3/6/2017), 168, 169, 170, 171, 172, 173, 175, 176, 179, 181, 192, 194, 200, 204, 205, 206, 207, 208, 211, 214, 215, 216, 217, 218, 219, 226, 227, 228, 229, 230, 232 (membership begins on 14/7/17 but all 4 Petitions were filed on 3/6/2017), 236, 237, 242, 243, 245, 246, 249, 250, 251, 257, 262, 263, 264, 272, 277, 280, 284, 287, 288, 290, 291, 296, 302, 306, 310, 313 and 325, the remaining Applicants are “creditors”. These Applicants have proved they are members of the relevant gyms owned by True Fitness World, Truest, True Yoga or Fitness Growth and that they have a contractual relationship with them. [17] S.471 CA 2016 is in pari materia with s.243 of CA 1965. In Mesuntung Property Sdn Bhd v Kimlin Housing Development Sdn Bhd [2014] 4 MLJ 886, David Wong Dak Wah JCA (delivering the judgment of the Court of Appeal) at p.887 held - “(1) Under s 226(3) of the Act, before leave is granted, the appellant had the burden of satisfying the court of two criteria: (a) that the appellant's claim could not be adequately dealt with by the winding up court; and (b) that the appellant had a prima facie case against the respondent. (2) There was little doubt that the appellant's claim of specific performance could not be dealt with by the winding up court in that its claim was unlike say a proof of debt. In short it was not a monetary claim (see para 24). (3) As to what amounts to prima facie in the context of s 226(3) of the Act, it is simply whether there is a serious dispute between the litigants which warrant a trial to determine the truth of the combating allegations”. It is to be noted that s.226(3) CA 1965 referred to by the Court of Appeal relates to, amongst others, the provision when a provisional liquidator has been made, leave of the Court before action or proceeding can be proceeded with or commenced against the company is required. [18] In Shencourt Sdn Bhd v Perumahan NCK Sdn Bhd [2008] 5 MLJ 191, Zulkefli JCA (now PCA) at 195 [10] and 196[11] opined - “On the guiding principle for the court to grant leave with a view to commencing action against a company that has been wound up we would like to refer to the case of Mosbert Bhd (In Liquidation) v Stella D'Cruz [1985] 2 MLJ 446 wherein Sean SCJ, in delivering the judgment of the Supreme Court at p 447 had this to say: In re Cuthbert Lead Smelting Co Ltd [1886] WN 84 it was held that if the applicant could obtain all the relief in the winding up leave would be refused. In short, the court will always give an application for leave if his claim cannot be dealt with adequately in the winding up or if the remedy he seeks cannot be given to him in a winding up proceedings. [11] It is clear based on the above cited case authority leave to proceed would only be granted when the plaintiff's claim cannot be adequately dealt with in winding up of the defendant's company or when the plaintiff is seeking a remedy which cannot be given in the winding up of the defendant's company”. [18.1] As rightly pointed out by Counsel for the Applicants, it is worth noting the Court of Appeal allowed the application for leave as - “a. There were declaratory orders prayed for; b. There were general damages to be assessed; c. There was a counterclaim and a set off; and d. The liquidators cannot adequately deal with the above prayer for relief and thus it is for the trial court to do so as”. [19] Based on the factual matrix of the instant case in my considered view, the Applicants have a prima facie cause of action against the Respondents in the 4 Petitions; there are serious issues between the litigants which warrant a trial to determine the truth of the allegations, the reliefs to be prayed for in the suits intended to be brought by the Applicants cannot be dealt with adequately in the winding up Court as it is envisaged the reliefs which they seek will include ascertainment of general damages, compensation costs, specific damages and declarations and specific performance. Hence in my judgment having satisfied the criteria for seeking leave of the Court, the Court grants OIT of prayers 1 and 3 only. Ss.470(1), 502(1) and 502(3) and 540(1) application [20] In respect of this application there are only 4 Applicants - Seik Yean Young, Lee Kwai Seng, Ho Wai Yin and Moh Lai Jing (‘1st, 2nd, 3rd and 4th Applicants’) respectively. [21] S.470(1) CA 2016 states - “At any time after the presentation of a winding up petition and before a winding up order has been made, the company or any creditor or contributory may, where any action or proceeding against the company is pending, apply to the Court for an order to stay or restrain further proceedings in the action or proceeding, and the Court may stay or restrain the action or proceeding accordingly on such terms as it thinks fit.” (2) The applicant shall lodge with the Registrar the office copy of the order within fourteen days from the making of such order under subsection (1)”. [22] The preliminary issue to be determined is whether the 1st to 4th Applicants are “creditors”. I have examined exh.LKS-2 in encl.55, Affidavit affirmed by Lee Kwai Seng on 10/8/2017 and I agree with the submission of Counsel for the Directors and proposed examinees, Mr. Srimurugan that - “(a) The 2nd applicant does not have any contractual relationship with the Respondent Company. The membership application form (agreement) exhibited by 2nd applicant is empty, with no signatures of either the Respondent company or the 2nd Applicant himself. There is also no proof that he had paid any money to the Respondent Company; (b) The 3rd applicant’s membership application form (agreement) exhibited is also doubtful as the name his name does not appear legible and no proof payment has been shown that he had paid money to the Respondent Company; (c) The 4th applicant also does not have any contractual relationship with the Respondent Company. The 4th applicant only appears to have a contract with another company known as True Fitness Sdn. Bhd. and not the Respondent Company in suit 342”. [22.1] Further, with respect to the purported “Agreement” exhibited in respect of the 1st to 4th Applicants there are “No further membership details” unlike those exhibited in Jadual A and B in encl.42, Affidavit Tambahan Ke-2 affirmed by Lee Kwai Seng on 10/8/2017. [22.2] Therefore I find the 1st to 4th Applicants are not creditors. [23] S.470(1) is in pari materia to s.222 of CA 1965. Therefore it is relevant to consider the case of Sri Jeluda Sdn Bhd v Pentalink Sdn Bhd [2008] 3 AMR 697. Ahmad Maarop JCA (now CJ Malaya) (delivering the judgment of the Court of Appeal) at p.698 held - “1.(a) The use of the words “where any action or proceeding against the company is pending” before the words “apply to the court” and the use of the words “further proceedings in the action or proceeding” after the word “restrain” in s 222 of the Act clearly evince the intention of the legislature to empower the court to stay further proceedings in the action or proceeding (other than) the hearing of the winding-up petition in question which is pending before the court. (b) The purpose of giving the court the power under s 222 of the Act to stay further proceedings in the action or proceeding (other than the hearing of the winding-up petition pending before the court), is to enable the court to ensure that no creditor shall gain priority over others of his class. (c) Section 222 of the Act does not empower the court to stay the proceeding of the winding-up petition before it”. [24] Premised on the aforesaid authority of Sri Jeluda (supra), the Applicants’ prayer for stay of proceedings under s.470(1) CA 2016 is misconceived and must fail. [25] S.502(1) CA 2016 provides - “The Court may summon before it any officer of the company or person known or suspected to have in his possession any property of the company or supposed to be indebted to the company, or any person whom the Court deems capable of giving information concerning the promotion, formation, trade dealings, affairs or property of the company”. [26] S.502(3) CA 2016 provides - “The Court may require the officer or person to produce any books and papers in his custody or power relating to the company, but if the officer or person claims any lien on books or papers, the production shall be without prejudice to that lien, and the Court shall have jurisdiction to determine all questions relating to that lien”. Ss.502(1) and 502(3) CA 2016 corresponds to s.249(1) and (3) CA 1965. [27] In Hicom Bhd v. Bukit Cahaya Country Resorts Sdn Bhd & Anor [2005] 8 CLJ 194 at pp.207-208, Ramly Ali J (now FCJ) has set out instructively the principles governing an application for examination under s.249 CA 1965 as follows: “Section 249 must be read together with r. 49, Companies (Winding Up) Rules 1972. The effect of these provisions is that they confer on the liquidator, creditor or contributory the extraordinary right to apply to court for leave to query persons on oath and to require him to produce any books and papers in his custody relating to wound up company. The persons to be queried may include officers of the company (being wound up) and any other persons (third parties) known or suspected to have in his possession any property of the company as well as any persons whom the court considers capable of giving information concerning the promotion, formation, trade dealings, affirms or property of the company. Rule 49 specifically provides that such application, if made by the liquidator, shall be made ex parte but if made by a creditor or contributory, shall be made by summons supported by an affidavit and the liquidator shall also be served. In other words, a unlike liquidator, creditor or contributory can only make such application by way of inter partes summons where the persons to be examined as well as the liquidator concerned must be served with the relevant papers. This extraordinary power serves an essential and important purpose. If used correctly it generally but not invariably redresses disadvantages without creating advantages. However if used incorrectly, it could be draconian in it's application and crushing in its consequence. Unnecessary legal costs can also be incurred by all involved and scarce fund of the company may be severely depleted, (see: Liquidator of W & P Piling Pte. Ltd. v. Chew in What & Ors. [2004] 3 SLR 164). Our legal proceedings are generally required to be conducted in the manner of an adverserial contest. The process of taking information or evidence on oath pursuant to these provisions, is an aberration which has been allowed into a fundamental tenet of an adversarial system. The court therefore plays an important and critical role in policing the exercise of these powers. In instances whether there is neither a reasonable basis for an investigation nor any real prospect of recouping loses or sustaining claims for the benefit of the company (being wound up) the court ought to be extremely cautious in allowing a proposed examination to proceed. The threshold test for information or documents is not one be of "absolute need" but that of a "reasonable requirement". The court must place on the scale of evaluation the purpose and the intent of an application on the one hand, and the oppression, inconvenience and disadvantage it may visit upon the proposed examinee one the other hand. In some instances, responses to the queries raised on oath or by way of an affidavit may be amply sufficient in place of an oral examination. If such relevant information can be procured without the exercise of this coercive power, it should not be invoked. The essential questions to be addressed are: (a) Is the procedure necessary for the business of preserving, collecting, managing or distributing the company's assets?; (b) Is the applicant (liquidator, creditor or contributory) conducting himself reasonably in the circumstances?; (c) Is it for the benefit of the company (being wound up)?; (d) Is there any alternative process to obtain such information either by way of sworn affidavit or otherwise?. (e) Is there any oppressive effect on the examinee?; (f) Does the process amount to an abuse of process?”. (Emphasis added) [27.1] Based on the emboldened parts in the passage quoted from Hicom Berhad’s case, I agree with the submission of Counsel for the Supporting Creditors, Chan Park He On, Reezal Jai, Rihan bin Abdullah, Lee Chee Lin and Chong Lei Ling in Petition 342 and Johnny Yek Hock Hai in Petition 338 that - (i) S.249 CA 1965 when read together with rule 49 of the Companies (Winding Up) Rules 1972 has the effect of limiting the applicability of s.249 of CA 1965 to wound up companies; (ii) Since the 4 Respondent companies, True Fitness World, Truest, True Yoga and Fitness Growth, have not been wound up, in my considered opinion the Applicants’ prayers for examination under ss.502(1) and 502(3) CA 2016 are premature and are accordingly dismissed by the Court. [27.2] An added reason why the 4 Applicants cannot rely on the provisions of ss.502(1) and 502(3) CA 2016 is because I have found that they are not creditors and therefore they do not have the locus standi to seek for examination of the proposed examinees and for the production of relevant documents in Court for examination. [28] Prayer (f) of ss.470(1), 502(1) and 502(3) and 540(1) application (encl.10) has been framed in such a manner that it is contingent on the Court making a finding that if it is not satisfied with the explanations to be proffered by the proposed examinees, then the Court is urged to make an order under s.540(1) CA 2016 against the proposed examinees that they are directly or indirectly involved in fraudulent trading with intent to defraud the members, suppliers and the employees of True Fitness in Malaysia and for the proposed examinees to be personally responsible, without any limitation of liability for the debts or liabilities of the Respondent company. [28.1] Since it is my finding that the Applicants cannot rely on ss.502(1) and 502(3) CA 2016, therefore prayer (f) is a non starter. Whether the Court has the jurisdiction to advise the Attorney General Chambers or the Royal Malaysian Police on the proposed examinees [29] This relates to prayer (g) of the said Notice of Motion (encl.10). The Applicants are seeking for an order that the Court advise the Attorney General Chambers or the Royal Malaysian Police to investigate the proposed examinees, Muhammad Redha Ahmad Bin Thaharuddin, Peter Joseph A/L Anthony Joseph Bennit, Patrick John Wee Ewe Seng, Shikha Dutt and other named person. [29.1] In this regard I agree with Mr. Srimurugan’s submission that - (i) the Attorney General has the discretion whether to institute proceedings at all and, if so, with what offence to charge the accused by virtue of s.145(3) of the Federal Constitution (Teh Cheng Poh v. PP [1979] 1 MLJ 50); and (ii) the Court does not have any power to make an order be it in the nature of advice against any party who is not a party in this proceedings. In Kheng Chwee Lian v. Wong Tak Thong [1983] 1 MLRA 66 at p.70, the Federal Court held - “In our judgment, the Court, below has no jurisdiction inherent or otherwise, over any person other than those properly brought before it, as parties or as persons treated as if they were parties under statutory provisions (Brydges v. Brydges & Wood [1909] p.187; Re Shephared [1890] 43 Ch D 131 and Coleman v. Coleman [1920] p.71)”. [29.2] In any event prayer (g) is a non starter as this prayer is only triggered if the orders in respect of prayers (a) to (f) above in encl.10 are granted. Conclusion [30] For the reasons enumerated above, I make the following order: (i) O.I.T of prayers 1 and 3 for - Petition 334- encl.20 Petition 336- encl.15 Petition 338- encl.17 Petition 342- encl. 9. (ii) Dismiss the following with no order as to cost: Petition 334- encl.10 Petition 336- encl.12 Petition 338- encl.12 Petition 342- encl.12. [30.1] I make no order as to cost having regard to the fact that the 4 Respondent companies ceased operations in Malaysia suddenly and without notice on 10/6/2017 and which was one day after the appointment of an Interim Liquidator on 9/6/2017 upon the Petitioner’s application pursuant to s.476 CA 2016 in the 4 Petitions. Dated: 9/11/2017 SGD. (LAU BEE LAN) Judge WA-28NCC-334-06/2017 WA-28NCC-336-06/2017 WA-28NCC-338-06/2017 WA-28NCC-342-06/2017 Counsel for the Petitioners: Cik Melanie Ho Mei Yee together with Encik C.J. Ooi Messrs Melanie Advocates & Solicitors C-3A- 3, Colonial @ Empire City Bukit Lanjan 47820 Petaling Jaya Selangor Darul Ehsan Counsel for the Applicants/Proposed Interveners: Encik Alex Netto together with Encik Chen Yu Szen Messrs Dee, Netto, Fatimah & Ng Advocates & Solicitors A- 3-19, Megan Phoenix Jalan 2/142A, Cheras 56000 Kuala Lumpur WA-28NCC-338-06/2017 WA-28NCC-342-06/2017 Counsel for the Supporting Creditors: Encik Bryan Ho Messrs Ho Partnership Advocates & Solicitors Suite A-11-3A, Level 11, Plaza Taragon Kelana No.3, Jalan SS 6/6 Kelana Jaya 47301 Petaling Jaya Selangor Darul Ehsan WA-28NCC-334-06/2017 WA-28NCC-336-06/2017 WA-28NCC-338-06/2017 WA-28NCC-342-06/2017 Counsel for the Liquidators for Respondents: Encik C J Ooi together with Encik E K Khaw Messrs Chih-Jen & Associates Advocates & Solicitors No.7-19-M (Mezzanine Floor) Jalan Jalil Perkasa 14/155B Aked Esplanad Bukit Jalil 57000 Kuala Lumpur WA-28NCC-334-06/2017 WA-28NCC-336-06/2017 WA-28NCC-338-06/2017 WA-28NCC-342-06/2017 Counsel for the Directors & Proposed Examinees Encik Srimurugan a/l Alagan Messrs SRIMURUGAN & CO Advocates & Solicitors No.33-5-3A Block C Jaya One No.72A Jalan University 46200 Petaling Jaya Selangor Darul Ehsan 33

Tika 2.6.0

WA-28NCC-334-06/2017

PLAINTIF Cheah Chin Kean DEFENDAN True Fitness World Sdn Bhd

09/11/2017

YA DATUK LAU BEE LAN

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DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR (BAHAGIAN DAGANG) PENGGULUNGAN SYARIKAT NO: WA-28NCC-334-06/2017 Dalam perkara mengenai True Fitness World Sdn Bhd (No. Syarikat: 713263-U) Dan Dalam perkara Seksyen 465(1)(e) dan 466(1)(a) Akta Syarikat 2016 Antara CHEAH CHIN KEAN … PEMPETISYEN (No. K/P: 681206-08-5203) Dan TRUE FITNESS WORLD SDN. BHD. … RESPONDEN (No. Syarikat: 713263-U) Dan 1. SEIK YEAN YOUNG (No. K/P: 870730-60-5036) 2. LEE KWAI SENG (No. K/P: 860628-43-6838) 3. HO WAI YIN (No. K/P: 860327-56-5696) 4. MOH LAI JING (No. K/P: 680114-06-5171) 5. ABBY TAN BOON YEE (No. K/P: 811004-01-6376) 6. ALAN BASIL PETER (No. K/P: 810114-14-6089) 7. ANURATHA RAMANAIDU (No. K/P: 770518-08-7288) 8. BEH TUCK WOOI (No. K/P: 720924-07-5383 9. CHANDRA MOHGAN A/L G DEMUDU (No. K/P: 700403-08-5959) 10. CHEAH WENG KEAT (No. K/P: 790803-06-5481) 11. CHEE SHOO KEONG (No. K/P: 571228-08-5565) 12. CHEN CHEW HAR (No. K/P: 740902-14-5764) 13. CHEN FOOK YEIN (No. K/P: 811213-12-5181) 14. CHEW WAI HOE (No. K/P: 830526-14-5275) 15. CHIA SIN LIY (No. K/P: 810623-06-5404) 16. CHIA TIANG KIANG (No. K/P: 731009-14-5273) 17. CHONG PEI NEE (No. K/P: 731013-14-5292) 18. CHOO WEE LING (No. K/P: 770522-14-5532) 19. CHOW WAI FOO (No. K/P: 791210-06-5325 ) 19. CHOW WAI FOO (No. K/P: 791210-06-5325 ) 20. CHOY CHEE KHONG (No. K/P: 840920-05-5285) 21. CORNELIA TAY SUET CHENG (No. K/P: 690710-10-5706) 22. DENNIS YEOH GWAN JIN (No. K/P: 730215105403) 23. EDMOND LIM GIN SHENG (No. K/P: 821006-08-5411) 24. EDMUND WONG CHEE MUN (No. K/P: 861117-56-6193) 25. EE CHEE WAN (No. K/P: 790512-01-6057) 26. NG JING YI (No. K/P: 850529-02-5605) 27. FONG SOON WAI (No. K/P: 811031-14-6395) 28. FOO PUI SAN TAMMIE (No. K/P: 920604-10-6036) 29. FOONG YEE CHING (No. K/P: 900722-10-5298) 30. GOH YIN LIN (No. K/P: 890420-01-5792) 31. HIA NGEE YEOW (No. K/P: 720403-14-5091) 32. HOH YEAN MUN (No. K/P: 690227-10-6012) 33. HOO HUI NGOH (No. K/P: 740809-08-5090) 34. HOO SZE YEN (No. K/P: 790708-14-5342) 35. KEITH YEW SZE HAM (No. K/P: 780411-05-5365) 36. KHOR JIE QI (No. K/P: 940322-14-6396) 37. KHOR JIE YI (No. K/P: 920428-14-5334) 38. KIRAN KAUR A/P JOGINDAR SINGH (No. K/P: 580925-07-5180 ) 39. KOAY HOOI LIN (No. K/P: 640605-07-5466) 40. KOH BOON WEI (No. K/P: 850924-01-5407) 41. KOON WEI LEONG (No. K/P: 850121-14-5785) 42. KU WAI FOONG (No. K/P: 850205-14-5491) 43. LAI PUI KHEONG (No. K/P: 730331-10-5291) 44. LEE KIT SENG (No. K/P: 761211-14-5645) 45. LEE WAT NGO (No. K/P: 620910-10-5766) 46. LEE YEK PENG (No. K/P: 851121-14-5201) 47. LEE YI TIAN (No. K/P: 901008-05-5486) 48. LEE YOKE CHIN (No. K/P: 660227-10-6656) 49. LEUK KENG MING (No. K/P: 860616-38-6547) 50. LIAN THNG KAIH (No. K/P: 790917-14-5471) 51. LIEW CHIAN KEONG (No. K/P: 770804-14-5215) 52. LIEW CHIN DWO (No. K/P: 780312-08-5665) 53. LIEW SOON FATT (No. K/P: 821205-14-5501) 54. LIM CHER (No. K/P: 630702-01-5984) 55. LIM FONG NYEE (No. K/P: 781115-14-5336) 56. LIM PHAN YUEN (No. K/P: 840730-14-5191) 57. LIM SUI JIN (No. K/P: 801031-05-5013) 58. LIM ZHI SAM (No. K/P: 950713-05-5191) 59. LINDA TEOH OON CHENG (No. K/P: 580515-07-5364) 60. LIONEL A/L ALFRED (No. K/P: 850604-10-5999) 61. LOKE FOO SOON (No. K/P: 851206-05-5513) 62. LOKE PHAIK POH (No. K/P: 580402-07-5528) 63. LOW LAI HOE (No. K/P: 810303-10-5262) 64. LUM POH PENG (No. K/P: 750409-10-5004) 65. MAH SENG WAI (No. K/P: 830510-14-5211) 66. MARGATHA MANY A/P ATHANARI (No. K/P: 550430-05-5316) 67. MARK YEOH GWAN HIN (No. K/P: 750422-14-5393) 68. MICHAEL CHEAH SENG JIN (No. K/P: 720520-07-5213) 69. MOHD AZMI BIN ZAHARAI (No. K/P: 791122-06-5903) 70. MONICA CHANG MUN YEE (No. K/P: 880916-08-5488) 71. NG PIO BERN (No. K/P: 760121-07-5589) 72. NG SIEW YEAN (No. K/P: 720426-09-5066) 73. NG WAN WOEI (No. K/P: 810808-02-5654) 74. NG WEE MING (No. K/P: 720719-14-5151) 75. NG WEI YEN (No. K/P: 590213-10-6152) 76. NITHYANANTHAN A/L NESADURAI (No. K/P: 591229-02-5669 77. NORLISAH BINTI MOHD RAMLI (No. K/P: 670910-01-5942) 78. ONG HOW BENG (No. K/P: 691118-08-5659) 79. PAUL WONG YEE KEONG (No. K/P: 7230418-10-5729)(sic) 80. PHANG KOK WENG (No. K/P: 820104-08-5437) 81. PHILIP SOON WEI-JUN (No. K/P: 851004-10-5455) 82. PHYLICIA YEO YEE SIEN (No. K/P: 860122-14-5540) 83. QUAH SEAN HUAY (No. K/P: 810609-10-5780) 84. QUAH WAN ER (No. K/P: 840422-10-5884) 85. QUAH WAN THENG (No. K/P: 860501-43-6284) 86. REUBEN PAUL (No. K/P: 720731-14-5445) 87. RICHARD BOAK (No. K/P: 710208-10-5239) 88. ROHANI BINTI HASHIM (No. K/P: 670103-11-5074) 89. SEE AI LING (No. K/P: 740421-14-5632) 90. SEK MAY LING (No. K/P: 630312-10-7410) 91. SELVARAJA A/L MURUGESU (No. K/P: 550422-10-6529) 92. SEM YONG HAO (No. K/P: 960531-56-5261) 93. SIAU CHO DIONG (No. K/P: 631113-08-6009) 94. SIVAKUMAR PARAURAMAN (No. K/P: 790812-06-5635) 95. SOONG CHEE HOE (No. K/P: 720303-08-5415) 96. SUTHICHANA THARMAPALAN (No. K/P: 740312-14-5158 ) 97. SWAN SIEW FONG (No. K/P: 671024-10-6334) 98. TAI YOKE CHENG (No. K/P: 670208-08-5828) 99. TAN AI SIM (No. K/P: 660314-05-5324) 100. TAN CHOON YIT (No. K/P: 841009-08-6063) 101. TAN KAM LIN (No. K/P: 630911-08-6236) 102. TAN KIM FONG (No. K/P: 570804-08-5666) 103. TAN KUANG MING (No. K/P: 840322-14-5547) 104. TAN SIU NI (No. K/P: 880801-56-5326) 105. TAN TING SIN (No. K/P: 790809-07-5197) 106. TAN XIN NING (No. K/P: 900724-10-5574) 107. TAN YOKE SIM (No. K/P: 631209-08-5246) 108. TAY BEE HOON (No. K/P: 621027-07-5988) 109. TEOH PIT YIN (No. K/P: 751130-07-5367) 110. THAM CHUAN SIONG (No. K/P: 830314-10-5175) 111. THOO MEE LEE (No. K/P: 591019-03-5260) 112. TOMOKO MATSUI (No. Paspot: TZ0764239) 113. TRACY CHAN YEE LI (No. K/P: 770914-14-5654) 114. WONG CHOON EE (No. K/P: 771004-08-6071) 115. WONG CHUAN MEIN (No. K/P: 830401-10-5165) 116. WONG JAY KIE (No. K/P: 851117-14-5496) 117. WONG MOOI LEE (No. K/P: 740827-09-5022) 118. WONG TEE FATT (No. K/P: 751105-11-5275) 119. WOO BEE TING (No. K/P: 780912-14-5828) 120. WU CHEE KEONG (No. K/P: 650118-10-6957) 121. YAP POH LIN (No. K/P: 800101-08-6348) 122. YAU SUN FONG (No. K/P: 570611-05-5110) 123. YEE BEE LING (No. K/P: 631001-02-5594) 124. YEE PIK NGAN (No. K/P: 800228-14-5392) 125. YEE YOKE LIN (No. K/P: 640606-10-7490) 126. YEOH AIK CHEONG (No. K/P: 720703-07-5371) 127. YEOW CHEW SEONG (No. K/P: 630927-04-5332) 128. YIO LIM CHOONG (No. K/P: 860215-56-5181) 129. YONG MUI YUEN (No. K/P: 781010-14-5946) 130. YONG WEI CHEONG (No. K/P: 780605-14-5967) 131. ABDUL HADI BIN ABDUL MANAF (No. K/P: 900310-04-5321) 132. ANG YEE SHIN (No. K/P: 930421-07-5328) 133. CHAI HOOI JETT (No. K/P: 911003-14-5916) 134. CHAN FUN SHIN (No. K/P: 850627-05-5381) 135. CHEAH TEIK CHUAN (No. K/P: 841106-14-5133) 136. CHEAH YEE YANG (No. K/P: 900927-10-5785) 137. CHEE MEI LIN (No. K/P: 650318-04-5124) 138. CHEN CHEE MOON (No. K/P: 860419-43-5215) 139. CHEN TZE HUAYU (No. K/P: 860617-43-6120) 140. CHEONG PIK YIN (No. K/P: 900516-05-5305) 141. CHEW LI SA (No. K/P: 690824-01-5004) 142. `CHEW PING KEE (No. K/P: 860825-35-5560) 143. CHIA WEI HAW (No. K/P: 940814-14-6501) 144. CHIN ZE WEI (No. K/P: 890125-14-6167) 145. CHONG HOONG SERN (No. K/P: 880924-14-5081) 146. CHONG LAI PING (No. K/P: 680819-08-5762) 147. CHONG TONG SEONG (No. K/P: 461006-10-5199) 148. CHOO SLIM MEI (No. K/P: 881026-35-5612 ) 149. CHOO SOOK LING (No. K/P: 910421-14-5164) 150. CHOONG WAI KIT (No. K/P: 801130-08-5111) 151. CHOY WAI HUN (No. K/P: 710527-10-5359) 152. CHRISTINE LOY SOK CHING (No. K/P: 930319-07-6076) 153. CHUA YIH CHING (No. K/P: 820918-07-5078) 154. DAVID LOH JIAN WEI (No. K/P: 911231-10-5465 ) 155. DAVID TNEH CHENG ENG (No. K/P: 780825-07-5331) 156. DESMOND TAN CHIAM WEI (No. K/P: 851203-07-5869) 157. DHAMAYANTI A/P REGUNATHAN (No. K/P: 791209-14-5424) 158. DINESHWARAN A/L UMAKANTHAN (No. K/P: 810501-07-5073) 159. EE MENG SHI (No. K/P: 871224-06-5959) 160. ELIZABETH TAY (No. K/P: 670816-10-5562) 161. TAN LAY LAY (No. K/P: 800318-14-5070) 162. EOW WAI YEN (No. K/P: 860517-10-5125) 163. FAM YOKE LING (No. K/P: 710927-10-5366) 164. FAZIL AHMAD BIN TAUIDDIN (No. K/P: 820706-14-6225) 165. HENG FOONG YI @ WENDY (No. K/P: 660716-10-6454) 166. HEW CHUNG KEAT (No. K/P: 900816-10-5379) 167. HO CE-YI (No. K/P: 870125-10-5412) 168. HO CHING YI (No. K/P: 9910103-43-5230)(sic) 169. HO CHONG SIANG (No. K/P: 630707-08-5033) 170. HO YAN KANG (No. K/P: 01020-10-1463)(sic) 171. HUI YOONG SEONG (No. K/P: 820507-14-5991) 172. JAIKRISHEN SINGH A/L BHAGVINDER SINGH (No. K/P: 900208-14-6345) 173. JAIKRISHEN SINGH A/L BHAGVINDER SINGH (No. K/P: 900208-14-6345) menyaman bagi pihak MANDEV SINGH SOHAN (No. K/P: 020203-14-0897) 174. JAYNE TSUTSUMI @ CHEONG KIT BUNN (No. K/P: 670315-08-6260) 175. JOSEPHINE KOH YUNG AI (No. K/P: 650215-04-5316) 176. JULIAN OOI HOCK SENG (No. K/P: 670606-08-5487) 177. JUSTINE TAN MEI-ERN (No. K/P: 920210-14-6078) 178. K. SUNITA A/P T. VINAYAKA DAS (No. K/P: 760324-10-5426) 179. KOH POH LI (No. K/P: 771216-07-5892) 180. KOK SHWU JIUN (No. K/P: 860918-43-5682) 181. LAWRENCE ANDERSON BURLEY (No. Paspot: 537383077) 182. LEE CAI FOONG (No. K/P: 891126-10-5644) 183. LEE CHAI HOONG (No. K/P: 910205-10-5870) 184. LEE KHAI CHUN (No. K/P: 920129-10-5471) 185. LEE LAY NEE (No. K/P: 760322-03-5268) 186. LEE SIAO YEN (No. K/P: 640629-10-6570) 187. LEE SOOK FONG (No. K/P: 730309-06-5262) 188. LEE YEK PENG (No. K/P: 851121-14-5201) 189. LEONG EE MUN (No. K/P: 861225-43-6310) 190. LEONG HO FUN (No. K/P: 761202-08-5142) 191. LEONG MEI YEN (No. K/P: 840307-14-6488) 192. LI CHEE WAH (No. K/P: 910301-06-5995) 193. LIEW YIN WEI (No. K/P: 850214-08-6593) 194. LIM EE HARN (No. K/P: 941002-14-6914) 195. LIM GIAN SENG (No. K/P: 700110-10-5629) 196. LIM JIA HUI (No. K/P: 851206-14-6124) 197. LIM KEY YEE (No. K/P: 841207-10-5405) 198. LIM PUI MUN (No. K/P: 871113-35-5080) 199. LIM SZE YEUN (No. K/P: 870914-14-5812) 200. LIM YAU CHOY (No. K/P: 621227-06-5207) 201. LIM YOKE TOH (No. K/P: 670510-10-6036) 202. LIM YONG YAN (No. K/P: 860606-43-6387) 203. LING KUOK YONG (No. K/P: 880505-13-5081) 204. LIZA ROSEYLN KONG SIEW LING (No. K/P: 910930-14-5981) 205. LOH SIEW KHOUNG (No. K/P: 561211-07-5337) 206. LOO MENG FATT (No. K/P: 740915-14-5819) 207. LOW JIA SERN (No. K/P: 901216-04-5047) 208. LOW SOU FOONG (No. K/P: 750924-14-5748) 209. MAK PUI CHING (No. K/P: 840918-14-6444) 210. MICHAEL LIM CHUNG KEAT (No. K/P: 780822-07-5221) 211. MOHAMAD FAHMI BIN BASAR (No. K/P: 870328-52-5871) 212. MOHAMED EFTAL BIN MOHAMED EBRHAIM (No. K/P: 891229-14-6561) 213. MOHAMMAD NAJMI BIN MOHD NADZRI (No. K/P: 920221-14-6161) 214. MOHD MAZLAN BIN ABDUL RAZAK (No. K/P: 731013-01-6191) 215. NAH KAH HO (No. K/P: 900810-14-5505) 216. NAJWA BINTI MOHD NADZRI (No. K/P: 891118-14-6008) 217. NASHA BINTI MOHD NADZRI (No. K/P: 880619-87-5002) 218. NG SIAO CHI (No. K/P: 840412-14-6332) 219. NGU MEE KING (No. K/P: 651122-13-5528) menyaman bagi pihak TAY JIAN HUI (No. K/P: 010117-10-1147) 220. ONG BEAK TEIK (No. K/P: 650924-02-5369) 221. ONPIMOL BORIWAN (No. Paspot: AA493056) 222. OOI CHIEW BEE (No. K/P: 91094-10-5210) 223. OOI CHIEW EAN (No. K/P: 841228-07-5030) 224. PHANG KOK NENG (No. K/P: 820104-08-5437) 225. PHUAH SIEW KEAM (No. K/P: 630129-10-7578) 226. PHUNG HON KEAT (No. K/P: 910930-14-5891) 227. PUAN JIA HUI (No. K/P: 910901-91-5017 228. QUAH MIN SEE (No. K/P: 870706-14-6124) 229. QUAH MUI LENG (No. K/P: 730109-10-5012) 230. RAMES A/L SIVAPATHAM (No. K/P: 700726-08-6497) 231. RENUKA KUNATHEVAN (No. K/P: 770118-10-5280) 232. ROZARIO AUGUSTIN LAURENCE (No. K/P: 4611118-10-5505) 233. SEE WAI LIK (No. K/P: 901130-14-6779) 234. SEOW JOANNE (No. K/P: 991015-07-5436) 235. SEOW LAI HUAT (No. K/P: 620909-07-5459) 236. SUDESH A/L PRABHAKARAN (No. K/P: 800610-01-6064) 237. TAN AI SIM (No. K/P: 660314-05-5324) 238. TAN AY YONG (No. K/P: 731219-01-5813) 239. TAN CHIN KWEE (No. K/P: 711018-10-5275) 240. TAN ECHUN (No. K/P: 900130-01-6726) 241. TAN GEOK THIN (No. K/P: 840329-12-5020) 242. TAN NAM HONG (No. K/P: 570927-08-6407) 243. TAN PEI LI (No. K/P: 651107-06-5066) 244. TAN RICHARD (No. K/P: 840708-05-5173) 245. TAN SIAU WEI (No. K/P: 900328-12-5928) 246. TAN SIEW KUAN (No. K/P: 840328-08-5290 ) 247. TAN SIEW PENG (No. K/P: 670907-07-5004) 248. TAN WEI WANG (No. K/P: 880924-04-5531) 249. TAN YAW HAN (No. K/P: 850120-10-5263 ) 250. TANG EE THONG (No. K/P: 860912-56-5152) 251. TANG YEE LENG (No. K/P: 671222-08-5052) 252. TASHA LAI SOOK YEE (No. K/P: 921215-10-6176) 253. TAY SZE YANG (No. K/P: 931108-66-5035) 254. TEE CHOON PEI (No. K/P: 840121-01-6126) 255. TEE WEI JUN (No. K/P: 860720-59-5007 ) 256. TEE WEI LUN (No. K/P: 830901-05-5379 ) 257. TEH KOK WEI (No. K/P: 820622-14-5735 ) 258. TEOH PING WAI (No. K/P: 721112-08-5310) 259. TERRY DIONY (No. K/P: 710620-12-5450 ) 260. THINESSHWARY A/P YOGARAJAH (No. K/P: 891224-07-5514) 261. TOH HUI XING (No. K/P: 930105-04-5100) 262. UNGKU NAZLI BINTI UNGKU ISMAIL (No. K/P: 701017-71-5160) 263. UVANESAN KATHIRAVELU (No. K/P: 860911-43-7669 ) 264. VENESE CHANG WAI YEE (No. K/P: 860820-38-5234) 265. VIMALA DEVI NAIDU A/P SADASIVAN (No. K/P: 811113-01-6148) 266. VISHNU A/L GOVINDASAMY (No. K/P: 800117-01-6475) 267. WILSON LIEW YEONG (No. K/P: 901207-07-5025) 268. WONG AN JIE (No. K/P: 890127-14-5117) 269. WONG KEAN YIP (No. K/P: 901207-07-5025) 270. WONG LEE YUNG (No. K/P: 830824-14-5476) 271. WOON HOOI YIN (No. K/P: 9201016-14-5868) 272. WOON YEN YEN (No. K/P: 900522-10-5744) 273. YANG KUOH YEONG (No. K/P: 930804-05-5228) 274. YAP BEE LIN (No. K/P: 710820-10-5956) 275. YAP CHUI TENG (No. K/P: 861113-56-6110) 276. YAP JIAN HEUNG (No. K/P: 801228-12-5505) 277. YAP KWEI MOI (No. K/P: 790219-14-5298) 278. YAP LEE TENG (No. K/P: 881227-56-6264 279. YAP POH AIK (No. K/P: 870511-10-5699 ) 280. YAP SHOON YEE (No. K/P: 961021-10-5833) 281. YEAH HSING YEE (No. K/P: 900726-14-6273) 282. YEE WAI SEE (No. K/P: 910518-08-5532) 283. YEO KHENG GEE (No. K/P: 650228-04-5382) 284. YEOH CHEE CHUEN (No. K/P: 850420-08-5401) 285. YEW TUCK SENG (No. K/P: 741210-07-5077) 286. YONG HUI LING (No. K/P: 790710-06-5212) 287. YONG JEN SHIUN (No. K/P: 810622-14-5015) 288. YONG MUI YUEN (No. K/P: 781010-14-5946) 289. YONG SHIEW FHUI (No. K/P: 820709-14-5228) 290. YONG WEI CHEONG (No. K/P: 780605-14-5967) 291. YONG ZHI SHIUN (No. K/P: 941204-10-5491) 292. YUEN YOKE SIEW (No. K/P: 600226-08-5676) 293. ZIKRA BINTI ISMAIL (No. K/P: 791204-14-5628) 294. ALAN YEO (No. K/P: 760912-04-5167) 295. BALRAJ RAMANATHAN (No. K/P: 540227-07-5435) 296. BERNARD LIM SOO HAN (No. K/P: 720507-10-5203) 297. CHEAH POH YEN (No. K/P: 861014-14-5046) 298. CHEN FAWN KEONG (No. K/P: 730408-14-5081) 299. DING LIANG WONG (No. K/P: 451218-08-5063) 300. ELLEN HUI YUEN FONG (No. K/P: 681012-12-5246) 301. GAN LI YING (No. K/P: 730210-01-5580) 302. GUO YUAN YUAN (No. K/P: 751221-74-5012) 303. GURDIP KAUR A/P AMAR SINGH (No. K/P: 521114-10-5972) 304. HARITH MENON (No. K/P: 690914-10-5345) 305. HARITH MENON (No. K/P: 690914-10-5345) menyaman bagi pihak SHREYA MENON (No. K/P: 001126-66-0114) 306. INDYRANY A/P G. KANNAIYA (No. K/P: 600719-11-5212) 307. LEE HUI WAH (No. K/P: 731005-14-5612) 308. LIONG FUH CHANG (No. K/P: 830628-12-5013) 309. LOH KOK HOONG (No. K/P: 640602-06-5537) 310. LYNNDY LEE LI PING (No. K/P: 791017-04-5410) 311. MARCUS NG LOONG HONG (No. K/P: 841012-10-5157) 312. NG FAN HUA (No. K/P: 880330-02-5250) 313. PETER RAJ A/L ADAIKALAM (No. K/P: 680815-05-5195) 314. SANGEETHA A/P CHELLADORAI (No. K/P: 800917-07-5748) 315. SHEILA GAN YEEN LIANG (No. K/P: 850415-13-5304) 316. SHEILA RS NATHAN (No. K/P: 630301-10-8346) 317. SUGITHA A/P SELVARAJA SINGAM (No. K/P: 761207-05-5452) 318. TAN CHUN KEAT (No. K/P: 890508-07-5757) 319. TAN HONG JIE (No. K/P: 930905-10-5503) 320. THIVAKARAN A/L SIVARAMAN (No. K/P: 780720-06-5401) 321. VICTOR LIM FUNG TUANG (No. K/P: 720124-10-5177) 322. WAI SUE LENG (No. K/P: 840527-10-5100) 323. YONG JUNE FOOK (No. K/P: 741103-13-5249) 324. GIAM SZE SEONG MERVYN (No. K/P: 770607-14-5005) 325. LIM KEE HUAT … PEMOHON- (No. K/P: 670725-10-5313) PEMOHON DAN PENGGULUNGAN SYARIKAT NO: WA-28NCC-336-06/2017 Dalam perkara mengenai Truest Sdn Bhd (No. Syarikat: 711894-T) Dan Dalam perkara Seksyen 465(1)(e) dan 466(1)(a) Akta Syarikat 2016 Antara CHEAH CHIN KEAN … PEMPETISYEN (No. K/P: 681206-08-5203) Dan TRUEST SDN BHD … RESPONDEN (No. Syarikat: 711894-T) Dan SEIK YEAN YOUNG & 324 YANG LAIN … PEMOHON (No. K/P: 870730-60-5036) DAN PENGGULUNGAN SYARIKAT NO: WA-28NCC-338-06/2017 Dalam perkara mengenai True Yoga Sdn Bhd (No. Syarikat: 673491-K) Dan Dalam perkara Seksyen 465(1)(e) dan 466(1)(a) Akta Syarikat 2016 Antara CHEAH CHIN KEAN … PEMPETISYEN (No. K/P: 681206-08-5203) Dan TRUE YOGA SDN BHD … RESPONDEN (No. Syarikat: 673491-K) Dan SEIK YEAN YOUNG & 324 YANG LAIN … PEMOHON (No. K/P: 870730-60-5036) DAN PENGGULUNGAN SYARIKAT NO: WA-28NCC-342-06/2017 Dalam perkara mengenai Fitness Growth Sdn Bhd (No. Syarikat: 692832-X) Dan Dalam perkara Seksyen 465(1)(e) dan 466(1)(a) Akta Syarikat 2016 Antara CHEAH CHIN KEAN … PEMPETISYEN (No. K/P: 681206-08-5203) Dan FITNESS GROWTH SDN BHD … RESPONDEN (No. Syarikat: 692832-X) Dan SEIK YEAN YOUNG & 324 YANG LAIN … PEMOHON (No. K/P: 870730-60-5036) GROUNDS OF DECISION [1] There are altogether 4 Winding Up Petitions filed on 3/6/2017 before the Court: (i) WA-28NCC-334-06/2017, the Respondent company being True Fitness World Sdn Bhd (‘Petition 334’); (ii) WA-28NCC-336-06/2017, the Respondent company being Truest Sdn Bhd (‘Petition 336’); (iii) WA-28NCC-338-06/2017 the Respondent company being True Yoga Sdn Bhd (‘Petition 338’); and (iv) WA-28NCC-342-06/2017 the Respondent company being Fitness Growth Sdn Bhd (‘Petition 342’). [2] The Applicants have filed 2 Notice of Motions in Petition 334: (i) Encl.20 - the Applicants’ application pursuant to s.471 of the Companies Act 2016 (‘CA 2016’) and the inherent jurisdiction of the Court pursuant to O.92 r.4 of the Rules of Court 2012 (‘ROC 2012’); and (ii) Encl.10 - the Applicants’ application pursuant to ss.470(1), 502(1) and 502(3), 540(1) CA 2016 and the inherent jurisdiction of the Court pursuant to O.92 r.4 ROC 2012. [2.1] In encl.20 the Applicants prayed for - “1. Bahawa kebenaran nunc pro tunc diberikan kepada Pemohon-Pemohon di atas untuk memulakan prosiding undang-undang terhadap Responden sebagai salah satu Defendan dalam satu guaman Mahkamah Tinggi Shah Alam; 2. Bahawa kebenaran diberi untuk mana-mana ali-ahli gim Responden yang ingin memfailkan tindakan guaman terhadap Responden; 3. Kos permohonan ini dan kos-kos berkaitan dijadikan kos dalam kausa; dan 4. Sebarang perintah lain dan lanjut yang dianggap wajar dan adil oleh Mahkamah yang Mulia ini”. (‘S.471 application’) [2.2] In encl.10 the Applicants prayed for - “(a) Pemohon-Pemohon diberi kebenaran untuk memfailkan Permohonan ini; (b) Pemohon-Pemohon diberi kebenaran untuk memasuki tindakan ini sebagai pemiutang-pemiutang sah dan juga sebagai mewakili pemiutang-pemiutang sah yang lain; (c) Satu perintah penggantungan prosiding penggulungan Responden sementara menunggu pelupusan pendengaran Permohonan ini; (d) Satu perintah untuk mengarahkan kehadiran serta-merta Muhammad Redha Ahmad Bin Thaharuddin (No Kad Pengenalan: 571204-07-5469) (Pengarah), Patrick John Wee Ewe Seng (S1658841E) (Pengarah), Peter Joseph A/L Anthony Joseph Bennit (No Kad Pengenalan: 670627-04-5265) (Pengarah), Shikha Dutt A/P Delip Kumar Dutt (No Kad Pengenalan: 561205-05-5516) (Setiausaha), dan nama-nama lain yang berkaitan di Mahkamah bagi tujuan pemeriksaan di bawah seksyen 502(1) Akta Syarikat 2016 berkenaan penutupan mengejut gim-gim/cawangan-cawangan True Fitness di seluruh Malaysia tanpa notis-notis munasabah; (e) Satu perintah untuk mengarahkan kehadiran serta-merta Muhammad Redha Ahmad Bin Thaharuddin (No Kad Pengenalan: 571204-07-5469) (Pengarah), Patrick John Wee Ewe Seng (S1658841E) (Pengarah), Peter Joseph A/L Anthony Joseph Bennit (No Kad Pengenalan: 670627-04-5265) (Pengarah), Shikha Dutt A/P Delip Kumar Dutt (No Kad Pengenalan: 561205-05-5516) (Setiausaha), dan nama-nama lain yang berkaitan berserta dokumen-dokumen berkaitan di Mahkamah bagi tujuan pemeriksaan di bawah seksyen 502(3) Akta Syarikat 2016 berkenaan penutupan mengejut gim-gim/cawangan-cawangan True Fitness di seluruh Malaysia tanpa notis-notis munasabah; (f) Berikutan perintah pohonan di perenggan (d) dan (e) di atas, jika Mahkamah yang Mulia ini mendapati bahawa pihak-pihak berkenaan tidak dapat memberikan satu penjelasan yang munasabah, dipohon perintah di bawah seksyen 540(1) Akta Syarikat 2016 bahawa pihak-pihak berkenaan telah terlibat secara langsung atau tidak langsung dengan perdagangan penipuan (fraudulent trading) dengan niat untuk menipu kesemua ahli-ahli, pembekal-pembekal dan pekerja-pekerja True Fitness di Malaysia dan bahawa kesemua pihak-pihak yang dinamakan di perenggan (d) dan (e) di atas adalah bertanggungjawab secara kendiri dan tanpa batasan terhadap liabiliti bagi kesemua atau mana-mana hutang atau liabiliti-liabiliti Responden; (g) Jikalau perintah-perintah sepertimana di pohonan-pohonan di atas dibenarkan oleh Mahkamah yang Mulia ini, satu saranan (advice) dikeluarkan kepada Jabatan Peguam Negara dan Polis Diraja Malaysia untuk pihak-pihak sepertimana dinamakan di perenggan (d) dan (e) di atas dan nama-nama lain yang berkaitan dihadapkan untuk siasatan jenayah dijalankan; (h) Kos Permohonan ini dan kos-kos berkaitan ditanggung sepenuhnya oleh Responden; (i) Apa-apa perintah atau selanjutnya yang difikirkan patut dan sesuai oleh Mahkamah yang Mulia ini”. (‘Ss. 470(1), 502(1) and 502(3) and 540(1) application’) [3] The Applicants have filed identical corresponding Notice of Motions in the other 3 Petitions: (i) Petition 336- encl.15 and encl.12; (ii) Petition 338- encl.17 and encl.12; (iii) Petition 342- encl.19 and encl.12. [4] The hearing of the respective Notices of Motion in the respective Petitions proceeded on the basis of the Court hearing the submissions of the parties in respect of the 2 Notices of Motion in Petition 334 as the factual matrix and issues surrounding the other applications in the other 3 Petitions are identical as well. Background to the Notices of Motion [5] True Fitness World Sdn. Bhd. (‘True Fitness World’), Truest Sdn. Bhd. (‘Truest’), True Yoga Sdn. Bhd. (‘True Yoga’), Fitness Growth Sdn. Bhd. (‘Fitness Growth’), True Haven Sdn. Bhd. and True Fitness Sdn. Bhd. are a group of companies in Malaysia that runs a business operating gyms known as ‘True Fitness Group’ (‘TFG’) in Malaysia. TFG consist of the aforesaid 6 companies. [6] All 6 companies owned are by a holding company known as CJ Group Ltd, a Singaporean Company, whose director is Patrick John Ewe Seng (S1658841E) (‘Patrick John’) and one Cecilia Wee Chong Jin Nee (S0000008F). [7] In all of the said 6 companies, Patrick John Wee Ewe Seng, Muhammad Redha Ahmad Bin Thaharuddin (I/C No: 571204-07-5469) (‘Muhd Redha’) and Peter Joseph A/L Anthony Joseph Bennit (I/C No: 670627-04-5265) (‘Peter Joseph’) appear as directors of all of the companies which are associated with the True Fitness brand. [8] The Applicants are a small part of the large group of members of the True Fitness Brand of gyms of which they claimed they have a contractual relationship with the gym which consists of the 6 companies. [9] On 10/6/2017, the True Fitness brand of gyms suddenly and without any notice ceased all operations in Malaysia. [10] On 9/6/2017, one day before ceasing operations, True Fitness World, Truest, True Yoga and Fitness Growth had obtained a Court order to appoint an Interim Liquidator. Notwithstanding this, the members were not given any notice or information about the proceedings that were being carried out. [11] Miss Wong Shan Ty had published in the newspapers an advertisement dated 22/6/2017 that she had been appointed as an Interim Liquidator for the 6 companies. [12] One of the Directors of the True Fitness World, Patrick John Wee Ewe Seng, a Singaporean national bearing passport number (S1658841E) had provided an undertaking to a limited liability company registered in the Cayman Islands named Tongfang Kontafarma Holdings Limited to close all the operations of the True Fitness brand of gyms in Malaysia and Thailand on/or before 31/12/2017 in exchange for capital injection that will allow his holding company True Group in Singapore, wherein he is the Chief Executive Officer to expand into the Chinese market. [13] No notices were given by Patrick John, his directors or officers to the gym members, the staff nor the vendors of True Fitness World, Truest, True Yoga and Fitness Growth. [14] Up and until 10/6/2017, True Fitness World,Truest, True Yoga and Fitness Growth were still renewing the memberships and was signing up new members aggressively, some of which had signed up for lifetime memberships which require substantial fees. S.471 application [15] S.471 CA 2016 provides - “471. Action or proceeding stayed after winding up order (1) When a winding up order has been made or an interim liquidator has been appointed, no action or proceeding shall be proceeded with or commenced against the company except by leave of the Court and in accordance with such terms as the Court imposes. (2) The application for leave under subsection (1) shall be made in the Court granting the winding up order and shall be served on the liquidator. (3) The office copy of the order for leave under subsection (1) shall be lodged by the applicant referred to in subsection 470(1) with the Registrar and with the Official Receiver within fourteen days from the making of the order”. [15.1] Reading subsection 471(3), the applicant envisaged in subsection 471(1) is an applicant referred to in subsection 470(1) CA 2016, i.e, “the company or any creditor or contributory.” [16] There are altogether 321 Applicants involved in the s.471 application. I shall rely on the “Jadual Komen”, exh.A in encl.58 (Petition 334), Affidavit in Reply affirmed by Wong Shan Ty on 25/8/2017. I rule that except for Applicants no. 1, 2, 3, 4, 7, 9, 11, 16, 23, 26, 33, 36, 39, 44, 45, 46, 50, 55, 58, 60, 61, 62, 63, 64, 66, 68, 70, 71, 72, 78, 79, 80, 82, 83, 88, 89, 90, 97, 98, 99, 102, 103, 104, 105, 106, 107, 108, 110, 113, 116, 117, 121, 122, 123, 124, 127, 128, 130, 131, 132, 136, 137, 142, 145, 146, 150, 151, 154, 158, 159, 160, 165 (member since 5/6/2017 but all the 4 Petitions were filed on 3/6/2017), 168, 169, 170, 171, 172, 173, 175, 176, 179, 181, 192, 194, 200, 204, 205, 206, 207, 208, 211, 214, 215, 216, 217, 218, 219, 226, 227, 228, 229, 230, 232 (membership begins on 14/7/17 but all 4 Petitions were filed on 3/6/2017), 236, 237, 242, 243, 245, 246, 249, 250, 251, 257, 262, 263, 264, 272, 277, 280, 284, 287, 288, 290, 291, 296, 302, 306, 310, 313 and 325, the remaining Applicants are “creditors”. These Applicants have proved they are members of the relevant gyms owned by True Fitness World, Truest, True Yoga or Fitness Growth and that they have a contractual relationship with them. [17] S.471 CA 2016 is in pari materia with s.243 of CA 1965. In Mesuntung Property Sdn Bhd v Kimlin Housing Development Sdn Bhd [2014] 4 MLJ 886, David Wong Dak Wah JCA (delivering the judgment of the Court of Appeal) at p.887 held - “(1) Under s 226(3) of the Act, before leave is granted, the appellant had the burden of satisfying the court of two criteria: (a) that the appellant's claim could not be adequately dealt with by the winding up court; and (b) that the appellant had a prima facie case against the respondent. (2) There was little doubt that the appellant's claim of specific performance could not be dealt with by the winding up court in that its claim was unlike say a proof of debt. In short it was not a monetary claim (see para 24). (3) As to what amounts to prima facie in the context of s 226(3) of the Act, it is simply whether there is a serious dispute between the litigants which warrant a trial to determine the truth of the combating allegations”. It is to be noted that s.226(3) CA 1965 referred to by the Court of Appeal relates to, amongst others, the provision when a provisional liquidator has been made, leave of the Court before action or proceeding can be proceeded with or commenced against the company is required. [18] In Shencourt Sdn Bhd v Perumahan NCK Sdn Bhd [2008] 5 MLJ 191, Zulkefli JCA (now PCA) at 195 [10] and 196[11] opined - “On the guiding principle for the court to grant leave with a view to commencing action against a company that has been wound up we would like to refer to the case of Mosbert Bhd (In Liquidation) v Stella D'Cruz [1985] 2 MLJ 446 wherein Sean SCJ, in delivering the judgment of the Supreme Court at p 447 had this to say: In re Cuthbert Lead Smelting Co Ltd [1886] WN 84 it was held that if the applicant could obtain all the relief in the winding up leave would be refused. In short, the court will always give an application for leave if his claim cannot be dealt with adequately in the winding up or if the remedy he seeks cannot be given to him in a winding up proceedings. [11] It is clear based on the above cited case authority leave to proceed would only be granted when the plaintiff's claim cannot be adequately dealt with in winding up of the defendant's company or when the plaintiff is seeking a remedy which cannot be given in the winding up of the defendant's company”. [18.1] As rightly pointed out by Counsel for the Applicants, it is worth noting the Court of Appeal allowed the application for leave as - “a. There were declaratory orders prayed for; b. There were general damages to be assessed; c. There was a counterclaim and a set off; and d. The liquidators cannot adequately deal with the above prayer for relief and thus it is for the trial court to do so as”. [19] Based on the factual matrix of the instant case in my considered view, the Applicants have a prima facie cause of action against the Respondents in the 4 Petitions; there are serious issues between the litigants which warrant a trial to determine the truth of the allegations, the reliefs to be prayed for in the suits intended to be brought by the Applicants cannot be dealt with adequately in the winding up Court as it is envisaged the reliefs which they seek will include ascertainment of general damages, compensation costs, specific damages and declarations and specific performance. Hence in my judgment having satisfied the criteria for seeking leave of the Court, the Court grants OIT of prayers 1 and 3 only. Ss.470(1), 502(1) and 502(3) and 540(1) application [20] In respect of this application there are only 4 Applicants - Seik Yean Young, Lee Kwai Seng, Ho Wai Yin and Moh Lai Jing (‘1st, 2nd, 3rd and 4th Applicants’) respectively. [21] S.470(1) CA 2016 states - “At any time after the presentation of a winding up petition and before a winding up order has been made, the company or any creditor or contributory may, where any action or proceeding against the company is pending, apply to the Court for an order to stay or restrain further proceedings in the action or proceeding, and the Court may stay or restrain the action or proceeding accordingly on such terms as it thinks fit.” (2) The applicant shall lodge with the Registrar the office copy of the order within fourteen days from the making of such order under subsection (1)”. [22] The preliminary issue to be determined is whether the 1st to 4th Applicants are “creditors”. I have examined exh.LKS-2 in encl.55, Affidavit affirmed by Lee Kwai Seng on 10/8/2017 and I agree with the submission of Counsel for the Directors and proposed examinees, Mr. Srimurugan that - “(a) The 2nd applicant does not have any contractual relationship with the Respondent Company. The membership application form (agreement) exhibited by 2nd applicant is empty, with no signatures of either the Respondent company or the 2nd Applicant himself. There is also no proof that he had paid any money to the Respondent Company; (b) The 3rd applicant’s membership application form (agreement) exhibited is also doubtful as the name his name does not appear legible and no proof payment has been shown that he had paid money to the Respondent Company; (c) The 4th applicant also does not have any contractual relationship with the Respondent Company. The 4th applicant only appears to have a contract with another company known as True Fitness Sdn. Bhd. and not the Respondent Company in suit 342”. [22.1] Further, with respect to the purported “Agreement” exhibited in respect of the 1st to 4th Applicants there are “No further membership details” unlike those exhibited in Jadual A and B in encl.42, Affidavit Tambahan Ke-2 affirmed by Lee Kwai Seng on 10/8/2017. [22.2] Therefore I find the 1st to 4th Applicants are not creditors. [23] S.470(1) is in pari materia to s.222 of CA 1965. Therefore it is relevant to consider the case of Sri Jeluda Sdn Bhd v Pentalink Sdn Bhd [2008] 3 AMR 697. Ahmad Maarop JCA (now CJ Malaya) (delivering the judgment of the Court of Appeal) at p.698 held - “1.(a) The use of the words “where any action or proceeding against the company is pending” before the words “apply to the court” and the use of the words “further proceedings in the action or proceeding” after the word “restrain” in s 222 of the Act clearly evince the intention of the legislature to empower the court to stay further proceedings in the action or proceeding (other than) the hearing of the winding-up petition in question which is pending before the court. (b) The purpose of giving the court the power under s 222 of the Act to stay further proceedings in the action or proceeding (other than the hearing of the winding-up petition pending before the court), is to enable the court to ensure that no creditor shall gain priority over others of his class. (c) Section 222 of the Act does not empower the court to stay the proceeding of the winding-up petition before it”. [24] Premised on the aforesaid authority of Sri Jeluda (supra), the Applicants’ prayer for stay of proceedings under s.470(1) CA 2016 is misconceived and must fail. [25] S.502(1) CA 2016 provides - “The Court may summon before it any officer of the company or person known or suspected to have in his possession any property of the company or supposed to be indebted to the company, or any person whom the Court deems capable of giving information concerning the promotion, formation, trade dealings, affairs or property of the company”. [26] S.502(3) CA 2016 provides - “The Court may require the officer or person to produce any books and papers in his custody or power relating to the company, but if the officer or person claims any lien on books or papers, the production shall be without prejudice to that lien, and the Court shall have jurisdiction to determine all questions relating to that lien”. Ss.502(1) and 502(3) CA 2016 corresponds to s.249(1) and (3) CA 1965. [27] In Hicom Bhd v. Bukit Cahaya Country Resorts Sdn Bhd & Anor [2005] 8 CLJ 194 at pp.207-208, Ramly Ali J (now FCJ) has set out instructively the principles governing an application for examination under s.249 CA 1965 as follows: “Section 249 must be read together with r. 49, Companies (Winding Up) Rules 1972. The effect of these provisions is that they confer on the liquidator, creditor or contributory the extraordinary right to apply to court for leave to query persons on oath and to require him to produce any books and papers in his custody relating to wound up company. The persons to be queried may include officers of the company (being wound up) and any other persons (third parties) known or suspected to have in his possession any property of the company as well as any persons whom the court considers capable of giving information concerning the promotion, formation, trade dealings, affirms or property of the company. Rule 49 specifically provides that such application, if made by the liquidator, shall be made ex parte but if made by a creditor or contributory, shall be made by summons supported by an affidavit and the liquidator shall also be served. In other words, a unlike liquidator, creditor or contributory can only make such application by way of inter partes summons where the persons to be examined as well as the liquidator concerned must be served with the relevant papers. This extraordinary power serves an essential and important purpose. If used correctly it generally but not invariably redresses disadvantages without creating advantages. However if used incorrectly, it could be draconian in it's application and crushing in its consequence. Unnecessary legal costs can also be incurred by all involved and scarce fund of the company may be severely depleted, (see: Liquidator of W & P Piling Pte. Ltd. v. Chew in What & Ors. [2004] 3 SLR 164). Our legal proceedings are generally required to be conducted in the manner of an adverserial contest. The process of taking information or evidence on oath pursuant to these provisions, is an aberration which has been allowed into a fundamental tenet of an adversarial system. The court therefore plays an important and critical role in policing the exercise of these powers. In instances whether there is neither a reasonable basis for an investigation nor any real prospect of recouping loses or sustaining claims for the benefit of the company (being wound up) the court ought to be extremely cautious in allowing a proposed examination to proceed. The threshold test for information or documents is not one be of "absolute need" but that of a "reasonable requirement". The court must place on the scale of evaluation the purpose and the intent of an application on the one hand, and the oppression, inconvenience and disadvantage it may visit upon the proposed examinee one the other hand. In some instances, responses to the queries raised on oath or by way of an affidavit may be amply sufficient in place of an oral examination. If such relevant information can be procured without the exercise of this coercive power, it should not be invoked. The essential questions to be addressed are: (a) Is the procedure necessary for the business of preserving, collecting, managing or distributing the company's assets?; (b) Is the applicant (liquidator, creditor or contributory) conducting himself reasonably in the circumstances?; (c) Is it for the benefit of the company (being wound up)?; (d) Is there any alternative process to obtain such information either by way of sworn affidavit or otherwise?. (e) Is there any oppressive effect on the examinee?; (f) Does the process amount to an abuse of process?”. (Emphasis added) [27.1] Based on the emboldened parts in the passage quoted from Hicom Berhad’s case, I agree with the submission of Counsel for the Supporting Creditors, Chan Park He On, Reezal Jai, Rihan bin Abdullah, Lee Chee Lin and Chong Lei Ling in Petition 342 and Johnny Yek Hock Hai in Petition 338 that - (i) S.249 CA 1965 when read together with rule 49 of the Companies (Winding Up) Rules 1972 has the effect of limiting the applicability of s.249 of CA 1965 to wound up companies; (ii) Since the 4 Respondent companies, True Fitness World, Truest, True Yoga and Fitness Growth, have not been wound up, in my considered opinion the Applicants’ prayers for examination under ss.502(1) and 502(3) CA 2016 are premature and are accordingly dismissed by the Court. [27.2] An added reason why the 4 Applicants cannot rely on the provisions of ss.502(1) and 502(3) CA 2016 is because I have found that they are not creditors and therefore they do not have the locus standi to seek for examination of the proposed examinees and for the production of relevant documents in Court for examination. [28] Prayer (f) of ss.470(1), 502(1) and 502(3) and 540(1) application (encl.10) has been framed in such a manner that it is contingent on the Court making a finding that if it is not satisfied with the explanations to be proffered by the proposed examinees, then the Court is urged to make an order under s.540(1) CA 2016 against the proposed examinees that they are directly or indirectly involved in fraudulent trading with intent to defraud the members, suppliers and the employees of True Fitness in Malaysia and for the proposed examinees to be personally responsible, without any limitation of liability for the debts or liabilities of the Respondent company. [28.1] Since it is my finding that the Applicants cannot rely on ss.502(1) and 502(3) CA 2016, therefore prayer (f) is a non starter. Whether the Court has the jurisdiction to advise the Attorney General Chambers or the Royal Malaysian Police on the proposed examinees [29] This relates to prayer (g) of the said Notice of Motion (encl.10). The Applicants are seeking for an order that the Court advise the Attorney General Chambers or the Royal Malaysian Police to investigate the proposed examinees, Muhammad Redha Ahmad Bin Thaharuddin, Peter Joseph A/L Anthony Joseph Bennit, Patrick John Wee Ewe Seng, Shikha Dutt and other named person. [29.1] In this regard I agree with Mr. Srimurugan’s submission that - (i) the Attorney General has the discretion whether to institute proceedings at all and, if so, with what offence to charge the accused by virtue of s.145(3) of the Federal Constitution (Teh Cheng Poh v. PP [1979] 1 MLJ 50); and (ii) the Court does not have any power to make an order be it in the nature of advice against any party who is not a party in this proceedings. In Kheng Chwee Lian v. Wong Tak Thong [1983] 1 MLRA 66 at p.70, the Federal Court held - “In our judgment, the Court, below has no jurisdiction inherent or otherwise, over any person other than those properly brought before it, as parties or as persons treated as if they were parties under statutory provisions (Brydges v. Brydges & Wood [1909] p.187; Re Shephared [1890] 43 Ch D 131 and Coleman v. Coleman [1920] p.71)”. [29.2] In any event prayer (g) is a non starter as this prayer is only triggered if the orders in respect of prayers (a) to (f) above in encl.10 are granted. Conclusion [30] For the reasons enumerated above, I make the following order: (i) O.I.T of prayers 1 and 3 for - Petition 334- encl.20 Petition 336- encl.15 Petition 338- encl.17 Petition 342- encl. 9. (ii) Dismiss the following with no order as to cost: Petition 334- encl.10 Petition 336- encl.12 Petition 338- encl.12 Petition 342- encl.12. [30.1] I make no order as to cost having regard to the fact that the 4 Respondent companies ceased operations in Malaysia suddenly and without notice on 10/6/2017 and which was one day after the appointment of an Interim Liquidator on 9/6/2017 upon the Petitioner’s application pursuant to s.476 CA 2016 in the 4 Petitions. Dated: 9/11/2017 SGD. (LAU BEE LAN) Judge WA-28NCC-334-06/2017 WA-28NCC-336-06/2017 WA-28NCC-338-06/2017 WA-28NCC-342-06/2017 Counsel for the Petitioners: Cik Melanie Ho Mei Yee together with Encik C.J. Ooi Messrs Melanie Advocates & Solicitors C-3A- 3, Colonial @ Empire City Bukit Lanjan 47820 Petaling Jaya Selangor Darul Ehsan Counsel for the Applicants/Proposed Interveners: Encik Alex Netto together with Encik Chen Yu Szen Messrs Dee, Netto, Fatimah & Ng Advocates & Solicitors A- 3-19, Megan Phoenix Jalan 2/142A, Cheras 56000 Kuala Lumpur WA-28NCC-338-06/2017 WA-28NCC-342-06/2017 Counsel for the Supporting Creditors: Encik Bryan Ho Messrs Ho Partnership Advocates & Solicitors Suite A-11-3A, Level 11, Plaza Taragon Kelana No.3, Jalan SS 6/6 Kelana Jaya 47301 Petaling Jaya Selangor Darul Ehsan WA-28NCC-334-06/2017 WA-28NCC-336-06/2017 WA-28NCC-338-06/2017 WA-28NCC-342-06/2017 Counsel for the Liquidators for Respondents: Encik C J Ooi together with Encik E K Khaw Messrs Chih-Jen & Associates Advocates & Solicitors No.7-19-M (Mezzanine Floor) Jalan Jalil Perkasa 14/155B Aked Esplanad Bukit Jalil 57000 Kuala Lumpur WA-28NCC-334-06/2017 WA-28NCC-336-06/2017 WA-28NCC-338-06/2017 WA-28NCC-342-06/2017 Counsel for the Directors & Proposed Examinees Encik Srimurugan a/l Alagan Messrs SRIMURUGAN & CO Advocates & Solicitors No.33-5-3A Block C Jaya One No.72A Jalan University 46200 Petaling Jaya Selangor Darul Ehsan 33

Tika 2.6.0

26NCC-26/2011

PLAINTIF KHOO PENG LAI TAN DEFENDAN AH HIN & 7 LAGI

Civil Procedure - Application for an order of committal - minority shareholder - Oppressions - Right to access the company accounts and documents - Whether the disputed companies are subsidiaries of the 8th respondent - Whether the failure to appoint KPMG per se would constitute a contempt of Court - Companies Act 1965 [Act 125], section 131B and 181; Rules of the High Court 1980, order 88; Companies Winding Up Rules 1972.

08/11/2017

YA TUAN MOHD NAZLAN BIN MOHD GHAZALI

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=fe0b94a9-c679-419f-b49e-14536a39dc6f&Inline=true

DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR DALAM WILAYAH PERSEKUTUAN, MALAYSIA PETISYEN PEMULA NO.: 26NCC-26-2011 Dalam perkara Telemont Sdn Bhd (No.: Syarikat: 533734-U) Dan Dalam perkara Seksyen 181 Akta Syarikat, 1965 Dan Dalam perkara Kaedah-Kaedah Syarikat (Penggulungan) 1972 Dan Dalam perkara Aturan 88 Kaedah-Kaedah Mahkamah Tinggi 1980 ANTARA KHOO PENG LAI (NRIC No.: 530915-10-6195) ….PEMPETISYEN DAN 1. TAN AH HIN (NRIC No.: 570328-10-6189) 2. KHO AH TEE (NRIC No.: 480316-71-5025) 3. KHO YOW MING (NRIC No.: 840820-14-5785) 4. TE SOH PENG (NRIC No.: 750401-10-5800) 5. DATO’ NIK ISMAIL BIN NIK YUSOFF (NRIC No.: 460902-03-5497) 6. DATO’ ABDUL LATIF BIN MOHAMAD (NRIC No.: 480630-03-5183) 7. LIM NEOW HWA (NRIC No.: 570603-03-5080) 8. TELEMONT SDN BHD (COMPANY No.: 533734-U) ….RESPONDEN-RESPONDEN DI HADAPAN YANG ARIF TUAN MOHD NAZLAN BIN MOHD GHAZALI HAKIM JUDGMENT Introduction [1] This is an application for an order of committal against the respondents. [2] After having heard submissions by parties at the hearing, I dismissed the application and stated my key grounds for so deciding. This judgment contains the full grounds for my decision. Key Background Facts [3] There is a fair bit of history of Court proceedings involving the parties to this application. For present purposes, it suffices that I refer to them only in summary fashion, mainly adapted from my own judgment in Khoo Peng Lai v Tan Ah Hin & Ors [2016] 1 LNS 450 which concerned an application to amend an Order of the Court (which I shall also refer to later). [4] The present proceedings found their origin in a petition filed by the petitioner pursuant to Section 181(1) of the Companies Act 1965 (“the CA”) (“the Petition”). The petitioner is a shareholder, holding 10% of the share capital of the 8th respondent company, Telemont Sdn Bhd. He was also a former director on the board of the 8th respondent and had resigned on 2 July 2007. [5] The 1st to the 7th respondents were directors of the 8th respondent at the material time. The petitioner had alleged that the respondents, amongst others, had oppressed his rights as a minority shareholder by excluding him from the management of the 8th respondent company, namely Telemont Sdn Bhd (“Telemont”). [6] On 28 February 2013, after a full trial, this Court, in the judgment of her Ladyship Hanipah Farikullah J granted, amongst others, for purposes relevant to this judgment, the following orders: (a) Pendaftar Syarikat Malaysia dan/atau Suruhanjaya Syarikat Malaysia diperintahkan mengemaskini (rectify) daftaran (the register) untuk menggambarkan pegangan saham sebenar Pempetisyen dalam Responden Ke-8 (Telemont Sdn Bhd (No. Syarikat: 533734-U), yakni 3,150,000 saham-saham ‘ordinary shares’ bernilai RM1.00 setiap satu; (b) Seorang Juru Odit bebas daripada firma KPMG dilantik untuk menyiasat dan mengodit akaun-akaun Telemont Sdn Bhd (No. Syarikat: 533734-U) bermula dari tahun 2005 sehingga tarikh Perintah yang dibuat di dalam ini; ……………………….. (f) Pengarah-Pengarah Telemont Sdn Bhd diperintahkan untuk membenarkan kesemua rekod-rekod Telemont Sdn Bhd diperiksa oleh Pempetisyen dan Pempetisyen diberikan kebenaran (leave) untuk mengambil apa-apa langkah-langkah yang diperlukan demi melindungi kepentingan Telemont Sdn Bhd; ……………………….. (h) Bahawa pihak-pihak diberikan kebenaran untuk membuat permohonan lanjut kepada Mahkamah yang mulia ini untuk arahan dan/atau perintah yang lanjut dan/atau yang lain untuk tujuan perlaksanaan sewajarnya ke atas perintah-perintah di dalam ini. [7] The Order dated 28 February 2013 (“the Original Order”) thus granted the petitioner the right to access the company accounts and documents of the 8th respondent. The petitioner then took steps to enforce the Original Order by requesting the respondents to grant him access to the accounts and documents of the 8th respondent and its subsidiaries as well. [8] However, since the Original Order, as can be seen from the above, did not expressly provide for the inspection of accounts and documents of the 8th respondent’s subsidiaries, nor indeed make mention of the existence of any of the 8th respondent’s subsidiaries, the respondents chose not to accede to the petitioner’s request. [9] The petitioner then successfully obtained an order from her Ladyship Hanipah Farikullah J of this Court on 12 September 2013 amending the Order by the inclusion of the words ‘….dan kesemua anak-anak syarikatnya’ into prayers (b) and (f) of the Order (“the Amended Order”), which as a result now reads as follows:- (b) Seorang Juru Odit bebas daripada firma KPMG dilantik untuk menyiasat dan mengodit akaun-akaun Telemont Sdn Bhd (No. Syarikat: 533734-U) dan kesemua anak-anak syarikatnya bermula dari tahun 2005 sehingga tarikh Perintah yang dibuat di dalam ini; (f) Pengarah-Pengarah Telemont Sdn Bhd diperintahkan untuk membenarkan kesemua rekod-rekod Telemont Sdn Bhd dan kesemua anak-anak syarikatnya diperiksa dan disalinkan oleh Pempetisyen dan/atau juruodit/juruakaun/profesional-profesional yang dilantik olehnya dan Pempetisyen diberikan kebenaran (leave) untuk mengambil apa-apa langkah-langkah yang diperlukan demi melindungi kepentingan Telemont Sdn Bhd;…” [10] The respondents’ appeals against both the Original Order and the Amended Order were refused by the Court of Appeal on 28 February 2013 and 12 September 2013 respectively. [11] It ought to be noted that both the Orders do not name the specific subsidiaries. It is plain from the Amended Order that despite the inclusion of the reference to the 8th respondent’s subsidiaries, the identities of the subsidiaries were not however specified in the same. [12] The dispute between the parties however is precisely on whether certain identified companies are subsidiaries of the 8th respondent. As such, the petitioner had continued to insist on access to the accounts and documents of companies which he contended were subsidiaries of the 8th respondent, but which the respondents strenuously denied. These companies are:- (a) Modal Jati Berhad (Company No.: 103729-X) (“MJB”); (b) MJB Forestry Sdn Bhd (Company No.: 663624-W) (“MJBF”); (c) Jejaka Makmur Sdn Bhd (Company No.: 313510- W) (“JMSB”); (d) Sindiyan Sdn Bhd (Company No.: 388706-T) (“SSB”); and (e) Alifya Forestry Sdn Bhd (Company No.: 348623-H) (“AFSB”) (collectively “the Disputed Companies”). [13] The petitioner was then successful before his Lordship Harmindar Singh Dhaliwal J (as he then was) of this Court in his subsequent application for leave to commence committal proceedings against the respondents for their alleged failure to abide by the Amended Order to grant the petitioner access to the accounts and documents of the Disputed Companies, said to be the 8th respondent’s subsidiaries. [14] Pending the hearing for the order of committal in enclosure 72, and the counter application to set aside leave for the committal in enclosure 82, the respondents then filed an application to vary the Amended Order, to specifically name the subsidiaries of the 8th respondent, which according to the respondents, did not include the Disputed Companies. [15] That was enclosure 100 and heard before me. The contention of the petitioner was that the Disputed Companies were indeed the subsidiaries of the 8th respondent. [16] I dismissed the same, on account of among others, res judicata, and on the basis that the grounds of judgment accompanying the Original Order had actually made a specific finding of fact given that the identities of the subsidiaries of the 8th respondent had been set out, which crucially included the Disputed Companies (see my decision on the said enclosure 100 in Khoo Peng Lai v Tan Ah Hin & Ors [2016] 1 LNS 450 referred to earlier). [17] After my decision to dismiss the application to vary the Amended Order, the respondents filed an appeal against my decision on enclosure 100. I then allowed the respondents’ application to stay the pursuit of the committal proceedings in enclosures 82 and 72 pending disposal of the same. The Court of Appeal affirmed this Court’s dismissal of enclosure 100. The respondents further failed to obtain leave to appeal against that decision of the Court of Appeal to the Federal Court. [18] The proceedings on enclosure 82 to set aside the leave for committal was subsequently heard before me. I dismissed the same. Hence the present proceedings for committal against the respondents now before this Court. Primary Contentions of Parties [19] The crux of the respondents’ argument against the order of committal is the primary and by now familiar contention that the identities of the subsidiaries of the 8th respondent in question, namely MJB and its subsidiaries were not subject to the Amended Order as they had been disposed of earlier. These subsidiaries were not even named in the Amended Order. The grounds of the decision (as opposed to the Orders) allowing the petition which mentioned that MJB and its subsidiaries were subsidiaries of the 8th respondent were based on company searches with the Companies Commission of Malaysia way back in 2009/2010 which had been made before the filing of the Petition in April of 2011. The identities of the subsidiaries too were not even part of the issues for adjudication. [21] The other key argument of the respondents is that at the time of the filing of the application for leave on 27 January 2015, all respondents apart from the first and second respondents had ceased to be directors of the 8th respondent. Further, the sealed Amended Order was only served on the 4th, 5th, 6th, and 7th respondents subsequent to their resignation as directors. In addition, the petitioner had failed to disclose that the appointment of KPMG would require a substantial amount of RM1 million as initial retainer, not to mention the fees, neither of which the 8th respondent would be in a financial position to pay. [22] The petitioner however, challenged the grounds put forth by the respondents. He maintained that the attempt by the respondents to amend the Amended Order by excluding the Disputed Companies had been refused by this Court in my dismissal of enclosure 100, which decision had been affirmed by the Court of Appeal. The Disputed Companies thus remained the subsidiaries of the 8th respondent. It was argued that if the disposal of MJB did take place, it meant that the 1st and 2nd respondents had caused the disposal of MJB to themselves, and this would constitute a specific intention to frustrate the Original Order and Amended Order. Further, if MTB were indeed sold to the 1st and 2nd respondents, which was claimed to have been for RM10 million, the petitioner questioned as to how the said consideration had been accounted for and where the same was documented. [23] The petitioner further contended that the resignation of the relevant respondents, if true, would not be relevant since under the Original Order and Amended Order, the obligation on the part of the respondents was premised on individual, and not official capacity. Even though the relevant Form 49 of the CA on the status of directorships has now been shown to the petitioner, this was never previously raised to the petitioner from the time of the filing of the Petition. Evaluation and Findings by this Court First Issue – Whether the Disputed Companies are subsidiaries of the 8th respondent The Earlier Findings [24] Whether the Disputed Companies were the subsidiaries of the 8th respondent at the material time remains and still is the overarching issue that would largely determine whether or not the respondents were in contempt of the Amended Order. [25] This application for committal against the respondents is also fashioned by the petitioner on the basis that the respondents had willfully breached the Amended Order which caused an interference with the administration of justice. The acts of contempt complained of in the Order 52 statement included primarily the accusation that the respondents had caused MJB and its subsidiaries to be transferred out from Telemont secretly and illegally to avoid the enforcement of the Amended Order. [26] It is useful that I reiterate that the respondents are asserting that at all material times, the Disputed Companies, which were never named as parties to the Petition, were not subsidiaries of the 8th respondent Telemont. In particular, they maintain that:- (a) MJBF, JMSB, SSB AND AFSB were never the direct subsidiaries of the 8th respondent; they were instead subsidiaries of MJB. This much is not disputed. (b) MJB was previously a subsidiary of the 8th respondent but had ceased to be a subsidiary since November 2010, when the 8th respondent had disposed of its shares in MJB. Since the Petition was filed on 19 April 2011, and the Original Order was given on 28 February 2013 and the Amended Order was allowed on 12 September 2013, at all these material dates, MJB was therefore no longer a subsidiary of the 8th respondent in that 8th respondent or Telemont no longer owned any shares in MJB. This is the true bone of contention in this dispute. [27] The respondents thus insisted that at all relevant times, including presently, neither MJB nor any of the Disputed Companies are subsidiaries of the 8th respondent, and that the 8th respondent does not own any shares in any of the Disputed Companies, as can be seen from the records as filed at the Companies Commission of Malaysia. [28] And as I have mentioned, in my decision on enclosure 100 in Khoo Peng Lai v Tan Ah Hin & Ors [2016] 1 LNS 450, I had made the ruling that the grounds of judgment accompanying the Original Order had already made a specific finding of fact that the identities of the subsidiaries of the 8th respondent crucially included the Disputed Companies. Subsequent and Contrary Specific Finding of Fact by Court of Appeal on the Disputed Companies [29] There is however one very significant and subsequent development with repercussions on this instant committal action. This is a related suit, in a form of an originating summons instituted by certain parties (including Wawasan Dengkil Properties Sdn Bhd, to whom MJB was said to have been sold, and others) to set aside the very Amended Order which is the subject-matter of the instant committal proceedings. The appeal against its dismissal was allowed at the Court of Appeal, which however granted only certain prayers in the originating summons. [30] The decision of the Court of Appeal as reported in Wawasan Dengkil Properties Sdn Bhd & Ors v Khoo Peng Lai & Ors [2016] 9 CLJ 517 is especially pertinent for it contains an express finding of the Court of Appeal on the very specific issue of whether MJB was a subsidiary of the 8th respondent. And all the arguments against MJB being a subsidiary as repeated herein had also been raised in that appeal proceedings. [31] In order to present a clear and complete picture of the observations and conclusions of the Court of Appeal relevant to the issue herein, it would be remiss of me not to reproduce the relevant passages from the judgment of the Court as delivered by Mary Lim JCA, as follows:- “[18] It is best to set out the terms of the amended order so that we can appreciate the complaints of the appellants. The following highlighted amendments that the appellants sought to set aside: 2. Seorang Juru Odit bebas daripada firma KPMG dilantik untuk menyiasat dan mengodit akaun-akaun Telemont Sdn Bhd... dan kesemua anak-anak syarikatnya bermula dari tahun 2005 sehingga tarikh perintah yang dibuat di dalam ini; 3....; 4....; 5....; 6. Pengarah-Pengarah Telemont Sdn Bhd diperintahkan membenarkan kesemua rekod-rekod Telemont Sdn Bhd dan kesemua anak-anak syarikatnya diperiksa dan disalinkan oleh Pempetisyen dan/atau juruodit/juruakaun/professional-professional yang dilantik olehnya dan pempetisyen diberikan kebenaran (leave) untuk mengambil apa-apa langkah-langkah yang diperlukan demi melindungi kepentingan Telemont Sdn Bhd; 7....; 8....; [19] The basic argument of the appellants is that the amended order cannot be granted because Jejaka Makmur and Modal Jati were not owned by Telemont at the material time. The material time being the time of both the original order and the amended order. By these dates, both Modal Jati and Jejaka Makmur were no longer owned by Telemont because the ownership in both Modal Jati and consequently Jejaka Makmur had changed with the sale of Modal Jati. Unfortunately, the appellants were not able to raise these arguments because of the principle of res judicata and issue estoppel. On the merits, the learned judge was also not with the appellants”. [32] The above passages repeat the same contention of parties, and focused on the key terms of the Amended Order. The Court of Appeal then continued:- “[22] These are our views. First of all, it merits mention several undisputed matters amongst which is the integrity of the SPA. It is a non-issue as the trial court in the 181 Petition had found that the SPA had been stamped on 29 August 2012. Second, it would appear that the change of ownership is also not in dispute. Modal Jati was sold to the two directors who are the second and third respondents in this appeal on 11 November 2010, and they then sold Modal Jati to Wawasan Dengkil, the first appellant through the SPA on 17 August 2012. Jejaka Makmur remained fully owned by Modal Jati until 18 March 2013 when its shares in Jejaka Makmur were subsequently transferred to Wawasan Dengkil. Third, it is also not in dispute that the material time would be the dates of the two orders, the original order on 28 February 2013 and the amended order on 10 September 2013. [emphasis added] [33] The above is significant, for it pronounced that Modal Jati (or MJB) was sold on 11 November 2010, thus validating the version proffered by the respondents. If a clearer articulation of the finding is necessary, one need not look further than to the following passages in the judgment which focused on this very question:- “Status of Modal Jati And Jejaka Makmur [42] A central issue in the Setting Aside OS is the status of Jejaka Makmur: was it still a subsidiary of Telemont at the two material dates of the original order and the amended order. If the answer is in the affirmative, was there a suppression of material facts before the learned judge in the 181 petition which affected the proper making of the amended order on 10 September 2013. On the first aspect of the issue, the appellants argued in the negative while KPL, the first respondent maintained that Jejaka Makmur was still a subsidiary. [43] The learned judge concluded that at the time of the said order, Jejaka Makmur was a subsidiary of Telemont and Modal Jati. Her Ladyship relied on the testimony of TAH given during the 181 petition (that the structure and assets of Telemont and its group of companies since KPL's exit from Telemont in 2007 had been maintained); that TAH was a director of both Telemont and Modal Jati; and that the learned judge in the 181 petition had made a finding of fact that Jejaka Makmur "is a wholly owned subsidiary of Modal Jati which came under the control and direction of Telemont, "a holding company for several subsidiaries". Various parts of the grounds of decision were identified, including para. 2: Based on the evidence before me, the facts are as follows: (i) Telemont Construction Sdn Bhd (Company No. 609021-D) ("Telemont Construction"); and (ii) Modal Jati Sdn Berhad (Company No. 103729-X) ("Modal Jati"). A copy of the search conducted in the Companies Commission of Malaysia on Telemont Construction is annexed to this petition and marked as "P7". A copy of the search conducted in the Companies Commission of Malaysia on Modal Jati is annexed to this petition and marked as "P8". (iii) The wholly owned subsidiaries of Modal Jati, which came under the control and direction of Telemont: (a) MJB Forestry Sdn Bhd (Company No. 663624-W) ("MJB Forestry"); (b) Jejaka Makmur Sdn Bhd (Company No. 313510-W) ("Jejaka Makmur"); ….. (c) Alifya Forestry Sdn Bhd (Company No. 384623-H) ("Alifya Forestry"); ….. (d) Sindiyan Sdn Bhd (Company No. 388706-T) ("Sindiyan"). Copies of the searches conducted in the Companies Commission of Malaysia on MJB Forestry, Jejaka Makmur, Alifya Forestry and Sindiyan are annexed to this petition and marked as "P9", "P10", "P11" and "P12" respectively. (emphasis added) [44] With the corporate structure as set out earlier, it becomes evidently clear that Telemont's ownership of Jejaka Makmur is through Modal Jati. The moment Telemont ceases to own Modal Jati, it can no longer count Jejaka Makmur as its subsidiary, direct or indirect. From the above findings of the trial judge in the 181 petition, it appears that the court there was in fact describing a different company: Telemont Construction Sdn Bhd with registration number of 609021-D, and not Telemont Sdn Bhd with a registration number of 533734-U. The 181 petition is not against Telemont Construction Sdn Bhd but against Telemont Sdn Bhd (Company No. 533734-U). There is no SSM search on Telemont Construction Sdn Bhd, only Telemont Sdn Bhd. This serious discrepancy is enough to warrant intervention by this court. [45] Proceeding nevertheless on the assumption that the learned judge's description of Telemont and the various subsidiaries is correct, that is still of no real assistance to the issue of whether the collateral proceedings undertaken by the appellants to set aside the amended order in relation to the appellants was properly initiated and was one of merit. The answers and evidence identified by the learned judge must be examined in terms of the material date of the said order. It appears from the record of appeal that exhs. P7 and P8 were SSM searches conducted in 2009 (pp. 101 to 106 in R/A Jil. III for P8; and pp. 113 to 118 in R/A Jil. III for P7). There is no point saying that Model Jati or even Jejaka Makmur was owned by Telemont but the present owner of either company is not before the court at the time of pronouncement of any order especially one which is intended to be affected by the present owner. The present owner of Jejaka Makmur, who are the appellants, were never notified of the 181 Petition proceedings or even the application to amend. In such circumstances, the appellants' application has merit. [46] In any event there is evidence aplenty before the High Court in the Setting Aside OS to show that Modal Jati was no longer a subsidiary of Telemont by the time of the said order. This evidence was produced by both the appellants and KPL. First, there were the relevant resolutions of Telemont and Modal Jati. These resolutions dated 1 November 2010 authorised the disposal of Telemont's shares in Modal Jati and the transfer of those shares to the two directors - see pp. 233 to 238 of R/A Jil. III. Then, there is the SSM search on Jejaka Makmur that was conducted on 28 August 2012 (see pp. 151 to 157 of R/A Jil. II). This valid and material search shows that by the time of the decision in the 181 petition on 28 February 2013, Modal Jati was not a subsidiary of Telemont. Evidence of the director recorded during the trial of the 181 petition must also be treated with caution as it was given in the context of a 181 petition against Telemont and not its subsidiaries. Certainly, it was not against any other company, whether Modal Jati or Jejaka Makmur. [47] The above position of the ownership of Modal Jati and Jejaka Makmur was confirmed by the other respondents before us. Although learned counsel for KPL had suggested that these parties were not without bias, it cannot be denied that their position is borne out by the contemporaneous documents already before the court”. [34] In summary, the above key passages from the judgment state the crucial findings, as supported by contemporaneous documents such as company resolutions and company searches that MJB and hence its own subsidiaries, including Jejaka Makmur, were no longer subsidiaries of the 8th respondent at the time of the filing of the Petition, more so the Amended Order. That much is clear. [35] The Court of Appeal also furnished its analysis as to why the earlier finding that the Disputed Companies were subsidiaries of the 8th respondent at the material time cannot be sustained, as follows:- “[35] When the grounds of decision in the 181 petition are examined, the issue of ownership of Modal Jati and thereby Jejaka Makmur by the appellants was never in contention. Instead, the issue arising in the 181 petition was quite focused and narrow: whether the several acts complained of by KPL amounted to acts of oppression under s. 181 of the Companies Act….. [36] The above clearly indicates that all of KPL's concerns and complaints focused in and on Telemont. That comes as no surprise as Telemont was the investment holding company and KPL operated at the level of Telemont. [37] …….However, none of the matters raised by KPL, discussed and examined by the trial court in the 181 Petition come even close to the matters of change of ownership or disposal of Telemont's entire shares in Modal Jati to the two directors or worse, of the disposal of the same shares by the two directors to Wawasan Dengkil. The issue of the disposal of shares and specifically of Telemont's shares in Modal Jati was never under consideration. That being the case, we cannot find the operation of the doctrine of res judicata and the extended principle of issue estoppel…… [49] There was nothing to indicate that any of the subsidiaries were also under scrutiny in the 181 petition. Those parts of the judgment as identified by the learned High Court Judge in the Setting Aside OS serve only to describe the companies that fall within the group. Even then, there was no ascertainment of the position of those subsidiaries as at the date of the decision. There was no ascertainment because it was not relevant to the petition which was only against Telemont. Had that question been examined, the trial judge in the 181 petition would have found that Modal Jati was no longer owned by Telemont as per resolution passed on 1 November 2010 and as registered on 18 March 2013. ….. [53] We must add that there must be available before the court the correct and necessary parties at the time of the making of any order for the simple reason that the order needs compliance. At the time of these orders, as evident from the grounds of decision in the 181 petition, the company searches on Telemont, Modal Jati and Jejaka Makmur were those conducted in 2009. Given that KPL was interested in securing orders against subsidiary companies, it was imperative that the latest SSM searches were made available. There are no records of any search produced to the court in the 181 petition at the time of the amendment. Where it is shown that the status as found in the 2009 searches no longer holds true, and the appellants have successfully shown this to be the case, then an order made under such erroneous conditions, without the new owners present, is clearly one which is liable to be set aside. The rules of natural justice must always be observed. Where there is a breach of those rules as was the case here, we agree that the appellants have been prejudiced by the lack of fair play. We further agree with the appellants that a fit case for setting aside and impeachment of the Amended Order has consequently been made out under the principles as laid down in Badiaddin Mohd Mahidin & Anor v. Arab Malaysian Finance Bhd [1998] 2 CLJ 75”. [36] As such, in the instant case, having evaluated the requisite Order 52 statement supporting this committal application, the affidavits and submissions by parties on the key allegation that the respondents had failed to grant the petitioner access to the accounts and documents of MJB and its subsidiaries in accordance with the terms of the Amended Order, although this Court had in enclosure 100 previously refused to make further amendment to the Amended Order to specifically include the names of the subsidiaries of Telemont and noted that Modal Jati had already been identified as a subsidiary of Telemont in the grounds of decision of the High Court which allowed the minority oppression action against the Respondents, it cannot however now be denied that the Court of Appeal in Wawasan Dengkil had made an express and specific finding that MJB (and thus necessarily its own subsidiaries, including Jejaka Makmur) had been disposed of by Telemont, being the 8th respondent, in the year 2010. [37] I cannot but emphasize that this disposal was undertaken prior even to the filing of the Petition for minority oppression by the petitioner against the respondents in April 2011 and way before the grant of the Amended Order in September 2013. As such, clearly, it cannot be said that the respondents had refused access, what more deliberately, to MJB if at the time of service of the Amended Order, MJB and its subsidiaries were no longer subsidiaries of Telemont, being the 8th respondent. Or that the disposal of MJB was in any manner orchestrated to circumvent the Amended Order and interfered with the administration of justice. [38] It is true that there were questions posed by the petitioner on the propriety of the disposal of MJB to the 1st and 2nd respondents, or even whether the disposal was genuine in the first place. Indeed, I too had raised this question in enclosure 100. Two points of general importance and application must be made. [39] First, the determination of enclosure 72 rests entirely on affidavit evidence before this Court. On that basis, allegations on propriety of the disposal are unsubstantiated and could at best be considered as mere conjecture. So too is the allegation that the respondents had challenged the Amended Order through the filing of various legal measures to delay the process and with the objective of enabling the respondents to continue with their act of disposing the assets of 8th respondent. This is simply not supported by affidavit evidence. [40] Neither could or should the instant committal proceedings be allowed by this Court to be transformed into the collateral forum to adjudicate on the legality of the disposal instead. These allegations by the petitioner are irrelevant to the conduct on the part of the respondents alleged to have been contemptuous, more so when it is for the petitioner to prove his case against the respondents beyond reasonable doubt. [41] Moreover, despite disputing the ownership of MJB and the Disputed Companies had been transferred, the petitioner also asserted in his Order 52 Statement that the respondents had conspired or caused MJB and its subsidiaries to be transferred out from the 8th respondent secretly and illegally to avoid the enforcement of the Amended Order. It is unclear which position is taken by the petitioner in its application to commit the respondents. The petitioner cannot pursue his case in this fashion. He cannot blow hot and cold. He cannot approbate and reprobate at the same time. This does nothing but further weakens the case of the petitioner. [42] In the case of  Bakti Dinamik Sdn Bhd v. Bauer (Malaysia) Sdn Bhd [2016] 10 CLJ 247, I stated thus:- “[43] The position taken by the plaintiffs currently may be characterised as one which violated the principle against ‘approbating and reprobating’. In the Court of Appeal case of Visage Continental Sdn Bhd v Smooth Track Sdn Bhd [2007] 6 CLJ 570, Richard Malanjum JCA (as his Lordship then was) referred to various authorities and enunciated clearly the rule that a party should not be allowed to approbate and reprobate as it is a practice that is both plainly unconscionable and unfair”. See also the decision of the Court of Appeal in Prestaharta Sdn Bhd v. Ahmad Kamal bin Md Alif & Ors [2016] 4 MLJ 39. [43] Secondly, it is trite that committal proceedings are criminal in nature since the same involve the liberty of the alleged contemnor (see the Federal Court decision in Tan Sri Dato' (Dr) Rozali Ismail & Ors v. Lim Pang Cheong & Ors [2012] 2 CLJ 849). [44] In Re Bramblevale Ltd [1970] 1 Ch 125, Lord Denning MR in his characteristic inimitable style stated the principle on the applicable standard of proof for contempt proceedings: “A contempt of court is an offence of a criminal character. A man may be sent to prison for it. It must be satisfactorily proved. To use the time - honoured phrase, it must be proved beyond reasonable doubt”. [45] As such, the allegations of the petitioner cannot be sustained. They are not supported by affidavit evidence, and more significantly came nowhere close to meeting the threshold of establishing the case of contempt on the standard of proof of beyond reasonable doubt. [46] For substantially the same reasons, the argument that there is a conflicting Court of Appeal decision in respect of enclosure 100 which affirmed my decision refusing to vary the Amended Order (on the application of the respondents herein to specify the subsidiaries which did not include the Disputed Companies) similarly would be untenable. [47] In this connection, it is useful if reference is made to the decision in Dewan Perniagaan Melayu, Malaysia Negeri Johor (menuntut melalui pegawai awamnya, Mohadi b Sardi) v Menteri Besar Johor & 2 Ors [2017] 4 AMR 434, where I stated thus:- “Important set of principles on contempt charge [36] The law governing the grant of committal orders is fairly settled. A discussion on the same is unnecessary for the purposes of this instant application. However, as distilled from the various authorities, as a guide, I wish to reiterate, in summary fashion, four key principles that courts must take into account when examining the terms of the court orders contended to have been infringed or not complied with by an alleged contemnor. These are: (A) Contempt proceedings are criminal in nature because they involves the liberty of the alleged contemnor (see the Federal Court decision in Tan Sri Dato' (Dr) Rozali Ismail & 2 Ors v Lim Pang Cheong @ George Lim & 4 Ors [2012] 2 AMR 429; [2012] 2 CLJ 849); (B) A charge of contempt must therefore be proved beyond reasonable doubt (see the English Court of Appeal decision in Re Bramblevale [1970] Ch 128); (C) It is a fundamental principle of fairness that no order of court will be enforced by committal unless it is expressed in clear and unambiguous language (see the Court of Appeal decision in Dato' Seri Yusof b Dato' Biji Sura @ Mohamad v BTM Timber Industries Sdn Bhd & Ors [2010] 1 MLJ 644; [2009] 5 CLJ 412); and  (D) Any ambiguity and uncertainty must be resolved in favour of the alleged contemnor (see the Supreme Court decision in Huong Hai Hong & Anor v MBf Holdings Bhd & Anor (and 3 Other Appeals) [1995] 4 CLJ 427). [48] Thus, even if the argument that the Court of Appeal had earlier decided differently in its affirmation of my decision in enclosure 100 is accepted, the mere fact of the existence of two different findings on the status of MJB and the Disputed Companies means that the benefit of the uncertainty must in any event be given to the alleged contemnors, in this case, the respondents. [49] In essence, the key contention that the respondents breached the Original Order or the Amended Order by refusing access to the Disputed Companies which the petitioner claimed to be the subsidiaries of the 8th respondent cannot be sustained pure and simple and must be wholly rejected because the Disputed Companies cannot under the law be considered as the subsidiaries of the 8th respondent at the material time. Furthermore, it is also observed that the respondents did give access to the petitioner (minus the Disputed Companies) through the inspection done by PKF Advisory. Second Issue – Failure to appoint KPMG [50] It cannot be denied that the appointment of KPMG would require the deposit of RM1 million for the initial retainer alone. The respondents had notified the petitioner that the 8th respondent is a dormant company and is not financially able to expend on the initial retainer sum, not to mention the actual fees to be charged. [51] In respect of the non-appointment of KPMG, I note that the respondents’ assertion that 8th respondent is not in a financial position to pay the initial retainer of RM1 million was supported by the offer to the petitioner to inspect the management accounts of the company and the proposal or a cheaper alternative of appointing another independent auditor, which was not accepted by the petitioner. [52] In my view, if the petitioner considered this unacceptable, instead of proceeding to seek leave for contempt, he could have asked for the cross-examination of the deponent of the respondents’ affidavits. Further, in Yip Yee Foo v Edmund Charles Liebenberg [2015] 6 CLJ 217, the Court of Appeal overturned the decision to commit the alleged contemnor for contempt as it was found that the High Court did not fully consider the true relationship between the alleged impecuniosity and the breach of a Court order. Thus it was stated:- “[11] If the High Court addressed its mind to what were the acts of disobedience, defiance and interference with the due administration of justice, it would find these are arguments founded upon failure to comply with the order to pay RM6,134,033 to purchase the shares, which is not ipso facto refusal or neglect to comply with the order. ………… [14] The High Court failed to address its mind whether these raised a reasonable doubt whether the appellant could pay RM6,134,033. Instead, the High Court addressed its consideration to the question of impecuniosity….”  [53] In this context, I do not consider that the respondents had willfully and contumaciously disobeyed the Amended Order, more so as there is a difference of opinion whether the law permits enforcement of payment of money or money judgment by committal proceedings. On the one hand there are cases such as the Court of Appeal decision in Hong Leong Bank Berhad v Phung Tze Thiam @ John Phuang [2008] 4 CLJ 742 which held that an order for payment of a monetary judgment cannot be enforced by means of a committal proceedings. The Court of Appeal in Hong Kwi Seong v Ganad Media Sdn Bhd [2013] 2 MLJ 251 on the other hand took the opposite position. [54] It is of interest to observe that the Singapore Court of Appeal in Mok Kah Hong v Zheng Zhuan Yao [2016] SGCA 8 discussed the divergence, preferred the view pronounced in Hong Kwi Seong, and suggested that “a distinction ought to be drawn between a judgment or order for the payment of money within a specified time, to which an order of committal is available as a mode of enforcement, and a judgment or order for the payment of money simpliciter without a specified timeframe, to which an order of committal will not be available”. [55] The requirement for the appointment of KPMG is not on a payment of money but the performance of an act. But I agree that in substance it concerns the ability of the respondents to fund the said appointment. Given the above, including considering the position in law on the matter, I find that the assertion that the failure to appoint KPMG per se and without more would constitute a contempt of Court to be unmeritorious. Third Issue – Some of the respondents were no longer directors at the material time [56] Further, I am also of the view that given affidavit evidence in the form of the relevant Forms 49, the fourth, fifth, sixth and seventh respondents clearly in any event cannot be subject to any contempt charge vis-à-vis the terms of the Amended Order because they were not directors at the time when the Amended Order was served on them. Surely one cannot be penalized for an alleged default of a requirement that one is never subject to. What more in a committal proceedings which employs the criminal standard of proof. That is too basic a principle to require further exposition. [57] The petitioner’s argument that the alleged contemnors’ obligation to adhere to the Amended Order survives their resignation and their liability is personal in nature and not dependent on their status as directors of the 8th respondent, whilst slightly attractive, is manifestly misconceived. The basis that the proceedings had been taken against them was minority oppression for they were in control as majority shareholders and directors of the 8th respondent. Their resignation as directors must mean that they relinquish the authority of managing the 8th respondent, for it is trite that Section 131B of the Companies Act 1965 which then governed the parties stated as follows: (1) The business and affairs of a company must be managed by, or under the direction of, the board of directors. (2) The board of directors has all the powers necessary for managing and for directing and supervising the management of the business and affairs of the company subject to any modification, exception or limitation contained in this Act or in the memorandum or articles of association of the company. [58] For completeness even if there was an argument (which there is none) that the respondents as shareholders could ensure that access be granted to the petitioner to the books of the Disputed Companies, this must likewise fail for not only the reason that the Disputed Companies were not subsidiaries of the 8th respondent to start with, but also on the ground that as shareholders, they had no powers of management to procure access be granted. In Wong See Yaw & Another v Bright Packaging Industry Berhad [2016] 6 CLJ 465 I stated:- “[41] This provision [Section 131B] reinforces the principle that the articles divide the powers of the company between the directors and the shareholders, and the latter cannot under the law direct the former on how to exercise the powers properly within the remit of the directors as stipulated in the articles. I need only refer to the passage from the judgment of Lord Wilberforce in delivering the opinion of the Privy Council in the case of Howard Smith Ltd v. Ampol Petroleum Ltd [1974] AC 821 which made the point instructively as follows: The constitution of a limited company normally provides for directors, with powers of management, and shareholders, with defined voting powers having power to appoint the directors, and to take, in general meeting, by majority vote, decisions on matters not reserved for management... it is established that directors, within their management powers, may take decisions against the wishes of the majority of shareholders, and indeed that the majority of shareholders cannot control them in the exercise of these powers while they remain in office”. Conclusion [59] In view of the foregoing analysis, on the basis of the Order 52 Statement and the affidavit evidence, disregarding unproven inferences, and by reason, principally of the grounds as stated aforesaid, and especially cognizant that committal proceedings are quasi-criminal in nature, I cannot arrive at any conclusion other than the inevitable finding that the petitioner had not successfully beyond reasonable doubt proven its case of contempt of Court or interference with the administration of justice against the respondents. [60] Accordingly, I hereby dismiss enclosure 72, with costs. Dated: 8 November 2017 (MOHD NAZLAN BIN MOHD GHAZALI) Judge High Court NCC1 Kuala Lumpur Counsel: For the Petitioner HY Lee with Joseph Ting and Bruce Toh Messrs Joseph Ting Puchong, Selangor For the Respondents Tan Jee Tjun with Lavinia Kumaraendran Messrs Thomas Philip Kuala Lumpur Page 15 of 21

Tika 2.6.0

26NCC-26/2011

PLAINTIF KHOO PENG LAI TAN DEFENDAN AH HIN & 7 LAGI

Civil Procedure - Application for an order of committal - minority shareholder - Oppressions - Right to access the company accounts and documents - Whether the disputed companies are subsidiaries of the 8th respondent - Whether the failure to appoint KPMG per se would constitute a contempt of Court - Companies Act 1965 [Act 125], section 131B and 181; Rules of the High Court 1980, order 88; Companies Winding Up Rules 1972.

08/11/2017

YA TUAN MOHD NAZLAN BIN MOHD GHAZALI

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=fe0b94a9-c679-419f-b49e-14536a39dc6f&Inline=true

DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR DALAM WILAYAH PERSEKUTUAN, MALAYSIA PETISYEN PEMULA NO.: 26NCC-26-2011 Dalam perkara Telemont Sdn Bhd (No.: Syarikat: 533734-U) Dan Dalam perkara Seksyen 181 Akta Syarikat, 1965 Dan Dalam perkara Kaedah-Kaedah Syarikat (Penggulungan) 1972 Dan Dalam perkara Aturan 88 Kaedah-Kaedah Mahkamah Tinggi 1980 ANTARA KHOO PENG LAI (NRIC No.: 530915-10-6195) ….PEMPETISYEN DAN 1. TAN AH HIN (NRIC No.: 570328-10-6189) 2. KHO AH TEE (NRIC No.: 480316-71-5025) 3. KHO YOW MING (NRIC No.: 840820-14-5785) 4. TE SOH PENG (NRIC No.: 750401-10-5800) 5. DATO’ NIK ISMAIL BIN NIK YUSOFF (NRIC No.: 460902-03-5497) 6. DATO’ ABDUL LATIF BIN MOHAMAD (NRIC No.: 480630-03-5183) 7. LIM NEOW HWA (NRIC No.: 570603-03-5080) 8. TELEMONT SDN BHD (COMPANY No.: 533734-U) ….RESPONDEN-RESPONDEN DI HADAPAN YANG ARIF TUAN MOHD NAZLAN BIN MOHD GHAZALI HAKIM JUDGMENT Introduction [1] This is an application for an order of committal against the respondents. [2] After having heard submissions by parties at the hearing, I dismissed the application and stated my key grounds for so deciding. This judgment contains the full grounds for my decision. Key Background Facts [3] There is a fair bit of history of Court proceedings involving the parties to this application. For present purposes, it suffices that I refer to them only in summary fashion, mainly adapted from my own judgment in Khoo Peng Lai v Tan Ah Hin & Ors [2016] 1 LNS 450 which concerned an application to amend an Order of the Court (which I shall also refer to later). [4] The present proceedings found their origin in a petition filed by the petitioner pursuant to Section 181(1) of the Companies Act 1965 (“the CA”) (“the Petition”). The petitioner is a shareholder, holding 10% of the share capital of the 8th respondent company, Telemont Sdn Bhd. He was also a former director on the board of the 8th respondent and had resigned on 2 July 2007. [5] The 1st to the 7th respondents were directors of the 8th respondent at the material time. The petitioner had alleged that the respondents, amongst others, had oppressed his rights as a minority shareholder by excluding him from the management of the 8th respondent company, namely Telemont Sdn Bhd (“Telemont”). [6] On 28 February 2013, after a full trial, this Court, in the judgment of her Ladyship Hanipah Farikullah J granted, amongst others, for purposes relevant to this judgment, the following orders: (a) Pendaftar Syarikat Malaysia dan/atau Suruhanjaya Syarikat Malaysia diperintahkan mengemaskini (rectify) daftaran (the register) untuk menggambarkan pegangan saham sebenar Pempetisyen dalam Responden Ke-8 (Telemont Sdn Bhd (No. Syarikat: 533734-U), yakni 3,150,000 saham-saham ‘ordinary shares’ bernilai RM1.00 setiap satu; (b) Seorang Juru Odit bebas daripada firma KPMG dilantik untuk menyiasat dan mengodit akaun-akaun Telemont Sdn Bhd (No. Syarikat: 533734-U) bermula dari tahun 2005 sehingga tarikh Perintah yang dibuat di dalam ini; ……………………….. (f) Pengarah-Pengarah Telemont Sdn Bhd diperintahkan untuk membenarkan kesemua rekod-rekod Telemont Sdn Bhd diperiksa oleh Pempetisyen dan Pempetisyen diberikan kebenaran (leave) untuk mengambil apa-apa langkah-langkah yang diperlukan demi melindungi kepentingan Telemont Sdn Bhd; ……………………….. (h) Bahawa pihak-pihak diberikan kebenaran untuk membuat permohonan lanjut kepada Mahkamah yang mulia ini untuk arahan dan/atau perintah yang lanjut dan/atau yang lain untuk tujuan perlaksanaan sewajarnya ke atas perintah-perintah di dalam ini. [7] The Order dated 28 February 2013 (“the Original Order”) thus granted the petitioner the right to access the company accounts and documents of the 8th respondent. The petitioner then took steps to enforce the Original Order by requesting the respondents to grant him access to the accounts and documents of the 8th respondent and its subsidiaries as well. [8] However, since the Original Order, as can be seen from the above, did not expressly provide for the inspection of accounts and documents of the 8th respondent’s subsidiaries, nor indeed make mention of the existence of any of the 8th respondent’s subsidiaries, the respondents chose not to accede to the petitioner’s request. [9] The petitioner then successfully obtained an order from her Ladyship Hanipah Farikullah J of this Court on 12 September 2013 amending the Order by the inclusion of the words ‘….dan kesemua anak-anak syarikatnya’ into prayers (b) and (f) of the Order (“the Amended Order”), which as a result now reads as follows:- (b) Seorang Juru Odit bebas daripada firma KPMG dilantik untuk menyiasat dan mengodit akaun-akaun Telemont Sdn Bhd (No. Syarikat: 533734-U) dan kesemua anak-anak syarikatnya bermula dari tahun 2005 sehingga tarikh Perintah yang dibuat di dalam ini; (f) Pengarah-Pengarah Telemont Sdn Bhd diperintahkan untuk membenarkan kesemua rekod-rekod Telemont Sdn Bhd dan kesemua anak-anak syarikatnya diperiksa dan disalinkan oleh Pempetisyen dan/atau juruodit/juruakaun/profesional-profesional yang dilantik olehnya dan Pempetisyen diberikan kebenaran (leave) untuk mengambil apa-apa langkah-langkah yang diperlukan demi melindungi kepentingan Telemont Sdn Bhd;…” [10] The respondents’ appeals against both the Original Order and the Amended Order were refused by the Court of Appeal on 28 February 2013 and 12 September 2013 respectively. [11] It ought to be noted that both the Orders do not name the specific subsidiaries. It is plain from the Amended Order that despite the inclusion of the reference to the 8th respondent’s subsidiaries, the identities of the subsidiaries were not however specified in the same. [12] The dispute between the parties however is precisely on whether certain identified companies are subsidiaries of the 8th respondent. As such, the petitioner had continued to insist on access to the accounts and documents of companies which he contended were subsidiaries of the 8th respondent, but which the respondents strenuously denied. These companies are:- (a) Modal Jati Berhad (Company No.: 103729-X) (“MJB”); (b) MJB Forestry Sdn Bhd (Company No.: 663624-W) (“MJBF”); (c) Jejaka Makmur Sdn Bhd (Company No.: 313510- W) (“JMSB”); (d) Sindiyan Sdn Bhd (Company No.: 388706-T) (“SSB”); and (e) Alifya Forestry Sdn Bhd (Company No.: 348623-H) (“AFSB”) (collectively “the Disputed Companies”). [13] The petitioner was then successful before his Lordship Harmindar Singh Dhaliwal J (as he then was) of this Court in his subsequent application for leave to commence committal proceedings against the respondents for their alleged failure to abide by the Amended Order to grant the petitioner access to the accounts and documents of the Disputed Companies, said to be the 8th respondent’s subsidiaries. [14] Pending the hearing for the order of committal in enclosure 72, and the counter application to set aside leave for the committal in enclosure 82, the respondents then filed an application to vary the Amended Order, to specifically name the subsidiaries of the 8th respondent, which according to the respondents, did not include the Disputed Companies. [15] That was enclosure 100 and heard before me. The contention of the petitioner was that the Disputed Companies were indeed the subsidiaries of the 8th respondent. [16] I dismissed the same, on account of among others, res judicata, and on the basis that the grounds of judgment accompanying the Original Order had actually made a specific finding of fact given that the identities of the subsidiaries of the 8th respondent had been set out, which crucially included the Disputed Companies (see my decision on the said enclosure 100 in Khoo Peng Lai v Tan Ah Hin & Ors [2016] 1 LNS 450 referred to earlier). [17] After my decision to dismiss the application to vary the Amended Order, the respondents filed an appeal against my decision on enclosure 100. I then allowed the respondents’ application to stay the pursuit of the committal proceedings in enclosures 82 and 72 pending disposal of the same. The Court of Appeal affirmed this Court’s dismissal of enclosure 100. The respondents further failed to obtain leave to appeal against that decision of the Court of Appeal to the Federal Court. [18] The proceedings on enclosure 82 to set aside the leave for committal was subsequently heard before me. I dismissed the same. Hence the present proceedings for committal against the respondents now before this Court. Primary Contentions of Parties [19] The crux of the respondents’ argument against the order of committal is the primary and by now familiar contention that the identities of the subsidiaries of the 8th respondent in question, namely MJB and its subsidiaries were not subject to the Amended Order as they had been disposed of earlier. These subsidiaries were not even named in the Amended Order. The grounds of the decision (as opposed to the Orders) allowing the petition which mentioned that MJB and its subsidiaries were subsidiaries of the 8th respondent were based on company searches with the Companies Commission of Malaysia way back in 2009/2010 which had been made before the filing of the Petition in April of 2011. The identities of the subsidiaries too were not even part of the issues for adjudication. [21] The other key argument of the respondents is that at the time of the filing of the application for leave on 27 January 2015, all respondents apart from the first and second respondents had ceased to be directors of the 8th respondent. Further, the sealed Amended Order was only served on the 4th, 5th, 6th, and 7th respondents subsequent to their resignation as directors. In addition, the petitioner had failed to disclose that the appointment of KPMG would require a substantial amount of RM1 million as initial retainer, not to mention the fees, neither of which the 8th respondent would be in a financial position to pay. [22] The petitioner however, challenged the grounds put forth by the respondents. He maintained that the attempt by the respondents to amend the Amended Order by excluding the Disputed Companies had been refused by this Court in my dismissal of enclosure 100, which decision had been affirmed by the Court of Appeal. The Disputed Companies thus remained the subsidiaries of the 8th respondent. It was argued that if the disposal of MJB did take place, it meant that the 1st and 2nd respondents had caused the disposal of MJB to themselves, and this would constitute a specific intention to frustrate the Original Order and Amended Order. Further, if MTB were indeed sold to the 1st and 2nd respondents, which was claimed to have been for RM10 million, the petitioner questioned as to how the said consideration had been accounted for and where the same was documented. [23] The petitioner further contended that the resignation of the relevant respondents, if true, would not be relevant since under the Original Order and Amended Order, the obligation on the part of the respondents was premised on individual, and not official capacity. Even though the relevant Form 49 of the CA on the status of directorships has now been shown to the petitioner, this was never previously raised to the petitioner from the time of the filing of the Petition. Evaluation and Findings by this Court First Issue – Whether the Disputed Companies are subsidiaries of the 8th respondent The Earlier Findings [24] Whether the Disputed Companies were the subsidiaries of the 8th respondent at the material time remains and still is the overarching issue that would largely determine whether or not the respondents were in contempt of the Amended Order. [25] This application for committal against the respondents is also fashioned by the petitioner on the basis that the respondents had willfully breached the Amended Order which caused an interference with the administration of justice. The acts of contempt complained of in the Order 52 statement included primarily the accusation that the respondents had caused MJB and its subsidiaries to be transferred out from Telemont secretly and illegally to avoid the enforcement of the Amended Order. [26] It is useful that I reiterate that the respondents are asserting that at all material times, the Disputed Companies, which were never named as parties to the Petition, were not subsidiaries of the 8th respondent Telemont. In particular, they maintain that:- (a) MJBF, JMSB, SSB AND AFSB were never the direct subsidiaries of the 8th respondent; they were instead subsidiaries of MJB. This much is not disputed. (b) MJB was previously a subsidiary of the 8th respondent but had ceased to be a subsidiary since November 2010, when the 8th respondent had disposed of its shares in MJB. Since the Petition was filed on 19 April 2011, and the Original Order was given on 28 February 2013 and the Amended Order was allowed on 12 September 2013, at all these material dates, MJB was therefore no longer a subsidiary of the 8th respondent in that 8th respondent or Telemont no longer owned any shares in MJB. This is the true bone of contention in this dispute. [27] The respondents thus insisted that at all relevant times, including presently, neither MJB nor any of the Disputed Companies are subsidiaries of the 8th respondent, and that the 8th respondent does not own any shares in any of the Disputed Companies, as can be seen from the records as filed at the Companies Commission of Malaysia. [28] And as I have mentioned, in my decision on enclosure 100 in Khoo Peng Lai v Tan Ah Hin & Ors [2016] 1 LNS 450, I had made the ruling that the grounds of judgment accompanying the Original Order had already made a specific finding of fact that the identities of the subsidiaries of the 8th respondent crucially included the Disputed Companies. Subsequent and Contrary Specific Finding of Fact by Court of Appeal on the Disputed Companies [29] There is however one very significant and subsequent development with repercussions on this instant committal action. This is a related suit, in a form of an originating summons instituted by certain parties (including Wawasan Dengkil Properties Sdn Bhd, to whom MJB was said to have been sold, and others) to set aside the very Amended Order which is the subject-matter of the instant committal proceedings. The appeal against its dismissal was allowed at the Court of Appeal, which however granted only certain prayers in the originating summons. [30] The decision of the Court of Appeal as reported in Wawasan Dengkil Properties Sdn Bhd & Ors v Khoo Peng Lai & Ors [2016] 9 CLJ 517 is especially pertinent for it contains an express finding of the Court of Appeal on the very specific issue of whether MJB was a subsidiary of the 8th respondent. And all the arguments against MJB being a subsidiary as repeated herein had also been raised in that appeal proceedings. [31] In order to present a clear and complete picture of the observations and conclusions of the Court of Appeal relevant to the issue herein, it would be remiss of me not to reproduce the relevant passages from the judgment of the Court as delivered by Mary Lim JCA, as follows:- “[18] It is best to set out the terms of the amended order so that we can appreciate the complaints of the appellants. The following highlighted amendments that the appellants sought to set aside: 2. Seorang Juru Odit bebas daripada firma KPMG dilantik untuk menyiasat dan mengodit akaun-akaun Telemont Sdn Bhd... dan kesemua anak-anak syarikatnya bermula dari tahun 2005 sehingga tarikh perintah yang dibuat di dalam ini; 3....; 4....; 5....; 6. Pengarah-Pengarah Telemont Sdn Bhd diperintahkan membenarkan kesemua rekod-rekod Telemont Sdn Bhd dan kesemua anak-anak syarikatnya diperiksa dan disalinkan oleh Pempetisyen dan/atau juruodit/juruakaun/professional-professional yang dilantik olehnya dan pempetisyen diberikan kebenaran (leave) untuk mengambil apa-apa langkah-langkah yang diperlukan demi melindungi kepentingan Telemont Sdn Bhd; 7....; 8....; [19] The basic argument of the appellants is that the amended order cannot be granted because Jejaka Makmur and Modal Jati were not owned by Telemont at the material time. The material time being the time of both the original order and the amended order. By these dates, both Modal Jati and Jejaka Makmur were no longer owned by Telemont because the ownership in both Modal Jati and consequently Jejaka Makmur had changed with the sale of Modal Jati. Unfortunately, the appellants were not able to raise these arguments because of the principle of res judicata and issue estoppel. On the merits, the learned judge was also not with the appellants”. [32] The above passages repeat the same contention of parties, and focused on the key terms of the Amended Order. The Court of Appeal then continued:- “[22] These are our views. First of all, it merits mention several undisputed matters amongst which is the integrity of the SPA. It is a non-issue as the trial court in the 181 Petition had found that the SPA had been stamped on 29 August 2012. Second, it would appear that the change of ownership is also not in dispute. Modal Jati was sold to the two directors who are the second and third respondents in this appeal on 11 November 2010, and they then sold Modal Jati to Wawasan Dengkil, the first appellant through the SPA on 17 August 2012. Jejaka Makmur remained fully owned by Modal Jati until 18 March 2013 when its shares in Jejaka Makmur were subsequently transferred to Wawasan Dengkil. Third, it is also not in dispute that the material time would be the dates of the two orders, the original order on 28 February 2013 and the amended order on 10 September 2013. [emphasis added] [33] The above is significant, for it pronounced that Modal Jati (or MJB) was sold on 11 November 2010, thus validating the version proffered by the respondents. If a clearer articulation of the finding is necessary, one need not look further than to the following passages in the judgment which focused on this very question:- “Status of Modal Jati And Jejaka Makmur [42] A central issue in the Setting Aside OS is the status of Jejaka Makmur: was it still a subsidiary of Telemont at the two material dates of the original order and the amended order. If the answer is in the affirmative, was there a suppression of material facts before the learned judge in the 181 petition which affected the proper making of the amended order on 10 September 2013. On the first aspect of the issue, the appellants argued in the negative while KPL, the first respondent maintained that Jejaka Makmur was still a subsidiary. [43] The learned judge concluded that at the time of the said order, Jejaka Makmur was a subsidiary of Telemont and Modal Jati. Her Ladyship relied on the testimony of TAH given during the 181 petition (that the structure and assets of Telemont and its group of companies since KPL's exit from Telemont in 2007 had been maintained); that TAH was a director of both Telemont and Modal Jati; and that the learned judge in the 181 petition had made a finding of fact that Jejaka Makmur "is a wholly owned subsidiary of Modal Jati which came under the control and direction of Telemont, "a holding company for several subsidiaries". Various parts of the grounds of decision were identified, including para. 2: Based on the evidence before me, the facts are as follows: (i) Telemont Construction Sdn Bhd (Company No. 609021-D) ("Telemont Construction"); and (ii) Modal Jati Sdn Berhad (Company No. 103729-X) ("Modal Jati"). A copy of the search conducted in the Companies Commission of Malaysia on Telemont Construction is annexed to this petition and marked as "P7". A copy of the search conducted in the Companies Commission of Malaysia on Modal Jati is annexed to this petition and marked as "P8". (iii) The wholly owned subsidiaries of Modal Jati, which came under the control and direction of Telemont: (a) MJB Forestry Sdn Bhd (Company No. 663624-W) ("MJB Forestry"); (b) Jejaka Makmur Sdn Bhd (Company No. 313510-W) ("Jejaka Makmur"); ….. (c) Alifya Forestry Sdn Bhd (Company No. 384623-H) ("Alifya Forestry"); ….. (d) Sindiyan Sdn Bhd (Company No. 388706-T) ("Sindiyan"). Copies of the searches conducted in the Companies Commission of Malaysia on MJB Forestry, Jejaka Makmur, Alifya Forestry and Sindiyan are annexed to this petition and marked as "P9", "P10", "P11" and "P12" respectively. (emphasis added) [44] With the corporate structure as set out earlier, it becomes evidently clear that Telemont's ownership of Jejaka Makmur is through Modal Jati. The moment Telemont ceases to own Modal Jati, it can no longer count Jejaka Makmur as its subsidiary, direct or indirect. From the above findings of the trial judge in the 181 petition, it appears that the court there was in fact describing a different company: Telemont Construction Sdn Bhd with registration number of 609021-D, and not Telemont Sdn Bhd with a registration number of 533734-U. The 181 petition is not against Telemont Construction Sdn Bhd but against Telemont Sdn Bhd (Company No. 533734-U). There is no SSM search on Telemont Construction Sdn Bhd, only Telemont Sdn Bhd. This serious discrepancy is enough to warrant intervention by this court. [45] Proceeding nevertheless on the assumption that the learned judge's description of Telemont and the various subsidiaries is correct, that is still of no real assistance to the issue of whether the collateral proceedings undertaken by the appellants to set aside the amended order in relation to the appellants was properly initiated and was one of merit. The answers and evidence identified by the learned judge must be examined in terms of the material date of the said order. It appears from the record of appeal that exhs. P7 and P8 were SSM searches conducted in 2009 (pp. 101 to 106 in R/A Jil. III for P8; and pp. 113 to 118 in R/A Jil. III for P7). There is no point saying that Model Jati or even Jejaka Makmur was owned by Telemont but the present owner of either company is not before the court at the time of pronouncement of any order especially one which is intended to be affected by the present owner. The present owner of Jejaka Makmur, who are the appellants, were never notified of the 181 Petition proceedings or even the application to amend. In such circumstances, the appellants' application has merit. [46] In any event there is evidence aplenty before the High Court in the Setting Aside OS to show that Modal Jati was no longer a subsidiary of Telemont by the time of the said order. This evidence was produced by both the appellants and KPL. First, there were the relevant resolutions of Telemont and Modal Jati. These resolutions dated 1 November 2010 authorised the disposal of Telemont's shares in Modal Jati and the transfer of those shares to the two directors - see pp. 233 to 238 of R/A Jil. III. Then, there is the SSM search on Jejaka Makmur that was conducted on 28 August 2012 (see pp. 151 to 157 of R/A Jil. II). This valid and material search shows that by the time of the decision in the 181 petition on 28 February 2013, Modal Jati was not a subsidiary of Telemont. Evidence of the director recorded during the trial of the 181 petition must also be treated with caution as it was given in the context of a 181 petition against Telemont and not its subsidiaries. Certainly, it was not against any other company, whether Modal Jati or Jejaka Makmur. [47] The above position of the ownership of Modal Jati and Jejaka Makmur was confirmed by the other respondents before us. Although learned counsel for KPL had suggested that these parties were not without bias, it cannot be denied that their position is borne out by the contemporaneous documents already before the court”. [34] In summary, the above key passages from the judgment state the crucial findings, as supported by contemporaneous documents such as company resolutions and company searches that MJB and hence its own subsidiaries, including Jejaka Makmur, were no longer subsidiaries of the 8th respondent at the time of the filing of the Petition, more so the Amended Order. That much is clear. [35] The Court of Appeal also furnished its analysis as to why the earlier finding that the Disputed Companies were subsidiaries of the 8th respondent at the material time cannot be sustained, as follows:- “[35] When the grounds of decision in the 181 petition are examined, the issue of ownership of Modal Jati and thereby Jejaka Makmur by the appellants was never in contention. Instead, the issue arising in the 181 petition was quite focused and narrow: whether the several acts complained of by KPL amounted to acts of oppression under s. 181 of the Companies Act….. [36] The above clearly indicates that all of KPL's concerns and complaints focused in and on Telemont. That comes as no surprise as Telemont was the investment holding company and KPL operated at the level of Telemont. [37] …….However, none of the matters raised by KPL, discussed and examined by the trial court in the 181 Petition come even close to the matters of change of ownership or disposal of Telemont's entire shares in Modal Jati to the two directors or worse, of the disposal of the same shares by the two directors to Wawasan Dengkil. The issue of the disposal of shares and specifically of Telemont's shares in Modal Jati was never under consideration. That being the case, we cannot find the operation of the doctrine of res judicata and the extended principle of issue estoppel…… [49] There was nothing to indicate that any of the subsidiaries were also under scrutiny in the 181 petition. Those parts of the judgment as identified by the learned High Court Judge in the Setting Aside OS serve only to describe the companies that fall within the group. Even then, there was no ascertainment of the position of those subsidiaries as at the date of the decision. There was no ascertainment because it was not relevant to the petition which was only against Telemont. Had that question been examined, the trial judge in the 181 petition would have found that Modal Jati was no longer owned by Telemont as per resolution passed on 1 November 2010 and as registered on 18 March 2013. ….. [53] We must add that there must be available before the court the correct and necessary parties at the time of the making of any order for the simple reason that the order needs compliance. At the time of these orders, as evident from the grounds of decision in the 181 petition, the company searches on Telemont, Modal Jati and Jejaka Makmur were those conducted in 2009. Given that KPL was interested in securing orders against subsidiary companies, it was imperative that the latest SSM searches were made available. There are no records of any search produced to the court in the 181 petition at the time of the amendment. Where it is shown that the status as found in the 2009 searches no longer holds true, and the appellants have successfully shown this to be the case, then an order made under such erroneous conditions, without the new owners present, is clearly one which is liable to be set aside. The rules of natural justice must always be observed. Where there is a breach of those rules as was the case here, we agree that the appellants have been prejudiced by the lack of fair play. We further agree with the appellants that a fit case for setting aside and impeachment of the Amended Order has consequently been made out under the principles as laid down in Badiaddin Mohd Mahidin & Anor v. Arab Malaysian Finance Bhd [1998] 2 CLJ 75”. [36] As such, in the instant case, having evaluated the requisite Order 52 statement supporting this committal application, the affidavits and submissions by parties on the key allegation that the respondents had failed to grant the petitioner access to the accounts and documents of MJB and its subsidiaries in accordance with the terms of the Amended Order, although this Court had in enclosure 100 previously refused to make further amendment to the Amended Order to specifically include the names of the subsidiaries of Telemont and noted that Modal Jati had already been identified as a subsidiary of Telemont in the grounds of decision of the High Court which allowed the minority oppression action against the Respondents, it cannot however now be denied that the Court of Appeal in Wawasan Dengkil had made an express and specific finding that MJB (and thus necessarily its own subsidiaries, including Jejaka Makmur) had been disposed of by Telemont, being the 8th respondent, in the year 2010. [37] I cannot but emphasize that this disposal was undertaken prior even to the filing of the Petition for minority oppression by the petitioner against the respondents in April 2011 and way before the grant of the Amended Order in September 2013. As such, clearly, it cannot be said that the respondents had refused access, what more deliberately, to MJB if at the time of service of the Amended Order, MJB and its subsidiaries were no longer subsidiaries of Telemont, being the 8th respondent. Or that the disposal of MJB was in any manner orchestrated to circumvent the Amended Order and interfered with the administration of justice. [38] It is true that there were questions posed by the petitioner on the propriety of the disposal of MJB to the 1st and 2nd respondents, or even whether the disposal was genuine in the first place. Indeed, I too had raised this question in enclosure 100. Two points of general importance and application must be made. [39] First, the determination of enclosure 72 rests entirely on affidavit evidence before this Court. On that basis, allegations on propriety of the disposal are unsubstantiated and could at best be considered as mere conjecture. So too is the allegation that the respondents had challenged the Amended Order through the filing of various legal measures to delay the process and with the objective of enabling the respondents to continue with their act of disposing the assets of 8th respondent. This is simply not supported by affidavit evidence. [40] Neither could or should the instant committal proceedings be allowed by this Court to be transformed into the collateral forum to adjudicate on the legality of the disposal instead. These allegations by the petitioner are irrelevant to the conduct on the part of the respondents alleged to have been contemptuous, more so when it is for the petitioner to prove his case against the respondents beyond reasonable doubt. [41] Moreover, despite disputing the ownership of MJB and the Disputed Companies had been transferred, the petitioner also asserted in his Order 52 Statement that the respondents had conspired or caused MJB and its subsidiaries to be transferred out from the 8th respondent secretly and illegally to avoid the enforcement of the Amended Order. It is unclear which position is taken by the petitioner in its application to commit the respondents. The petitioner cannot pursue his case in this fashion. He cannot blow hot and cold. He cannot approbate and reprobate at the same time. This does nothing but further weakens the case of the petitioner. [42] In the case of  Bakti Dinamik Sdn Bhd v. Bauer (Malaysia) Sdn Bhd [2016] 10 CLJ 247, I stated thus:- “[43] The position taken by the plaintiffs currently may be characterised as one which violated the principle against ‘approbating and reprobating’. In the Court of Appeal case of Visage Continental Sdn Bhd v Smooth Track Sdn Bhd [2007] 6 CLJ 570, Richard Malanjum JCA (as his Lordship then was) referred to various authorities and enunciated clearly the rule that a party should not be allowed to approbate and reprobate as it is a practice that is both plainly unconscionable and unfair”. See also the decision of the Court of Appeal in Prestaharta Sdn Bhd v. Ahmad Kamal bin Md Alif & Ors [2016] 4 MLJ 39. [43] Secondly, it is trite that committal proceedings are criminal in nature since the same involve the liberty of the alleged contemnor (see the Federal Court decision in Tan Sri Dato' (Dr) Rozali Ismail & Ors v. Lim Pang Cheong & Ors [2012] 2 CLJ 849). [44] In Re Bramblevale Ltd [1970] 1 Ch 125, Lord Denning MR in his characteristic inimitable style stated the principle on the applicable standard of proof for contempt proceedings: “A contempt of court is an offence of a criminal character. A man may be sent to prison for it. It must be satisfactorily proved. To use the time - honoured phrase, it must be proved beyond reasonable doubt”. [45] As such, the allegations of the petitioner cannot be sustained. They are not supported by affidavit evidence, and more significantly came nowhere close to meeting the threshold of establishing the case of contempt on the standard of proof of beyond reasonable doubt. [46] For substantially the same reasons, the argument that there is a conflicting Court of Appeal decision in respect of enclosure 100 which affirmed my decision refusing to vary the Amended Order (on the application of the respondents herein to specify the subsidiaries which did not include the Disputed Companies) similarly would be untenable. [47] In this connection, it is useful if reference is made to the decision in Dewan Perniagaan Melayu, Malaysia Negeri Johor (menuntut melalui pegawai awamnya, Mohadi b Sardi) v Menteri Besar Johor & 2 Ors [2017] 4 AMR 434, where I stated thus:- “Important set of principles on contempt charge [36] The law governing the grant of committal orders is fairly settled. A discussion on the same is unnecessary for the purposes of this instant application. However, as distilled from the various authorities, as a guide, I wish to reiterate, in summary fashion, four key principles that courts must take into account when examining the terms of the court orders contended to have been infringed or not complied with by an alleged contemnor. These are: (A) Contempt proceedings are criminal in nature because they involves the liberty of the alleged contemnor (see the Federal Court decision in Tan Sri Dato' (Dr) Rozali Ismail & 2 Ors v Lim Pang Cheong @ George Lim & 4 Ors [2012] 2 AMR 429; [2012] 2 CLJ 849); (B) A charge of contempt must therefore be proved beyond reasonable doubt (see the English Court of Appeal decision in Re Bramblevale [1970] Ch 128); (C) It is a fundamental principle of fairness that no order of court will be enforced by committal unless it is expressed in clear and unambiguous language (see the Court of Appeal decision in Dato' Seri Yusof b Dato' Biji Sura @ Mohamad v BTM Timber Industries Sdn Bhd & Ors [2010] 1 MLJ 644; [2009] 5 CLJ 412); and  (D) Any ambiguity and uncertainty must be resolved in favour of the alleged contemnor (see the Supreme Court decision in Huong Hai Hong & Anor v MBf Holdings Bhd & Anor (and 3 Other Appeals) [1995] 4 CLJ 427). [48] Thus, even if the argument that the Court of Appeal had earlier decided differently in its affirmation of my decision in enclosure 100 is accepted, the mere fact of the existence of two different findings on the status of MJB and the Disputed Companies means that the benefit of the uncertainty must in any event be given to the alleged contemnors, in this case, the respondents. [49] In essence, the key contention that the respondents breached the Original Order or the Amended Order by refusing access to the Disputed Companies which the petitioner claimed to be the subsidiaries of the 8th respondent cannot be sustained pure and simple and must be wholly rejected because the Disputed Companies cannot under the law be considered as the subsidiaries of the 8th respondent at the material time. Furthermore, it is also observed that the respondents did give access to the petitioner (minus the Disputed Companies) through the inspection done by PKF Advisory. Second Issue – Failure to appoint KPMG [50] It cannot be denied that the appointment of KPMG would require the deposit of RM1 million for the initial retainer alone. The respondents had notified the petitioner that the 8th respondent is a dormant company and is not financially able to expend on the initial retainer sum, not to mention the actual fees to be charged. [51] In respect of the non-appointment of KPMG, I note that the respondents’ assertion that 8th respondent is not in a financial position to pay the initial retainer of RM1 million was supported by the offer to the petitioner to inspect the management accounts of the company and the proposal or a cheaper alternative of appointing another independent auditor, which was not accepted by the petitioner. [52] In my view, if the petitioner considered this unacceptable, instead of proceeding to seek leave for contempt, he could have asked for the cross-examination of the deponent of the respondents’ affidavits. Further, in Yip Yee Foo v Edmund Charles Liebenberg [2015] 6 CLJ 217, the Court of Appeal overturned the decision to commit the alleged contemnor for contempt as it was found that the High Court did not fully consider the true relationship between the alleged impecuniosity and the breach of a Court order. Thus it was stated:- “[11] If the High Court addressed its mind to what were the acts of disobedience, defiance and interference with the due administration of justice, it would find these are arguments founded upon failure to comply with the order to pay RM6,134,033 to purchase the shares, which is not ipso facto refusal or neglect to comply with the order. ………… [14] The High Court failed to address its mind whether these raised a reasonable doubt whether the appellant could pay RM6,134,033. Instead, the High Court addressed its consideration to the question of impecuniosity….”  [53] In this context, I do not consider that the respondents had willfully and contumaciously disobeyed the Amended Order, more so as there is a difference of opinion whether the law permits enforcement of payment of money or money judgment by committal proceedings. On the one hand there are cases such as the Court of Appeal decision in Hong Leong Bank Berhad v Phung Tze Thiam @ John Phuang [2008] 4 CLJ 742 which held that an order for payment of a monetary judgment cannot be enforced by means of a committal proceedings. The Court of Appeal in Hong Kwi Seong v Ganad Media Sdn Bhd [2013] 2 MLJ 251 on the other hand took the opposite position. [54] It is of interest to observe that the Singapore Court of Appeal in Mok Kah Hong v Zheng Zhuan Yao [2016] SGCA 8 discussed the divergence, preferred the view pronounced in Hong Kwi Seong, and suggested that “a distinction ought to be drawn between a judgment or order for the payment of money within a specified time, to which an order of committal is available as a mode of enforcement, and a judgment or order for the payment of money simpliciter without a specified timeframe, to which an order of committal will not be available”. [55] The requirement for the appointment of KPMG is not on a payment of money but the performance of an act. But I agree that in substance it concerns the ability of the respondents to fund the said appointment. Given the above, including considering the position in law on the matter, I find that the assertion that the failure to appoint KPMG per se and without more would constitute a contempt of Court to be unmeritorious. Third Issue – Some of the respondents were no longer directors at the material time [56] Further, I am also of the view that given affidavit evidence in the form of the relevant Forms 49, the fourth, fifth, sixth and seventh respondents clearly in any event cannot be subject to any contempt charge vis-à-vis the terms of the Amended Order because they were not directors at the time when the Amended Order was served on them. Surely one cannot be penalized for an alleged default of a requirement that one is never subject to. What more in a committal proceedings which employs the criminal standard of proof. That is too basic a principle to require further exposition. [57] The petitioner’s argument that the alleged contemnors’ obligation to adhere to the Amended Order survives their resignation and their liability is personal in nature and not dependent on their status as directors of the 8th respondent, whilst slightly attractive, is manifestly misconceived. The basis that the proceedings had been taken against them was minority oppression for they were in control as majority shareholders and directors of the 8th respondent. Their resignation as directors must mean that they relinquish the authority of managing the 8th respondent, for it is trite that Section 131B of the Companies Act 1965 which then governed the parties stated as follows: (1) The business and affairs of a company must be managed by, or under the direction of, the board of directors. (2) The board of directors has all the powers necessary for managing and for directing and supervising the management of the business and affairs of the company subject to any modification, exception or limitation contained in this Act or in the memorandum or articles of association of the company. [58] For completeness even if there was an argument (which there is none) that the respondents as shareholders could ensure that access be granted to the petitioner to the books of the Disputed Companies, this must likewise fail for not only the reason that the Disputed Companies were not subsidiaries of the 8th respondent to start with, but also on the ground that as shareholders, they had no powers of management to procure access be granted. In Wong See Yaw & Another v Bright Packaging Industry Berhad [2016] 6 CLJ 465 I stated:- “[41] This provision [Section 131B] reinforces the principle that the articles divide the powers of the company between the directors and the shareholders, and the latter cannot under the law direct the former on how to exercise the powers properly within the remit of the directors as stipulated in the articles. I need only refer to the passage from the judgment of Lord Wilberforce in delivering the opinion of the Privy Council in the case of Howard Smith Ltd v. Ampol Petroleum Ltd [1974] AC 821 which made the point instructively as follows: The constitution of a limited company normally provides for directors, with powers of management, and shareholders, with defined voting powers having power to appoint the directors, and to take, in general meeting, by majority vote, decisions on matters not reserved for management... it is established that directors, within their management powers, may take decisions against the wishes of the majority of shareholders, and indeed that the majority of shareholders cannot control them in the exercise of these powers while they remain in office”. Conclusion [59] In view of the foregoing analysis, on the basis of the Order 52 Statement and the affidavit evidence, disregarding unproven inferences, and by reason, principally of the grounds as stated aforesaid, and especially cognizant that committal proceedings are quasi-criminal in nature, I cannot arrive at any conclusion other than the inevitable finding that the petitioner had not successfully beyond reasonable doubt proven its case of contempt of Court or interference with the administration of justice against the respondents. [60] Accordingly, I hereby dismiss enclosure 72, with costs. Dated: 8 November 2017 (MOHD NAZLAN BIN MOHD GHAZALI) Judge High Court NCC1 Kuala Lumpur Counsel: For the Petitioner HY Lee with Joseph Ting and Bruce Toh Messrs Joseph Ting Puchong, Selangor For the Respondents Tan Jee Tjun with Lavinia Kumaraendran Messrs Thomas Philip Kuala Lumpur Page 15 of 21

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S-05(LB)-110-03/2016

PERAYU PUBLIC PROSECUTOR APPELLANT RESPONDEN 1. KADIR BIN UYUNG 2. LATING BIN TIONG AND 20 ORS

Criminal Procedure — Appeal — Appellants charged with various offences in connection with the armed incursion at Kg. Tanduo, Lahad Datu — Members of a terrorist group — Nine (9) convicted for waging war against the Yang diPertuan Agong — Appellants were convicted and sentenced — Soliciting or giving support to a terrorist group — Soliciting property for the benefit of a terrorist group — Recruiting members of a terrorist group — Harbouring persons knowing they were members of a terrorist group— Public Prosecutor (PP) cross-appealed against the sentence of life imprisonment imposed on 9 accused — PP also appealed against the acquittal of 14 accused — Penal Code [Act 574], section 121, section 130, section 130E, 130G(c), section 130J(1)(a), section 130K, section130KA

08/11/2017

YA DATUK SERI HAJI MOHD ZAWAWI BIN SALLEHKorumYA DATUK SERI HAJI MOHD ZAWAWI BIN SALLEHYA DATO' ABDUL RAHMAN BIN SEBLIYA DATUK KAMARDIN BIN HASHIM

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- 1 - IN THE COURT OF APPEAL OF MALAYSIA [APPELLATE JURISDICTION] CRIMINAL APPEAL NO. : S-05(LB)-110-03/2016 BETWEEN PUBLIC PROSECUTOR APPELLANT AND 1. KADIR BIN UYUNG 2. LATING BIN TIONG RESPONDENTS Heard Together With CRIMINAL APPEAL NO. : S-05(LB)-111-03/2016 BETWEEN PUBLIC PROSECUTOR APPELLANT AND MASIR BIN AIDIN RESPONDENT Heard Together With CRIMINAL APPEAL NO. : S-05(LB)-112-03/2016 BETWEEN PUBLIC PROSECUTOR APPELLANT AND ANWAR BIN SALIB AKHMAD RESPONDENT - 2 - Heard Together With CRIMINAL APPEAL NO. : S-05(LB)-113-03/2016 BETWEEN PUBLIC PROSECUTOR APPELLANT AND BINHAR BIN SALIB AKHMAD RESPONDENT Heard Together With CRIMINAL APPEAL NO. : S-05(LB)-114-03/2016 BETWEEN PUBLIC PROSECUTOR APPELLANT AND SALIB AKHMAD BIN EMALI RESPONDENT Heard Together With CRIMINAL APPEAL NO. : S-05(LB)-115-03/2016 BETWEEN PUBLIC PROSECUTOR APPELLANT AND ABD HADI BIN MAWAN RESPONDENT - 3 - Heard Together With CRIMINAL APPEAL NO. : S-05(LB)-116-03/2016 BETWEEN PUBLIC PROSECUTOR APPELLANT AND RIJMAL BIN SALLEH RESPONDENT Heard Together With CRIMINAL APPEAL NO. : S-05(LB)-117-03/2016 BETWEEN PUBLIC PROSECUTOR APPELLANT AND ABDUL MAJIL BIN JUBIN RESPONDENT Heard Together With CRIMINAL APPEAL NO. : S-05(LB)-118-03/2016 BETWEEN PUBLIC PROSECUTOR APPELLANT AND RIZMAN BIN GULAN RESPONDENT - 4 - Heard Together With CRIMINAL APPEAL NO. : S-05(LB)-119-03/2016 BETWEEN PUBLIC PROSECUTOR APPELLANT AND TOTOH BIN HISMULLAH RESPONDENT Heard Together With CRIMINAL APPEAL NO. : S-05(LB)-120-03/2016 BETWEEN PUBLIC PROSECUTOR APPELLANT AND SAIDALI BIN JAHARUL RESPONDENT Heard Together With CRIMINAL APPEAL NO. : S-05(LB)-121-03/2016 BETWEEN PUBLIC PROSECUTOR APPELLANT AND DANI BIN ISMAIL RESPONDENT - 5 - Heard Together With CRIMINAL APPEAL NO. : S-05(H)-351-10/2016 BETWEEN PUBLIC PROSECUTOR APPELLANT AND 1. ATIK HUSSIN BIN ABU BAKAR 2. BASAD BIN MANUEL 3. ISMAIL BIN HJ YASIN 4. VORGILIO NEMAR PATULADA 5. SALIB AHMAD BIN EMALI 6. AL WAZIR BIN OSMAN 7. TANI BIN LAHAD WAHI 8. JULHAM BIN RASHID 9. DATU AMIRBAHAR HUSHIN KIRAM RESPONDENTS Heard Together With CRIMINAL APPEAL NO. : S-05(SH)-355-10/2016 BETWEEN JULHAM BIN RASHID APPELLANT AND PUBLIC PROSECUTOR RESPONDENT Heard Together With - 6 - CRIMINAL APPEAL NO. : S-05(SH)-357-10/2016 BETWEEN VIRGILIO NEMAR PATULADA APPELLANT AND PUBLIC PROSECUTOR RESPONDENT Heard Together With CRIMINAL APPEAL NO. : S-05(SH)-358-10/2016 BETWEEN SALID AKHMAD BIN EMALI APPELLANT AND PUBLIC PROSECUTOR RESPONDENT Heard Together With CRIMINAL APPEAL NO. : S-05(SH)-359-10/2016 BETWEEN TANI BIN LAHAD DAHI APPELLANT AND PUBLIC PROSECUTOR RESPONDENT Heard Together With - 7 - CRIMINAL APPEAL NO. : S-05(SH)-360-10/2016 BETWEEN BASAD BIN SAMUEL APPELLANT AND PUBLIC PROSECUTOR RESPONDENT Heard Together With CRIMINAL APPEAL NO. : S-05(SH)-362-10/2016 BETWEEN DATU AMIRBAHAR HUSHIN KIRAM APPELLANT AND PUBLIC PROSECUTOR RESPONDENT Heard Together With CRIMINAL APPEAL NO. : S-05(SH)-364-10/2016 BETWEEN ISMAIL BIN HJ YASIN APPELLANT AND PUBLIC PROSECUTOR RESPONDENT Heard Together With - 8 - CRIMINAL APPEAL NO. : S-05(SH)-365-10/2016 BETWEEN ATIK HUSIN BIN ABU BAKAR APPELLANT AND PUBLIC PROSECUTOR RESPONDENT Heard Together With CRIMINAL APPEAL NO. : S-05(SH)-366-10/2016 BETWEEN AL WAZIR BIN OSMAN APPELLANT AND PUBLIC PROSECUTOR RESPONDENT Heard Together With CRIMINAL APPEAL NO. : S-05(LB)-370-10/2016 BETWEEN PUBLIC PROSECUTOR APPELLANT AND BASIL BIN SAMIUL RESPONDENT - 9 - (High Court of Sabah and Sarawak at Kota Kinabalu Criminal Trial No.B45SO-1/3-2013, 45SO-4/3-2013, 45SO-7/3- 2013, 45SO-9/4-2013, 45SO-10/4-2013, 45SO-11/4-2013, 45SO- 12/4-2013, 45SO-13/4-2013, 45SO-15/4-2013, 45SO-16/4-2013, 45SO-17/4-2013, 45SO-18/4-2013, 45SO-19/4-2013, 45SO-20/5- 2013, 45SO-21/5-2013, 45SO-22/5-2013, 45SO-23/5-2013, 45SO-24/5-2013, 45SO-29/5-2013, 45SO-30/5-2013) CORAM MOHD ZAWAWI SALLEH, JCA ABDUL RAHMAN SEBLI, JCA KAMARDIN HASHIM, JCA JUDGMENT OF THE COURT PROCEDURAL ANTECEDENTS [1] There were twenty three separate appeals before us which arose from the judgment and orders passed by the High Court in Sabah and Sarawak at Kota Kinabalu (Justice Stephen Chung Hian Guan, presiding). The orders passed by the High Court were impugned by both the accused and the Public Prosecutor (“PP”). [2] To better appreciate the legal issues raised in these appeals, it is necessary to first state the procedural antecedents of the case. - 10 - [3] Thirty accused were charged with various offences under the Penal Code (“PC”) in connection with the armed incursion at Kg. Tanduo, Lahad Datu, Sabah between February 12 and April 10, 2013. Twenty two accused were charged under section 121 of the PC for waging war against the Yang di-Pertuan Agong and under section 130KA of the same Code for being members of a terrorist group. [4] Among the twenty two accused, one of them faced two additional charges, under section130E of the PC for recruiting members of a terrorist group and under section 130K for harbouring persons knowing they were members of a terrorist group. [5] Apart from that, five other accused were charged under section 130KA of the PC for being members of a terrorist group. One accused was charged under section130K of the PC. The remaining two accused were charged under section130K of the PC read together with section 511 of the PC for attempting to harbour persons knowing they were members of a terrorist group. The table below contains particulars of the charges preferred against the accused persons: - 11 - Accused / Name Charges (Penal Code) 1. Atik Hussin bin Abu Bakar section121 & section130KA 2. Lin bin Mad Salleh section 130KA 3. Holland bin Kalbi section 130KA 4. Basad bin Manuel section121 & section130KA 5. Habil bin Suhaili section 130KA 6. Timhar bin Hadil section 130KA 7. Kadir bin Uyung 8. Lating bin Tiong section 130KA read together with section 511 9. Masir bin Aidin section121 & section130KA 10. Ismail bin Hj Yasin section121 & section130KA 11. Anwar bin Salib section121 & section130KA 12. Binhar bin Salid section121 & section130KA 13. Virgilio Nemar Patulada @ Mohammad Alam Patulada section121 & section130KA 14. Aiman bin Radie section130KA 15. Salib Akhmad bin Emali section 130E & section 130K section121 & section130KA 16. Al Wazir bin Osman @ Abdul section121 & section130KA 17. Abd Hadi bin Mawan section121 & section130KA 18. Tani bin Lahad Wahi section121 & section130KA 19. Julham bin Rashid section121 & section130KA 20. Datu Amirbahar Hushin Kiram section121 & section130KA - 12 - Accused / Name Charges (Penal Code) 21. Rijmal bin Salleh section121 & section130KA 22. Abdul Majil bin Jubin section121 & section130KA 23. Rizman bin Gulan section121 & section130KA 24. Basil bin Samiul section121 & section130KA 25. Totoh bin Hismullah section121 & section130KA 26. Norhaidah binti Ibnahi section130K 27. Pabblo bin Alie section121 & section130KA 28. Mohamad Ali bin Ahmad section121 & section130KA 29. Saidali bin Jahrul section121 & section130KA 30. Dani bin Ismail section121 & section130KA [6] On 5.2.2016, the learned trial judge ordered nine of the accused to enter their defence for the offence of waging war against the Yang di-Pertuan Agong under section 121 of the PC which carries the death penalty or imprisonment for life. They were the 1st, 4th, 10th, 13th, 15th, 16th, 18th, 19th and 20th accused. They, together with six other accused, were also ordered to enter their defence on the charge of being members of a terrorist group. The other six accused were the 2nd, 3rd, 5th, 6th, 14th and 17th accused. [7] At the close of the prosecution case, the learned trial judge found that the prosecution failed to establish a prima facie case - 13 - against the 24th, 27th and 28th accused for the charge of waging war against the Yang di-Pertuan Agong under section 121 of the PC and of being members of a terrorist group under section 130KA of the PC. However, the learned trial judge ordered the 24th and 28th accused to enter their defence on an amended charge under section 130J(1)(a) of the PC for soliciting or giving support to a terrorist group. The learned trial judge also amended the charge against the 27th accused to a charge of soliciting property for the benefit of a terrorist group, an offence under 130G(c) of the PC. [8] Meanwhile, the sole female accused, i.e. the 26th accused was ordered to enter her defence on a charge under section 130K of the PC. [9] On the same day, the learned trial judge acquitted and discharged nine accused i.e. the 7th, 8th, 9th, 11th, 12th, 21st, 22nd, 23rd, 25th, 29th and 30th accused of the respective charges preferred against them. [10] The learned trial judge also acquitted and discharged the 15th accused of two charges, one under section 130E of the PC for recruiting members of a terrorist group and the other under section 130K for harbouring persons knowing they were members of a terrorist group. The 17th accused was also acquitted and - 14 - discharged of the offence of waging war against the Yang di- Pertuan Agong under section 121 of the PC. [11] Aggrieved by the said orders of acquittal and discharge, the Public Prosecutor (“PP”) appealed to this court, urging a reversal of the orders. [12] The trial took a new twist when seven of the accused, namely the 1st, 2nd, 3rd, 4th, 10th, 13th and 14th accused pleaded guilty to the offence of being members of a terrorist group under section 130KA of the PC. The 27th and 28th accused also pleaded guilty to the amended charges. Their sentencing was postponed till the end of the trial. [13] On 23.4.2016, the 5th accused, who had been ill throughout the trial, died from an asthma attack. [14] At the end of the defence case, nine of the accused i.e. the 1st, 4th, 10th, 13th, 15th, 16th, 18th, 19th, and 20th accused were found guilty and convicted of the offence of waging war against the Yang di-Pertuan Agong under section 121 of the PC and sentenced to life imprisonment. [15] The 15th, 16th, 18th, 19th and 20th accused were also convicted of a second charge of being members of a terrorist group and were sentenced to eighteen years imprisonment. The other four accused i.e. the 1st, 4th, 10th and 13th accused, who - 15 - pleaded guilty to the same offence, each received 13 years imprisonment. They were ordered to serve the jail sentence concurrently from the date of their arrest. [16] Also convicted of being members of a terrorist group were the 6th and 17th accused. They were sentenced to 15 years imprisonment each. The learned trial judge, after having considered the guilty pleas of the 2nd, 3rd and 14th accused for the same offence, sentenced them to thirteen years imprisonment each. [17] The 27th and 28th accused who pleaded guilty to the amended charges were each sentenced to 15 years imprisonment. The 26th accused was sentenced to 10 years imprisonment after being found guilty of harbouring a member of a terrorist group that intruded Kg. Tanduo. The 24th accused, who was ordered to enter his defence on an amended charge, was acquitted at the end of the trial. [18] All seventeen accused appealed against conviction and sentence. The PP cross-appealed against the sentence of life imprisonment imposed on each of the nine accused convicted under section 121 of the PC for waging war against the Yang di- Pertuan Agong. The PP also appealed against the acquittal of the 24th accused. On 19.5.2017, the 26th accused withdrew her appeal against sentence and the matter was struck out by this Court. - 16 - [19] Earlier in the proceedings, sixteen accused withdrew their appeals against conviction and sentence of between 13 and 18 years imprisonment for being members of a terrorist group and other terrorist-related offences without any objection by the prosecution. Accordingly, we struck out the appeals and affirmed the decision of the High Court. [20] We then proceeded to hear the appeal by the PP against the acquittal of the fourteen accused by the High Court and also the appeal by the PP against the sentence of life imprisonment imposed on the nine accused who were convicted under section 121 of the PC. The nine accused also proceeded with their appeals against conviction for the said offence. [21] Having given careful and anxious consideration to all the issues raised by the parties, we reached a unanimous decision and made the following orders: i. We dismissed the prosecution’s appeal against acquittal and affirmed the acquittals of the fourteen accused; ii. We dismissed the nine accused’s appeal against conviction and upheld their convictions for waging war against the Yang di-Pertuan Agong; and iii. We allowed the prosecution’s appeal against sentence and set aside the sentence of life imprisonment imposed - 17 - by the High Court against the nine accused and substituted it with the death penalty. [22] We now give the detailed reasons for our decision. FACTS OF THE CASE [23] Shorn of unnecessary details, the relevant facts giving rise to these appeals may be shortly stated as follows: 23.1. On 12.2.2013, Mohd Ali bin Asmali (PW2) stumbled upon a group of armed intruders dressed in camouflaged uniform at Kampung Tanduo and subsequently lodged a police report about the intrusion. 23.2. The armed group, later identified as the “Royal Security Forces (“RSF”) of the Sultanate of Sulu and North Borneo” and led by Datu Agbimuddin Kiram, was sent by Sultan Jamalul Kiram III from the southern Philippines to assert his territorial claim over Sabah. 23.3. Immediate action was taken and the police blockaded roads leading from Lahad Datu to the remote village of Tanduo, where the armed group was encircled. The navy also patrolled the coast of Kg. Tanduo, to prevent the intruders from leaving and to prevent foreign reinforcements from entering our shores. - 18 - 23.4. Codenamed “Ops Sulu”, the operation saw negotiations being held between Senior Assistant Commissioner of Police Datuk Abdul Rashid (PW1) and Sabah Special Branch Deputy Chief Assistant Commissioner of Police Zulkifli Abd Aziz with Datu Agbimuddin. Datu Amirbahar Hushin Kiram (the 20th accused), a nephew of Datu Agbimuddin, was also present during one of the negotiations. 23.5. After several weeks of negotiation and unmet deadlines for the intruders to withdraw, the Malaysian security forces launched a major operation to flush out the militants. 23.6. On 1.3.2013, a confrontation took place at Kampung Tanduo between the Malaysian security forces and the armed intruders, with shots being exchanged. The Malaysian police suffered two casualties while the armed intruders suffered fifteen casualties. Various weapons, including M16 rifles, pistols, SLR rifles and ammunition were recovered. 23.7. On 2.3.2013, the Malaysian security forces entered Kg. Simunul to arrest a suspect known as Iman Tua. They were ambushed by a group of gunmen resulting in the death - 19 - of six Malaysian police. The bodies of the policemen were mutilated, with one beheaded. 23.8. On 5.3.2013, “Ops Sulu” was renamed “Ops Daulat” and the mopping operations began to flush out the armed intruders. Security forces launched the attack using F-18 and Hawk fighter jets on the group of armed intruders at Kampung Tanduo and searches in the village area were carried out. 23.9. After a week of bombardment and firefight, Kampung Tanduo was finally secured on 11.3.2013. At the end of the standoff, around eighty deaths were reported, with ten Malaysian security personnel being among the casualties. 23.10. Since “Ops Daulat” was launched, more than five hundred individuals, including the thirty accused, were arrested under the Security Offences (Special Measures) Act 2012 (“SOSMA”). THE APPEALS [24] We shall deal with the appeals in three parts, namely Part I, Part II and Part III. - 20 - PART I – THE PROSECUTION’S APPEAL AGAINST ACQUITTAL [25] The prosecution’s appeal was against the acquittals of the 7th, 8th, 9th, 11th, 12th, 15th, 17th, 21st, 22nd, 23rd, 24th, 25th, 29th and 30th accused . All the respective accused, with the exception of the 24th accused, were acquitted at the close of the prosecution’s case, whereas the 24th accused was acquitted at the end of the trial. [26] To recapitulate, all the accused were charged separately with various offences and they were jointly tried under SOSMA. The charges preferred against them respectively were either for committing offences punishable under section 121 of the PC for waging a war against the Yang di-Pertuan Agong or under section 130E of the PC for recruiting persons to be members of a terrorist group or to participate in terrorist acts or under section 130KA of the PC for being members of a terrorist group or for an attempt thereof. The offences carry with them punishments ranging from the death penalty to various imprisonment terms and fine. [27] We must say at the outset that the challenge by the prosecution in its appeal against acquittals was essentially against findings of fact made by the learned trial judge. We reiterate the well-established principle that findings of fact made by a trial judge are not to be disturbed by the appellate court unless it can be shown that the trial judge’s assessment of the evidence was - 21 - plainly wrong (see Tan Kim Ho & Anor v. PP [2009] 3 MLJ 151 ; PP v. Thenegaran Murugan & Another Appeal [2013] 4 CLJ 364; PP v. Mohd Radzi Abu Bakar [2006] 1 CLJ 457 and Dato’ Seri Anwar Ibrahim v. PP [2002] 3 CLJ 457). [28] In Mohd Radzi Abu Bakar (supra), the Federal Court held at page 475 as follows: “[31] We were then invited by the learned deputy to make our own findings on the evidence and to restore the conviction entered by the learned trial judge on the basis of the proviso to s. 92(1) of the Courts of Judicature Act 1964. Reliance was placed on the decision of this Court in Tunde Apatira (supra). [32] Now, it settled law that it is no part of the function of an appellate court in a criminal case – or indeed any case – to make its own findings of fact. That is a function exclusively reserved by the law to the trial court. The reason is obvious. An appellate court is necessarily fettered because it lacks the audio-visual advantage enjoyed by the trial court. [33] The further principle established by this court in Muhammed bin Hassan v. PP is that where s. 37(da) is relied on by the prosecution, it is for the trial court to make a specific finding that the accused was in possession in the legal sense. In the absence of such a finding, it is not open to an appellate court to fill the gap and make the finding. A suggestion by counsel for the prosecution that this court is entitled to make its own findings of fact was firmly rejected. In that case Chong Siew Fai CJ (Sabah & Sarawak) said: - 22 - “As regards the alternative submission of the learned deputy public prosecutor that, independently of s. 37(d), there was sufficient evidence of possession of the cannabis on the part of the appellant, all we need to say is that on the evidence, the learned trial judge did not make a finding of possession (i .e. possession as understood in criminal law) either factually or by way of inference. We, at the appellate stage, not having had the opportunity of observing the witnesses in giving evidence, did not consider it appropriate and safe to arrive at conclusion in this regard. [34] Now, Muhammed bin Hassan was a case of a first appeal from the High Court to this court exercising the powers of the former Supreme Court under s. 17 of the Courts of Judicature (Amendment) Act 1995 (Act A909). If the principle adverted to a moment ago holds good in a first appeal, it applies with greater force in a second appeal. To put the matter beyond any doubt, we state that it is not the function of this court to make primary findings of fact. Of course, we may examine the record to see if the trial court drew the proper inferences from proved or admitted facts. But is quite a different principle and has no application to the present instance.” [29] In Swiss Garden Rewards Sdn. Bhd. v. Mohamed Ashrof Tambi bin Abdullah & 4 Others, Rayuan Sivil No. P-01(A)-196- 05/2016 (CA), this Court had this to say: - 23 - “[35] The correct approach of an appellate court or a reviewing court when invited to intervene with the factual findings of a trial judge was restated by the Supreme Court of United Kingdom in Mcgraddie v. Mcgraddie [2013] WLR 2472 and accurately summarised in the head note – “It was a long settled principle, stated and restated in domestic and wider common law jurisprudence, that an appellate court should not interfere with the trial judge’s conclusions on primary facts unless satisfied that he was plainly wrong.” Lewison L.J. returned to the topic in Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5; [2014] ETMR 26. In a vivid passage at para [114] he said: “Appellate courts have been repeatedly warned, by recent cases at the highest level, not to interfere with findings of fact by trial judges, unless compelled to do so. This applied not only to findings of primary fact, but also the evaluation of those facts and to inferences to be drawn from them. … The reasons for this approach are many. They include i. The expertise of the trial judge in determining what facts are relevant to the legal issues to be decided, and what those facts are if they are disputed; ii. The trial is not a dress rehearsal. It is the first and last night of the show; - 24 - iii. Duplication of the trial judge’s role on appeal is a disproportionate use the limited resources of an appellate court, and will seldom lead to a different outcome in an individual case; iv. In making his decisions the trial judge will have regard to the whole of the sea of evidence presented to him, whereas an appellate court will only be island hopping. v. The atmosphere of the court room cannot, in any event, be recreated by reference to documents (including transcripts of evidence); and vi. Thus even if it were possible to duplicate the role of the trial judge, it cannot in practice be done.” [30] The trial judge’s assessment of the credibility of the witnesses is entitled to great weight. The simple reason for this is that the trial judge had the opportunity of observing their demeanour and manner while giving evidence and was therefore in the best position to determine if they were telling the truth or otherwise. The assessment is binding on the appellate court in the absence of clear evidence showing that the trial judge had plainly overlooked or misinterpreted some material facts which if considered might have affected the result of the case. (See Dato’ Seri Anwar Bin Ibrahim v Public Prosecutor & Another Appeal [2015] 2 CLJ 145, Muniandy & Ors v P.P [1966] 1 LNS 110 (FC) - 25 - and Perembun (M) Sdn Bhd v Conlay Construction Sdn Bhd [2012] 4 MLJ 149, 154 (CA)). [31] It is pertinent to note that the prosecution’s case against all the accused is predicated purely on circumstantial evidence. The learned DPP argued that the learned trial judge had failed to take into consideration the prevailing circumstantial evidence as well as the admissions made by some of the accused that warranted the calling of their defence. [32] It was therefore incumbent upon us to revisit the evidence adduced by the prosecution or, where applicable, as against the accused’s defence to determine the correctness of the learned trial judge’s decision in acquitting the accused. Evidence against the 7th and 8th accused [33] Both accused were arrested together on 4.3.2013 at about 4.30 pm by Ancillary Corporal Mohammad Asran bin Madong (PW57) in front of the PGA Post at Tg. Labian, Lahad Datu. They were charged jointly with an amended charge under section 130K of the PC read together with section 511 of the same Code for attempting to harbour a group of persons having reason to believe that they were members of a terrorist group. The evidence of PW57 was that he saw two men in civilian clothes and the 8th accused was carrying a green plastic package. According to PW57, they were behaving suspiciously, as if they were lost. - 26 - [34] PW57 further testified that he identified himself as a police officer and asked both accused to stop. The two accused started to run away towards Tg. Batu. PW57 saw the 8th accused throwing away the green plastic bag. PW57 and his team managed to stop both accused that the 8th accused threw away. PW57 found dried fish (ikan kayu) inside the green plastic bag. When he enquired about the dried fish, both accused answered that they were supplying the fish to their friends who had escaped from Kg. Tanduo to Tg. Batu. PW57 then told his superior, ASP Rohana Anak Nanu (PW123) about the matter. However, PW123 in her evidence testified that she did not even meet PW57. [35] PW57 conceded that he did not say anywhere to the effect that both accused had admitted orally that the six dried fish were meant to be supplied to their friends who escaped from Kg. Tanduo to Tg. Batu. Neither did PW57 state this fact in his police report, Chendrawasih Report No: 195/2013 (exhibit P293) nor in his investigation diary or in any document whatsoever. [36] The learned trial judge rejected PW57’s testimony in relation to the alleged admission made by both accused. His Lordship said this in his grounds of judgment: “19.20. This alleged admission was made after questioning by PW57, after he had arrested them. At the material time he did not caution and no caution was administered to them. He did not inform them of their - 27 - rights or their rights to remain silent or not to give any answers or explanations to questions asked or that they were entitled to legal advice. The alleged admission was not in accordance to procedures, highly prejudicial and not admissible as evidence against the 7th and 8th accused: see Krishnan Raman v PP [1987] 1 CLJ 28; PP v Rosyatimah Niza & Anor [1989] 1 CLJ 481. Without the alleged admission, there was no evidence against the 7th and 8th accused that they were or attempted to harbour or rendered assistances to terrorists. 19.21. Further, although the 7th and 8th accused had said in their statements that they were bringing the fish to their grandmother and they had given several names of persons who could vouch for them, the police did not investigate these allegations and whether they were true. If they had done so, and if they were true, these would have exonerated the 7th and 8th accused and would have contradicted PW57 that they had admitted to him that they were supplying the fish to the armed intruders escaping from Kg. Tanduo to Tg. Batu: see PP v. Lian Ah Bek [1989] 2 CLJ 1090; Lee Kwan Woh v. PP [2009] 5 CLJ 631. Again these raised some doubts on the prosecution’s case against them.”. [37] In acquitting both accused of the amended charge, His Lordship reasoned as follows: “19.22. Apart from what PW57 had alleged against the 7th and 8th accused, there was no evidence that they were members of or sympathizers or supporters of the Sultanate of Sulu and North Borneo or of the Royal Security Force. There was no evidence that they were - 28 - involved in any way with the armed intruders or armed intrusion at Kg. Tanduo or Kg. Simunul. There was no evidence that they acted or were involved or intended to or attempted to supply food or harbour a person knowing this person to be a member of a terrorist group or attempted to endanger a person’s life or national security which involved the use of firearms, explosives, lethal devices, dangerous, hazardous, radioactive, biological or harmful substance in advancing a pol i tical or religious or ideological cause. 19.23. The evidence showed that at the time of their arrest, they were walking on the main road in front of and in full view of the police personnel on duty at the PGA post at Tg. Labian. Nothing was found on them after the body search was conducted on them except one of them who carried the plastic bag containing the fried fish had thrown it away while running when confronted by PW57 and another policeman. There was nothing incriminating in the plastic bag which contained the fried fish. The 7th accused said in his statement that he was bringing some of the fish to his grandmother in Kg. Labian and the 8th accused in his statement said he was bringing some of the fish back to his house at Kg. Tanduo. There was nothing wrong or sinister or incriminating for both of them to be walking in broad daylight on the road and carrying fried fish.” [38] Based on the evidence before the court, we found no cogent reason to disagree with the findings of the learned trial judge. We therefore agreed with the learned trial judge that the prosecution - 29 - failed to establish a prima facie case against both accused on the amended charges preferred against them. Evidence against the 9th, 11th, 12th and 15th accused [39] The 15th accused was the father of the 11th and 12th accused whilst the 9th accused was the son-in-law of the 15th accused. They were arrested on 25.2.2013 following a raid in Ladang Atlas, Ulu Tungku, Lahad Datu. The operation was led by Supt. Mohd Sahari bin Sidek who had organised the police officers into four teams, each led by ASP Mohamad Hasnal bin Jamil (PW33), ASP Noraidin bin Ag. Maidin (PW58), ASP Mohammad Asram bin Asmat (PW63) and an officer from K9, IPK Sabah. [40] The arrest was made possible through intelligence obtained from intercepted communications between Datu Agbimuddin and the 15th accused. Based on the interception, PW33 managed to generate the GPS coordinates and to determine the location of the house where the 15th accused was in. After having confirmed the location of the 15th accused, PW33 signalled the police to move into the house and arrest the accused. PW63 seized one black Nokia mobile phone from the 15th accused (exhibit P300C) and a pink coloured Nokia mobile phone from the 9th accused (exhibit P301C). PW58 recovered and seized three parangs (exhibits P302B – P302D) from the kitchen of the house. - 30 - [41] All four accused were charged with two offences under section 121 and section 130KA of the PC. The 15th accused faced two additional charges under section 130E of the PC for recruiting persons to be members of a terrorist group or to participate in a terrorist act, and under section 130K for harbouring persons committing a terrorist act. In respect of the 15th accused, this section of the judgment is only concerned with the acquittal of the 15th accused of the two charges. We shall deal with the 15th accused’s appeal against conviction later in this judgment. [42] Before acquitting all the four accused, the learned trial judge had considered all the prosecution’s evidence as adduced through PW33, PW58, PW63 and PW158. In essence, the learned trial judge found that the investigation carried out by the police against the accused was unsatisfactory. No investigation was carried on the phone numbers saved on the seized mobile phones, especially the number save under the name ‘Ampun’ which means ‘Tuanku’’ in the Suluk language. The learned trial judge also dealt with the admissibility of the confessions allegedly made by the accused before a Sessions Court Judge and also the contradictions in the testimonies of witnesses produced by the prosecution. [43] In respect of the two mobile phones, the learned trial judge commented as follows: - 31 - “20.22. He said when he made the arrest he found a black Nokia phone, next to and to the left of the 15th accused. He said he inspected the phone and found one contact under a name ‘Ampun’ which in Suluk means ‘tuanku’. PW63 speaks Suluk. He did not testify who or what was this contact known as Ampun, whether it was the Sultan or Datu Agbimuddin or Datu Amir Bahar or whether it had any connection with the armed intrusion at Kg. Tanduo or the significance of this contact found in the phone. He did not investigate this contact or phone number. The investigation officer also did not do so. PW63 found another Nokia phone, pink and dark in colour, next and to the right of the 9th accused. He handed the two phones to PW58. 20.23. In cross-examinations, PW58 and PW63 were asked and agreed that a piece of white paper tendered as P300G was found inside the plastic package which was tendered as P300A which contained a black Nokia phone seized from the 15th accused. It was written on this piece of white paper with the words “Julham Rasid No. Report Tanjung Aru 001139/13”. PW58 and PW63 also agreed that a piece of white paper tendered as P300F was found inside the plastic package which was tendered as P301A which contained the Nokia phone seized from the 9th accused. This piece of paper was written with the words “Salib Akhmad Emali”. 20.24. It was submitted that based on these two pieces of paper found inside the respective plastic package that the exhibits had been tampered with or mixed up with some other exhibits. It was submitted that based on the two pieces of paper written with the names, the black Nokia phone did not belong to the 15th accused but belonged to Julham Rasid and that - 32 - the pink and dark coloured phone did not belong to the 9th accused. 20.25. It was to PW58, who agreed that based on the document P297 prepared by him, it stated that the three parangs and one Nokia phone were found in the kitchen. The defence submitted that this contradicted the evidence of PW58 and PW63 that the two phones were found next to the 15th and 9th accused. Based on the testimonies of PW58 and PW63 and the photographs P296 (1-5), the two phones were seized from the 15th and 9th accused. Clearly P300G had been wrongly put inside P300A and P300F had been wrongly put inside P301A. There was no explanation for this mixed-up, which was fatal to the prosecution’s case.” [44] With regard to the evidence on the three parangs recovered from the kitchen of the house, the learned trial judge commented as follows: “20.30. The prosecution had also referred to the three parangs found and seized in the kitchen and to the testimony of PW58 that the 15th accused had admitted that the parangs belonged to him. Assuming the parangs belonged to the 15th accused, mere possession of the parangs did not make him or them into terrorists or in waging war against the King. The prosecution referred to a conversation between the 15th accused and Datu Agbimuddin asking Salib to sharpen the knives. However, there was no evidence led whether they referred to these three parangs or other parangs or knives. - 33 - 20.31. In Sabah and Sarawak the natives and others used their parangs to cut through the undergrowths when walking in the jungles or forests and to protect themselves against snakes and wild animals. A parang can be used for cutting grass or trees or as a tool in an oil palm plantation. It can be used as a weapon or for defence. These four accused were working or staying in Ladang Atlas, Ulu Tungku. Where several inferences can be drawn based on the parangs found in the kitchen, any favourable inferences drawn should be given to them and any doubt whether they used or did not use the parangs to wage war or to affect national security must be given to them. In any event the three parangs did not belong to the 9 th, 11th and 12th accused.” [45] In respect of the confession allegedly made by the accused, this is what the learned trial judge said: “20.28. PW158 testified that the 9 th, 11th, 12th and 15th accused had admitted in their confessions given to the Sessions Court Judge that they supplied food to the armed intruders at Kg. Tanduo and that they knew the group led by Datu Agbimuddin. There was no evidence and PW158 did not say that he was present during the confessions and that he heard the confessions. It was unlikely for him to be present because police officers were not allowed during the recording of the confessions. Without confirming that he was present and he heard the confessions, what he had testified were hearsay, not admissible and as to the truths of these confessions. - 34 - 20.29. Although PW158 and the prosecution had referred to the confessions of these four accused and had submitted that based on the confessions they knew Agbimuddin and had supplied food to the armed intruders, the prosecution chose not to produce or tender these confessions as evidence against these four accused, notwithstanding that s.28 of SOSMA specifically provides for confessions to be used. The prosecution also chose not to call the Sessions Court Judge who had recorded the confessions to confirm what PW158 had said. The failure to do so would raise doubts on the testimony and credibility PW158 and the merits of the submission of the prosecution in this respect. The reasonable conclusions could be drawn were that they did not make the confessions or that they did not confess to supplying food to the armed intruders or that they did not supply food to the armed intruders as alleged by PW158.” [46] As for the intercepted communications in relation to exhibits P300C and P301C, the learned judge made the following observations: “20.32 As stated above, although the DFD or Cyber Security Malaysia had performed an analysis on the two phones seized from the 15th and 9th accused and extracted the data from the digital devices, the prosecution did not refer to nor explain the significance of the data in particular the contact ‘Ampun’, whether i t concerned the armed intrusion at Kg. Tanduo, whether they were involved in the armed intrusion or whether they incited or supported the war waged against the - 35 - King or that their actions had prejudiced national security.” [47] As alluded to earlier in this judgment, the learned trial judge had decided that there was sufficient evidence to call the 15th accused to enter his defence on two charges under sections 121 and 130K of the PC. However, the learned trial judge found that the prosecution failed to establish a prima facie case against the 15th accused on the charges under section 130E and 130K of the PC. The reasons proffered by the learned trial judge were as follows: “20.44. However, the prosecution did not lead any evidence that the 15th accused knowingly recruited or agreed to recruit another person to be a member of a terrorist group or to participate in the commission of a terrorist act. It did not adduce the name or this person who was or had been recruited by the 15th accused to be a member of terrorist group. It did not lead any evidence on his act(s) or conduct in recruiting this person. The prosecution had failed to establish the essential ingredients against the 15th accused under s.130E of the Panel Code. 20.45. Similarly, the prosecution did not lead any evidence of a person or the name of any person who was a terrorist or who was believed to be a terrorist or a member of a terrorist group being harboured by the 15th accused. It did not lead any evidence that the 15th accused had harboured a person knowing or having reason to believe that such person was a member of a terrorist group or who had committed or - 36 - planning or likely to commit a terrorist act. The prosecution had failed to establish the essential ingredients against the 15th accused under s.130K of the Penal Code. 20.46. For the reasons given, the prosecution had failed to make out a prima facie case against the 15th accused under s.130E and under s.130K of the Penal Code. He had been acquitted and discharged as such.” [48] With respect to the acquittal of the 9th, 11th and 12th accused, the reasons given by the learned trial judge were as follows: “20.47. Next, the evidence against the 9 th and 12th accused. Although the 9th and 12th accused were re- arrested under s.4(1) of SOSMA because they were suspected to be involved in the intrusion, the prosecution did not lead any direct or circumstantial evidence as such against them. As stated above, the testimony of PW158 that the 9th and 12th accused had confessed to the Sessions Court Judge that they supplied food to the armed intruders could not be true and also not admissible against the 9 th and 12th accused. 20.48. The 9th accused is the son-in-law of the 15th accused and 12th accused is the son of the 15th accused. They together with their wife and children stayed with the 15th accused at the rumah kongsi at Ladang Atlas at the time of the arrest. Based on the police report P299, they were arrested because they did not have valid documents. Although the 11th and the 15th accused were in the list of suspects for the communications interceptions, the 9 th and 12th accused were not included in the list. - 37 - 20.49. Although they are family and might know or had reason to believe that the 11th and or the 15th accused were involved in the intrusion, the prosecution did not lead and there was no evidence that they knew or had reason to believe that the 11th and 15th accused were involved in the armed intrusion or were members of a terrorist group or that the 11th and the 15th accused had incited or supported the war waged against the King. There was no evidence that they supported the 11th and 15th accused in their aim to wage war against the King. There was also no allegation or evidence that they supported or harboured the 11th and 15th accused or the armed intruders as members of a terrorist group. They should not be tainted with the allegations made against the 11th and 15th accused and no such inference should or could be drawn against them just because they are family members. 20.50. The 9th and 12th accused were not seen in the photographs in ID2(1-50) or in Kg. Tanduo or had occupied Kg. Tanduo together with the armed intruders to claim Sabah by force. The prosecution did not lead evidence that they had associated with or had supported the armed intruders or members of the RSF of the Sultanate of Sulu and North Borneo in Kg. Tanduo. The prosecution did not lead any evidence that they prepared or had prepared for war or had participated in waging war against the King. There was no evidence that they were members or joined or belonged to the RSF or a member of a terrorist group. Their involvements in the intrusion were not set out in the summaries of the communications interceptions in respect of the 11th and 15th accused: see exhibits P472A-P472H and P473A-P473B. - 38 - 20.51. Based on the evidence at the end of the prosecution’s case, the prosecution had failed to make out a prima facie case against the 9th and 12th accused under s.121 and s.130KA of the Panel Code. The 9th and 12th accused were acquitted and discharged as such. Being illegals in the country, they were referred to the Immigration Department for their deportations. 20.52. Although the 11th accused was in the SB’s l ist of suspects for the communications interceptions and the prosecution had submitted that there was direct and circumstantial evidence against him, PW49 did not explain why the 11th accused was in the list or of his involvement in the armed intrusion or the reliability of the information which made him a suspect to be in the list. 20.53. The prosecution referred to a phone conversation in Item 2 of P475B (see page 106 of its submission) on 24.2.2013 at 8.23 a.m between Salib and ‘L/Sabah’ where this person said that ‘They were people of Nur Misuari and ‘they’ informed that if the claim made by the Sultan is not given tomorrow, ‘they’ would start war”. The prosecution could not be correct because P475B is not the summary of this conversation; it is the summary of a conversation between Tani and a ‘L/Sabah’. The prosecution did not explain that this was a typing mistake. This particular conversation referred to is in item 2 of P473B, not P475B. This conversation is also in Item 1 of P472H. 20.54. The prosecution submitted that based on i tem 8 in P472C, PW134 had identified the receiver of this cal l as Anuar Salib Akhmad (Anak Salib) because Salib - 39 - addressed the receiver as Anuar Salib Akhmad and Anuar Salib Akhmad addressed Salib as father. It is not specifically stated as such in Item 8 of P472C. 20.55 After 12.3.2013, SB commenced interceptions of the phone number 014-8594510 believed to be used by the 11th accused. PW132 and PW134 did not testify how many interceptions were carried out on this phone number from 12.3.2013 until 8.00 am on 24.3.2013. They set out only seven interceptions on this phone number believed to be used by the 11th accused in the summaries tendered as P473A-P473B. However PW134 did not include Item 8 of P472C as being used by the 11th accused in P473A-473B. No explanation was given for this omission. 20.56. The conversation in Item 8 of P472C was purportedly between the 15th and 11th accused on 19.2.2013. PW134 identified the 11th accused as the receiver of this call. If she could or had identified the 11th accused in the conversation on 19.2.2013, then she should be able to identify the 11th accused in subsequent phone conversations intercepted. In P473A-P473B, the intercepted conversations were between 23.2.2013 and 24.2.2013, after the alleged conversation on 19.2.2013. In P473A-P473B, PW132 and PW134 did not and could not identify the 11th accused as the caller or receiver of these calls. Therefore it raised some doubts whether the identification of the 11th accused in Item 8 of P472C was correct or otherwise. 20.57. The prosecution submitted that the 11th accused was involved in the intrusion by referring to the conversation between Salib (15th accused) and the - 40 - 11th accused talking about going to war with the support of the Nur Misuari fighters in Item 2 of P473B. As stated, there were some doubts on the identification of the 11th accused in this conversation and there was no confirmation on the identification made. 20.58. Based on the summaries in P473A-P473B, they could not identify the user of this phone number believed to be used by the 11th accused. The user was only known to them as ‘L/Sabah’ or as ‘L/Sabah (2)’. On one occasion the user was identified as ‘Ilmon’. In Item 2 of P473B, the user or receiver was only known to them as ‘L/Sabah’. They could not and did not identify the 11th accused as the user or receiver or caller of this phone number in the said summaries. The benefits of any doubts should be given to the 11th accused. Further, based on the summaries, there was nothing incriminating against the 11th accused. 20.59. The 11th accused was not seen in the photographs in ID2(1-50) or in Kg. Tanduo or that he had occupied Kg. Tanduo together with the armed intruders to claim Sabah by force of to wage war against the King. He stayed with his father at the rumah kongsi. Even if the 15th accused were guilty, the 11th accused could not be guilty as such by virtue of their father-son relationship. 20.60. There was no evidence or indication that the 11th accused was a member or had joined or belonged to the RSF or a supporter of the RSF or that he was a member of a terrorist group. There was no evidence that he had associated with the armed intruders or with the RSF. There was no evidence that he prepared or participated in waging war against the King. - 41 - 20.61. There was no evidence that he had acted or had threatened with the intention of advancing a political or ideological cause or which involved prejudice to national security or public safety. 20.62. The strands of circumstantial evidence woven into a rope by the prosecution were not strong enough to hang the 11th accused with it: see Chan Chwen Kong v. PP (1962) 28 MLJ 307. 20.63. For the reasons given, the prosecution had also failed to make out a prima facie case against the 11th accused under s.121 and s.130KA of the Panel Code. The 11th accused was acquitted and discharged and being an illegal in this country had been referred to the Immigration Department for his deportation.” [49] The learned trial judge had minutely scrutinized the evidence before acquitting the 9th, 11th, 12th and 15th accused of the charges preferred against them. We were not persuaded that the decision of the learned trial judge was wrong. It was clear to us that the learned trial judge had carefully analysed the evidence before him and his findings should be affirmed. Evidence against the 17th accused [50] The 17th accused is a Malaysian. He was charged with two offences. The first charge was under section 121 at the PC for waging war against the Yang di-Pertuan Agong and the second charge was under section 130KA of the same Code for being a - 42 - member of a terrorist group. He was convicted of the second charge but was acquitted of the first charge. We shall first deal with his acquittal in respect of the first charge. [51] The evidence against the 17th accused came from four witnesses, namely Inspector Mohsin bin Mohd Idit (PW50), ASP Nik Adzian bin Wan Ismail (PW51), DSP Khairul Azhar Bin Nuruddin (PW50), ASP Wan Kamal Rizal bin Wan Daud (PW95) and protected witness No.7 (PW165). PW165 who was also a member of the RSF (the terrorist group that attacked Lahad Datu, Sabah), had identified the 17th accused as being a member of that group. The evidence of PW165 was not challenged in cross- examination. [52] On 14.3.2013, Insp Mokhsin bin Mohd Sidit (PW50), ASP Nik Adzian bin Wan Ismail (PW51) and a special branch personnel conducted surveillance on an intermediate terrace house at No.3, Taman Keilah 1, Semporna where the 17th accused was believed to be in. The gate was locked from the inside with a padlock and a chain. DSP Khairul Azhar bin Nuruddin (PW60) and his men came and made a forced entry into the house by cutting the chain and padlock and shouting “Polis”. They did not find anyone on the ground floor of the house. [53] PW60 then went up to the second floor and found the 17th accused together with his son-in-law, Salleh Bin Mohd Salleh at - 43 - the living room. The 17th accused resisted arrest by putting up a struggle but was overpowered. He was angry when he was handcuffed. PW60 later found three women and six children in the master bedroom but he did not arrest any of them. [54] PW60 seized four mobile phones (exhibits P333C, P334C, P335D and P336C) that were found in the living room. The phones were analysed by Cyber Security Malaysia and the reports and CDs were tendered as exhibits P873-P876. Evidence and information from the exhibits showed that the 17th accused was a close associate of the Sultan’s family. The evidence further shows that in 2012, the 17th accused attended the installation of Muedzul–Lil Tan Kiram (Datu Butch) as ‘Raja Muda’ in the Philippines. [55] The 17th accused was acquitted of the first charge of waging war against Yang di-Pertuan Agong on the ground that there was no evidence that he and his son-in-law were involved in the skirmishes at Kg. Tanduo. The learned trial judge held: “25.24. The 17th accused was arrested in the house of his son-in-law who was also arrested at the same time. There was no evidence that they were in Kg. Tanduo or that they were with the armed intruders. There was no evidence that they were involved in the skirmishes in Kg. Tanduo or in Kg. Simunul. - 44 - 25.25. Although he was a member of the RSF of the Sultanate of Sabah and North Borneo, there was no direct or circumstantial evidence that he was involved in planning or participated in the war or that he had waged war against the King. … 25.30. For the reasons given, the prosecution had failed to make out a prima facie case against the 17th accused under s.121 of the Penal Code. He was acquitted and discharged as such.” [56] We were satisfied that there was insufficient evidence to link 17th with the skirmishes in Kg. Tanduo or in Kg. Simunul. The intercepted communications relied on by the prosecution could not establish that the 17th accused had planned or participated in the war. The prosecution also did not adduce evidence to show that the 17th accused had used the seized mobile phones to converse with the 20th accused and/or other suspects. Therefore, the learned trial judge’s decision cannot be said to have suffered from any infirmity and should be affirmed. Evidence against the 21st, 22nd, 23rd and 24th accused [57] All four accused were arrested on 13.3.2013 at about 11.00 am in front of the Forestry Office, Semporna by a team of policemen from the Special Branch led by ASP Budy Jurman bin Osman (PW77) and Inspector Holob Bin Wan Ahmad (PW85). - 45 - [58] Based on the intelligence gathered from the intercepted communications, the four accused were suspected to be members of the RSF and they were trying to escape from the police at the time of their arrest. The 22nd and 24th accused were suspected to be involved in the armed intrusion at Kg. Tanduo. [59] The evidence of Protected Witness No.5 (PW141) was that he owned a Perodua Viva which he used to operate as a private taxi. At the material time, the 24th accused approached PW141 with the intention of renting two cars from PW141 to go to Kg. Sejati 2 at Semporna. PW141 agreed to rent his own Perodua Viva to the 24th accused. Kimarin Bin Sibil, the brother of PW141, also agreed to provide the service. [60] PW141 asked his cousin, the 22nd accused to accompany him to Semporna because he was not familiar with the 24th accused. The 22nd accused agreed to PW141’s request and all three of them left for Semporna in PW141’s Viva. PW141 stopped at Kg. Lihak-Lihak to fetch the 24th accused’s wife. When they reached a junction at the kampong, the 24th accused’s wife together with three children and the 23rd accused (the 24th accused’s brother in-law) went inside PW141’s car. Four other persons including the 21st accused boarded Kimarin’s Myvi. On their way to Semporna, they were stopped and detained by the police. - 46 - [61] PW77 testified that he saw two objects that looked like hand phones being thrown out of the Perodua Viva into a swamp. However, the police could not recover the two objects. A Samsung Galaxy phone was found in the boot of the Perodua Viva. The phone belonged to the late Supt. Ibrahim Bin Lebar who was killed in the skirmish at Kg. Simunul. However, no evidence was led by the prosecution as to how the cell phone ended up in the boot of PW141’s car. PW141 did not testify against the 22nd accused (his cousin) as he was merely accompanying PW141 for the journey to Semporna. [62] The learned trial judge, in acquitting the 21st, 22nd and 23rd accused at the end of the prosecution’s case, reasoned as follows: “29.39. … The prosecution did not lead any evidence and did not explain how the phone found in Kg. Simunul came to be in the plastic bag in the boot of the Viva. PW77, PW85 and PW95 were not present during the operation in Kg. Simunul. 29.40. The prosecution did not adduced any evidence that any of these four accused were seen in Kg. Simunul or in Kg. Simunul on that day or that they were involved in the skirmish or that they picked up or retrieved the phone during or after the skirmish in Kg. Simunul. There was no evidence that someone gave this phone to them or that they bought it from someone who took it in Kg. Simunul. - 47 - 29.41. When PW141 drove the Viva to pick up the wife and children of the 24th accused at Jalan Lihak-Lihak the green plastic bag was not and had not been placed in the boot or in the car. PW141 did not say that the green plastic bag containing the clothes and the phone was already in the boot of the Viva. That would exclude the 22nd and 24th accused to have put it there or to have owned it. 29.42. The prosecution did not lead any evidence who put the bag inside the Viva but presumably it was put inside the boot when PW141 stopped at the junction to pick up the wife, children and brother-in-law of the 24th accused. There was no evidence who put it inside the boot and who owned it. 29.43. The prosecution did not submit that the 21st or 23rd accused had put the bag inside the boot in the Viva or that the bag and phone belonged to the 21st or 23rd accused and no such inference could be drawn against them that they took the phone from the late Supt. Ibrahim in Kg. Simunul and in possession of this phone in the Viva and or Myvi. 29.44. The wife of the 24th accused might or might not have put it in the boot but she was not called to exclude this as a fact. There was no evidence that the 23rd accused who was seated in the Myvi had put it inside the Viva. These raised some serious doubts on the possession of the bag which allegedly contained the phone. 29.45. The evidence showed that after the armed intrusion at Kg. Tanduo, the police had applied to intercept the communications of several persons - 48 - including the 22nd and 24th accused persons suspected to be involved in the said intrusion. The prosecution contended that all four were members of the armed intruders and involved in the intrusion at Kg. Tanduo. 29.46. Although the prosecution had submitted that they were members of the armed intruders and PW159 had testified that he had seen several persons in Kg. Tanduo, PW159 did not testify that he had seen these four accused in Kg. Tanduo during his stay there on that they were members of the RSF or had associated with the armed intruders. PW1 and PW58 did not testify that they had seen the four accused during their visits to Kg. Tanduo. None of the four accused were seen in the photographs in ID2(1-50). There was no evidence that they were in Kg. Tanduo at all material times. 29.47. Although the 22nd accused was included in the list for the communication interceptions and the prosecution had tendered the summaries (P479A- P479D) of the conversations intercepted on a phone number 012-8066842 believed to be used by the 22nd accused, the prosecution in its submission did not refer to P479A- P479D or to the contents of these summaries to incriminate the 22nd accused. 29.48. Reading these summaries, there were many users of this phone number and the conversations were between Uttu Jan whom the processors believed to be Abdul Majil bin Jubin and ‘L/Sabah’, Nul, Anti Nung, Kak Pai, Lin and ‘W/Sabah’. The processors were not able to identify or confirm these persons in the conversations, whether Uttu Jan was in fact the 22nd - 49 - accused, whether they were the intruders, supporters or members of a terrorist group. 29.49. The conversations in the summaries included whether it was safe to travel to the Philippines, buying things for the kitchen, the price of rice and whether Uttu Jan had boarded a blue boat. 29.50. Based on these conversations, there was nothing to show that the 22nd accused was one of the armed intruders or that he was preparing of waging war or had waged war against the King or that he had carried out or participated in any acts or threats which prejudiced the national security of this country. 29.51. PW141 (PRW5) and Kimarin are the cousins of the 22nd accused and probably would be the best persons to know the 22nd accused or his background or of his involvement in the intrusion. However they were not asked to testify that he was one of the armed intruders or a member of a terrorist group preparing to wage war against the King. The prosecution did not lead any such evidence from PW141 or Kimarin against the 22nd accused. 29.52. PW141 had testified that when he went back to his village to ask Kimarin whether Kimarin agreed to provide the service to transport Basil and his family, he saw his cousin (22nd accused) had just come down from his house (22nd accused house) and going to his work place. PW141 said he asked his cousin to accompany him for the journey because he did not know Basil. Based on the testimony of PW141, the 22nd accused was in the Viva because he was asked by PW141 to do - 50 - so and not because the 22nd accused wanted to go together with Basil (24th accused). There was no evidence that the 22nd and 24th accused knew each other or had conspired or planned or arranged to travel together in the Viva or had planned to escape together from the police. 29.54. Based on P479A-P479D and the testimony of PW141, there was no evidence of the involvement of the 22nd accused in the intrusion at Kg. Tanduo. There was no evidence that he had waged war against the King or that he was a member of a terrorist group. 29.55. Similarly, there was no evidence that the 21st and 23rd accused were involved in the intrusion or that they had prepared or waged war against the King or that their acts or threats had prejudiced the national security of this country. 29.56. For the reasons given, the prosecution had failed to make out a prima facie case against the 21st, 22nd and 23rd accused under s.121 and s.130KA of the Panel Code. They were acquitted, discharged and referred to the Immigration Department for their deportation. 29.57. What was the evidence against the 24th accused? Similarly, there was no evidence that the 24th accused was in Kg. Tanduo or that he was one of the armed intruders in Kg. Tanduo or in Kg. Simunul. There was no evidence that he was a member of the RSF or of the Sultanate of Sulu and North Borneo. There was no evidence that he was involved or had participated in or had waged war against the King. - 51 - 29.58. For the reasons given, the prosecution had failed to establish the essential ingredients under s.121 and s.130KA of the Penal Code against the 24th accused.” [63] However, the learned trial judge held that there was sufficient evidence against the 24th accused for the offence of knowingly giving support to a terrorist group and accordingly called upon him to enter his defence on the amended charge under section 130J(1)(a) of the PC. [64] The 24th accused elected to give evidence under oath. Briefly, the defence of the 24th accused as recorded by the learned trial judge was as follows: “45.2. The 24th accused (DW1) is a Tausug of Suluk discent from Siasi, Sibangkat, in the Philippines. He chose to give evidence first at the defence stage. He chose to give evidence under oath. He also produced and tendered his s.112 statement as exhibit D192 to substantiate or corroborate his sworn testimony. 45.3. He said he came to Sabah in 2010 and had been in Sabah for the past three years before his arrest. He lived with his wife and six children in Kg. Sejati, Semporna. His borther-in-law Rizmal bin Sal leh (21st accused) and Nijmal Gulam (23rd accused) l ived next door. He sold fish, fruits and plastics at Semporna market. 45.4. He said on 3.3.2013 at about 9.00 am he and his family went to stay at his cousin’s house, namely Hassan, at Lihak-Lihak because of the chaotic situation - 52 - in Semporna because there was a fight in Kg. Simunul, which was about one and a half miles from Kg. Sejati . He said they did not have identification documents and they wanted to stay safe. He said Lihak-Lihak was about 20 miles from Kg. Sejati. They stayed in Hassan’s house until 13.3.2013. 45.5. On that day at 6.00 am he looked for a pirate taxi to go to Simpang Kunak to look for a van to fetch his family to go back to Kg. Sejati. He said that no one was willing to take them because they did not have identification documents. He then went to Bandar Sri Salim where he met PW141 who operated a private taxi using his Viva and who agreed to take him and his family but his Viva was to small to accommodate al l of them. He said PW141 told him that he would take another car from Kg. Air. 45.6. They went to PW141’s older brother’s house to take the second car. PW141’s brother (Kimarin), their cousin Abdul Majil (22nd accused) and Abdul Majil’s wife then came in the two cars. He, PW141 and Abdul Majil were in the Myvi, following behind. They went to fetch his family at the junction of Lihak-Lihak. They brought foodstuff and clothes inside a black bag which he put behind him, inside the car. After he had fetched his family, about a mile from the junction, the police stopped them and they were arrested. 45.7. He said he had a Nokia hand phone using a phone number 012-6418816. He said he did not know Datu Amir Bahar and was not familiar with the phone number 019-7569906. He was shown P478A to P478 I and he said he did not speak and did not use the phones as stated in the summaries. He said his phone - 53 - which was seized by the police was returned to his wife. The prosecution did not produce or tender this phone in court. The prosecution did not produce any other phones alleged to be used by him in contacting Datu Amir Bahar or Datu Agbimuddin. 45.8. The 24th accused said he was not the Basil referred to in the summaries, that he did not know about Tanduo and never went to Tanduo. He heard the news from the public that there was a skirmish at Tanduo. He denied any involment with the RSF of the Sultanate of Sulu and North Borneo. 45.9. In his cross-examinations, the 24th accused said that he and his family came to Sabah illegally and they did not have any identification documents because they were very poor and could not afford to apply for one. 45.10. He denied that he knew about the existence of the Sulu Sultanate and he did not know Datu Agbimuddin, Datu Amir Bahar and Datu Piah. He denied that he came as a member of the RSF of the Sultanate of Sulu and North Borneo to claim Sabah and had nothing to do with them. 45.11. It was put to him that he took a hand phone which belonged to one security personnel who was killed in Kg. Simunul to which he denied. He said he did not join them and knew nothing. He also said he did not know anything about the green plastic bag and he only carried the black bag in the car. I have dealt with these issues at the end of the prosecution’s case. 45.12. It was put to him and he denied he bought and used a phone number 019-7569906 through a person - 54 - by the name of Datu Murbasir BN Datu and that he did not carry out the conversations referred to in the summaries P478A to P478I.” [65] The learned trial judge, after considering the evidence of the 24th accused, found that he had succeeded in casting a reasonable doubt in the prosecution’s case. Accordingly the 24th accused was acquitted and discharged of the amended charge under section 130J(1)(a) of the PC. [66] In his analysis of the 24th accused’s evidence, this is what the learned judge said: “45.13. The evidence showed that the 24th accused was on the list of suspects whose phone numbers were to be intercepted to obtain evidence against them. The phone number 019-7569906 was alleged to be used by him. The police had applied and given approval to intercept this phone number which was intercepted. The conversations made on this phone were set out in the summaries tendered as exhibits P478A-478I. 45.14. The prosecution relied on these summaries to make out its case against him. As stated, there was insufficient evidence against the 24th accused that he had waged war against the King or that he was a member of a terrorist group. The processors had identified the user of this phone number 019-7569906 as a male person by the name of Basil. The prosecution submitted that the 24th accused is this Basil. Reading P478A to 478I, the processors had - 55 - identified this person as Basil only. They did not and never identify him as Basil bin Samiul. 45.15. The 24th accused had denied that he was the Basil referred to in the telephone conversations in the summaries. As stated, the 1st accused had testified that while he was running in the jungle he saw a man with a pistol in his hand who told him that his name was Basil whom he referred to as Al Basil. The prosecution asked the 1st accused whether the 24th accused is Basil and the 1st accused said that 24th accused was not the Al Basil he met in the jungle. He said that Basi l could run fast while the 24th accused is limping. He said Al Basil is a Bajau while the 24th accused is a Suluk. 45.16. The 24th accused had testified that in 2009 he worked as a fisherman in the Philippines and had an accident. He fell from the boat and his leg was injured after it was hit by the boat propeller which prevented him from doing manual job. He said he decided to come to Sabah to look for lighter work to support his family. It was not in dispute that throughout the trial that the 24th accused walked with a limp. It apparent that the 24th accused is not the Al Basil referred to. He has casted some doubts that he was involved with the armed intrusion at Kg. Tanduo. 45.17. Although the processors had referred to the user of the phone number 019-7569906 as Basil, they did not identify him as Basil bin Samiul. The prosecution did not lead any evidence that the Basil referred to in the summaries is Basil bin Samiul i.e. the 24th accused. There is some doubt whether the 24th accused is the Basil referred to in the summaries. - 56 - 45.18. In item 1 of P478A, a L/Sabah referred to the receiver as ‘Sir’ believed to be the son of Datu Agbimuddin. The prosecution did not lead any evidence that the 24th accused is the son of Datu Agbimuddin and there is no evidence that he is the son of Datu Agbimuddin. The prosecution did not call Murbasir Bn Datu to testify that he bought the phone number and gave it to the 24th accused to use it or that the 24th accused was the user of this phone number. The 24th accused had denied that he had used this phone number. As stated, this phone was not recovered nor produced in court and PW141 had testified that he did not see the 22nd accused throwing the two phones out of the Viva. 45.19. On the evidence adduced, there were some doubts raised that the 24th accused had used this phone number or that he had contacts with and spoke with Datu Agbimuddin or with Datu Piah or that he had knowingly gave support to the terrorist group. 45.20. On the totality of the evidence adduced and for the reasons given, the 24th accused has raised a reasonable doubt on the prosecution’s case against him. The prosecution had failed to establish beyond reasonable doubt its case against the 24th accused under s.121 or s.130KA or s.130J (1)(a) of the Penal Code. The 24th accused is acquitted and discharged and to be referred to the Immigration Department to be deported.” [67] The learned trial judge’s findings cannot be faulted. His Lordship had considered the evidence before him from all angles and found that there was insufficient evidence to convict the 24th - 57 - accused or to order the 21st, 22nd and 23rd accused to enter their defences on the charges preferred against them. Evidence against the 25th accused [68] The evidence against the 25th accused came from a navy officer, Khairolrizal bin Ahmad (PW72) who was attached to KD Sri Semporna at Semporna, Sabah. On 28.3.2013 at around 8.00 am, PW72 and his team carried out surveillance duties around the shores of Kg. Simunul. PW72 saw the 25th accused and his wife pacing in front of a house which PW72 believed was their house. PW72 saw three other men at the kitchen. PW72 went over to the 25th accused and enquired about those three men. The 25th accused informed PW72 that the three men were his workers but the wife of the 25th accused told PW72 that the three men were relatives of her husband. [69] PW72 became suspicious and checked the 25th accused’s identification document. His name was found to be Totoh bin Hismullah, which was on the watch list of suspected persons. These three persons had no identification document. PW72 instructed the 25th accused and the three men to be handcuffed and he proceeded to search the house. PW72 did not find any dangerous weapon and there were also four children in the house. Thereafter PW72 handed the 25th accused and the three men to Inspector Roslan Bin Sarail (PW65) for further action. - 58 - [70] Protected Witness No.6 (PW159), testified that he was brought into the armed group by one Herman. Herman had led PW159 and eighty other Filipinos to Kg. Tanduo in February 2013. Herman had told PW159 of the intruders’ names, including ‘Totoh’. According to PW159, he had seen and spoken to ‘Totoh’ during his stay at Kg. Tanduo. [71] After scrutinising the evidence adduced by the prosecution, the learned trial judge acquitted the 25th accused at the end of prosecution case. We reproduce below the learned judge’s evaluation of the evidence against the 25th accused: “30.8. PW72 said at a glance he saw the name was Totoh bin Hismullah and he realized that the name belonged to one of the suspects. He instructed his men to ask the man to kneel down and handcuffed his hands at the back using plastic handgrip. 30.9. He said he asked the women about the 3 men who told him that they were the relatives of the man. He said he became suspicious because the man had told him that they were his workers. The 3 men could not produce any identification documents and were not conversant in Bahasa Malaysia. He said he instructed the 3 men to be handcuffed. 30.10. He searched the men and the house and did not find any dangerous weapon but he saw four chi ldren in the house. After he had completed inspections of 4 to 5 houses, he instructed for the 4 men who had been - 59 - arrested to be brought out to an open space which was marked as ‘H’ in P202. 30.11. In his cross-examinations, PW72 said he recalled there were twelve names out of which six with photographs, in the list given to him and he could not recall the names except for Totoh. 30.12. He was referred to a search from the Jabatan Pendaftaran Negara dated 4.2.2015 which stated that Totoh bin Hismullah is a Malaysian and his current status is still active. This was marked as IDD99. 30.13. PW72 was asked and said that he did not seize the licences for both fishing boats belonging to Totoh but the wife had given to him the licences which he handed to PW65. The licences were not produced in court. 30.14. PW65 testified that after they had completed the operation and had assembled at a basketball court near to Lorong 4 of Kg. Simunul, he found that the PASCAL team led by PW72 had arrested four men, three of whom could not produce their identification documents. He said the man gave their name as Maikil, Poney and Mohd Yusuf. The fourth person produced his identity card. The name stated in the card was Totoh bin Hismullah. PW65 identified Totoh bin Hismullah in court as the 25th accused. The four men were placed under guard at the basketball court. He said he made a body search on the 25th accused and did not find anything on him. He brought these men back to IPD Semporna. 30.15. He explained that he was instructed by his superior to lodge a police report on the arrest of the 4 men because the PASCAL team which made the arrest - 60 - was not willing to make the arrest report. The police report was tendered as exhibit P347. He handed the 4 men to PW151 who was an assistant investigation officer at IPD Semporna. 30.16. He was asked why there was no m ention in his report that Totoh was believed to be involved in the incident at Kg. Simunul and he answered that he believed that the person was using a false identi ty card and he had to verify whether this person was the Totoh who was believed to be involved in the incident. This identity card was not produced and not tendered as an exhibit in court. 30.17. During cross-examination it was put to PW65 that the 25th accused came to Sabah when he was 10 years old and had been living in Kg. Simunul for the past 40 years. It was put that he was a fisherman who owned two boats and was married with six children. It was put to him that the 25 th accused lived in a house which was light blue in colour seen i n photograph 2 of P214 (1-10). PW65 said that he was not aware of these. 30.18. He was asked whether he was aware that a Totoh mentioned during interrogations was the son of General Hj Musa whereas Totoh bin Hismullah had no connection whatsoever with General Hj Musa. PW65 said he was not sure. 30.19. PW151 had also lodged a police report on the arrest of the 25th accused which was previously marked as IDD82. The prosecution tendered it as exhibit P946 and the defence tendered it as 082. 30.20. It was the contention of the defence that the person whom the operation teams was looking for was - 61 - actually the son of General Musa who was connected with the intrusion. It was submitted that there was nothing in P347 and P946 to link the 25 th accused with the incident at Kg. Simunul and that the police fai led to conduct a proper investigation on the 25th accused. 30.21. The police relied on the testimony of PW159 (PW6) to link the 25th accused to the armed intrusion at Kg. Tanduo. PW159 had testified that during his stay at Kg. Tanduo Herman told him the names of Haji Musa, Agbimuddin, Patulada, Aiman, Holland, Salleh, Yassin, Tani, Julham, Atik, Totoh, Harry and Kekeng and he had seen them during his stay. He said he had spoken to some of them including Totoh. 30.22. PW159 was asked whether he could identify these persons whom he had seen in Kg. Tanduo and he had identified these persons in court via video link. Some of them were in the photographs ID2(1-50) whom he also identified. Totoh is not in the photographs. When he was asked to identify Totoh in court, he said Totoh was not in court although the 25 th accused was sitting in the dock. Clearly PW159 could not identify Totoh or the 25th accused. The defence submitted that since PW159 could not identify Totoh, the police had made a grave error in arresting the 25 th accused. 30.23. The prosecution also referred to the testimony of PW163 on the interrogation conducted on Totoh. PW163 testified that Totoh had said that he was brought by one Panglima to the Philippines to attend a ceremony organized by the Sulu Sultan, that he had given money to be channelled to the Sulu Sultan, and he had met the 20th accused and was appointed a Panglima for Semporna. - 62 - 30.24. It should be noted that the prosecution did not lead any evidence on the interrogation conducted on Totoh during the evidence-in-chief of PW163. What PW163 had testified on the admissions or confessions made by Totoh were not put to the 25 th accused during the evidence-in-chief. These were asked and raised during his cross-examinations. 30.25. In any event PW163 did not testify that he himself had conducted the interrogation on Totoh. He did not say that he asked these questions and Totoh gave the admissions to him. He did not say that he was present and personally heard the admissions. If the 25 th accused had made the admissions or gave the confessions to a police officer or judicial officer, these would have been recorded. The prosecution did not produce any written statement or confessions of the 25 th accused. In the absence of such confirmations, what he had said were hearsay and not admissible. 30.26. Further, the alleged interrogation was conducted after the 25th accused had been arrested. PW163 did not say that he had cautioned or had administered any caution before conducting the interrogation. He did not say that he had told the 25th accused that he had the right to legal advice and the right to remain silent.” [72] The learned trial judge then concluded: “30.29. In the absence of the alleged admissions and the failure by PW159 to identify the 25 th accused to be one of the armed intruders seen in Kg. Tanduo there was no evidence of his involvement in the armed intrusion or in waging war against the King or that he was a terrorist or a member of a terrorist group. - 63 - 30.30. The evidence showed that the 25 th accused is a Malaysian living in Kg. Simunul. He is married with children. He was a fisherman with two licensed fishing boats. At the time of his arrest he was outside his house with his wife and three of his workers were eating in the kitchen. The prosecution submitted that based on his conduct that he was shivering and scared that he knew of his wrong doing whereas the defence submitted that they had just come back from fishing and this explained why the 25th accused was cold and shivering. The fact that he was shivering did not make him into a terrorist waging war against the King. 30.31. On the evidence adduced and for the reasons given, the prosecution had failed to make out a prima facie case against the 25 th accused under s.121 and s.130KA of the Panel Code. He was acquitted and discharged.” [73] We found the findings of the learned trial judge to be amply supported by the evidence. No reasonable tribunal applying its mind to the same evidence would have come to a different conclusion. Evidence against the 29th accused [74] The 29th accused was arrested by Constable Abdul Omar bin Utoh (PW92) on 16.3.2013 at about 6.30 am at the housing Complex of Felda Cendrawasih, Lahad Datu. The said housing complex was located about 20km from Kg. Tanduo. PW92 and Constable Shah Rizal bin Likah were on guard duty at the material time. PW92 received information from the public that a man - 64 - dressed in t-shirt and shorts with a white water container in his hand was asking for money to pay for his fare to Lahad Datu. PW92 informed his superior. [75] At about 6.30 am on the same day, he saw a man (later identified as the 29th accused) who fitted the description. PW92 conversed with the 29th accused in Bajau. The 29th accused identified himself to PW92 and told PW92 that he wanted to go to Lahad Datu. He told PW92 that his boss was Ali and he came to Sabah by boat. PW92 observed that the 29th accused had bruises on his hands and legs. PW92 asked the 29th accused for his identification document to which the 29th accused replied that he had none. PW92 found two amulets at the 29th accused’s waist and one in his left hand. He was wearing a wrist watch. PW92 suspected the 29th accused to be one of the armed intruders. PW92 did not find any firearm or any dangerous weapon on the 29th accused. [76] The learned trial judge acquitted the 29th accused for lack of evidence. His Lordship found as follows: “34.7. Based on the testimony and the police report lodged, the 29th accused was arrested because he was asking for money and creating a nuisance at the housing complex. PW92 did not find any firearm or dangerous weapon on the 29 th accused. He also did not find any incriminating item or article on the 29 th accused except the amulets and wrist watch. This - 65 - items did not make him to be a terrorist and or in waging war against the country. 34.8. The prosecution did not lead any evidence that at the material times the 29th accused was at Kg. Tanduo or that he was one of the armed intruders at Kg. Tanduo. He was not seen in the photographs in ID2(1- 50) taken at Kg. Tanduo. There was no evidence that he took part in the skirmishes at Kg. Tanduo or at Kg. Simunul or Tg. Batu or Tj. Labian against the security forces. 34.9. There was no evidence that he planned or prepared for war or participated or took part in the war or any war between the armed intruders and the security forces. There was no evidence that he waged war against the King or against the nation. 34.10. There was no evidence that he planned or prepared or participated or took part in any terrorist activities or carried out any terrorist activities in Sabah or in the country. There was no evidence that he associated with the armed intruders at Kg. Tanduo or had provided assistance or supplies or support to the armed intruders. There was no evidence that he was a member of a terrorist group. 34.11. The only evidence against him was begging and causing a nuisance at the housing complex. That did not make him to have waged war against the King or that he was a member of a terrorist group. 34.12. The prosecution had failed to make out a prima facie case against the 29 th accused under s.121 and s.130KA of the Penal Code. He was acquitted and - 66 - discharged. He was referred to the Immigration Department to be deported.” [77] We agreed with the findings and decision of the learned trial judge. The fact that the 29th accused begged for assistance to go to Lahad Datu does not automatically make him a terrorist. Evidence against the 30th accused [78] The evidence against the 30th accused came from Captain Kamarul Harith bin Abu Hurairah (PW96) who was from the 5th Brigade, Markas Taktikal at Felda Sahabat. PW96 testified that on 3.4.2013, at 7.00 pm, Major Haizdar of the 7th Royal Ranger Mechanized Regiment handed to him an arrested person (later identified as the 30th accused). Major Haizdar informed PW96 that the 30th accused was arrested by Captain Mohd Haisan at Kg. Tanjung Batu near Kg. Pasusun on the ground that he was found in the operation area without any legal document. Nothing incriminating was found on the 30th accused. According to PW96, another man by the name of Abdul Rashid bin Shahirul was also handed to him. Abdul Rashid was arrested by a personnel from the 21st Royal Malay Regiment because he was found in the operation area without any legal document. [79] Later PW96 handed over the two persons to Corporal Pg. Tajuddin bin Pg. Yunus (PW91) at Balai Polis Cenderawasih. PW96 did not lodge any police report as he was in a hurry to go - 67 - off. Acting on the instruction of the investigating officer, Inspector Mohd Faris bin Hj Mohd Sairi (PW87), PW91 lodged an arrest report (exhibit P484) under the Immigration Act against the 30th accused for not having any valid identification or travel document. [80] After considering the evidence of the prosecution’s three witnesses against the 30th accused, the learned trial judge held that the prosecution failed to establish a prima facie case against him in respect of both charges and acquitted him. [81] In his grounds of judgment, the learned trial judge proffered the following reasons for acquitting the 30th accused: “35.9. Capt. Mohd Haisan and Major Haizdar were not called to testify when, where, how and why the 30 th accused was arrested by them or by the army. Based on the testimony of PW96 and PW91, the 30th accused was arrested because he was in the operation area and did not possess any valid identification document. Both of PW96 and PW91 did not have any personal knowledge and were not able to testify when, where, how and why the 30th accused was arrested. 35.10. The prosecution did not lead any evidence that at the material times the 30 th accused was at Kg. Tanduo or that he was one of the armed intruders at Kg. Tanduo. He was not seen in the photographs in ID2(1-50) taken at Kg. Tanduo. There was no evidence that he took part in the skirmishes at Kg. Tanduo or at Kg. Simunul. - 68 - 35.11. There was no evidence that he planned or prepared for war or participated or took part in the war or any war between the armed intruders and the security forces. There was no evidence that he waged war against the King or against the nation. 35.12. There was no evidence that he planned or prepared or participated in any terrorist activities or carried out any terrorist activities in Sabah or in the country. There was no evidence that he associated with the armed intruders at Kg. Tanduo or had provided assistance or supplies or support to the armed intruders. There was no evidence that he was a member of a terrorist group. 35.13. The only evidence against him was that he was caught in the operation area without any valid documents. That did not make him to have waged war against the King or that he was a member of a terrorist group. 35.14. The prosecution had failed to make out a prima facie case against the 30th accused under s.121 and s.130KA of the Penal Code. He was acquitted, discharged and referred to the Immigration Department to be deported.” [82] We agreed with the findings and decision of the learned trial judge in acquitting the 30th accused of both charges. Both PW91 and PW91 could not confirm as to how and why the 30th accused was arrested as they had no personal knowledge of the arrest. No evidence was forthcoming to link the 30th accused with the intrusion at Kg. Tanduo. - 69 - [83] It is clear to us that the prosecution’s case against the 30th accused, being circumstantial in nature, does not point irresistibly to involvement in the offences with which they were charged. [84] We were satisfied that the learned trial judge was right in holding that no prima facie case had been established against the following accused, namely the 7th , 8th, 9th, 11th, 12th, 15th, 17th, 21st, 22nd, 23rd, 25th, 29th and the 30th accused. [85] In respect of the 24th accused, we agreed with the findings of the learned trial judge that the explanation proffered by him in his defence had succeeded in raising a reasonable doubt in the prosecution case. [86] Having considered the appeal against acquittal by the prosecution and for the reasons aforesaid, we found no merit in the prosecution’s appeal. Consequently we affirmed the acquittals of the respective accused of the respective charges preferred against them. PART II – THE APPELLANTS’ APPEAL AGAINST CONVICTION UNDER SECTION 121 OF THE PC [87] This part of our judgment deals with the appeals by nine of the appellants, namely: (1) Atik Hussin bin Abu Bakar; (2) Basad bin Manuel; (3) Ismail bin Hj Yassin; - 70 - (4) Virgilio Nemar Patulada @ Mohammad Alam Patulada; (5) Salib Akhmad bin Emali; (6) Al Wazir bin Osman; (7) Tani bin Lahad Dahi; (8) Julham bin Rashid; and (9) Datu Amirbahar Hushin Kiram. [88] At the trial, they were the 1st, 4th, 10th, 13th, 15th, 16th, 18th, 19th and 20th accused respectively. They had been found guilty under section 121 of the PC waging war against the Yang di- Pertuan Agong and were each sentenced to life imprisonment. The offence carries the death penalty or imprisonment for life, and if not sentenced to death shall also be liable to a fine. Their appeals were against conviction only, having withdrawn their appeals against sentence at the commencement of the hearing of these appeals. Having heard arguments by the parties, we dismissed their appeals against conviction. These are our grounds. [89] Three issues were raised on their behalf by Datuk N. Sivananthan, and they were the following: (i) Burden of proof; (ii) The effect of the guilty plea of the 1st, 4th, 10th and 13th accused under section 130KA of the PC; and - 71 - (iii) The authenticity of the intercepted communications. Issue (i) - Burden of proof [90] All nine appellants chose to give sworn evidence when called upon to enter their defence to the charge under section 121 of the PC. The learned trial judge rejected their defence and found that their explanation failed to raise a reasonable doubt in the prosecution case. He found that the prosecution had proved its case beyond reasonable doubt. Before we go into the legal issues pertinent to this ground of appeal, we think it is necessary, to provide context, to set out in full the defence put up by each of the appellants in answer to the charge. This is important to determine if their convictions are safe. Defence of the 1st appellant (1st accused) [91] The 1st appellant explained that he was a fisherman from Pulau Sibutu, Taungu, Philippines. He said he was brought to Sabah by Hj. Musa who promised to provide him with a good job and a Malaysian identity card (IC). He was promised that if he completed three months in the job, he was free to move anywhere in Sabah. [92] Before they left for Sabah, they assembled at the house of Agbimuddin in Simunul, Bohe Indangan, Philippines. There were four groups of more than one hundred people. The first group which consisted of twenty-eight persons from Pulau Sibitu was led - 72 - by Herman; the second group of eighteen by Edie was from Zamboanga; and the third group of sixty led by Datuk Pak was from Jolo and the fourth group of about fourty led by Salib Enggal was from Simunul. He said Agbimuddin was the leader of the group going to Sabah. [93] While assembled at the house, he saw some of them were carrying rifles such as Armalite, M16, Garand, M14 and pistols. Some were carrying parangs. He thought they were the security guards of Agbimuddin. If he was not mistaken, they left for Kg. Tanduo on 11.2.2013 at about 7.00 p.m. in a big boat. Herman was his leader in the boat. They arrived at about 11.00 p.m. and assembled at a surau near the beach. From there, they walked for about twenty minutes to reach Hj. Musa’s house. [94] After two nights, weapons were brought into Kg. Tanduo by thirteen persons in a speedboat. He said he did not know or recognize these people. He heard about a negotiation with the police led by Tuan Zul who came to Kg. Tanduo asking Agbimuddin to return to the Philippines. He said he did not know the details of the negotiation. [95] After that there was a meeting at Hj. Musa’s house. It was decided to divide them into six groups, led by Herman, Edie, Datu Pak, Salib Enggal, Hj. Musa and Agbimuddin respectively. Each group was given between eight to eleven camouflaged uniform - 73 - except those in Hj. Musa’s and Agbimuddin’s groups all of whom wore full uniform. Agbimuddin told them not to move around in uniform and carry firearms except a small flag of the Sultanate of Sulu and North Borneo to avoid detection by the Malaysian Government. [96] In Herman’s group, Herman himself carried a Colt .45 pistol and Basil carried a .38 pistol. Basil was given the pistol to control them. Except for Herman and Basil, none of them had any firearm. When they were required to carry out the chores, they had to return the uniforms. He said that while he and Basil were walking at kampong Tg. Labian, he was arrested by the police but Basil managed to run away. He could not remember the date of the arrest. When he was arrested, the police seized a pistol belonging to Basil found inside his bag. Defence of the 2nd appellant (4th accused) [97] He said he had a degree in computer from the College of Isabela City and Furigay College Institute. He said it was difficult to find a job at his place and he became a motorcycle rider. He resided in Kg. Basilan, the Philippines. He said Eddy went to their village with offers of office jobs in Sabah. He recruited fifteen persons in his village. So he followed his friends to come to Kg. Tanduo, Lahad Datu, Sabah. - 74 - [98] Before they left for Sabah, they assembled in a ‘lansa’ (big boat) at Kg. Simunul in the Philippines. He saw many people inside the boat. He heard there were more than hundred people in the boat but he did not see Edie inside the boat. He did not see any weapon except the butt of a firearm which was covered by other things. They left at about 5.00 p.m. He could not remember the date but it was in mid-February. Apart from Edie, his friends in the boat were Felis, Haji Abdullah, Haji Gapur, Bara and Hamid. [99] When they arrived at Kg. Tanduo at 5.00 a.m. the next morning, there was no one to meet or welcome them. They made their way to the house of Hj. Musa. He noticed that many houses were empty and he did not know whose houses they were. [100] At Kg. Tanduo, he saw Hj. Musa and Agbimuddin. He saw weapons such as Garand, M16, Carbine pistols and barung brought to the house of Hj. Musa. He did not know when the weapons were brought to the house. He saw people wearing camouflaged uniform and uniform being washed. He also saw a flag with yellow, green and white colours, with an emblem of a kris and the words ‘Kalimah Allah’ near the house. He said someone put one such small flag inside his bag. He said he did not use the flag. He did not carry any weapon and he did not wear any uniform. - 75 - [101] He said that on that morning, he and Felis planned to escape. They ran away. He arrived first and waited for Felis at two empty houses but Felis did not turn up. He said many people had also collected the safe passage leaflets to run away for a better life. He was hoping that he would be sent back to his kampong. He said he was then arrested by the police in the afternoon. He said nothing was seized from him except his wallet, his hand phone and his cloths including a ‘Lotto’ T-shirt and a ‘Diesel’ T-shirt. Defence of the 3rd appellant (10th accused) [102] He was a farmer in his village at Kg. Sibutu, Tandok Banak, the Philippines. He said he was brought by Herman to Sabah who promised him a job and to make him a ketua kampong whereas a relative of Raja (Agbimuddin) promised him a Malaysian IC if they could claim Sabah. Others were promised money or made generals. He said this relative of Agbimuddin claimed that Sabah belongs to him and promised that there would be no war or fighting. He said if he knew there would be war, he would not have come to Sabah. [103] He said he came to Sabah on 22.2.2013 in two boats, one hundred and thirty in one boat and twenty-eight in the other. He said the people in the boats were all adults. There were no women and children. They came from Tubig Indangan, Bongao, Sulu, Basilan and Zamboanga in the Philippines. Herman was his leader - 76 - in the boat. He saw two Carbine and two Colt .45 in the boat. Herman had one Colt .45. The boats left at about 5.30 p.m. from Sibutu and arrived at Kg. Tanduo at about 3.00 a.m. [104] When he arrived at Kg. Tanduo, he saw that the houses were empty. There was no villager. He went to the house of the son of Hj. Musa. There were two hundred and thirty people staying there. They brought weapons and uniform with them. He said two persons by the name of Aziz and Buyong were carrying a carbine each but they only had ten bullets. He asked them why they carried very few bullets and they said the rest would be brought by the Sultan. He said he himself did not carry any weapon. [105] He said he was afraid of skirmishes and that he wanted to escape on that day. He said he knew there would be boats in the area because the people there were fishermen. He took a small boat at Sg. Bilis and rowed out to sea at Tg. Batu where he was arrested. He said nothing was seized from him except a bag containing his personal belongings. Defence of the 4th appellant (13th accused) [106] He was a carpenter by profession, residing at Sitangkai, the Philippines. He said he was brought by his father-in-law to come to Kg. Tanduo to work as a security guard for the Sultan who promised that there would be no war. He said he agreed to follow the Sultan because of the promise that there would be no war. - 77 - [107] He assembled at Pondok Banak, Sibutu, the Philippines and left for Kg. Tanduo on 10.2.2013 together with hundred people in two boats. There were thirty people in one boat led by Herman Kalun. He was in another boat with seventy people led by Raja Muda Agbimuddin whose son was the skipper of the boat. There were twenty security personnel in army uniform carrying Armalite, Carbine, M14, pistol and barong. He did not carry any weapon in the boat but he was told that he would be given weapon after they arrived in Sabah. The weapons would be brought by another group. [108] When they arrived at Kg. Tanduo, they looked for a place to stay and for food. He said Pedro, who was related to Herman, brought cooked rice from Sg. Bilis. Three days later another boat arrived. Toto, the son of Hj. Musa also arrived. He also saw Ampun Piah (Datu Piah) who arrived from Semporna. He said he could recognize him because he had seen him with the Sultan in Tubig Indangan in the Philippines. [109] He said there were seven groups at the kampong, one led by Herman, one by Raja Muda, the other groups from Basilan, Jolo, Zamboanga, Guru Batak and Ubik Bangao. The groups were provided with camouflaged uniform, combat boots, firearms such as Colt .45. He was wearing a uniform which he bought in Bangao. - 78 - He said if they won and took Lahad Datu, Semporna and Tawau, he was free to move anywhere in Sabah. [110] He said it was only later that he found that there would be war. After the war, he tried to run away to Tg. Batu with Pedro Cabilin. It was on a Saturday. On Sunday, they went back to Kg. Tanduo and there were many soldiers there. He said they decided to run away. He ran to the oil palm estate. He did not know where Pedro ran to. [111] As he came out from the oil palm estate, he was seen by the soldiers who called out to him. He said he ignored them and tried to run away. They shot him but missed. He raised both his hands, surrendered and was arrested. When he was arrested, nothing was seized from him except a ring and amulets. He said he was threatened and assaulted by the police. Defence of the 5th appellant (15th accused) [112] Apart from giving oral evidence under oath, the 5th appellant also tendered his written confession to corroborate his testimony. He originated from Tawi-Tawi in the Philippines. He said he came to Sabah in 1985 and resided in kg. Singgamata, Lahad Datu. In 2012, he moved with his wife, two sons (11th and 12th accused), two daughters by the name of Vilin and Bililin, a son-in-law (9th accused) and grandchildren to Kg. Ladang Atlas, - 79 - Ulu Tungku, Lahad Datu. He worked as a harvester at the oil palm plantation. [113] He testified that in January, 2012, Sultan Esmail came to Sabah to discuss with the Malaysian Government on the status and welfare of the Suluk people who have resided in Sabah for a long time. The Sultan wanted the Malaysian Government to issue ICs to the Suluks so that they could legally stay and work in Sabah. [114] He said his friends by the name of Tahir and Asbudi brought him to meet the Sultan. He said he attended the meeting with the Sultan who told him that he would discuss with the Malaysian Government to issue ICs to the Suluk people residing in Sabah so that they could legally stay and work in Sabah. He said he believed the Sultan and was happy to hear what the Sultan had told him. [115] He said the Sultan appointed him as the Panglima of the Sultanate of Sulu and North Borneo. However, he said he did not receive any document on his appointment because it was done orally. He said he was appointed as such because of his royal (Sharif) family bloodline. [116] He said the Sultan asked him to take down the names of the Suluk people so that an ID would be issued to identify them as - 80 - the followers of the Sultan of Sulu and North Borneo. Based on this, the Sultan would know how many of his followers were in Sabah. If the Malaysian Government agreed to issue ICs to the Suluk people in Sabah, this would be based on the IDs issued by the Sultanate of Sulu. [117] He said that was the first and only time he met the Sultan and his son Datu Amir Bahar. He said he did not know and he never met Datu Agbimuddin. He said he heard the news that Agbimuddin led his people to come to Kg. Tanduo but was asked to leave Sabah but refused. He said he did not know and had never been to Kg. Tanduo. [118] He said he had a hand phone which he used and shared with his two sons. He could not remember the phone number except that it started with 012 under Maxis. He said he did not have nor used any other hand phone. He denied having or used a phone number 014-8594510 or 019-5398122. He said he did not talk on the phone number 019-5398122 and denied the contents of the telephone conversation set out in P472A-P472J. [119] He said there was a time when he received a phone call from Datu Piah and heard about a war. He said he felt angry and afraid because a war would affect everyone in Sabah. - 81 - [120] He said in 25.2.2013 he was sleeping in his quarters at Ladang Atlas when he was arrested together with his sons and son-in-law. He said the police seized his phone which contained a battery and SIM card. He said he could recognize his phone which was seized by the police. He identified P300C. He said when the phone was produced in court, the SIM card was missing. However, the SIM card was tendered as exhibit P300D via PW58 and PW63. Defence of the 6th appellant (16th accused) [121] He also produced his written confession to corroborate his testimony in court. At the time of his arrest, he was 58 years old and a fisherman by profession. He was from Sulu, Parang, in the Philippines. He said he is related to the Sultan but a distant relative. He came to Semporna in 1987 with his mother to visit family. He returned to the Philippines in 1990 but came back to Sabah in 1991 to work as a fisherman. [122] He said in 2007 Sultan Esmail and Datu Agbimuddin came to Sabah to discuss with the Malaysian Government on the rights of the Suluk people in Sabah. He said he was invited to meet Sultan Esmail and Datu Agbimuddin at Kg. Sri Aman, Semporna. They told him about the discussion with the Malaysian Government. He said if the discussion was successful, they would be given ICs and could legally stay and work in Sabah. - 82 - [123] He said in 2008 he was appointed as a Panglima by Sultan Esmail. However, he did not have any power or authority in Sabah and a Panglima is a community leader of the Suluk community. He said he was merely a Ketua Kampung of Kg. Selamat in Semporna. [124] He said he did not know Hj. Musa. Nor did he know about the intrusion at Kg. Tanduo and he was not at Kg. Tanduo when the intrusion took place. He said he did not have any hand phone and did not know how to use one. He denied that he had or used phone number 012-8284091. He denied the contents of the products of communication interceptions set out in P471A-P471J. [125] He said he was not known as Adu and did not use the name of Adu. He said he did not talk to Datu Agbimuddin on the phone at the material times. He said he did not use this phone number and did not talk on this phone number. He said there was a misunderstanding between the Sultan and Agbimuddin and that was the reason why Agbimuddin did not attend the discussion. Defence of the 7th appellant (18th accused) [126] He was a 63 year old Suluk from Jolo, Sulu in the Philippines. He said he came to Sandakan, Sabah by boat in 1982 together with his wife and children. They initially stayed at Kg. Bubul and then moved to Kg. Perigi, Semporna. Prior to his arrest he was a farmer. - 83 - [127] He said his grandfather was a Panglima of the Sultanate of Sulu and North Borneo. After his grandfather died, his father took over. In 2001 he was appointed a Panglima by Sultan Esmail Kiram die to his bloodline. He testified that in 2003 there was a misunderstanding between Sultan Esmail Kiram and Datu Agbimuddin and Datu Agbimuddin asked the Sultan to issue IDs to the Suluk people in the Philippines but the Sultan refused. He said Datu Agbimuddin then asked him to issue the IDs but he did not want to because the IDs could only be issued by the Philippines Government and he was afraid of being caught. He did not want to be involved in the misunderstanding between the two. [128] That was why according to him he left them and did not have any role after that. He said in 2010 he was appointed a Panglima by Sultan Muedzul-Lail Tan Kiram in Jolo. As a Panglima he was only a representative of the Suluk community in Semporna. He did not have work, office, salary or power as a Panglima. [129] He said in February, 2013 he was at home when he heard the news from the people that Datu Agbimuddin came to Sabah but was asked to leave Sabah. He also heard of the skirmishes at Kampung Tanduo and Kg. Simunul. He said he never went to Kg. Tanduo and he did not do anything because he was not involved. - 84 - [130] He said one day while he was sleeping in his house, the police came and arrested him, his wife and children. He said the police asked whether they had documents and he replied they did not have any and so they were arrested. He said the police did not seize anything from the house. [131] He said he did not have any mobile phone as he did not know how to use it. He said he did not know and did not use the phone numbers 012-8388304 and 012-8659270. He was referred to P475A to P475J and he denied that he made the conversations on these two phone numbers. The phone numbers were registered under the name of Jessica Sanchez and Abdul Said bin Jala. He said he did not know them. Defence of the 8th appellant (19th accused) [132] He was 69 years old at the time of the trial. He said he was a carpenter residing at Simpang Gua Madai, Kunak. He originated from Lapa, Maimbong, Jolo. In 1981 he came to Tawau, Sabah before moving to Kunak. He too tendered his confession to substantiate his testimony. [133] He said that in 2005 Sultan Esmail Kiram and the 20th accused came to Sabah to discuss with the Government of Malaysia on the status and welfare of the Suluk people in Sabah, in particular whether IC could be issued to them to enable them to legally stay and obtain employment in Sabah. - 85 - [134] He said he was not interested and did not want to be involved because he had to work to support his family. However, his friend by the name of Ali brought him to attend a meeting with the Sultan. He said he attended the meeting and he felt happy because he would be given IC and could work legally in Malaysia. [135] In 2007, he was appointed a Panglima for Kunak by the Sultan. In 2008, he was appointed the Maharaja. During his meeting with the Sultan, the Sultan told him not to follow any other Sultans who came to Sabah including his brother Raja Muda Agbimuddin. He testified that as a Panglima or Maharaja he had no duty or power and did not receive any salary. He said he was only a representative of the Suluk community in a particular area, like a Ketua Kampung. He was asked to give IDs to the Suluk people so that they could be identified as the Suluk people under the Sultan. He said the IDs were issued by a person by the name of Hassan Bacho whom the Sultan trusted in Semporna. [136] It was put to him that a Maharaja is higher in rank than a Panglima. He disagreed and explained that a Panglima is higher in rank and controlled a Maharaja. He explained that due to his work he was not able to fully perform his obligations as a Panglima and wanted to resign. He said the Sultan then appointed him as the Maharaja instead so that his responsibility would not be so heavy. - 86 - [137] He said he had never been to Kg. Tanduo and did not know where it was. He only heard about Kg. Tanduo in court. He said he heard that there were people who came to claim Kg. Tanduo but he did not do anything and was not involved with them. [138] He testified that on 1.3.2013 the police went to his house to ask him to produce his documents but he could not do so. He said he was then arrested. He said at that time there were twelve people in the house, four of them were his workers, four his children, two grandchildren, his wife and himself. [139] He said nine hand phones were taken by the police from the house. He used one of the phones with the number 017- 8664394. He bought the SIM card from a shop near to his house. He identified his phone in court which was tendered as P428C. He said three of the phones seized were used by his children, two by his workers and three of the phones were without batteries. [140] He said that after his arrest, he was told that there was fighting in Kg. Simunul and Kg. Tanduo between the people of Raja Muda Agbimuddin and the Malaysian security forces. He was referred to the summaries of telephone conversations in exhibits P474A-P474J. He said the phone number 014-6774273 did not belong to him and he did not make those telephone calls. - 87 - Defence of the 9th appellant (20th accused) [141] He was 53 years old at the time of the trial and is the son of Sultan Esmail Kiram II (deceased) of the Sultanate of Sulu and North Borneo. He has a Bachelor of Science in Agriculture and married PW165 in 1985 and has two sons from the marriage. He gave a brief account of the history and institutions of the Sulu Sultanate. He said there are five stars in the flag of the Sulu Sultanate which represent five regions under the Sultanate, one star symbolizes Sulu Tawi-Tawi, the second star for Basilan, the third for Zamboanga Peninsular, the fourth for Palawan and the last star represents North Borneo, now known as Sabah. [142] He said the government of the Sultanate of Sulu is made up of three divisions, namely the judiciary, the political and the military divisions. The judicial division consists of the Royal Council of Datus, the Rumah Bicara, the Imams and the Kadi who is the principal advisor to the Sultan. The political division consists of (i) the Panglima who is the Governor of a province or district and (ii) the Maharaja who is a mayor. However, he said that the Sultanate of Sulu now has no power and the people of Sulu considers the Sultan as a traditional and ecclesiastic leader whereas a Panglima is equivalent to a Ketua Kampung or community leader and a religious leader in that particular area. - 88 - [143] He said that the Royal Security Force (RSF) of the Sultanate of Sulu is its military division led by Datu Agbimuddin Kiram (deceased) who was the then Defence Minister and he himself was the Chief of Staff. The RSF was established after the installation of his father as the Sultan of Sulu to secure and preserve the security of the Sultan and the sovereignty of the Sultanate. [144] In 2001, his father was installed as the Sultan of Sulu and he assisted his father in his activities. After his father was installed as the Sultan, and pursuant to their law of succession and chronological age, Datu Agbimuddin automatically became the Crown Prince, the Defence Minister, the Chairman of the Royal Council of Datus and Chairman of the Rumah Bicara. He said Datu Agbimuddin being the Defence Minister led, controlled and managed the RSF of the Sulu Sultanate. [145] By virtue of his seniority, his brother Datu Phugdar was appointed the Chief of Staff of the RSF. The role of the Chief of Staff was to implement any military matter in respect of the RSF. He said he was appointed as the Chief of Staff by his father to replace his brother Datu Phugdar who was a school teacher with the Philippine Department of Education and could not perform dual positions. - 89 - [146] He said when he was appointed the Chief of Staff, he removed all the ranks of the RSF. He wanted to run it in a different manner so that they must abide by the command of the Sultan and to co-operate with the Philippines Government. He said Datu Agbimuddin did not agree with his implementations because Datu Agbimuddin complained that he did not have any background and experience in military affairs. Under the chain of command, he was to report to Datu Agbimuddin. Instead, he reported directly to his father because he and Datu Agbimuddin were ‘not compatible’ with regard to his implementations of the RSF. [147] He said the Sulu Sultanate did not intend to challenge the sovereignty rights of Malaysia as an independent country but is only concerned with their propriety rights over Sabah. He said Datu Agbimuddin told his father that his father had been fooled by the Government of Malaysia. He also said that Datu Agbimuddin wanted to take an aggressive approach to the Sabah issue and wanted to bring the RSF to Sabah to claim Sabah. He said Datu Agbimuddin wanted to appoint Hj. Musa as the Chief of Staff who was an ex-military man, retired from the intelligence unit of the Philippines army. Further, Hj. Musa is the cousin of the wife of Datu Agbimuddin and Hj. Musa’s son was married to the daughter of Datu Agbimuddin. - 90 - [148] He explained that this caused a split or misunderstanding between his father and his uncle. He said his father did not agree with his uncle to claim Sabah by force. His father wanted a peaceful approach to claim Sabah and therefore they distanced themselves from what Datu Agbimuddin wanted to do in claiming Sabah. [149] He said he first came to Malaysia in 2005. In September 2012, he went to Sabah by ferry because his father asked him to arrange for his father’s trip to Sabah. He met with the District Officer of Semporna to make the arrangements for his father. [150] In December 2012, his father came over to Sabah to discuss the Sabah issue and their claim to Sabah with ACP Zul. After the discussion, his father went back but he and his wife stayed on in Sabah. He testified that on 14.2.2013, Datu Naufal, his father’s cousin and his uncle, who lived in Kampung Likas, Kota Kinabalu called him on behalf of ACP Zul to tell him that the Malaysian Government required the presence of his father to talk to Datu Agbimuddin who had led a group of members of the RSF to occupy Kg. Tanduo to claim Sabah. He said he called his father who told him to represent his father in the negotiation because his father could not travel due to the typhoon season. [151] He said that on 15.2.2013 a person from the special branch by the name of Yusof fetched him from the house of Hajjah Asma - 91 - to go to Kg. Tanduo to talk to Datu Agbimuddin. He said Datu Piah happened to be at the house of Hajjah Asma and Datu Piah decided to follow. They stayed overnight at Felda Sahabat 16. On 16.2.2013 they entered Kg. Tanduo. [152] He said after the negotiation ended, Datu Agbimuddin took him to a room and advised him to convince their people to make problems in Semporna. He said he told Datu Agbimuddin that he respected his father’s decision for him not to be involved in anything which went against the Malaysian authorities. He said Datu Agbimuddin became angry with him and said that nobody could dictate to him, not even his father. [153] He was asked who were the members or followers of his father known to him in his position as the Chief of Staff of the RSF and he listed several names. He said he knew Timhar bin Habil (6th accused) who was an ex-bodyguard of his father. Timhar was employed from 2007 to 2009. In 2009 Timhar left and was hired by the Mayor of Jolo as a security officer. He said he only knew Habil bin Suhaili (5th accused) as the father of Timhar. [154] When Timhar left in 2009, he and his family would not come to their house anymore and there were some family issues. After that they did not see each other. They only met in prison here after they were all arrested. He said they (the family of Habil and Timhar) could not wait for the Sabah issue to be resolved. As - 92 - far as he knew, Timhar had transferred to Sultan Muedzul-Lail T Kiram who is his second cousin and the grandson of Sultan Esmail Kiram I. [155] He said Salib Akhmad bin Emali (15th accused) was appointed by his father as Panglima in Kg. Tungku, Lahad Datu. The last time they spoke to him was in 2012 in Kg. Sri Aman, Semporna when the 15th accused submitted the names of members under his father. He said his father would issue an identity card to these members so that they would be identified as members of the Sultanate of Sulu. [156] He went on to say that Al Wazir bin Osman (16th accused) was appointed by this father as Panglima in Kg. Selamat, Semporna. He said they saw each other sometimes because he stayed in the house of his cousin Hajjah Asma whose house was near Kg. Selamat. [157] Julham bin Rashid (19th accused) was appointed by his father as Panglima in Kg. Madai, Kunak. He said they did not meet because he did not usually come to the house as he was busy with his work. He said they only talked on their cellphones. [158] Tani Lahab bin Dahi (18th accused) was appointed as Panglima in 2001 in Sulu but he left in 2003. He said the 18th accused left because he could not wait for the Sabah issue to be resolved. He said the 18th accused transferred to Sultan Aranan - 93 - Puyu, who was one of the many claimants to the throne of the Sulu Sultanate. [159] He said his wife accompanied him wherever he went. Her role was only to take care of him and laundered his cloths when they were in Semporna and to serve drinks when they had visitors. [160] He was then asked whether it was true that his wife had specifically identified some of the accused as the followers of his father but who had left to follow Datu Agbimuddin and he replied it could not be true because she had no role with regard to the Sulu Sultanate and not the type to know the affairs of the members of his father. He said he did not know why she gave that kind of evidence and not giving the true evidence under oath in court. He said maybe she had been persuaded by the police to testify as such. He was asked and he said he did not know whether she was lying or not. [161] As can be seen, the defence put up by the nine appellants was, by and large, a total denial of their involvement in the intrusion at Kg. Tanduo, i.e. of waging war against the Yang di- Pertuan Agong. Despite the nature of the defence, the record at page 1383-1443 (60 pages) of the record of appeal shows that the learned judge proceeded to carefully and meticulously consider every aspect of the explanation put up by each of them and found that their denial could not be true. - 94 - [162] This is a finding of fact which an appellate court is loathe to interfere with. We have, in this regard, alluded to the relevant principles of law in Part I of this judgment and we do not wish to repeat them save to say that we found no valid reason to interfere with the finding of the learned trial judge. [163] Procedurally, the law is that if the nine appellants had chosen to remain silent when called upon to enter their defence to the charge under section 121 of the PC, the learned trial judge would have had no option but to convict them of the offences: (See Balachandran v. PP [2005] 1 CLJ 85 FC. In Junaidi bin Abdullah v. PP [1993] 4 CLJ 201) the then Supreme Court held as follows at page 206: “By calling an accused to enter his defence, the trial judge must on evaluation of the evidence, have been satisfied that the prosecution had, at the close of the prosecution's case, established a prima facie case which, if unrebutted, would warrant a conviction of the accused.” [164] This is consonant with section 180(4) of the Criminal Procedure Code which reads: “180(4) For the purpose of this section, 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.” (emphasis added) - 95 - [165] Thus, it is a requirement of the law that once a prima facie case has been established and the accused is called upon to enter his defence, he must rebut or explain the case already established against him by the prosecution, failing which his conviction is warranted. If he gives an explanation, it is up to the trial judge whether to accept or reject the explanation having regard to the evidence before the court. In the present case, the convictions of the appellants under section 121 of the PC were warranted as the learned trial judge rejected their explanation as not being reasonably and probably true. [166] Back to issue (i) raised by the appellants, i.e. the burden of proof. The appellants’ complaint was over the following pronouncements made by the learned trial judge in his grounds of judgment: As against the 1st, 4th, 10th and 13th accused “38.58 For these reasons, on a balance of probabilities, their explanations could not be true and the court could not accept the explanations given. Their explanations did not raise a reasonable doubt of their involvement in waging war against the King.” (emphasis added). - 96 - As against the 15th accused “40.18 For the reasons given, on a balance of probabilities, his testimony could not be true and had failed to raise any doubt on the prosecution’s case against him under s. 121 and s. 130KA of the Penal Code.” (emphasis added). As against the 18th accused “43.15. On a balance of probabilities and for the reasons given, the explanation of the 18th accused could not reasonably or probably be true and had failed to raise a doubt on the prosecution’s case made against him.” (emphasis added). As against the 19th accused “44.17. On a balance of probabilities and for the reasons given, the testimony of the 19th accused could not reasonably or probably be true and fai led to raise any doubt on the prosecution’s case against him.” (emphasis added). As against the 20th accused “37.41. On a balance of probabilities, his defence could not be true and his explanations that he was not - 97 - involved in waging war against the King or that he was not a member of a terrorist group could not be accepted which were against the weight of evidence. And for the same reasons he has also failed to raise any doubt on the prosecution’s case against him.” (emphasis added). [167] It was submitted that the learned trial judge misdirected himself by breaching the guideline laid down by Suffian J (as he then was) in Mat v. PP [1963] MLJ 263, which was in the following terms: “The position may be conveniently stated as follows:- (a) If you are satisfied beyond reasonable doubt as to the accused’s guilt Convict (b) If you accept or believe the accused’s explanation Acquit (c) If you do not accept or believe the accused’s Do not convict explanation but consider the next steps below (d) If you do not accept or believe the accused’s explanation and that explanation does not raise in your mind a reasonable doubt as to his guilt Convict (e) If you do not accept or believe the accused’s explanation but nevertheless it raises in your mind a reasonable doubt as to his guilt Acquit”. - 98 - [168] It was submitted that by using the term “on a balance of probabilities”, the learned judge had imposed on the appellants the legal burden of proving their defence on the balance of probabilities when their duty was merely to discharge their evidential burden of raising a reasonable doubt in the prosecution case. [169] It was urged upon us that in view of the misdirection, the proper order that this court should make was to acquit and discharge the appellants. It was submitted that an order of retrial would not be appropriate in the circumstances. Reliance was placed on the Federal Court case of Olier Shekh Awoyal v. PP [2017] 2 CLJ 141 where it was held that the proviso to section 92 of the Courts of Judicature Act 1964 (similar to section 60(1) of the same Act) was not applicable as there were no exceptional circumstances to warrant such an application where the wrong burden of proof had been applied by the learned trial judge. [170] In that case the learned trial judge had said this in dealing with the defence case: “Secara ringkas, landasan pembelaan OKT adalah bukan beliau yang melakukannya tetapi telah dilakukan oleh orang lain. Jika OKT dapat meyakinkan Mahkamah tentang kewujudan orang lain dalam bentuk keterangan maka OKT layak untuk dibebaskan. Mahkamah berpendapat semata-mata - 99 - “vague conjecture” atau inferen kemungkinan OKT tidak bersalah bukanlah reasonable doubt. Pihak pembelaan mestilah menunjukkan “hard evidence” yang kemudiannya boleh mewujudkan keraguan sehingga terputusnya elemen-elemen yang perlu dibuktikan.” [171] Other than that, the learned judge had also said: “Secara amnya, pada peringkat pembelaan, beban adalah di bahu pihak pembelaan untuk membawa keterangan atau keterangan pihak pembelaan mestilah mampu untuk menyangkal keterangan prima facie pihak pendakwaan. Dengan itu pihak pembelaan hanya perlu membangkitkan suatu keraguan yang munasabah atas imbangan kebarangkalian dalam pembelaannya.” [172] From these two passages, it is clear, as indeed found by the Federal Court, that the learned trial judge in that case had misdirected himself when he imposed on the accused the legal burden of proving his defence on the balance of probabilities. [173] The law is trite that in criminal cases, unless the accused has a legal burden to prove a particular fact, such as the burden imposed by section 103 illustration (b) or section 106 illustration (b) of the Evidence Act 1950, or to rebut a statutory presumption, the accused has no burden to prove or to disprove anything. He is entitled to an acquittal if his explanation succeeds in casting a - 100 - reasonable doubt in the court’s mind as to his guilt and this is so even where the court is not convinced of the truth of his explanation. [174] The distinction between legal and evidential burden of proof has been explained in the following terms by the Oxford Dictionary of Law (Seventh Edition): “A distinction is drawn between the persuasive (or legal) burden, which is carried by the party who as a matter of law will lose the case if he fai ls to prove the fact in issue; and the evidential burden (burden of adducing evidence or burden of going forward), which is the duty of showing that there is sufficient evidence to raise an issue fit for the consideration of the trier of fact as to the existence or nonexistence of a fact in issue.” [175] In Popple’s Canadian Criminal Evidence the following passages on burden of proof can be found at pages 416 and 417: “In a criminal case it is always the duty of the prosecution to prove the guilt of the accused “beyond reasonable doubt”. But the expression “burden of proof” has two aspects – (a) that of “establishing a case” (a matter of “law”); (b) that of “introducing evidence” (a matter of “procedure”). The onus of “establishing a case” against the accused rests upon the Crown throughout the trial. It must prove every “essential ingredient” of the crime. But the burden of “introducing evidence” will be satisfied by the production of evidence which, if unanswered and - 101 - believed, raises a “prima facie” case upon which the jury might be justified in finding a verdict. And where the Crown has established such facts as without more will justify the jury in finding the accused “guilty”, he is not entitled to an “acquittal” unless he does satisfy the burden which is then cast upon him of introducing evidence, but the extent of that evidence is not to prove his innocence or honesty but merely to raise a “reasonable doubt” in the minds of the jury as to his guilt. And where an onus is placed upon him by statute to establish his innocence or some other fact, the extent of that onus is only to satisfy the jury of the “probability” of that which he is called upon to establish, for he is not required to prove any fact “beyond reasonable doubt”. [176] The question before us was whether the learned trial judge had imposed on the appellants the legal burden of proving, on the balance of probabilities, that they were not guilty of the offences charged. If he did, then he would have fallen into the same error that the learned trial judge in Olier Shekh Awoyal (supra) had fallen into. [177] The first thing to note with regard to this issue is that the learned trial judge did not say that the appellants had a legal burden to prove their innocence. He said nothing close to what the learned trial judge in Olier Shekh Awoyal had said. Nowhere in the judgment did he say that the burden was on the appellants to prove their defence. What the learned judge said was, on the - 102 - balance of probabilities, the appellants’ explanation could not reasonably or probably be true. He then went on to say, most importantly, that their explanation failed to cast any doubt in the prosecution case. [178] In the manner that the issue was raised before us, the pertinent question to ask is this: What was the context in which the learned judge used the term “on a balance of probabilities”? Was he imposing a legal burden of proof on the appellants to prove their innocence, or was he merely weighing the reasonable probabilities of the case? [179] We have gone through the grounds of judgment carefully and we were unable to say with conviction that in using the term “on a balance of probabilities”, the learned judge was imposing on the appellants the legal burden of proving that they did not commit the offences charged. It was clear to us that in using the term, the learned judge was merely weighing the probabilities of the case. This is clear from the fact that right after saying that the appellants’ explanation could not, “on a balance of probabilities”, reasonably or probably be true, he went on to say that the appellants’ explanation did not raise a reasonable doubt in the prosecution’s case. The learned judge had also said that on the totality of the evidence adduced, the prosecution had proved its case beyond reasonable doubt. - 103 - [180] The learned judge further made it clear that he did not accept or believe the appellants’ explanation, nor did the explanation cast any doubt in his mind as to the guilt of the appellants. He was in fact applying paragraph (d) of the guideline laid down in Mat v. PP (supra). He cannot therefore be said to have offended the ground rules as laid down in that case. We found nothing in the judgment, read as a whole, to suggest that the learned trial had imposed on the appellants the legal burden of proving their innocence on the balance of probabilities. [181] What is also clear from the grounds of judgment is that the term “on a balance of probabilities” was used by the learned judge after he had meticulously assessed and evaluated the entire evidence to determine whether the appellants’ explanation could reasonably or probably be true. In the end, he found the appellants’ explanation be untrue and failed to cast any doubt in the prosecution case. [182] As we mentioned earlier, the defence put up by each of the appellants was that they were not involved in the intrusion at Kg. Tanduo. In determining whether the denial was credible and whether it had succeeded in casting a reasonable doubt in the prosecution case, it was certainly necessary for the learned judge, as a trier of fact, to test their evidence against the rest of the evidence and the probabilities of the case. This was to determine - 104 - whether their explanation could, in the words of the learned judge, “reasonably or probably be true”. He was not using the words “on a balance of probabilities” in the context of a legal burden of proof. [183] The principle is that in determining whether an accused person had succeeded in casting a reasonable doubt in the prosecution case, the trial judge is bound to consider the reasonable probabilities of the case and to disregard fanciful possibilities, regard being had to the totality of the evidence, and this includes the defence put up by the accused. That was exactly what the learned trial judge in this case did and this is the context in which the term “on a balance of probabilities” that the learned judge used must be understood. It was a rather unfortunate choice of words but to suggest that the learned judge had applied the wrong burden of proof is incorrect. [184] At the risk of repetition, it needs to be emphasized that in all those passages where the learned judge used the term “on a balance of probabilities”, he concluded by saying that the appellants failed to raise any doubt in the prosecution’s case. Taken in its proper context, it was in fact a finding by the learned judge that the prosecution had proved its case beyond reasonable doubt, without imposing on the appellants the burden of proving their defence on the balance of probabilities. - 105 - [185] We would agree with learned counsel’s contention if the learned judge had used the term “on a balance of probabilities” without directing his mind at all to the question whether the appellants had succeeded in raising a reasonable doubt in the prosecution case. But that was not the case here. We therefore found no merit in issue (i) raised by the appellants. Issue (ii) - The guilty plea [186] We now come to issue (ii) raised by the appellants. The complaint was that the learned trial judge was wrong to rely on the guilty pleas of the 1st, 4th, 10th and 13th accused to the offence under section 130KA of the PC in considering whether all nine accused were guilty of the offence under section 121 of the PC. We were referred to the following pronouncements by the learned judge: “38.42. As stated above, after a maximum evaluation of the evidence at the end of the prosecution’s case. I have found that the prosecution had made out a prima facie case against these accused for waging war against the King and as members of a terrorist group. They were called to enter their defence. 38.43. At the commencement of the defence these four accused together with the 2nd, 3rd and 14thaccused decided to change their plea to the charge under s. 130KA of the Penal Code. They had pleaded - 106 - guilty to the charge under s. 130KA of the Penal Code that they were members of a terrorist group. 38.44. These confirmed my findings that they were members of a terrorist group, namely being members of the RSF of the Sultanate of Sulu and North Borneo which came to claim Sabah to belong to the Sultanate of Sulu and North Borneo by force. These contradicted their explanations that they were not the armed intruders or that they did not associate with the armed intruders or they were not members of the RSF. These also contradicted their testimonies that they came with promises of offers of jobs and IC but found out that they were cheated and guarded by the armed men and tried to run away. “38.54. The fact that they had pleaded guilty to being members of the terrorist group had contradicted their claims that they were innocent or their purpose for coming to Sabah or that they had been cheated by Datu Agbimuddin, Hj. Musa or Herman in coming to Sabah.” [187] It was submitted that the learned judge had wrongly interpreted the significance of the evidence given by and on behalf of all nine accused. Reference was made to Mohd Amin bin Mohd Razali & Ors v. PP [2003] 4 MLJ 129 where it was held by the Federal Court that in determining whether an accused person had committed an offence under section 121 of the PC, the following factors need to be taken into account: - 107 - (i) No specific number of persons is necessary to constitute an offence under section 121 of the PC; (ii) No actual fighting is necessary to constitute the offence. Enlisting, marching and making preparation without coming to battle are sufficient; (iii) The manner in which they are equipped or armed is not material; (iv) There is no distinction between principal and accessory and all who take part in the unlawful act incur the same guilt; and (v) The offence is a continuing offence and any person can be guilty of the offence at any point of time of his involvement provided such person is aware that the object or purpose for which the gathering had assembled is to stage an insurrection or to challenge the Government’s authority. [188] Particular emphasis was placed on factor (v) above to support the argument that the prosecution must prove mens rea on the part of all nine accused, i.e. that they knew that their presence in Kg. Tanduo was to wage war against the Yang di- Pertuan Agong or to claim Sabah. - 108 - [189] It was argued that since the prosecution was required to prove mens rea on the part of all nine accused in proving the offence under section 121 of the PC, the learned judge should not have allowed his mind to be influenced by the guilty pleas of the 1st, 4th, 10th and 13th accused to the offence under section 130KA of the PC. It was contended that by doing so, the learned judge had allowed his mind to be clouded by irrelevant factors in considering whether the offence under section 121 of the PC had been proved against all nine accused. [190] Now, the undisputed fact is that all nine appellants were charged with both the offence under section 121 and the offence under section 130KA of the PC. It is true that only the 1st, 4th, 10th and 13th accused pleaded guilty to the offence under section 130KA of the PC while the 15th, 16th, 18th, 19th and 20th accused did not, but what needs to be borne in mind is that the offence under section 130KA (of being members of a terrorist group) was inextricably linked to the offence of waging war against the Yang di-Pertuan Agong under section 121 of the PC with respect to which all nine accused were charged with. [191] It is not as if the evidence relating to the offence under section 130KA of the PC had no nexus whatsoever with the evidence relating to the offence under section 121 of the Code. The fact is, the two offences were committed by all nine appellants - 109 - in the same transaction, within the same time frame, i.e. between February 9 and March 23, 2013 and were both committed in furtherance of their common object of waging war against the Yang di-Pertuan Agong. [192] Given the fact that the offence under section 130KA of the PC was inextricably linked to the offence under section 121 of the same Code, with which all nine appellants were charged, clearly the guilty pleas of the 1st, 4th, 10th and 13th accused under section 130KA (being members of a terrorist group) were relevant for the learned judge to determine whether there was any truth to their defence (to the charge under section 121 of the PC) that they were not the armed intruders, that they were not members of the RSF, that they only came to Sabah for jobs, and that they had been cheated by Datu Agbimuddin, Hj. Musa or Herman. [193] In any event, the learned trial judge had considered appellants’ defence separately and had made separate findings as to their guilt under section 121 of the PC. It would therefore be incorrect in the circumstances to say all nine accused had been prejudiced by the learned judge’s reference to the guilty pleas of the 1st, 4th, 10th and 13th accused in finding them guilty under section 121 of the PC. [194] No authority was cited by learned counsel for his proposition that the guilty plea of a co-accused to a different - 110 - offence but committed in the same transaction as the offence with which they are jointly charged cannot be used against the other accused. With due respect to the learned counsel, we do not think that is a correct statement of law applicable to the peculiar facts and circumstances of the present case. In the premises, we do not think any valid criticism can be leveled at the learned judge for referring to the guilty pleas of the 1st, 4th, 10th and 13th accused. [195] Learned counsel for the appellants also took umbrage at the following statements by the learned judge: “38.40. Although they had a copy of their confessions, they chose not to produce them at the earliest opportunity or tender them during the prosecution’s case to explain that they were cheated or that they were not members of a terrorist group or that they did not wage war against the King. If they did, they might have raised doubts on the prosecution’s case against them at that stage.” [196] It was submitted that this remark shows that the learned trial judge had given weight to the confessions of the appellants (which were recorded during the police investigation), and that he had in fact entertained doubts on the truth of the prosecution’s evidence. This according to learned counsel, begged the question: If the confessions were capable of raising a doubt in the prosecution’s case against the appellants, does it mean that they were incapable of raising a doubt if the confessions were tendered - 111 - at a later stage of the trial, bearing in mind the defence was not an afterthought? [197] We found no merit in the complaint. In the first place, the learned judge did not say that the confessions had cast doubts in his mind as to the truth of the prosecution case. He was merely saying that the confessions might have raised doubts in the prosecution case had they been tendered during the prosecution stage of the case. [198] Nor can the statements be construed to mean that the learned judge had made up his mind that the confessions were incapable of raising a doubt in the prosecution’s case for the reason that they were tendered at the defence stage of the case instead of the prosecution stage. It was for the learned trial judge to weigh all the evidence before him before coming to his ultimate finding of guilt or otherwise. For this purpose, it was incumbent on him to take into consideration the confessions which were tendered as evidence during the course of the defence case. [199] As for learned counsel’s contention that the prosecution needed to prove mens rea on the part of the appellants, i.e. that they knew that their presence in Kg. Tanduo was to wage war against the Yang di-Pertuan Agong or to claim Sabah, the proved facts speak for themselves. There can be no doubt whatsoever that the purpose of the armed intrusion was to claim Sabah by - 112 - force. This was clearly an act of waging war against the Yang di- Pertuan Agong. Having regard to what transpired before, during and after the intrusion, it is the height of naivety to suggest that the appellants did not know what their purpose was in coming to Sabah. [200] For these reasons, we found not merit in issue (ii) raised by the appellants. Issue(iii) – Communication interception [201] This ground of appeal only concerns the 15th, 16th, 18th, 19th and 20th accused whilst the 1st, 4th, 10th and 13th accused had no issue with the intercepted communication evidence as it was not raised in their petitions of appeal. By virtue of section 53(2) of the Courts of Judicature Act 1964, they were precluded from raising the issue without leave. This section reads: “(2) Every petition of appeal shall be signed by the appellant or his advocate and shall contain particulars of the matters of law or of fact in regard to which the High Court is alleged to have erred, and, except by leave of the Court of Appeal, the appellant shall not be permitted on the hearing of the appeal to rely on any ground of appeal other than those set out in the petition.” (emphasis added) - 113 - [202] Nevertheless, we have, in fairness to the 1st, 4th, 10th and 13th accused, considered the issue in considering their appeals: PP v. Jitweer Singh Ojagar Singh [2014] 1 CLJ 433 (FC). As for the 5th, 6th, 7th, 8th and 9th appellants, their common ground of appeal on this issue was as follows: “The learned High Court erred in law when the Learned Trial Judge held that it was not mandatory to fill in or complete Paragraph 4 Part C in the communication interception application forms under the First Schedule [Regulation 2] of the Security Offences (Special Measures) (Interception of Communications) Regulations 2012.” [203] It is obvious that the attack was on the procedural defect in the interception process. The appellants’ contention was that the intercepted communications should not have been admitted in evidence as there was failure to comply with the requirements of the First Schedule [Regulation 2] to the Security Offences (Special Measures) (Interception of Communications) Regulations 2012. [204] In their petitions of appeal, the appellants reproduced those parts of the judgment which they alleged were erroneous in law, and they were the following: “12.19. Reading s. 6 of the Act which states that notwithstanding any other written law, this includes Regulations 2012, the discretion is on the PP to decide whether the communication interception is - 114 - likely to contain any information relating to the commission of a security offence. When such an application is made to PP, the application or basis for the application is not provided to the court and it is not in a position to assess and determine whether the communication interception is likely to contain any such information relating to the commission of a security offence. 12.20. The courts have consistently held that legislations for the prevention and detection of terrorism are valid and legal subject to safeguards on intruding individual liberty and the risk of arbitrary misuse of power: 1 see Beghal v Director of Public Prosecutions [2015] 3 WLR 344. The provisions of s. 6 of SOSMA should be construed in accord with its intended purposes. It has been held that where national security is involved the ordinary principles of natural justice are modified for the protection of the realm: R v Home Secretary, Ex parte Hosenball [1977] 1 WLR 766. It is also for the executive and not the courts to decide whether, in any particular case, the requirements of national security outweigh those of fairness: Council of Civil Service Unions & Others v. Minister for the Civil Service [1985] 1 A.C. 374. 12.21. Further, it has been held that the court is not concerned with how the evidence is obtained. Even if it is illegally obtained, it is admissible provided it is relevant: Kuruma v. The Queen [1955] AC 197; Public Prosecutor v. Gan Ah Bee [1975] 2 MLJ 106. - 115 - 12.22. For the reasons given, it was not mandatory to fill or complete section 5.4 of the form before the interception could be carried out.” [205] The power to intercept communication is provided by section 6 of SOSMA, which provides as follows: “6. POWER TO INTERCEPT COMMUNICATION (1) Notwithstanding any other written law, the Public Prosecutor, if he considers that it is likely to contain any information relating to the commission of a security offence, any authorize any police officer or any other person- (a) to intercept, detain and open any postal article in the course of transmission by post; (b) to intercept any message transmitted or received by any communication; or (c) to intercept or listen to any conversation by any communication. (2) The Public Prosecutor, if he considers it is likely to contain any information relating to the communication of a security offence, may – (a) require a communications service provider to intercept and retain a specified communication or communications of a specified description received or transmitted, or about to be received or transmitted by that communications service provider; or - 116 - (b) authorize a police officer to enter any premises and to install on such premises, any device for the interception and retention of a specified communication or communications of a specified description and to remove and retain such evidence. (3) Notwithstanding subsection (1), a police officer not below the rank of Superintendent of police may – (a) Intercept, detain and open any postal article in the course of transmission by post; (b) Intercept any message transmitted or received by any communication; or (c) Intercept or listen to any conversation by any communication, Without authorization of the Public Prosecutor in urgent and sudden cases where immediate action is required leaving no moment of deliberation. (4) If a police officer has acted under subsection (3), he shall immediately inform the Public Prosecutor of his action and he shall be deemed to have acted under the authorization of the Public Prosecutor. (5) The court shall take cognizance of any authorization by the Public Prosecutor under this section. (6) This section shall have effect notwithstanding anything inconsistent with Article 5 of the Federal Constitution. - 117 - (7) For the purposes of this section – “communication” means a communication received or transmitted by post or a telegraphic, telephone or other communication received or transmitted by electricity, magnetism or other means; “communications service provider” means a person who provides services for the transmission or reception of communications.”. [206] A rightly pointed out by learned counsel for the appellants, there are two types of communication interception, one under section 6(1) and the other under section 6(3) of SOSMA. Information that is required to be given in an application for communication interception is regulated by section 31 of SOSMA. For communication interception under 6(1), the requirements of the First Schedule of the Regulations have to be followed and for communication interception under section 6(3) of SOSMA, the requirements of the Second Schedule of the Regulations have to be followed. [207] Section 2 of the Regulations states that any police officer applying for authorization under section 6(1) shall submit a written application which shall contain information as specified in the First Schedule. It was submitted that this is a mandatory requirement as intended by Parliament. - 118 - [208] On the admissibility in evidence of intercepted communication, section 24 of SOSMA provides as follows: “24 ADMISSIBILITY OF INTERCEPTED COMMUNICATION AND MONITORING, TRACKING OR SURVEILLANCE INFORMATION (1) Where a person is charged for a security offence, any information obtained through an interception of communication under section 6 whether before or after such person is charged shall subject to subsection (2), be admissible at his trial in evidence. (2) The information obtained through an interception of communication under section 6 shall only be admissible where tendered under a certificate by the Public Prosecutor stating that the information so obtained had been authorized by the Public Prosecutor. (3) A certificate by the Public Prosecutor issued under subsection (2) together with any document or thing may be exhibited or annexed to the certificate shall be conclusive evidence that the interception of communication had been so authorized, and such certificate shall be admissible in evidence without proof of signature of the Public Prosecutor. (4) No person or police officer shall be under any duty, obligation or liability or be in any manner compelled to disclose in any proceedings the procedure, method, manner or the means or devices used with regard to- (a) anything done under section 6; and (b) any matter relating to the monitoring, tracking or surveillance of any person. - 119 - (5) The information obtained through an intercepted communication under section 6 may be in narrative or verbatim form whether in the original language or as a translation into the national language or the English language.”. [209] It was submitted that the learned judge erred in interpreting the intended purpose of section 6 of SOSMA and the Regulations. It was argued that under the First Schedule (Regulation 2) to the Regulations, it is plain that all information shall be filled in except in circumstances where it expressly states that such information is only “if applicable”. For instance, under Part A, Paragraph 2(f) and 2(g). We reproduce below Regulation 2 of the First Schedule. “FIRST SCHEDULE [Regulation 2] INFORMATION FOR APPLICATION FOR AUTHORISATION TO INTERCEPT COMMUNICATION UNDER SUBSECTION 6(1) OF THE ACT PART A: DETAILS OF APPLICATION AND PERSON, POSTAL OR TELECOMMUNICATION OR INTERNET SERVICE PROVIDER WHOSE COMMUNICATION IS REQUIRED TO BE INTERCEPTED 2. Particulars of the person, postal or telecommunication or internet service provider, if known whose communication is required to be intercepted: (a) name (b) address - 120 - (c) telephone number (d) fax number (e) e-mail address (f) company/business registration number (if applicable) (g) registered address (if applicable) (h) address of operating office (if different from registered address) (i) contact person.”. (emphasis added) [210] It was submitted that if paragraph 5.4 (“the basis for believing that the evidence relating to the ground on which the application will be obtained through interception”) is not a mandatory requirement or such information is unnecessary or negligible, Parliament would have added “if applicable” at the end of the paragraph. Since this was not done, it was submitted that this information is mandatory in the communication interception application forms. [211] It was argued that the information required in section 5.4 would not in any way threaten the national security as demonstrated in R v. Home Secretary, Ex Parte Hosenball [1977] 1 WLR 766. It was submitted that the information required under section 5.4, i.e. Paragraph 4 Part C was merely to - 121 - demonstrate that the police had no other means to get information but by the communication interception. [212] We were invited to examine section 24 of SOSMA before and after amendments. It was pointed out that under the new amendments, section 24(4)(a) of SOSMA states that “no person or police officer shall be under any duty, obligation or liability or be in any manner compelled to disclose in any proceedings the procedure, method, manner or the means or devices used with regard to anything done under section 6”. [213] It was further submitted that the principles of natural justice can be modified in cases involving national security but in this instance where Parliament had used the clear and unambiguous word “shall”, it must mean that such information is compulsory for a communication interception application under section 6(1) of SOSMA. To hold otherwise would be to contradict section 2 of the Regulations as well as Paragraph 2(f) and 2(g) of Part A. In the circumstances, it was submitted that all communication interception applications that had been referred to PW128 by PW49 were defective and all the authorisations that had been given were consequently null and void. [214] It was submitted that the learned judge failed to critically evaluate the oral testimonies given by the processors and the investigating officer (PW158) with the oral testimony given by the - 122 - defence witness (DW6) which clearly demonstrated that there was a serious doubt as to the authenticity of the summaries of the intercepted communications. [215] We have gone through the grounds of judgment carefully and we were not persuaded that the learned trial judge had mishandled the issue of interception of communications as alleged. In fact the learned judge had dealt with the issue admirably and we can do no better than to reproduce verbatim what he said in full below, parts of which we have reproduced earlier in this judgment: “12.9. I shall deal with these. Regulation 2 states that any police officer intending to apply for authorization from the Public Prosecutor under subsection 6(1) of the Act shall submit a written application in the form as provided by the Public Prosecutor which shall contain information as specified in the First Schedule. The form in the First Schedule contains three parts. Part A states ‘Details of applicant and person, postal or telecommunication or internet service provider whose communication is required to be intercepted’. Part B states ‘Grounds for application’ and Part C states ‘Particulars of all facts and circumstances al leged by the applicant in support of the application’. 12.10. Paragraph 4 Part C states ‘The basis for believing that evidence relating to the ground on which the application is made will be obtained through the interception’. The defence had submitted that this - 123 - requirement is mandatory and failure to comply with this requirement would void the application and or the authorization of the PP. The evidence showed that paragraph 4 of Part C was left blank in all the applications for authorization to intercept communication under s.6(1). The court had to decide whether it was mandatory. 12.11. Under s.6(7) of SOSMA, “communication” means a communication received or transmitted by post or a telegraphic, telephonic or other communication received or transmitted by electricity, magnetism or other means and “communications service provider” means a person who provides services for the transmission or reception of communications. The ‘communication service provider’, in the context of this trial, would include Telekom Malaysia, Celcom, Maxis and Digi. 12.12. S.6 provides three modes or procedures under subsections (1), (2) and (3) for communication interception to be carried out in relation to the commission of a security offence. 12.13. S.6(1) states that notwithstanding any other written law, the PP, if he considers that it is likely to contain any information relating to the commission of a security offence, may authorize any police officer – (a) to intercept, detain and open any postal article in the course of transmission by post; (b) to intercept any message transmitted or received by any communication; or - 124 - (c) to intercept or listen to any conversation by any communication. 12.14. Under subsection (2), the PP may (a) require a communications service provider to intercept and retain a specified communication or to be received or transmitted by that communications service provider or (b) authorize a police officer to enter any premises and to install any device for the interception of a specified communication. 12.15. Under s.6(3), in urgent and sudden cases where immediate action is required leaving no moment of deliberation, a police officer not below the rank of Superintendent of Police may intercept including to listen to any conversation by any communication. Under s.6(4) such police officer who has acted under subsection (3) shall immediately inform the PP of his action and he shall then be deemed to have acted under the authorization of the PP. Under Rule 3 of the Regulations, the police officer shall submit a written report to PP containing information as specified in the form in the Second Schedule of the Regulations in respect of the communication interception carried out. 12.16. Regulations 2012 provide for an application to PP for authorization to intercept communications under s.6(1) of the Act whereas s.6(3) only requires a police officer to report to PP after he has intercepted communications in urgent and sudden cases. The Regulations do not provide for or silent on an application for authorization under s.6(2) of the Act - 125 - and the form under the First Schedule only refers to s.6(1) but not to s.6(2) of the Act although Part A of the form refers to postal or telecommunication or internet service provider whose communication is required to be intercepted. It was apparent that there was a lacuna in the Regulations. 12.17. Comparing the form under the First Schedule and the application forms used in this case, for example P235 (IDD43) and P236 (IDD44), there are differences. The forms used i.e. P236 inserted new sections which are not in the form prescribed by the First Schedule. Probably it was an attempt to remedy the lacuna. 12.18. Although paragraph 5.4 of the application forms was left blank in Part C, the police had given the reasons for the applications in these two documents (P235 and P236) used. These formed the basis for believing that evidence relating to the ground on which the applications were made would be obtained through the interceptions. It should be emphasized that there was no requirement to set out the basis for believing that evidence relating to the ground on which the application was made would be obtained through the interception under s.6(3) of the Act for the interception to be carried out. A report would be made after the interception. 12.19. Reading s.6 of the Act which states that notwithstanding any other written law, this includes Regulations 2012, the discretion is on the PP to decide whether the communication interception is likely to - 126 - contain any information relating to the commission of a security offence. When such an application is made to PP, the application or basis for the application is not provided to the court and it is not in a position to assess and determine whether the communication interception is likely to contain any such information relating to the commission of a security offence. 12.20. The courts have consistently held that legislations for the prevention and detection of terrorism are valid and legal subject to safeguards on intruding individual liberty and the risk of arbitrary misuse of power: 1 see Beghal v Director of Public Prosecutions [2015] 3 WLR 344. The provisions of s.6 of SOSMA should be construed in accord with i ts intended purposes. It has been held that where national security is involved the ordinary principles of natural justice are modified for the protection of the realm: R v Home Secretary, Ex parte Hosenball [1977] 1 WLR 766. It is also for the executive and not the courts to decide whether, in any particular case, the requirements of national security outweigh those of fairness: Council of Civil Service Unions & Others v Minister for the Civil Service [1985] 1 A.C. 374. 12.21. Further, it has been held that the court is not concerned with how the evidence is obtained. Even if it is illegally obtained, it is admissible provided it is relevant: Kurana (sic) v The Queen [1955] AC 197; Public Prosecutor v Gan Ah Bee [1975] 2 MLJ 106. - 127 - 12.22. For the reasons given, it was not mandatory to fill or complete section 5.4 of the form before the interception could be carried out.” [216] We fully agree with the learned judge. In the circumstances, we likewise found issue (iii) raised by the appellants to be without merit. [217] Before we conclude on the issue of liability, both in the acquittal and conviction of the respective accused of the respective charges preferred against them, we must say that the learned trial judge had given adequate consideration to the evidence in its totality. The learned trial judge had delivered a well- reasoned judgment which accounted for all the proved facts as discussed in Parts I and II of this judgment. We could not detect any misappreciation of the facts or of any misdirection on the law by the learned trial judge serious enough to vitiate the judgment. The learned trial judge had covered all the substantial issues raised by the parties. We must bear in mind that no judgment can ever be perfect and all-embracing. As stated in the South African case of S v. Noble 2002 NR 67 (HC): “[No] judgment can ever be “perfect and all embracing, and it does not necessarily follow that, because something has not been mentioned therefore it has not been considered”. (See S v Dee Beer 190 Nr 379 (HC) at 381 – J quoting from S v Pillay, 1977 (4) - 128 - SA(a) at 534H – 535G and R v Dhlumayo and Others, 1948 (2) SA 677 (A) at 706)… ” PART III – THE PROSECUTION’S APPEAL AGAINST SENTENCE [218] We now proceed to deal with the appeal by the PP against the sentence of life imprisonment imposed by the learned judge on the nine accused (respondents in this appeal by the PP) who had been convicted under section 121 of the PC. A conviction under section 121 of the PC carries with it two penalties in the alternative, death or life imprisonment, and a third sentence that if death penalty is not pronounced, a convicted person shall be liable to a fine. In sentencing all nine accused to life imprisonment, the learned trial judge held as follows: “47.15. I refer to the Indian Supreme Court’s case of Machhi Singh v State of Punjab 1983 AIR 957 where it ruled that “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 life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances.” It went on to say that the extreme penalty of death need not be inflicted except in gravest cases of extreme culpability. - 129 - 47.16. In Amin’s case (supra), three of the accused were sentenced to death because they were the leaders and masterminds of the Al-Ma’unah group which waged war against the King under s.121 of the Penal Code. These three accused also led and were involved in the attack and exchange of fire with members of the security forces and tortured four persons, two of whom were later brutally killed at Bukit Jenalik. The other accused persons in that case who were also convicted for the offence under s.121 of the Penal Code were sentenced to life imprisonment. They were not the masterminds but only followers. The learned trial judge (as he then was) said that in exercising his discretionary powers, it was the only choice of sentence that he could pass on them under s.121. 47.17. On appeal, the Federal Court overturned the life imprisonment imposed on the 5th accused in that case because he had shot Trooper Matthew in cold blood and his disregard for human life: see [2003] 4 MLJ 129. 47.18. In this case, similarly, it is onerous task in exercising its discretion in passing sentence under section 121 of the Penal Code. Although the 20th accused is the Chief of Staff of the RSF whereas the 15th , 16th, 18th and 19th accused are the Pangl ima of the RSF of the Sultanate of Sulu and North Borneo and that some of the other accused had occupied Kg. Tanduo to claim Sabah by force and they had waged war against the King, on the evidence adduced, the key persons in the intrusion were Datu Agbimuddin, Hj Musa and Herman who actively recruited the members - 130 - to come to claim Sabah by force and in waging war against the King. 47.19. There was no evidence that any of these accused were personally involved in the skirmishes or had pulled the trigger in the exchanges of fire with the security forces which resulted in casualties in Kg. Tanduo or in Kg. Simunul. 47.20. There was no evidence that any of them had killed the police and army personnel who were ki l led during the skirmishes. There was no evidence that they had done so in cold blood. There was no evidence that they had personally injured the personnel who were injured during the skirmishes. 47.21. In passing sentence I have taken into consideration the sentencing principles, the facts and circumstances of the case, their role and involvement, the penalty prescribed and their mitigations. I bear in mind that the victims had suffered and badly affected by the intrusion. I also bear in mind that the prosecution chose not to call them to give their victims’ impact statements in this case. 47.22. In my view, the sentence of life imprisonment is adequate based on the facts and circumstances of this case, in particular on their role and involvement, and bearing in mind that they will be in prison for the rest of their life. This should send a strong message to others not to commit a similar offence.” - 131 - [219] It would appear that learned trial judge’s decision to impose the life imprisonment sentence instead of the death penalty was mainly influenced by the following considerations: (i) The ‘rarest of the rare’ doctrine; and (ii) The roles played by all the nine accused. [220] The learned Deputy Public Prosecutor (“DPP”) submitted that the sentence imposed by the High Court was manifestly inadequate considering the severity of the offence committed and that the national security had been put at stake. The learned DPP posited that this particular case falls under the bracket of the ‘rarest of the rare cases’. All the nine accused are foreigners. Their action was an act of gross aggression against a sovereign nation. They challenged the security forces and showed no remorse nor indication that they would surrender when given the opportunity to leave the country peacefully. It was the prosecution’s submission that the case of Mohd Amin is distinguishable from the facts of the present case. [221] Learned counsel for the nine accused, in his reply, submitted that the adequacy or inadequacy of sentence imposed on the accused must take into account the roles that they played, as propounded in the Federal Court case of Mohd Amin. Based on the facts of the case, it was pointed out that all nine accused were not personally involved in the skirmishes. It was submitted - 132 - that the extreme penalty of death should be reserved for the actual perpetrators of the intrusion. Learned counsel cited the Indian Supreme Court judgments in Bachan Singh v. State of Punjab 1983 AIR 957 and Machhi Singh v. State of Punjab AIR 1980 SC 898 in support of the proposition that the death penalty should only be imposed in the rarest of rare cases. [222] In the case of Mukesh & Anor v State of NCT of Delhi & Ors (Criminal Appeal Nos: 609-610 of 2017), the Indian Supreme Court observed: “116. Question of awarding sentence is a matter of discretion and has to be exercised on consideration of circumstances aggravating or mitigating in the individual cases. The courts are consistently faced with the situation where they are required to answer the new challenges and mould the sentence to meet those challenges. Protection of society and deterring the criminal is the avowed object of law. It is expected of the courts to operate the sentencing system as to impose such sentence which reflects the social conscience of the society. While determining sentence in heinous crimes, Judges ought to weigh its impact on the society and impose adequate sentence considering the collective conscience or society’s cry for justice. While considering the imposition of appropriate punishment, courts should not only keep in view the rights of the criminal but also the rights of the victim and the society at large. https://www.lawkam.org/society/ - 133 - 117. In State of M.P. v Munna Choubey and Anr. [2005] 2 SCC 710, it was observed as under: “10. Therefore, undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc. This position was illuminatingly stated by this Court in Sevaka Perumal v. State of Tamil Naidu [1991] SCC 471).” 118. In Jashubha Bharatsinh Gohil and Ors v. State of Gujarat [1994] 4 SCC 353, while upholding the award of death sentence, this Court held that sentencing process has to be stern where the circumstances demand so. Relevant extract is as under: “12 … The courts are constantly faced with the situation where they are required to answer to new challenges and would the sentencing system to meet those challenges. Protection of society and deterring the criminal is the avowed object of law and that is required to be achieved by imposing appropriate sentence. The change in the legislative intendment relating to award of capital punishment notwithstanding, the opposition by the protagonist of abolition of capital sentence, shows that it is expected of the courts to so operate the sentencing - 134 - system as to impose such sentence which reflects the social conscience of the society. The sentencing process has to be stern where it should be.” [223] Before we proceed to examine the merits of the prosecution’s appeal, it is necessary to discuss the legalese of the matter. The “rarest of the rare” doctrine has its origin in the Indian Supreme Court case of Bachan Singh v. State of Punjab AIR 1980 SC 898, where it upheld the constitutional validity of capital punishment but observed that the death penalty may be invoked only in the “rarest of rare” cases. This principle came up for consideration and elaboration in another Supreme Court decision, Machhi Singh v. State of Punjab 1983 AIR 957. The brief facts of that case are that the main accused along with eleven accomplices, killed seventeen people, men, women and children, for no reason other than they were related to one Amar Singh and his sister Piyaro Bai. The Bench opined at pages 965 - 966 that there may be demand for death penalty in the following circumstances: “32. …It may do so (in rarest of rare cases) when its collective conscience is so shocked that i t wi l l expect the holders of the judicial power centre to inflict d e a t h pena l ty i rrespec tive o f the i r pe rsona l op i n i on as regards desirability or otherwise of retaining death penalty. The community may entertain such a sentiment when the crime is viewed from the platform of the motive for, or the manner of commission of the - 135 - crime, or the anti-social or abhorrent nature of the crime, such as for instance: I. Manner of Commission of Murder When the murder is committed in an extremely brutal, grotesque, diabolical, revolting, or dastardly manner so as to arouse intense and extreme indignation of the community. For instance, (i) When the house of the victim is set aflame with the end in view to roast him alive in the house, (ii) When the victim is subjected to inhuman acts of torture or cruelty in order to bring about his or her death (iii) When the body of the victim is cut into pieces or his body is dismembered in a fiendish manner. II. Motive for commission of murder When the murder is committed for a motive which evinces total depravity and meanness. for instance when (a) a hired assassin commits murder for the sake of money or reward; (b) a cold-blooded murder is committed with a deliberate design in order to inheri t property or to gain control over property of a ward or a person under the control of the murderer or vis-à-vis whom the murderer is in dominating position or in a position of trust; (c) a murder is committed in the course for betrayal of the motherland. III. Anti-social or socially abhorrent nature of the crime (a) When murder of a member of a Schedule Caste or minority community etc., is committed not for personal - 136 - reasons but in circumstances which arouse social wrath. For instance when such a crime is committed in order to terrorize such persons and frighten them into fleeing from a place or in order to deprive them of, or make them surrender, lands or benefits conferred on them with a view to reverse past injustices and in order to restore the social balance. (b) In cases of bride burning and what are known as dowry-deaths or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation. IV. Magnitude of crime When the crime is enormous in proportion. For instance when multiple murders say of all or almost al l the members of a family or a large number of persons of a particular caste, community, or locality, are committed. V. Personality of victim of murder 37.When the victim of murder is (a) an innocent chi ld who could not have or has not provided even an excuse, much less a provocation, for murder; (b) a helpless woman or a person rendered helpless by old age or infirmity; (c) when the victim is a person vis-a- vis whom the murderer is in a position of domination of trust; (d) when the victim is a public figure generally loved and respected by the community for the services rendered by him and the murder is committed for political or similar reasons other than personal reasons.” - 137 - [224] The above principles are generally regarded as the broad guidelines for imposing the death sentence and had been followed by the Indian Supreme Court in many subsequent decisions. In the Indian Supreme Court case of Mohammed Ajmal Mohammad Amir Kasab @ Abu Mujahid v. State of Maharashtra [2012] 8 S.C.R. 295, the appellant (a Pakistani national) and his accomplices, were members of Lashkar-e-Taiba, a militant organisation based in Pakistan. They had carried out a series of 12 coordinated shooting and bombing attacks across Mumbai including the Taj Mahal Palace Hotel and the Oberoi Trident. He was charged with multiple offences including waging war against the Government of India, an offence punishable under section 121 of the Indian Penal Code. The Supreme Court examined the facts of the case in the light of the Machhi Singh decision and held that it had satisfied all the conditions laid down for the imposition of the death sentence and had also presented other reasons in a more magnified way. They waged war against the Government of India by launching an attack on Indian soil in order to demand that India should withdraw from Kashmir, to give rise to communal tension and to create internal strife and insurgency. [225] If we examine the case at hand in light of the Machhi Singh decision, it is clear that all the conditions laid down in that case had been satisfied. This case has the element of conspiracy - 138 - like no other case. The nine accused were part of a conspiracy hatched across the border to wage war against the Government of Malaysia and/or the King, with intent to weaken the country from within so that they could reclaim Sabah. [226] The case presents the element of pre-planning and preparation like no other case. The intrusion was meticulously planned and executed. The route from the Philippines to Sabah, the landing site at Kg. Tanduo, the different targets at Sabah were all pre–determined. A channel of communication between the attacking terrorists and the appellants was put in place before and during the intrusion. [227] The case was of a magnitude like no other and has shocked the collective conscience of Malaysians. Nine Malaysian security personnel were killed and many seriously injured. The bodies of six Malaysian policeman were mutilated, with one beheaded. The local kampong folks were forced to leave their homes because of the intrusion. Heavy lethal weapons such as M- 16 rifles, 9mm pistols and grenades were used during the intrusion. [228] In short, this was an attack by a foreign enemy which is unprecedented in Malaysian history. The conspiracy behind the attack was as deep and large as it was vicious and the execution was ruthless. Negotiations were held between the Malaysian - 139 - security forces and the armed group at Kg. Tanduo but the negotiations failed. The intruders chose not to leave Sabah, but instead chose bloodshed and war. In terms of loss of life and property, not to mention its traumatizing effect, this case stands apart from any other case, and is the rarest of the rare since the birth of the nation. It should therefore attract the ultimate penalty of death. [229] Against all this, the learned trial judge found, in agreeing with learned counsel, that the nine accused played a minimal role in the intrusion and that the persons responsible for the skirmishes were Datu Agbimuddin, Hj Musa and Herman, who, unfortunately, are not before the a court till now. We found it difficult to appreciate this argument. It is true that unlike the accused persons in Mohd Amin, who were the perpetrators, the nine accused in our present case were mere conspirators. However, “waging war” need not necessarily be accompanied by the pomp and pageantry that is usually associated with warfare such as the attackers forming battle-lines and arming themselves with heavy weaponry. The conspiracy in the present case had many dimensions. The accused persons were members of the RSF and continued to be its members till the end. They had a clear and unmistakable intention to be part of a terrorist group and had participated in its design by offering labour and supplies, providing shelter, transmitting information and providing help whenever necessary. - 140 - Having known about the plans and the terrorist activities, they refrained from informing the police and their concealment had facilitated the war that was waged against the Yang di-Pertuan Agong. We were unable to accept the submission that the appellants were mere scapegoats. Short of participating in the actual attack, they did everything to set in motion the diabolic mission. [230] Criminal cases do not fall into set-behaviouristic pattern. Even within the same category of offence, there are infinite variations based upon its configuration of facts. The aggression by a foreign terrorist organisation against the sovereignty of our nation was not a factor that called for consideration in Mohd Amin. To launch an attack on a sovereign democratic State is a terrorist act of the gravest severity and it presents to us in crystal clear terms a spectacle of the rarest of rare cases. [231] The sentence imposed must reflect the abhorrence and condemnation of the Malaysian community against such crime. We were firmly of the view that this was a fit and proper case to impose the death penalty against the nine accused. In this regard, we take note of the observations made by the Indian Supreme Court in the case of Dhananjay Chatterjee @ Dhana v. State of West Bengal [1994] 2 SCC 220 at para 15: - 141 - “ … Imposition of appropriate punishment is the manner in which the courts respond to the society’s cry for justice against the criminals. Justice demands that courts should impose punishment fitting to the crime so that the courts reflect public abhorrence of the crime. The courts must not only keep in view the rights of the criminal but also the rights of the victim of crime and the society at large while considering imposition of appropriate punishment.” [232] For the foregoing reasons, we allowed the prosecution’s appeal and set aside the sentence of life imprisonment passed by the learned judge and substituted it with the death penalty. Order accordingly. Dated: 8th November 2017 sgd. sgd. sgd. (DATO’ ABDUL RAHMAN SEBLI) Judge Court of Appeal Malaysia (DATO’ SETIA MOHD ZAWAWI SALLEH) Judge Court of Appeal Malaysia (DATUK KAMARDIN HASHIM) Judge Court of Appeal Malaysia - 142 - Criminal Appeals No: S-05(LB)-110-03/2016, S-05(LB)-111-03/ 2016, S-05(LB)-112-03/2016, S-05(LB)-113-03/2016, S-05(LB)- 114-03/2016, S-05(LB)-115-03/2016, S-05(LB)-116-03/2016, S-05 (LB)-117-03/2016, S-05(LB)-118-03/2016, S-05(LB)-119-03/2016, S-05(LB)-120-03/2016, S-05(LB)-121-03/2016 and S-05(LB)-370- 10/2016 For the Public Prosecutor: Awang Armadajaya bin Awang Mahmud (Nurulhuda Nur’aini binti Mohd Nor, Wan Shaharuddin bin Wan Ladin, Mohd Hamzah bin Ismail, Adam bin Mohamed, Muhammad Azmi bin Mashud, Muhammad Fadzlan bin Mohd Noor, Nordiyanasari binti Omar with him) Deputy Public Prosecutor Appellate and Trial Division Attorney General’s Chambers Putrajaya. Counsel for the Respondents: N. Sivananthan (Liu Mei Ching, Jay Moy Wei-Jiun, Vivian Oh Xiao Hui with him) Messrs. Sivananthan Suite No.1, L17-01, Pjx Tower No.16A, Persiaran Barat 46050 Petaling Jaya Selangor. Counsel for the Respondent in Abdul Gani bin Zelika Criminal Appeal No Messrs. Abdul Gani Zelika & Amin S-05(LB)-115-03/2016 Advocates & Solicitors Tingkat 2, TB286, Blok 30 Kompleks Komersial Fajar Jalan Haji Karim 91000 Tawau Sabah. - 143 - Criminal Appeals No. S-05(SH)-355-10/2016[73], S-05(SH)-357- 10/2016, S-05(SH)-358-10/2016, S-05(SH)-359-10/2016, S-05 (SH)-360-10/2016, S-05(SH)-362-10/2016, S-05(SH)-364- 10/2016, S-05(SH)-365-10/2016, S-05(SH)-366-10/2016 Counsel for the Appellants: N. Sivananthan (Liu Mei Ching, Jay Moy Wei-Jiun, Vivian Oh Xiao Hui with him) Messrs. Sivananthan Suite No.1, L17-01, Pjx Tower No.16A, Persiaran Barat 46050 Petaling Jaya Selangor. For the Public Prosecutor: Awang Armadajaya bin Awang Mahmud (Nurulhuda Nur’aini binti Mohd Nor, Wan Shaharuddin bin Wan Ladin, Mohd Hamzah bin Ismail, Adam bin Mohamed, Muhammad Azmi bin Mashud, Muhammad Fadzlan bin Mohd Noor, Nordiyanasari binti Omar with him) Deputy Public Prosecutor Appellate and Trial Division Attorney General’s Chambers Putrajaya. Criminal Appeal No. S-05(H)-351-10/2016 For the Public Prosecutor: Awang Armadajaya bin Awang Mahmud (Nurulhuda Nur’aini binti Mohd Nor, Wan Shaharuddin bin Wan Ladin, Mohd Hamzah bin Ismail, Adam bin Mohamed, Muhammad Azmi bin Mashud, Muhammad Fadzlan bin Mohd - 144 - Noor, Nordiyanasari binti Omar with him) Deputy Public Prosecutor Appellate and Trial Division Attorney General’s Chambers Putrajaya. Counsel for the Respondents: N. Sivananthan (Liu Mei Ching, Jay Moy Wei-Jiun, Vivian Oh Xiao Hui with him) Messrs. Sivananthan Suite No.1, L17-01, Pjx Tower No.16A, Persiaran Barat 46050 Petaling Jaya Selangor.

Tika 2.6.0

S-05(LB)-110-03/2016

PERAYU PUBLIC PROSECUTOR APPELLANT RESPONDEN 1. KADIR BIN UYUNG 2. LATING BIN TIONG AND 20 ORS

Criminal Procedure — Appeal — Appellants charged with various offences in connection with the armed incursion at Kg. Tanduo, Lahad Datu — Members of a terrorist group — Nine (9) convicted for waging war against the Yang diPertuan Agong — Appellants were convicted and sentenced — Soliciting or giving support to a terrorist group — Soliciting property for the benefit of a terrorist group — Recruiting members of a terrorist group — Harbouring persons knowing they were members of a terrorist group— Public Prosecutor (PP) cross-appealed against the sentence of life imprisonment imposed on 9 accused — PP also appealed against the acquittal of 14 accused — Penal Code [Act 574], section 121, section 130, section 130E, 130G(c), section 130J(1)(a), section 130K, section130KA

08/11/2017

YA DATUK SERI HAJI MOHD ZAWAWI BIN SALLEHKorumYA DATUK SERI HAJI MOHD ZAWAWI BIN SALLEHYA DATO' ABDUL RAHMAN BIN SEBLIYA DATUK KAMARDIN BIN HASHIM

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=2c494f44-17bc-48b0-88be-18e642300d97&Inline=true

- 1 - IN THE COURT OF APPEAL OF MALAYSIA [APPELLATE JURISDICTION] CRIMINAL APPEAL NO. : S-05(LB)-110-03/2016 BETWEEN PUBLIC PROSECUTOR APPELLANT AND 1. KADIR BIN UYUNG 2. LATING BIN TIONG RESPONDENTS Heard Together With CRIMINAL APPEAL NO. : S-05(LB)-111-03/2016 BETWEEN PUBLIC PROSECUTOR APPELLANT AND MASIR BIN AIDIN RESPONDENT Heard Together With CRIMINAL APPEAL NO. : S-05(LB)-112-03/2016 BETWEEN PUBLIC PROSECUTOR APPELLANT AND ANWAR BIN SALIB AKHMAD RESPONDENT - 2 - Heard Together With CRIMINAL APPEAL NO. : S-05(LB)-113-03/2016 BETWEEN PUBLIC PROSECUTOR APPELLANT AND BINHAR BIN SALIB AKHMAD RESPONDENT Heard Together With CRIMINAL APPEAL NO. : S-05(LB)-114-03/2016 BETWEEN PUBLIC PROSECUTOR APPELLANT AND SALIB AKHMAD BIN EMALI RESPONDENT Heard Together With CRIMINAL APPEAL NO. : S-05(LB)-115-03/2016 BETWEEN PUBLIC PROSECUTOR APPELLANT AND ABD HADI BIN MAWAN RESPONDENT - 3 - Heard Together With CRIMINAL APPEAL NO. : S-05(LB)-116-03/2016 BETWEEN PUBLIC PROSECUTOR APPELLANT AND RIJMAL BIN SALLEH RESPONDENT Heard Together With CRIMINAL APPEAL NO. : S-05(LB)-117-03/2016 BETWEEN PUBLIC PROSECUTOR APPELLANT AND ABDUL MAJIL BIN JUBIN RESPONDENT Heard Together With CRIMINAL APPEAL NO. : S-05(LB)-118-03/2016 BETWEEN PUBLIC PROSECUTOR APPELLANT AND RIZMAN BIN GULAN RESPONDENT - 4 - Heard Together With CRIMINAL APPEAL NO. : S-05(LB)-119-03/2016 BETWEEN PUBLIC PROSECUTOR APPELLANT AND TOTOH BIN HISMULLAH RESPONDENT Heard Together With CRIMINAL APPEAL NO. : S-05(LB)-120-03/2016 BETWEEN PUBLIC PROSECUTOR APPELLANT AND SAIDALI BIN JAHARUL RESPONDENT Heard Together With CRIMINAL APPEAL NO. : S-05(LB)-121-03/2016 BETWEEN PUBLIC PROSECUTOR APPELLANT AND DANI BIN ISMAIL RESPONDENT - 5 - Heard Together With CRIMINAL APPEAL NO. : S-05(H)-351-10/2016 BETWEEN PUBLIC PROSECUTOR APPELLANT AND 1. ATIK HUSSIN BIN ABU BAKAR 2. BASAD BIN MANUEL 3. ISMAIL BIN HJ YASIN 4. VORGILIO NEMAR PATULADA 5. SALIB AHMAD BIN EMALI 6. AL WAZIR BIN OSMAN 7. TANI BIN LAHAD WAHI 8. JULHAM BIN RASHID 9. DATU AMIRBAHAR HUSHIN KIRAM RESPONDENTS Heard Together With CRIMINAL APPEAL NO. : S-05(SH)-355-10/2016 BETWEEN JULHAM BIN RASHID APPELLANT AND PUBLIC PROSECUTOR RESPONDENT Heard Together With - 6 - CRIMINAL APPEAL NO. : S-05(SH)-357-10/2016 BETWEEN VIRGILIO NEMAR PATULADA APPELLANT AND PUBLIC PROSECUTOR RESPONDENT Heard Together With CRIMINAL APPEAL NO. : S-05(SH)-358-10/2016 BETWEEN SALID AKHMAD BIN EMALI APPELLANT AND PUBLIC PROSECUTOR RESPONDENT Heard Together With CRIMINAL APPEAL NO. : S-05(SH)-359-10/2016 BETWEEN TANI BIN LAHAD DAHI APPELLANT AND PUBLIC PROSECUTOR RESPONDENT Heard Together With - 7 - CRIMINAL APPEAL NO. : S-05(SH)-360-10/2016 BETWEEN BASAD BIN SAMUEL APPELLANT AND PUBLIC PROSECUTOR RESPONDENT Heard Together With CRIMINAL APPEAL NO. : S-05(SH)-362-10/2016 BETWEEN DATU AMIRBAHAR HUSHIN KIRAM APPELLANT AND PUBLIC PROSECUTOR RESPONDENT Heard Together With CRIMINAL APPEAL NO. : S-05(SH)-364-10/2016 BETWEEN ISMAIL BIN HJ YASIN APPELLANT AND PUBLIC PROSECUTOR RESPONDENT Heard Together With - 8 - CRIMINAL APPEAL NO. : S-05(SH)-365-10/2016 BETWEEN ATIK HUSIN BIN ABU BAKAR APPELLANT AND PUBLIC PROSECUTOR RESPONDENT Heard Together With CRIMINAL APPEAL NO. : S-05(SH)-366-10/2016 BETWEEN AL WAZIR BIN OSMAN APPELLANT AND PUBLIC PROSECUTOR RESPONDENT Heard Together With CRIMINAL APPEAL NO. : S-05(LB)-370-10/2016 BETWEEN PUBLIC PROSECUTOR APPELLANT AND BASIL BIN SAMIUL RESPONDENT - 9 - (High Court of Sabah and Sarawak at Kota Kinabalu Criminal Trial No.B45SO-1/3-2013, 45SO-4/3-2013, 45SO-7/3- 2013, 45SO-9/4-2013, 45SO-10/4-2013, 45SO-11/4-2013, 45SO- 12/4-2013, 45SO-13/4-2013, 45SO-15/4-2013, 45SO-16/4-2013, 45SO-17/4-2013, 45SO-18/4-2013, 45SO-19/4-2013, 45SO-20/5- 2013, 45SO-21/5-2013, 45SO-22/5-2013, 45SO-23/5-2013, 45SO-24/5-2013, 45SO-29/5-2013, 45SO-30/5-2013) CORAM MOHD ZAWAWI SALLEH, JCA ABDUL RAHMAN SEBLI, JCA KAMARDIN HASHIM, JCA JUDGMENT OF THE COURT PROCEDURAL ANTECEDENTS [1] There were twenty three separate appeals before us which arose from the judgment and orders passed by the High Court in Sabah and Sarawak at Kota Kinabalu (Justice Stephen Chung Hian Guan, presiding). The orders passed by the High Court were impugned by both the accused and the Public Prosecutor (“PP”). [2] To better appreciate the legal issues raised in these appeals, it is necessary to first state the procedural antecedents of the case. - 10 - [3] Thirty accused were charged with various offences under the Penal Code (“PC”) in connection with the armed incursion at Kg. Tanduo, Lahad Datu, Sabah between February 12 and April 10, 2013. Twenty two accused were charged under section 121 of the PC for waging war against the Yang di-Pertuan Agong and under section 130KA of the same Code for being members of a terrorist group. [4] Among the twenty two accused, one of them faced two additional charges, under section130E of the PC for recruiting members of a terrorist group and under section 130K for harbouring persons knowing they were members of a terrorist group. [5] Apart from that, five other accused were charged under section 130KA of the PC for being members of a terrorist group. One accused was charged under section130K of the PC. The remaining two accused were charged under section130K of the PC read together with section 511 of the PC for attempting to harbour persons knowing they were members of a terrorist group. The table below contains particulars of the charges preferred against the accused persons: - 11 - Accused / Name Charges (Penal Code) 1. Atik Hussin bin Abu Bakar section121 & section130KA 2. Lin bin Mad Salleh section 130KA 3. Holland bin Kalbi section 130KA 4. Basad bin Manuel section121 & section130KA 5. Habil bin Suhaili section 130KA 6. Timhar bin Hadil section 130KA 7. Kadir bin Uyung 8. Lating bin Tiong section 130KA read together with section 511 9. Masir bin Aidin section121 & section130KA 10. Ismail bin Hj Yasin section121 & section130KA 11. Anwar bin Salib section121 & section130KA 12. Binhar bin Salid section121 & section130KA 13. Virgilio Nemar Patulada @ Mohammad Alam Patulada section121 & section130KA 14. Aiman bin Radie section130KA 15. Salib Akhmad bin Emali section 130E & section 130K section121 & section130KA 16. Al Wazir bin Osman @ Abdul section121 & section130KA 17. Abd Hadi bin Mawan section121 & section130KA 18. Tani bin Lahad Wahi section121 & section130KA 19. Julham bin Rashid section121 & section130KA 20. Datu Amirbahar Hushin Kiram section121 & section130KA - 12 - Accused / Name Charges (Penal Code) 21. Rijmal bin Salleh section121 & section130KA 22. Abdul Majil bin Jubin section121 & section130KA 23. Rizman bin Gulan section121 & section130KA 24. Basil bin Samiul section121 & section130KA 25. Totoh bin Hismullah section121 & section130KA 26. Norhaidah binti Ibnahi section130K 27. Pabblo bin Alie section121 & section130KA 28. Mohamad Ali bin Ahmad section121 & section130KA 29. Saidali bin Jahrul section121 & section130KA 30. Dani bin Ismail section121 & section130KA [6] On 5.2.2016, the learned trial judge ordered nine of the accused to enter their defence for the offence of waging war against the Yang di-Pertuan Agong under section 121 of the PC which carries the death penalty or imprisonment for life. They were the 1st, 4th, 10th, 13th, 15th, 16th, 18th, 19th and 20th accused. They, together with six other accused, were also ordered to enter their defence on the charge of being members of a terrorist group. The other six accused were the 2nd, 3rd, 5th, 6th, 14th and 17th accused. [7] At the close of the prosecution case, the learned trial judge found that the prosecution failed to establish a prima facie case - 13 - against the 24th, 27th and 28th accused for the charge of waging war against the Yang di-Pertuan Agong under section 121 of the PC and of being members of a terrorist group under section 130KA of the PC. However, the learned trial judge ordered the 24th and 28th accused to enter their defence on an amended charge under section 130J(1)(a) of the PC for soliciting or giving support to a terrorist group. The learned trial judge also amended the charge against the 27th accused to a charge of soliciting property for the benefit of a terrorist group, an offence under 130G(c) of the PC. [8] Meanwhile, the sole female accused, i.e. the 26th accused was ordered to enter her defence on a charge under section 130K of the PC. [9] On the same day, the learned trial judge acquitted and discharged nine accused i.e. the 7th, 8th, 9th, 11th, 12th, 21st, 22nd, 23rd, 25th, 29th and 30th accused of the respective charges preferred against them. [10] The learned trial judge also acquitted and discharged the 15th accused of two charges, one under section 130E of the PC for recruiting members of a terrorist group and the other under section 130K for harbouring persons knowing they were members of a terrorist group. The 17th accused was also acquitted and - 14 - discharged of the offence of waging war against the Yang di- Pertuan Agong under section 121 of the PC. [11] Aggrieved by the said orders of acquittal and discharge, the Public Prosecutor (“PP”) appealed to this court, urging a reversal of the orders. [12] The trial took a new twist when seven of the accused, namely the 1st, 2nd, 3rd, 4th, 10th, 13th and 14th accused pleaded guilty to the offence of being members of a terrorist group under section 130KA of the PC. The 27th and 28th accused also pleaded guilty to the amended charges. Their sentencing was postponed till the end of the trial. [13] On 23.4.2016, the 5th accused, who had been ill throughout the trial, died from an asthma attack. [14] At the end of the defence case, nine of the accused i.e. the 1st, 4th, 10th, 13th, 15th, 16th, 18th, 19th, and 20th accused were found guilty and convicted of the offence of waging war against the Yang di-Pertuan Agong under section 121 of the PC and sentenced to life imprisonment. [15] The 15th, 16th, 18th, 19th and 20th accused were also convicted of a second charge of being members of a terrorist group and were sentenced to eighteen years imprisonment. The other four accused i.e. the 1st, 4th, 10th and 13th accused, who - 15 - pleaded guilty to the same offence, each received 13 years imprisonment. They were ordered to serve the jail sentence concurrently from the date of their arrest. [16] Also convicted of being members of a terrorist group were the 6th and 17th accused. They were sentenced to 15 years imprisonment each. The learned trial judge, after having considered the guilty pleas of the 2nd, 3rd and 14th accused for the same offence, sentenced them to thirteen years imprisonment each. [17] The 27th and 28th accused who pleaded guilty to the amended charges were each sentenced to 15 years imprisonment. The 26th accused was sentenced to 10 years imprisonment after being found guilty of harbouring a member of a terrorist group that intruded Kg. Tanduo. The 24th accused, who was ordered to enter his defence on an amended charge, was acquitted at the end of the trial. [18] All seventeen accused appealed against conviction and sentence. The PP cross-appealed against the sentence of life imprisonment imposed on each of the nine accused convicted under section 121 of the PC for waging war against the Yang di- Pertuan Agong. The PP also appealed against the acquittal of the 24th accused. On 19.5.2017, the 26th accused withdrew her appeal against sentence and the matter was struck out by this Court. - 16 - [19] Earlier in the proceedings, sixteen accused withdrew their appeals against conviction and sentence of between 13 and 18 years imprisonment for being members of a terrorist group and other terrorist-related offences without any objection by the prosecution. Accordingly, we struck out the appeals and affirmed the decision of the High Court. [20] We then proceeded to hear the appeal by the PP against the acquittal of the fourteen accused by the High Court and also the appeal by the PP against the sentence of life imprisonment imposed on the nine accused who were convicted under section 121 of the PC. The nine accused also proceeded with their appeals against conviction for the said offence. [21] Having given careful and anxious consideration to all the issues raised by the parties, we reached a unanimous decision and made the following orders: i. We dismissed the prosecution’s appeal against acquittal and affirmed the acquittals of the fourteen accused; ii. We dismissed the nine accused’s appeal against conviction and upheld their convictions for waging war against the Yang di-Pertuan Agong; and iii. We allowed the prosecution’s appeal against sentence and set aside the sentence of life imprisonment imposed - 17 - by the High Court against the nine accused and substituted it with the death penalty. [22] We now give the detailed reasons for our decision. FACTS OF THE CASE [23] Shorn of unnecessary details, the relevant facts giving rise to these appeals may be shortly stated as follows: 23.1. On 12.2.2013, Mohd Ali bin Asmali (PW2) stumbled upon a group of armed intruders dressed in camouflaged uniform at Kampung Tanduo and subsequently lodged a police report about the intrusion. 23.2. The armed group, later identified as the “Royal Security Forces (“RSF”) of the Sultanate of Sulu and North Borneo” and led by Datu Agbimuddin Kiram, was sent by Sultan Jamalul Kiram III from the southern Philippines to assert his territorial claim over Sabah. 23.3. Immediate action was taken and the police blockaded roads leading from Lahad Datu to the remote village of Tanduo, where the armed group was encircled. The navy also patrolled the coast of Kg. Tanduo, to prevent the intruders from leaving and to prevent foreign reinforcements from entering our shores. - 18 - 23.4. Codenamed “Ops Sulu”, the operation saw negotiations being held between Senior Assistant Commissioner of Police Datuk Abdul Rashid (PW1) and Sabah Special Branch Deputy Chief Assistant Commissioner of Police Zulkifli Abd Aziz with Datu Agbimuddin. Datu Amirbahar Hushin Kiram (the 20th accused), a nephew of Datu Agbimuddin, was also present during one of the negotiations. 23.5. After several weeks of negotiation and unmet deadlines for the intruders to withdraw, the Malaysian security forces launched a major operation to flush out the militants. 23.6. On 1.3.2013, a confrontation took place at Kampung Tanduo between the Malaysian security forces and the armed intruders, with shots being exchanged. The Malaysian police suffered two casualties while the armed intruders suffered fifteen casualties. Various weapons, including M16 rifles, pistols, SLR rifles and ammunition were recovered. 23.7. On 2.3.2013, the Malaysian security forces entered Kg. Simunul to arrest a suspect known as Iman Tua. They were ambushed by a group of gunmen resulting in the death - 19 - of six Malaysian police. The bodies of the policemen were mutilated, with one beheaded. 23.8. On 5.3.2013, “Ops Sulu” was renamed “Ops Daulat” and the mopping operations began to flush out the armed intruders. Security forces launched the attack using F-18 and Hawk fighter jets on the group of armed intruders at Kampung Tanduo and searches in the village area were carried out. 23.9. After a week of bombardment and firefight, Kampung Tanduo was finally secured on 11.3.2013. At the end of the standoff, around eighty deaths were reported, with ten Malaysian security personnel being among the casualties. 23.10. Since “Ops Daulat” was launched, more than five hundred individuals, including the thirty accused, were arrested under the Security Offences (Special Measures) Act 2012 (“SOSMA”). THE APPEALS [24] We shall deal with the appeals in three parts, namely Part I, Part II and Part III. - 20 - PART I – THE PROSECUTION’S APPEAL AGAINST ACQUITTAL [25] The prosecution’s appeal was against the acquittals of the 7th, 8th, 9th, 11th, 12th, 15th, 17th, 21st, 22nd, 23rd, 24th, 25th, 29th and 30th accused . All the respective accused, with the exception of the 24th accused, were acquitted at the close of the prosecution’s case, whereas the 24th accused was acquitted at the end of the trial. [26] To recapitulate, all the accused were charged separately with various offences and they were jointly tried under SOSMA. The charges preferred against them respectively were either for committing offences punishable under section 121 of the PC for waging a war against the Yang di-Pertuan Agong or under section 130E of the PC for recruiting persons to be members of a terrorist group or to participate in terrorist acts or under section 130KA of the PC for being members of a terrorist group or for an attempt thereof. The offences carry with them punishments ranging from the death penalty to various imprisonment terms and fine. [27] We must say at the outset that the challenge by the prosecution in its appeal against acquittals was essentially against findings of fact made by the learned trial judge. We reiterate the well-established principle that findings of fact made by a trial judge are not to be disturbed by the appellate court unless it can be shown that the trial judge’s assessment of the evidence was - 21 - plainly wrong (see Tan Kim Ho & Anor v. PP [2009] 3 MLJ 151 ; PP v. Thenegaran Murugan & Another Appeal [2013] 4 CLJ 364; PP v. Mohd Radzi Abu Bakar [2006] 1 CLJ 457 and Dato’ Seri Anwar Ibrahim v. PP [2002] 3 CLJ 457). [28] In Mohd Radzi Abu Bakar (supra), the Federal Court held at page 475 as follows: “[31] We were then invited by the learned deputy to make our own findings on the evidence and to restore the conviction entered by the learned trial judge on the basis of the proviso to s. 92(1) of the Courts of Judicature Act 1964. Reliance was placed on the decision of this Court in Tunde Apatira (supra). [32] Now, it settled law that it is no part of the function of an appellate court in a criminal case – or indeed any case – to make its own findings of fact. That is a function exclusively reserved by the law to the trial court. The reason is obvious. An appellate court is necessarily fettered because it lacks the audio-visual advantage enjoyed by the trial court. [33] The further principle established by this court in Muhammed bin Hassan v. PP is that where s. 37(da) is relied on by the prosecution, it is for the trial court to make a specific finding that the accused was in possession in the legal sense. In the absence of such a finding, it is not open to an appellate court to fill the gap and make the finding. A suggestion by counsel for the prosecution that this court is entitled to make its own findings of fact was firmly rejected. In that case Chong Siew Fai CJ (Sabah & Sarawak) said: - 22 - “As regards the alternative submission of the learned deputy public prosecutor that, independently of s. 37(d), there was sufficient evidence of possession of the cannabis on the part of the appellant, all we need to say is that on the evidence, the learned trial judge did not make a finding of possession (i .e. possession as understood in criminal law) either factually or by way of inference. We, at the appellate stage, not having had the opportunity of observing the witnesses in giving evidence, did not consider it appropriate and safe to arrive at conclusion in this regard. [34] Now, Muhammed bin Hassan was a case of a first appeal from the High Court to this court exercising the powers of the former Supreme Court under s. 17 of the Courts of Judicature (Amendment) Act 1995 (Act A909). If the principle adverted to a moment ago holds good in a first appeal, it applies with greater force in a second appeal. To put the matter beyond any doubt, we state that it is not the function of this court to make primary findings of fact. Of course, we may examine the record to see if the trial court drew the proper inferences from proved or admitted facts. But is quite a different principle and has no application to the present instance.” [29] In Swiss Garden Rewards Sdn. Bhd. v. Mohamed Ashrof Tambi bin Abdullah & 4 Others, Rayuan Sivil No. P-01(A)-196- 05/2016 (CA), this Court had this to say: - 23 - “[35] The correct approach of an appellate court or a reviewing court when invited to intervene with the factual findings of a trial judge was restated by the Supreme Court of United Kingdom in Mcgraddie v. Mcgraddie [2013] WLR 2472 and accurately summarised in the head note – “It was a long settled principle, stated and restated in domestic and wider common law jurisprudence, that an appellate court should not interfere with the trial judge’s conclusions on primary facts unless satisfied that he was plainly wrong.” Lewison L.J. returned to the topic in Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5; [2014] ETMR 26. In a vivid passage at para [114] he said: “Appellate courts have been repeatedly warned, by recent cases at the highest level, not to interfere with findings of fact by trial judges, unless compelled to do so. This applied not only to findings of primary fact, but also the evaluation of those facts and to inferences to be drawn from them. … The reasons for this approach are many. They include i. The expertise of the trial judge in determining what facts are relevant to the legal issues to be decided, and what those facts are if they are disputed; ii. The trial is not a dress rehearsal. It is the first and last night of the show; - 24 - iii. Duplication of the trial judge’s role on appeal is a disproportionate use the limited resources of an appellate court, and will seldom lead to a different outcome in an individual case; iv. In making his decisions the trial judge will have regard to the whole of the sea of evidence presented to him, whereas an appellate court will only be island hopping. v. The atmosphere of the court room cannot, in any event, be recreated by reference to documents (including transcripts of evidence); and vi. Thus even if it were possible to duplicate the role of the trial judge, it cannot in practice be done.” [30] The trial judge’s assessment of the credibility of the witnesses is entitled to great weight. The simple reason for this is that the trial judge had the opportunity of observing their demeanour and manner while giving evidence and was therefore in the best position to determine if they were telling the truth or otherwise. The assessment is binding on the appellate court in the absence of clear evidence showing that the trial judge had plainly overlooked or misinterpreted some material facts which if considered might have affected the result of the case. (See Dato’ Seri Anwar Bin Ibrahim v Public Prosecutor & Another Appeal [2015] 2 CLJ 145, Muniandy & Ors v P.P [1966] 1 LNS 110 (FC) - 25 - and Perembun (M) Sdn Bhd v Conlay Construction Sdn Bhd [2012] 4 MLJ 149, 154 (CA)). [31] It is pertinent to note that the prosecution’s case against all the accused is predicated purely on circumstantial evidence. The learned DPP argued that the learned trial judge had failed to take into consideration the prevailing circumstantial evidence as well as the admissions made by some of the accused that warranted the calling of their defence. [32] It was therefore incumbent upon us to revisit the evidence adduced by the prosecution or, where applicable, as against the accused’s defence to determine the correctness of the learned trial judge’s decision in acquitting the accused. Evidence against the 7th and 8th accused [33] Both accused were arrested together on 4.3.2013 at about 4.30 pm by Ancillary Corporal Mohammad Asran bin Madong (PW57) in front of the PGA Post at Tg. Labian, Lahad Datu. They were charged jointly with an amended charge under section 130K of the PC read together with section 511 of the same Code for attempting to harbour a group of persons having reason to believe that they were members of a terrorist group. The evidence of PW57 was that he saw two men in civilian clothes and the 8th accused was carrying a green plastic package. According to PW57, they were behaving suspiciously, as if they were lost. - 26 - [34] PW57 further testified that he identified himself as a police officer and asked both accused to stop. The two accused started to run away towards Tg. Batu. PW57 saw the 8th accused throwing away the green plastic bag. PW57 and his team managed to stop both accused that the 8th accused threw away. PW57 found dried fish (ikan kayu) inside the green plastic bag. When he enquired about the dried fish, both accused answered that they were supplying the fish to their friends who had escaped from Kg. Tanduo to Tg. Batu. PW57 then told his superior, ASP Rohana Anak Nanu (PW123) about the matter. However, PW123 in her evidence testified that she did not even meet PW57. [35] PW57 conceded that he did not say anywhere to the effect that both accused had admitted orally that the six dried fish were meant to be supplied to their friends who escaped from Kg. Tanduo to Tg. Batu. Neither did PW57 state this fact in his police report, Chendrawasih Report No: 195/2013 (exhibit P293) nor in his investigation diary or in any document whatsoever. [36] The learned trial judge rejected PW57’s testimony in relation to the alleged admission made by both accused. His Lordship said this in his grounds of judgment: “19.20. This alleged admission was made after questioning by PW57, after he had arrested them. At the material time he did not caution and no caution was administered to them. He did not inform them of their - 27 - rights or their rights to remain silent or not to give any answers or explanations to questions asked or that they were entitled to legal advice. The alleged admission was not in accordance to procedures, highly prejudicial and not admissible as evidence against the 7th and 8th accused: see Krishnan Raman v PP [1987] 1 CLJ 28; PP v Rosyatimah Niza & Anor [1989] 1 CLJ 481. Without the alleged admission, there was no evidence against the 7th and 8th accused that they were or attempted to harbour or rendered assistances to terrorists. 19.21. Further, although the 7th and 8th accused had said in their statements that they were bringing the fish to their grandmother and they had given several names of persons who could vouch for them, the police did not investigate these allegations and whether they were true. If they had done so, and if they were true, these would have exonerated the 7th and 8th accused and would have contradicted PW57 that they had admitted to him that they were supplying the fish to the armed intruders escaping from Kg. Tanduo to Tg. Batu: see PP v. Lian Ah Bek [1989] 2 CLJ 1090; Lee Kwan Woh v. PP [2009] 5 CLJ 631. Again these raised some doubts on the prosecution’s case against them.”. [37] In acquitting both accused of the amended charge, His Lordship reasoned as follows: “19.22. Apart from what PW57 had alleged against the 7th and 8th accused, there was no evidence that they were members of or sympathizers or supporters of the Sultanate of Sulu and North Borneo or of the Royal Security Force. There was no evidence that they were - 28 - involved in any way with the armed intruders or armed intrusion at Kg. Tanduo or Kg. Simunul. There was no evidence that they acted or were involved or intended to or attempted to supply food or harbour a person knowing this person to be a member of a terrorist group or attempted to endanger a person’s life or national security which involved the use of firearms, explosives, lethal devices, dangerous, hazardous, radioactive, biological or harmful substance in advancing a pol i tical or religious or ideological cause. 19.23. The evidence showed that at the time of their arrest, they were walking on the main road in front of and in full view of the police personnel on duty at the PGA post at Tg. Labian. Nothing was found on them after the body search was conducted on them except one of them who carried the plastic bag containing the fried fish had thrown it away while running when confronted by PW57 and another policeman. There was nothing incriminating in the plastic bag which contained the fried fish. The 7th accused said in his statement that he was bringing some of the fish to his grandmother in Kg. Labian and the 8th accused in his statement said he was bringing some of the fish back to his house at Kg. Tanduo. There was nothing wrong or sinister or incriminating for both of them to be walking in broad daylight on the road and carrying fried fish.” [38] Based on the evidence before the court, we found no cogent reason to disagree with the findings of the learned trial judge. We therefore agreed with the learned trial judge that the prosecution - 29 - failed to establish a prima facie case against both accused on the amended charges preferred against them. Evidence against the 9th, 11th, 12th and 15th accused [39] The 15th accused was the father of the 11th and 12th accused whilst the 9th accused was the son-in-law of the 15th accused. They were arrested on 25.2.2013 following a raid in Ladang Atlas, Ulu Tungku, Lahad Datu. The operation was led by Supt. Mohd Sahari bin Sidek who had organised the police officers into four teams, each led by ASP Mohamad Hasnal bin Jamil (PW33), ASP Noraidin bin Ag. Maidin (PW58), ASP Mohammad Asram bin Asmat (PW63) and an officer from K9, IPK Sabah. [40] The arrest was made possible through intelligence obtained from intercepted communications between Datu Agbimuddin and the 15th accused. Based on the interception, PW33 managed to generate the GPS coordinates and to determine the location of the house where the 15th accused was in. After having confirmed the location of the 15th accused, PW33 signalled the police to move into the house and arrest the accused. PW63 seized one black Nokia mobile phone from the 15th accused (exhibit P300C) and a pink coloured Nokia mobile phone from the 9th accused (exhibit P301C). PW58 recovered and seized three parangs (exhibits P302B – P302D) from the kitchen of the house. - 30 - [41] All four accused were charged with two offences under section 121 and section 130KA of the PC. The 15th accused faced two additional charges under section 130E of the PC for recruiting persons to be members of a terrorist group or to participate in a terrorist act, and under section 130K for harbouring persons committing a terrorist act. In respect of the 15th accused, this section of the judgment is only concerned with the acquittal of the 15th accused of the two charges. We shall deal with the 15th accused’s appeal against conviction later in this judgment. [42] Before acquitting all the four accused, the learned trial judge had considered all the prosecution’s evidence as adduced through PW33, PW58, PW63 and PW158. In essence, the learned trial judge found that the investigation carried out by the police against the accused was unsatisfactory. No investigation was carried on the phone numbers saved on the seized mobile phones, especially the number save under the name ‘Ampun’ which means ‘Tuanku’’ in the Suluk language. The learned trial judge also dealt with the admissibility of the confessions allegedly made by the accused before a Sessions Court Judge and also the contradictions in the testimonies of witnesses produced by the prosecution. [43] In respect of the two mobile phones, the learned trial judge commented as follows: - 31 - “20.22. He said when he made the arrest he found a black Nokia phone, next to and to the left of the 15th accused. He said he inspected the phone and found one contact under a name ‘Ampun’ which in Suluk means ‘tuanku’. PW63 speaks Suluk. He did not testify who or what was this contact known as Ampun, whether it was the Sultan or Datu Agbimuddin or Datu Amir Bahar or whether it had any connection with the armed intrusion at Kg. Tanduo or the significance of this contact found in the phone. He did not investigate this contact or phone number. The investigation officer also did not do so. PW63 found another Nokia phone, pink and dark in colour, next and to the right of the 9th accused. He handed the two phones to PW58. 20.23. In cross-examinations, PW58 and PW63 were asked and agreed that a piece of white paper tendered as P300G was found inside the plastic package which was tendered as P300A which contained a black Nokia phone seized from the 15th accused. It was written on this piece of white paper with the words “Julham Rasid No. Report Tanjung Aru 001139/13”. PW58 and PW63 also agreed that a piece of white paper tendered as P300F was found inside the plastic package which was tendered as P301A which contained the Nokia phone seized from the 9th accused. This piece of paper was written with the words “Salib Akhmad Emali”. 20.24. It was submitted that based on these two pieces of paper found inside the respective plastic package that the exhibits had been tampered with or mixed up with some other exhibits. It was submitted that based on the two pieces of paper written with the names, the black Nokia phone did not belong to the 15th accused but belonged to Julham Rasid and that - 32 - the pink and dark coloured phone did not belong to the 9th accused. 20.25. It was to PW58, who agreed that based on the document P297 prepared by him, it stated that the three parangs and one Nokia phone were found in the kitchen. The defence submitted that this contradicted the evidence of PW58 and PW63 that the two phones were found next to the 15th and 9th accused. Based on the testimonies of PW58 and PW63 and the photographs P296 (1-5), the two phones were seized from the 15th and 9th accused. Clearly P300G had been wrongly put inside P300A and P300F had been wrongly put inside P301A. There was no explanation for this mixed-up, which was fatal to the prosecution’s case.” [44] With regard to the evidence on the three parangs recovered from the kitchen of the house, the learned trial judge commented as follows: “20.30. The prosecution had also referred to the three parangs found and seized in the kitchen and to the testimony of PW58 that the 15th accused had admitted that the parangs belonged to him. Assuming the parangs belonged to the 15th accused, mere possession of the parangs did not make him or them into terrorists or in waging war against the King. The prosecution referred to a conversation between the 15th accused and Datu Agbimuddin asking Salib to sharpen the knives. However, there was no evidence led whether they referred to these three parangs or other parangs or knives. - 33 - 20.31. In Sabah and Sarawak the natives and others used their parangs to cut through the undergrowths when walking in the jungles or forests and to protect themselves against snakes and wild animals. A parang can be used for cutting grass or trees or as a tool in an oil palm plantation. It can be used as a weapon or for defence. These four accused were working or staying in Ladang Atlas, Ulu Tungku. Where several inferences can be drawn based on the parangs found in the kitchen, any favourable inferences drawn should be given to them and any doubt whether they used or did not use the parangs to wage war or to affect national security must be given to them. In any event the three parangs did not belong to the 9 th, 11th and 12th accused.” [45] In respect of the confession allegedly made by the accused, this is what the learned trial judge said: “20.28. PW158 testified that the 9 th, 11th, 12th and 15th accused had admitted in their confessions given to the Sessions Court Judge that they supplied food to the armed intruders at Kg. Tanduo and that they knew the group led by Datu Agbimuddin. There was no evidence and PW158 did not say that he was present during the confessions and that he heard the confessions. It was unlikely for him to be present because police officers were not allowed during the recording of the confessions. Without confirming that he was present and he heard the confessions, what he had testified were hearsay, not admissible and as to the truths of these confessions. - 34 - 20.29. Although PW158 and the prosecution had referred to the confessions of these four accused and had submitted that based on the confessions they knew Agbimuddin and had supplied food to the armed intruders, the prosecution chose not to produce or tender these confessions as evidence against these four accused, notwithstanding that s.28 of SOSMA specifically provides for confessions to be used. The prosecution also chose not to call the Sessions Court Judge who had recorded the confessions to confirm what PW158 had said. The failure to do so would raise doubts on the testimony and credibility PW158 and the merits of the submission of the prosecution in this respect. The reasonable conclusions could be drawn were that they did not make the confessions or that they did not confess to supplying food to the armed intruders or that they did not supply food to the armed intruders as alleged by PW158.” [46] As for the intercepted communications in relation to exhibits P300C and P301C, the learned judge made the following observations: “20.32 As stated above, although the DFD or Cyber Security Malaysia had performed an analysis on the two phones seized from the 15th and 9th accused and extracted the data from the digital devices, the prosecution did not refer to nor explain the significance of the data in particular the contact ‘Ampun’, whether i t concerned the armed intrusion at Kg. Tanduo, whether they were involved in the armed intrusion or whether they incited or supported the war waged against the - 35 - King or that their actions had prejudiced national security.” [47] As alluded to earlier in this judgment, the learned trial judge had decided that there was sufficient evidence to call the 15th accused to enter his defence on two charges under sections 121 and 130K of the PC. However, the learned trial judge found that the prosecution failed to establish a prima facie case against the 15th accused on the charges under section 130E and 130K of the PC. The reasons proffered by the learned trial judge were as follows: “20.44. However, the prosecution did not lead any evidence that the 15th accused knowingly recruited or agreed to recruit another person to be a member of a terrorist group or to participate in the commission of a terrorist act. It did not adduce the name or this person who was or had been recruited by the 15th accused to be a member of terrorist group. It did not lead any evidence on his act(s) or conduct in recruiting this person. The prosecution had failed to establish the essential ingredients against the 15th accused under s.130E of the Panel Code. 20.45. Similarly, the prosecution did not lead any evidence of a person or the name of any person who was a terrorist or who was believed to be a terrorist or a member of a terrorist group being harboured by the 15th accused. It did not lead any evidence that the 15th accused had harboured a person knowing or having reason to believe that such person was a member of a terrorist group or who had committed or - 36 - planning or likely to commit a terrorist act. The prosecution had failed to establish the essential ingredients against the 15th accused under s.130K of the Penal Code. 20.46. For the reasons given, the prosecution had failed to make out a prima facie case against the 15th accused under s.130E and under s.130K of the Penal Code. He had been acquitted and discharged as such.” [48] With respect to the acquittal of the 9th, 11th and 12th accused, the reasons given by the learned trial judge were as follows: “20.47. Next, the evidence against the 9 th and 12th accused. Although the 9th and 12th accused were re- arrested under s.4(1) of SOSMA because they were suspected to be involved in the intrusion, the prosecution did not lead any direct or circumstantial evidence as such against them. As stated above, the testimony of PW158 that the 9th and 12th accused had confessed to the Sessions Court Judge that they supplied food to the armed intruders could not be true and also not admissible against the 9 th and 12th accused. 20.48. The 9th accused is the son-in-law of the 15th accused and 12th accused is the son of the 15th accused. They together with their wife and children stayed with the 15th accused at the rumah kongsi at Ladang Atlas at the time of the arrest. Based on the police report P299, they were arrested because they did not have valid documents. Although the 11th and the 15th accused were in the list of suspects for the communications interceptions, the 9 th and 12th accused were not included in the list. - 37 - 20.49. Although they are family and might know or had reason to believe that the 11th and or the 15th accused were involved in the intrusion, the prosecution did not lead and there was no evidence that they knew or had reason to believe that the 11th and 15th accused were involved in the armed intrusion or were members of a terrorist group or that the 11th and the 15th accused had incited or supported the war waged against the King. There was no evidence that they supported the 11th and 15th accused in their aim to wage war against the King. There was also no allegation or evidence that they supported or harboured the 11th and 15th accused or the armed intruders as members of a terrorist group. They should not be tainted with the allegations made against the 11th and 15th accused and no such inference should or could be drawn against them just because they are family members. 20.50. The 9th and 12th accused were not seen in the photographs in ID2(1-50) or in Kg. Tanduo or had occupied Kg. Tanduo together with the armed intruders to claim Sabah by force. The prosecution did not lead evidence that they had associated with or had supported the armed intruders or members of the RSF of the Sultanate of Sulu and North Borneo in Kg. Tanduo. The prosecution did not lead any evidence that they prepared or had prepared for war or had participated in waging war against the King. There was no evidence that they were members or joined or belonged to the RSF or a member of a terrorist group. Their involvements in the intrusion were not set out in the summaries of the communications interceptions in respect of the 11th and 15th accused: see exhibits P472A-P472H and P473A-P473B. - 38 - 20.51. Based on the evidence at the end of the prosecution’s case, the prosecution had failed to make out a prima facie case against the 9th and 12th accused under s.121 and s.130KA of the Panel Code. The 9th and 12th accused were acquitted and discharged as such. Being illegals in the country, they were referred to the Immigration Department for their deportations. 20.52. Although the 11th accused was in the SB’s l ist of suspects for the communications interceptions and the prosecution had submitted that there was direct and circumstantial evidence against him, PW49 did not explain why the 11th accused was in the list or of his involvement in the armed intrusion or the reliability of the information which made him a suspect to be in the list. 20.53. The prosecution referred to a phone conversation in Item 2 of P475B (see page 106 of its submission) on 24.2.2013 at 8.23 a.m between Salib and ‘L/Sabah’ where this person said that ‘They were people of Nur Misuari and ‘they’ informed that if the claim made by the Sultan is not given tomorrow, ‘they’ would start war”. The prosecution could not be correct because P475B is not the summary of this conversation; it is the summary of a conversation between Tani and a ‘L/Sabah’. The prosecution did not explain that this was a typing mistake. This particular conversation referred to is in item 2 of P473B, not P475B. This conversation is also in Item 1 of P472H. 20.54. The prosecution submitted that based on i tem 8 in P472C, PW134 had identified the receiver of this cal l as Anuar Salib Akhmad (Anak Salib) because Salib - 39 - addressed the receiver as Anuar Salib Akhmad and Anuar Salib Akhmad addressed Salib as father. It is not specifically stated as such in Item 8 of P472C. 20.55 After 12.3.2013, SB commenced interceptions of the phone number 014-8594510 believed to be used by the 11th accused. PW132 and PW134 did not testify how many interceptions were carried out on this phone number from 12.3.2013 until 8.00 am on 24.3.2013. They set out only seven interceptions on this phone number believed to be used by the 11th accused in the summaries tendered as P473A-P473B. However PW134 did not include Item 8 of P472C as being used by the 11th accused in P473A-473B. No explanation was given for this omission. 20.56. The conversation in Item 8 of P472C was purportedly between the 15th and 11th accused on 19.2.2013. PW134 identified the 11th accused as the receiver of this call. If she could or had identified the 11th accused in the conversation on 19.2.2013, then she should be able to identify the 11th accused in subsequent phone conversations intercepted. In P473A-P473B, the intercepted conversations were between 23.2.2013 and 24.2.2013, after the alleged conversation on 19.2.2013. In P473A-P473B, PW132 and PW134 did not and could not identify the 11th accused as the caller or receiver of these calls. Therefore it raised some doubts whether the identification of the 11th accused in Item 8 of P472C was correct or otherwise. 20.57. The prosecution submitted that the 11th accused was involved in the intrusion by referring to the conversation between Salib (15th accused) and the - 40 - 11th accused talking about going to war with the support of the Nur Misuari fighters in Item 2 of P473B. As stated, there were some doubts on the identification of the 11th accused in this conversation and there was no confirmation on the identification made. 20.58. Based on the summaries in P473A-P473B, they could not identify the user of this phone number believed to be used by the 11th accused. The user was only known to them as ‘L/Sabah’ or as ‘L/Sabah (2)’. On one occasion the user was identified as ‘Ilmon’. In Item 2 of P473B, the user or receiver was only known to them as ‘L/Sabah’. They could not and did not identify the 11th accused as the user or receiver or caller of this phone number in the said summaries. The benefits of any doubts should be given to the 11th accused. Further, based on the summaries, there was nothing incriminating against the 11th accused. 20.59. The 11th accused was not seen in the photographs in ID2(1-50) or in Kg. Tanduo or that he had occupied Kg. Tanduo together with the armed intruders to claim Sabah by force of to wage war against the King. He stayed with his father at the rumah kongsi. Even if the 15th accused were guilty, the 11th accused could not be guilty as such by virtue of their father-son relationship. 20.60. There was no evidence or indication that the 11th accused was a member or had joined or belonged to the RSF or a supporter of the RSF or that he was a member of a terrorist group. There was no evidence that he had associated with the armed intruders or with the RSF. There was no evidence that he prepared or participated in waging war against the King. - 41 - 20.61. There was no evidence that he had acted or had threatened with the intention of advancing a political or ideological cause or which involved prejudice to national security or public safety. 20.62. The strands of circumstantial evidence woven into a rope by the prosecution were not strong enough to hang the 11th accused with it: see Chan Chwen Kong v. PP (1962) 28 MLJ 307. 20.63. For the reasons given, the prosecution had also failed to make out a prima facie case against the 11th accused under s.121 and s.130KA of the Panel Code. The 11th accused was acquitted and discharged and being an illegal in this country had been referred to the Immigration Department for his deportation.” [49] The learned trial judge had minutely scrutinized the evidence before acquitting the 9th, 11th, 12th and 15th accused of the charges preferred against them. We were not persuaded that the decision of the learned trial judge was wrong. It was clear to us that the learned trial judge had carefully analysed the evidence before him and his findings should be affirmed. Evidence against the 17th accused [50] The 17th accused is a Malaysian. He was charged with two offences. The first charge was under section 121 at the PC for waging war against the Yang di-Pertuan Agong and the second charge was under section 130KA of the same Code for being a - 42 - member of a terrorist group. He was convicted of the second charge but was acquitted of the first charge. We shall first deal with his acquittal in respect of the first charge. [51] The evidence against the 17th accused came from four witnesses, namely Inspector Mohsin bin Mohd Idit (PW50), ASP Nik Adzian bin Wan Ismail (PW51), DSP Khairul Azhar Bin Nuruddin (PW50), ASP Wan Kamal Rizal bin Wan Daud (PW95) and protected witness No.7 (PW165). PW165 who was also a member of the RSF (the terrorist group that attacked Lahad Datu, Sabah), had identified the 17th accused as being a member of that group. The evidence of PW165 was not challenged in cross- examination. [52] On 14.3.2013, Insp Mokhsin bin Mohd Sidit (PW50), ASP Nik Adzian bin Wan Ismail (PW51) and a special branch personnel conducted surveillance on an intermediate terrace house at No.3, Taman Keilah 1, Semporna where the 17th accused was believed to be in. The gate was locked from the inside with a padlock and a chain. DSP Khairul Azhar bin Nuruddin (PW60) and his men came and made a forced entry into the house by cutting the chain and padlock and shouting “Polis”. They did not find anyone on the ground floor of the house. [53] PW60 then went up to the second floor and found the 17th accused together with his son-in-law, Salleh Bin Mohd Salleh at - 43 - the living room. The 17th accused resisted arrest by putting up a struggle but was overpowered. He was angry when he was handcuffed. PW60 later found three women and six children in the master bedroom but he did not arrest any of them. [54] PW60 seized four mobile phones (exhibits P333C, P334C, P335D and P336C) that were found in the living room. The phones were analysed by Cyber Security Malaysia and the reports and CDs were tendered as exhibits P873-P876. Evidence and information from the exhibits showed that the 17th accused was a close associate of the Sultan’s family. The evidence further shows that in 2012, the 17th accused attended the installation of Muedzul–Lil Tan Kiram (Datu Butch) as ‘Raja Muda’ in the Philippines. [55] The 17th accused was acquitted of the first charge of waging war against Yang di-Pertuan Agong on the ground that there was no evidence that he and his son-in-law were involved in the skirmishes at Kg. Tanduo. The learned trial judge held: “25.24. The 17th accused was arrested in the house of his son-in-law who was also arrested at the same time. There was no evidence that they were in Kg. Tanduo or that they were with the armed intruders. There was no evidence that they were involved in the skirmishes in Kg. Tanduo or in Kg. Simunul. - 44 - 25.25. Although he was a member of the RSF of the Sultanate of Sabah and North Borneo, there was no direct or circumstantial evidence that he was involved in planning or participated in the war or that he had waged war against the King. … 25.30. For the reasons given, the prosecution had failed to make out a prima facie case against the 17th accused under s.121 of the Penal Code. He was acquitted and discharged as such.” [56] We were satisfied that there was insufficient evidence to link 17th with the skirmishes in Kg. Tanduo or in Kg. Simunul. The intercepted communications relied on by the prosecution could not establish that the 17th accused had planned or participated in the war. The prosecution also did not adduce evidence to show that the 17th accused had used the seized mobile phones to converse with the 20th accused and/or other suspects. Therefore, the learned trial judge’s decision cannot be said to have suffered from any infirmity and should be affirmed. Evidence against the 21st, 22nd, 23rd and 24th accused [57] All four accused were arrested on 13.3.2013 at about 11.00 am in front of the Forestry Office, Semporna by a team of policemen from the Special Branch led by ASP Budy Jurman bin Osman (PW77) and Inspector Holob Bin Wan Ahmad (PW85). - 45 - [58] Based on the intelligence gathered from the intercepted communications, the four accused were suspected to be members of the RSF and they were trying to escape from the police at the time of their arrest. The 22nd and 24th accused were suspected to be involved in the armed intrusion at Kg. Tanduo. [59] The evidence of Protected Witness No.5 (PW141) was that he owned a Perodua Viva which he used to operate as a private taxi. At the material time, the 24th accused approached PW141 with the intention of renting two cars from PW141 to go to Kg. Sejati 2 at Semporna. PW141 agreed to rent his own Perodua Viva to the 24th accused. Kimarin Bin Sibil, the brother of PW141, also agreed to provide the service. [60] PW141 asked his cousin, the 22nd accused to accompany him to Semporna because he was not familiar with the 24th accused. The 22nd accused agreed to PW141’s request and all three of them left for Semporna in PW141’s Viva. PW141 stopped at Kg. Lihak-Lihak to fetch the 24th accused’s wife. When they reached a junction at the kampong, the 24th accused’s wife together with three children and the 23rd accused (the 24th accused’s brother in-law) went inside PW141’s car. Four other persons including the 21st accused boarded Kimarin’s Myvi. On their way to Semporna, they were stopped and detained by the police. - 46 - [61] PW77 testified that he saw two objects that looked like hand phones being thrown out of the Perodua Viva into a swamp. However, the police could not recover the two objects. A Samsung Galaxy phone was found in the boot of the Perodua Viva. The phone belonged to the late Supt. Ibrahim Bin Lebar who was killed in the skirmish at Kg. Simunul. However, no evidence was led by the prosecution as to how the cell phone ended up in the boot of PW141’s car. PW141 did not testify against the 22nd accused (his cousin) as he was merely accompanying PW141 for the journey to Semporna. [62] The learned trial judge, in acquitting the 21st, 22nd and 23rd accused at the end of the prosecution’s case, reasoned as follows: “29.39. … The prosecution did not lead any evidence and did not explain how the phone found in Kg. Simunul came to be in the plastic bag in the boot of the Viva. PW77, PW85 and PW95 were not present during the operation in Kg. Simunul. 29.40. The prosecution did not adduced any evidence that any of these four accused were seen in Kg. Simunul or in Kg. Simunul on that day or that they were involved in the skirmish or that they picked up or retrieved the phone during or after the skirmish in Kg. Simunul. There was no evidence that someone gave this phone to them or that they bought it from someone who took it in Kg. Simunul. - 47 - 29.41. When PW141 drove the Viva to pick up the wife and children of the 24th accused at Jalan Lihak-Lihak the green plastic bag was not and had not been placed in the boot or in the car. PW141 did not say that the green plastic bag containing the clothes and the phone was already in the boot of the Viva. That would exclude the 22nd and 24th accused to have put it there or to have owned it. 29.42. The prosecution did not lead any evidence who put the bag inside the Viva but presumably it was put inside the boot when PW141 stopped at the junction to pick up the wife, children and brother-in-law of the 24th accused. There was no evidence who put it inside the boot and who owned it. 29.43. The prosecution did not submit that the 21st or 23rd accused had put the bag inside the boot in the Viva or that the bag and phone belonged to the 21st or 23rd accused and no such inference could be drawn against them that they took the phone from the late Supt. Ibrahim in Kg. Simunul and in possession of this phone in the Viva and or Myvi. 29.44. The wife of the 24th accused might or might not have put it in the boot but she was not called to exclude this as a fact. There was no evidence that the 23rd accused who was seated in the Myvi had put it inside the Viva. These raised some serious doubts on the possession of the bag which allegedly contained the phone. 29.45. The evidence showed that after the armed intrusion at Kg. Tanduo, the police had applied to intercept the communications of several persons - 48 - including the 22nd and 24th accused persons suspected to be involved in the said intrusion. The prosecution contended that all four were members of the armed intruders and involved in the intrusion at Kg. Tanduo. 29.46. Although the prosecution had submitted that they were members of the armed intruders and PW159 had testified that he had seen several persons in Kg. Tanduo, PW159 did not testify that he had seen these four accused in Kg. Tanduo during his stay there on that they were members of the RSF or had associated with the armed intruders. PW1 and PW58 did not testify that they had seen the four accused during their visits to Kg. Tanduo. None of the four accused were seen in the photographs in ID2(1-50). There was no evidence that they were in Kg. Tanduo at all material times. 29.47. Although the 22nd accused was included in the list for the communication interceptions and the prosecution had tendered the summaries (P479A- P479D) of the conversations intercepted on a phone number 012-8066842 believed to be used by the 22nd accused, the prosecution in its submission did not refer to P479A- P479D or to the contents of these summaries to incriminate the 22nd accused. 29.48. Reading these summaries, there were many users of this phone number and the conversations were between Uttu Jan whom the processors believed to be Abdul Majil bin Jubin and ‘L/Sabah’, Nul, Anti Nung, Kak Pai, Lin and ‘W/Sabah’. The processors were not able to identify or confirm these persons in the conversations, whether Uttu Jan was in fact the 22nd - 49 - accused, whether they were the intruders, supporters or members of a terrorist group. 29.49. The conversations in the summaries included whether it was safe to travel to the Philippines, buying things for the kitchen, the price of rice and whether Uttu Jan had boarded a blue boat. 29.50. Based on these conversations, there was nothing to show that the 22nd accused was one of the armed intruders or that he was preparing of waging war or had waged war against the King or that he had carried out or participated in any acts or threats which prejudiced the national security of this country. 29.51. PW141 (PRW5) and Kimarin are the cousins of the 22nd accused and probably would be the best persons to know the 22nd accused or his background or of his involvement in the intrusion. However they were not asked to testify that he was one of the armed intruders or a member of a terrorist group preparing to wage war against the King. The prosecution did not lead any such evidence from PW141 or Kimarin against the 22nd accused. 29.52. PW141 had testified that when he went back to his village to ask Kimarin whether Kimarin agreed to provide the service to transport Basil and his family, he saw his cousin (22nd accused) had just come down from his house (22nd accused house) and going to his work place. PW141 said he asked his cousin to accompany him for the journey because he did not know Basil. Based on the testimony of PW141, the 22nd accused was in the Viva because he was asked by PW141 to do - 50 - so and not because the 22nd accused wanted to go together with Basil (24th accused). There was no evidence that the 22nd and 24th accused knew each other or had conspired or planned or arranged to travel together in the Viva or had planned to escape together from the police. 29.54. Based on P479A-P479D and the testimony of PW141, there was no evidence of the involvement of the 22nd accused in the intrusion at Kg. Tanduo. There was no evidence that he had waged war against the King or that he was a member of a terrorist group. 29.55. Similarly, there was no evidence that the 21st and 23rd accused were involved in the intrusion or that they had prepared or waged war against the King or that their acts or threats had prejudiced the national security of this country. 29.56. For the reasons given, the prosecution had failed to make out a prima facie case against the 21st, 22nd and 23rd accused under s.121 and s.130KA of the Panel Code. They were acquitted, discharged and referred to the Immigration Department for their deportation. 29.57. What was the evidence against the 24th accused? Similarly, there was no evidence that the 24th accused was in Kg. Tanduo or that he was one of the armed intruders in Kg. Tanduo or in Kg. Simunul. There was no evidence that he was a member of the RSF or of the Sultanate of Sulu and North Borneo. There was no evidence that he was involved or had participated in or had waged war against the King. - 51 - 29.58. For the reasons given, the prosecution had failed to establish the essential ingredients under s.121 and s.130KA of the Penal Code against the 24th accused.” [63] However, the learned trial judge held that there was sufficient evidence against the 24th accused for the offence of knowingly giving support to a terrorist group and accordingly called upon him to enter his defence on the amended charge under section 130J(1)(a) of the PC. [64] The 24th accused elected to give evidence under oath. Briefly, the defence of the 24th accused as recorded by the learned trial judge was as follows: “45.2. The 24th accused (DW1) is a Tausug of Suluk discent from Siasi, Sibangkat, in the Philippines. He chose to give evidence first at the defence stage. He chose to give evidence under oath. He also produced and tendered his s.112 statement as exhibit D192 to substantiate or corroborate his sworn testimony. 45.3. He said he came to Sabah in 2010 and had been in Sabah for the past three years before his arrest. He lived with his wife and six children in Kg. Sejati, Semporna. His borther-in-law Rizmal bin Sal leh (21st accused) and Nijmal Gulam (23rd accused) l ived next door. He sold fish, fruits and plastics at Semporna market. 45.4. He said on 3.3.2013 at about 9.00 am he and his family went to stay at his cousin’s house, namely Hassan, at Lihak-Lihak because of the chaotic situation - 52 - in Semporna because there was a fight in Kg. Simunul, which was about one and a half miles from Kg. Sejati . He said they did not have identification documents and they wanted to stay safe. He said Lihak-Lihak was about 20 miles from Kg. Sejati. They stayed in Hassan’s house until 13.3.2013. 45.5. On that day at 6.00 am he looked for a pirate taxi to go to Simpang Kunak to look for a van to fetch his family to go back to Kg. Sejati. He said that no one was willing to take them because they did not have identification documents. He then went to Bandar Sri Salim where he met PW141 who operated a private taxi using his Viva and who agreed to take him and his family but his Viva was to small to accommodate al l of them. He said PW141 told him that he would take another car from Kg. Air. 45.6. They went to PW141’s older brother’s house to take the second car. PW141’s brother (Kimarin), their cousin Abdul Majil (22nd accused) and Abdul Majil’s wife then came in the two cars. He, PW141 and Abdul Majil were in the Myvi, following behind. They went to fetch his family at the junction of Lihak-Lihak. They brought foodstuff and clothes inside a black bag which he put behind him, inside the car. After he had fetched his family, about a mile from the junction, the police stopped them and they were arrested. 45.7. He said he had a Nokia hand phone using a phone number 012-6418816. He said he did not know Datu Amir Bahar and was not familiar with the phone number 019-7569906. He was shown P478A to P478 I and he said he did not speak and did not use the phones as stated in the summaries. He said his phone - 53 - which was seized by the police was returned to his wife. The prosecution did not produce or tender this phone in court. The prosecution did not produce any other phones alleged to be used by him in contacting Datu Amir Bahar or Datu Agbimuddin. 45.8. The 24th accused said he was not the Basil referred to in the summaries, that he did not know about Tanduo and never went to Tanduo. He heard the news from the public that there was a skirmish at Tanduo. He denied any involment with the RSF of the Sultanate of Sulu and North Borneo. 45.9. In his cross-examinations, the 24th accused said that he and his family came to Sabah illegally and they did not have any identification documents because they were very poor and could not afford to apply for one. 45.10. He denied that he knew about the existence of the Sulu Sultanate and he did not know Datu Agbimuddin, Datu Amir Bahar and Datu Piah. He denied that he came as a member of the RSF of the Sultanate of Sulu and North Borneo to claim Sabah and had nothing to do with them. 45.11. It was put to him that he took a hand phone which belonged to one security personnel who was killed in Kg. Simunul to which he denied. He said he did not join them and knew nothing. He also said he did not know anything about the green plastic bag and he only carried the black bag in the car. I have dealt with these issues at the end of the prosecution’s case. 45.12. It was put to him and he denied he bought and used a phone number 019-7569906 through a person - 54 - by the name of Datu Murbasir BN Datu and that he did not carry out the conversations referred to in the summaries P478A to P478I.” [65] The learned trial judge, after considering the evidence of the 24th accused, found that he had succeeded in casting a reasonable doubt in the prosecution’s case. Accordingly the 24th accused was acquitted and discharged of the amended charge under section 130J(1)(a) of the PC. [66] In his analysis of the 24th accused’s evidence, this is what the learned judge said: “45.13. The evidence showed that the 24th accused was on the list of suspects whose phone numbers were to be intercepted to obtain evidence against them. The phone number 019-7569906 was alleged to be used by him. The police had applied and given approval to intercept this phone number which was intercepted. The conversations made on this phone were set out in the summaries tendered as exhibits P478A-478I. 45.14. The prosecution relied on these summaries to make out its case against him. As stated, there was insufficient evidence against the 24th accused that he had waged war against the King or that he was a member of a terrorist group. The processors had identified the user of this phone number 019-7569906 as a male person by the name of Basil. The prosecution submitted that the 24th accused is this Basil. Reading P478A to 478I, the processors had - 55 - identified this person as Basil only. They did not and never identify him as Basil bin Samiul. 45.15. The 24th accused had denied that he was the Basil referred to in the telephone conversations in the summaries. As stated, the 1st accused had testified that while he was running in the jungle he saw a man with a pistol in his hand who told him that his name was Basil whom he referred to as Al Basil. The prosecution asked the 1st accused whether the 24th accused is Basil and the 1st accused said that 24th accused was not the Al Basil he met in the jungle. He said that Basi l could run fast while the 24th accused is limping. He said Al Basil is a Bajau while the 24th accused is a Suluk. 45.16. The 24th accused had testified that in 2009 he worked as a fisherman in the Philippines and had an accident. He fell from the boat and his leg was injured after it was hit by the boat propeller which prevented him from doing manual job. He said he decided to come to Sabah to look for lighter work to support his family. It was not in dispute that throughout the trial that the 24th accused walked with a limp. It apparent that the 24th accused is not the Al Basil referred to. He has casted some doubts that he was involved with the armed intrusion at Kg. Tanduo. 45.17. Although the processors had referred to the user of the phone number 019-7569906 as Basil, they did not identify him as Basil bin Samiul. The prosecution did not lead any evidence that the Basil referred to in the summaries is Basil bin Samiul i.e. the 24th accused. There is some doubt whether the 24th accused is the Basil referred to in the summaries. - 56 - 45.18. In item 1 of P478A, a L/Sabah referred to the receiver as ‘Sir’ believed to be the son of Datu Agbimuddin. The prosecution did not lead any evidence that the 24th accused is the son of Datu Agbimuddin and there is no evidence that he is the son of Datu Agbimuddin. The prosecution did not call Murbasir Bn Datu to testify that he bought the phone number and gave it to the 24th accused to use it or that the 24th accused was the user of this phone number. The 24th accused had denied that he had used this phone number. As stated, this phone was not recovered nor produced in court and PW141 had testified that he did not see the 22nd accused throwing the two phones out of the Viva. 45.19. On the evidence adduced, there were some doubts raised that the 24th accused had used this phone number or that he had contacts with and spoke with Datu Agbimuddin or with Datu Piah or that he had knowingly gave support to the terrorist group. 45.20. On the totality of the evidence adduced and for the reasons given, the 24th accused has raised a reasonable doubt on the prosecution’s case against him. The prosecution had failed to establish beyond reasonable doubt its case against the 24th accused under s.121 or s.130KA or s.130J (1)(a) of the Penal Code. The 24th accused is acquitted and discharged and to be referred to the Immigration Department to be deported.” [67] The learned trial judge’s findings cannot be faulted. His Lordship had considered the evidence before him from all angles and found that there was insufficient evidence to convict the 24th - 57 - accused or to order the 21st, 22nd and 23rd accused to enter their defences on the charges preferred against them. Evidence against the 25th accused [68] The evidence against the 25th accused came from a navy officer, Khairolrizal bin Ahmad (PW72) who was attached to KD Sri Semporna at Semporna, Sabah. On 28.3.2013 at around 8.00 am, PW72 and his team carried out surveillance duties around the shores of Kg. Simunul. PW72 saw the 25th accused and his wife pacing in front of a house which PW72 believed was their house. PW72 saw three other men at the kitchen. PW72 went over to the 25th accused and enquired about those three men. The 25th accused informed PW72 that the three men were his workers but the wife of the 25th accused told PW72 that the three men were relatives of her husband. [69] PW72 became suspicious and checked the 25th accused’s identification document. His name was found to be Totoh bin Hismullah, which was on the watch list of suspected persons. These three persons had no identification document. PW72 instructed the 25th accused and the three men to be handcuffed and he proceeded to search the house. PW72 did not find any dangerous weapon and there were also four children in the house. Thereafter PW72 handed the 25th accused and the three men to Inspector Roslan Bin Sarail (PW65) for further action. - 58 - [70] Protected Witness No.6 (PW159), testified that he was brought into the armed group by one Herman. Herman had led PW159 and eighty other Filipinos to Kg. Tanduo in February 2013. Herman had told PW159 of the intruders’ names, including ‘Totoh’. According to PW159, he had seen and spoken to ‘Totoh’ during his stay at Kg. Tanduo. [71] After scrutinising the evidence adduced by the prosecution, the learned trial judge acquitted the 25th accused at the end of prosecution case. We reproduce below the learned judge’s evaluation of the evidence against the 25th accused: “30.8. PW72 said at a glance he saw the name was Totoh bin Hismullah and he realized that the name belonged to one of the suspects. He instructed his men to ask the man to kneel down and handcuffed his hands at the back using plastic handgrip. 30.9. He said he asked the women about the 3 men who told him that they were the relatives of the man. He said he became suspicious because the man had told him that they were his workers. The 3 men could not produce any identification documents and were not conversant in Bahasa Malaysia. He said he instructed the 3 men to be handcuffed. 30.10. He searched the men and the house and did not find any dangerous weapon but he saw four chi ldren in the house. After he had completed inspections of 4 to 5 houses, he instructed for the 4 men who had been - 59 - arrested to be brought out to an open space which was marked as ‘H’ in P202. 30.11. In his cross-examinations, PW72 said he recalled there were twelve names out of which six with photographs, in the list given to him and he could not recall the names except for Totoh. 30.12. He was referred to a search from the Jabatan Pendaftaran Negara dated 4.2.2015 which stated that Totoh bin Hismullah is a Malaysian and his current status is still active. This was marked as IDD99. 30.13. PW72 was asked and said that he did not seize the licences for both fishing boats belonging to Totoh but the wife had given to him the licences which he handed to PW65. The licences were not produced in court. 30.14. PW65 testified that after they had completed the operation and had assembled at a basketball court near to Lorong 4 of Kg. Simunul, he found that the PASCAL team led by PW72 had arrested four men, three of whom could not produce their identification documents. He said the man gave their name as Maikil, Poney and Mohd Yusuf. The fourth person produced his identity card. The name stated in the card was Totoh bin Hismullah. PW65 identified Totoh bin Hismullah in court as the 25th accused. The four men were placed under guard at the basketball court. He said he made a body search on the 25th accused and did not find anything on him. He brought these men back to IPD Semporna. 30.15. He explained that he was instructed by his superior to lodge a police report on the arrest of the 4 men because the PASCAL team which made the arrest - 60 - was not willing to make the arrest report. The police report was tendered as exhibit P347. He handed the 4 men to PW151 who was an assistant investigation officer at IPD Semporna. 30.16. He was asked why there was no m ention in his report that Totoh was believed to be involved in the incident at Kg. Simunul and he answered that he believed that the person was using a false identi ty card and he had to verify whether this person was the Totoh who was believed to be involved in the incident. This identity card was not produced and not tendered as an exhibit in court. 30.17. During cross-examination it was put to PW65 that the 25th accused came to Sabah when he was 10 years old and had been living in Kg. Simunul for the past 40 years. It was put that he was a fisherman who owned two boats and was married with six children. It was put to him that the 25 th accused lived in a house which was light blue in colour seen i n photograph 2 of P214 (1-10). PW65 said that he was not aware of these. 30.18. He was asked whether he was aware that a Totoh mentioned during interrogations was the son of General Hj Musa whereas Totoh bin Hismullah had no connection whatsoever with General Hj Musa. PW65 said he was not sure. 30.19. PW151 had also lodged a police report on the arrest of the 25th accused which was previously marked as IDD82. The prosecution tendered it as exhibit P946 and the defence tendered it as 082. 30.20. It was the contention of the defence that the person whom the operation teams was looking for was - 61 - actually the son of General Musa who was connected with the intrusion. It was submitted that there was nothing in P347 and P946 to link the 25 th accused with the incident at Kg. Simunul and that the police fai led to conduct a proper investigation on the 25th accused. 30.21. The police relied on the testimony of PW159 (PW6) to link the 25th accused to the armed intrusion at Kg. Tanduo. PW159 had testified that during his stay at Kg. Tanduo Herman told him the names of Haji Musa, Agbimuddin, Patulada, Aiman, Holland, Salleh, Yassin, Tani, Julham, Atik, Totoh, Harry and Kekeng and he had seen them during his stay. He said he had spoken to some of them including Totoh. 30.22. PW159 was asked whether he could identify these persons whom he had seen in Kg. Tanduo and he had identified these persons in court via video link. Some of them were in the photographs ID2(1-50) whom he also identified. Totoh is not in the photographs. When he was asked to identify Totoh in court, he said Totoh was not in court although the 25 th accused was sitting in the dock. Clearly PW159 could not identify Totoh or the 25th accused. The defence submitted that since PW159 could not identify Totoh, the police had made a grave error in arresting the 25 th accused. 30.23. The prosecution also referred to the testimony of PW163 on the interrogation conducted on Totoh. PW163 testified that Totoh had said that he was brought by one Panglima to the Philippines to attend a ceremony organized by the Sulu Sultan, that he had given money to be channelled to the Sulu Sultan, and he had met the 20th accused and was appointed a Panglima for Semporna. - 62 - 30.24. It should be noted that the prosecution did not lead any evidence on the interrogation conducted on Totoh during the evidence-in-chief of PW163. What PW163 had testified on the admissions or confessions made by Totoh were not put to the 25 th accused during the evidence-in-chief. These were asked and raised during his cross-examinations. 30.25. In any event PW163 did not testify that he himself had conducted the interrogation on Totoh. He did not say that he asked these questions and Totoh gave the admissions to him. He did not say that he was present and personally heard the admissions. If the 25 th accused had made the admissions or gave the confessions to a police officer or judicial officer, these would have been recorded. The prosecution did not produce any written statement or confessions of the 25 th accused. In the absence of such confirmations, what he had said were hearsay and not admissible. 30.26. Further, the alleged interrogation was conducted after the 25th accused had been arrested. PW163 did not say that he had cautioned or had administered any caution before conducting the interrogation. He did not say that he had told the 25th accused that he had the right to legal advice and the right to remain silent.” [72] The learned trial judge then concluded: “30.29. In the absence of the alleged admissions and the failure by PW159 to identify the 25 th accused to be one of the armed intruders seen in Kg. Tanduo there was no evidence of his involvement in the armed intrusion or in waging war against the King or that he was a terrorist or a member of a terrorist group. - 63 - 30.30. The evidence showed that the 25 th accused is a Malaysian living in Kg. Simunul. He is married with children. He was a fisherman with two licensed fishing boats. At the time of his arrest he was outside his house with his wife and three of his workers were eating in the kitchen. The prosecution submitted that based on his conduct that he was shivering and scared that he knew of his wrong doing whereas the defence submitted that they had just come back from fishing and this explained why the 25th accused was cold and shivering. The fact that he was shivering did not make him into a terrorist waging war against the King. 30.31. On the evidence adduced and for the reasons given, the prosecution had failed to make out a prima facie case against the 25 th accused under s.121 and s.130KA of the Panel Code. He was acquitted and discharged.” [73] We found the findings of the learned trial judge to be amply supported by the evidence. No reasonable tribunal applying its mind to the same evidence would have come to a different conclusion. Evidence against the 29th accused [74] The 29th accused was arrested by Constable Abdul Omar bin Utoh (PW92) on 16.3.2013 at about 6.30 am at the housing Complex of Felda Cendrawasih, Lahad Datu. The said housing complex was located about 20km from Kg. Tanduo. PW92 and Constable Shah Rizal bin Likah were on guard duty at the material time. PW92 received information from the public that a man - 64 - dressed in t-shirt and shorts with a white water container in his hand was asking for money to pay for his fare to Lahad Datu. PW92 informed his superior. [75] At about 6.30 am on the same day, he saw a man (later identified as the 29th accused) who fitted the description. PW92 conversed with the 29th accused in Bajau. The 29th accused identified himself to PW92 and told PW92 that he wanted to go to Lahad Datu. He told PW92 that his boss was Ali and he came to Sabah by boat. PW92 observed that the 29th accused had bruises on his hands and legs. PW92 asked the 29th accused for his identification document to which the 29th accused replied that he had none. PW92 found two amulets at the 29th accused’s waist and one in his left hand. He was wearing a wrist watch. PW92 suspected the 29th accused to be one of the armed intruders. PW92 did not find any firearm or any dangerous weapon on the 29th accused. [76] The learned trial judge acquitted the 29th accused for lack of evidence. His Lordship found as follows: “34.7. Based on the testimony and the police report lodged, the 29th accused was arrested because he was asking for money and creating a nuisance at the housing complex. PW92 did not find any firearm or dangerous weapon on the 29 th accused. He also did not find any incriminating item or article on the 29 th accused except the amulets and wrist watch. This - 65 - items did not make him to be a terrorist and or in waging war against the country. 34.8. The prosecution did not lead any evidence that at the material times the 29th accused was at Kg. Tanduo or that he was one of the armed intruders at Kg. Tanduo. He was not seen in the photographs in ID2(1- 50) taken at Kg. Tanduo. There was no evidence that he took part in the skirmishes at Kg. Tanduo or at Kg. Simunul or Tg. Batu or Tj. Labian against the security forces. 34.9. There was no evidence that he planned or prepared for war or participated or took part in the war or any war between the armed intruders and the security forces. There was no evidence that he waged war against the King or against the nation. 34.10. There was no evidence that he planned or prepared or participated or took part in any terrorist activities or carried out any terrorist activities in Sabah or in the country. There was no evidence that he associated with the armed intruders at Kg. Tanduo or had provided assistance or supplies or support to the armed intruders. There was no evidence that he was a member of a terrorist group. 34.11. The only evidence against him was begging and causing a nuisance at the housing complex. That did not make him to have waged war against the King or that he was a member of a terrorist group. 34.12. The prosecution had failed to make out a prima facie case against the 29 th accused under s.121 and s.130KA of the Penal Code. He was acquitted and - 66 - discharged. He was referred to the Immigration Department to be deported.” [77] We agreed with the findings and decision of the learned trial judge. The fact that the 29th accused begged for assistance to go to Lahad Datu does not automatically make him a terrorist. Evidence against the 30th accused [78] The evidence against the 30th accused came from Captain Kamarul Harith bin Abu Hurairah (PW96) who was from the 5th Brigade, Markas Taktikal at Felda Sahabat. PW96 testified that on 3.4.2013, at 7.00 pm, Major Haizdar of the 7th Royal Ranger Mechanized Regiment handed to him an arrested person (later identified as the 30th accused). Major Haizdar informed PW96 that the 30th accused was arrested by Captain Mohd Haisan at Kg. Tanjung Batu near Kg. Pasusun on the ground that he was found in the operation area without any legal document. Nothing incriminating was found on the 30th accused. According to PW96, another man by the name of Abdul Rashid bin Shahirul was also handed to him. Abdul Rashid was arrested by a personnel from the 21st Royal Malay Regiment because he was found in the operation area without any legal document. [79] Later PW96 handed over the two persons to Corporal Pg. Tajuddin bin Pg. Yunus (PW91) at Balai Polis Cenderawasih. PW96 did not lodge any police report as he was in a hurry to go - 67 - off. Acting on the instruction of the investigating officer, Inspector Mohd Faris bin Hj Mohd Sairi (PW87), PW91 lodged an arrest report (exhibit P484) under the Immigration Act against the 30th accused for not having any valid identification or travel document. [80] After considering the evidence of the prosecution’s three witnesses against the 30th accused, the learned trial judge held that the prosecution failed to establish a prima facie case against him in respect of both charges and acquitted him. [81] In his grounds of judgment, the learned trial judge proffered the following reasons for acquitting the 30th accused: “35.9. Capt. Mohd Haisan and Major Haizdar were not called to testify when, where, how and why the 30 th accused was arrested by them or by the army. Based on the testimony of PW96 and PW91, the 30th accused was arrested because he was in the operation area and did not possess any valid identification document. Both of PW96 and PW91 did not have any personal knowledge and were not able to testify when, where, how and why the 30th accused was arrested. 35.10. The prosecution did not lead any evidence that at the material times the 30 th accused was at Kg. Tanduo or that he was one of the armed intruders at Kg. Tanduo. He was not seen in the photographs in ID2(1-50) taken at Kg. Tanduo. There was no evidence that he took part in the skirmishes at Kg. Tanduo or at Kg. Simunul. - 68 - 35.11. There was no evidence that he planned or prepared for war or participated or took part in the war or any war between the armed intruders and the security forces. There was no evidence that he waged war against the King or against the nation. 35.12. There was no evidence that he planned or prepared or participated in any terrorist activities or carried out any terrorist activities in Sabah or in the country. There was no evidence that he associated with the armed intruders at Kg. Tanduo or had provided assistance or supplies or support to the armed intruders. There was no evidence that he was a member of a terrorist group. 35.13. The only evidence against him was that he was caught in the operation area without any valid documents. That did not make him to have waged war against the King or that he was a member of a terrorist group. 35.14. The prosecution had failed to make out a prima facie case against the 30th accused under s.121 and s.130KA of the Penal Code. He was acquitted, discharged and referred to the Immigration Department to be deported.” [82] We agreed with the findings and decision of the learned trial judge in acquitting the 30th accused of both charges. Both PW91 and PW91 could not confirm as to how and why the 30th accused was arrested as they had no personal knowledge of the arrest. No evidence was forthcoming to link the 30th accused with the intrusion at Kg. Tanduo. - 69 - [83] It is clear to us that the prosecution’s case against the 30th accused, being circumstantial in nature, does not point irresistibly to involvement in the offences with which they were charged. [84] We were satisfied that the learned trial judge was right in holding that no prima facie case had been established against the following accused, namely the 7th , 8th, 9th, 11th, 12th, 15th, 17th, 21st, 22nd, 23rd, 25th, 29th and the 30th accused. [85] In respect of the 24th accused, we agreed with the findings of the learned trial judge that the explanation proffered by him in his defence had succeeded in raising a reasonable doubt in the prosecution case. [86] Having considered the appeal against acquittal by the prosecution and for the reasons aforesaid, we found no merit in the prosecution’s appeal. Consequently we affirmed the acquittals of the respective accused of the respective charges preferred against them. PART II – THE APPELLANTS’ APPEAL AGAINST CONVICTION UNDER SECTION 121 OF THE PC [87] This part of our judgment deals with the appeals by nine of the appellants, namely: (1) Atik Hussin bin Abu Bakar; (2) Basad bin Manuel; (3) Ismail bin Hj Yassin; - 70 - (4) Virgilio Nemar Patulada @ Mohammad Alam Patulada; (5) Salib Akhmad bin Emali; (6) Al Wazir bin Osman; (7) Tani bin Lahad Dahi; (8) Julham bin Rashid; and (9) Datu Amirbahar Hushin Kiram. [88] At the trial, they were the 1st, 4th, 10th, 13th, 15th, 16th, 18th, 19th and 20th accused respectively. They had been found guilty under section 121 of the PC waging war against the Yang di- Pertuan Agong and were each sentenced to life imprisonment. The offence carries the death penalty or imprisonment for life, and if not sentenced to death shall also be liable to a fine. Their appeals were against conviction only, having withdrawn their appeals against sentence at the commencement of the hearing of these appeals. Having heard arguments by the parties, we dismissed their appeals against conviction. These are our grounds. [89] Three issues were raised on their behalf by Datuk N. Sivananthan, and they were the following: (i) Burden of proof; (ii) The effect of the guilty plea of the 1st, 4th, 10th and 13th accused under section 130KA of the PC; and - 71 - (iii) The authenticity of the intercepted communications. Issue (i) - Burden of proof [90] All nine appellants chose to give sworn evidence when called upon to enter their defence to the charge under section 121 of the PC. The learned trial judge rejected their defence and found that their explanation failed to raise a reasonable doubt in the prosecution case. He found that the prosecution had proved its case beyond reasonable doubt. Before we go into the legal issues pertinent to this ground of appeal, we think it is necessary, to provide context, to set out in full the defence put up by each of the appellants in answer to the charge. This is important to determine if their convictions are safe. Defence of the 1st appellant (1st accused) [91] The 1st appellant explained that he was a fisherman from Pulau Sibutu, Taungu, Philippines. He said he was brought to Sabah by Hj. Musa who promised to provide him with a good job and a Malaysian identity card (IC). He was promised that if he completed three months in the job, he was free to move anywhere in Sabah. [92] Before they left for Sabah, they assembled at the house of Agbimuddin in Simunul, Bohe Indangan, Philippines. There were four groups of more than one hundred people. The first group which consisted of twenty-eight persons from Pulau Sibitu was led - 72 - by Herman; the second group of eighteen by Edie was from Zamboanga; and the third group of sixty led by Datuk Pak was from Jolo and the fourth group of about fourty led by Salib Enggal was from Simunul. He said Agbimuddin was the leader of the group going to Sabah. [93] While assembled at the house, he saw some of them were carrying rifles such as Armalite, M16, Garand, M14 and pistols. Some were carrying parangs. He thought they were the security guards of Agbimuddin. If he was not mistaken, they left for Kg. Tanduo on 11.2.2013 at about 7.00 p.m. in a big boat. Herman was his leader in the boat. They arrived at about 11.00 p.m. and assembled at a surau near the beach. From there, they walked for about twenty minutes to reach Hj. Musa’s house. [94] After two nights, weapons were brought into Kg. Tanduo by thirteen persons in a speedboat. He said he did not know or recognize these people. He heard about a negotiation with the police led by Tuan Zul who came to Kg. Tanduo asking Agbimuddin to return to the Philippines. He said he did not know the details of the negotiation. [95] After that there was a meeting at Hj. Musa’s house. It was decided to divide them into six groups, led by Herman, Edie, Datu Pak, Salib Enggal, Hj. Musa and Agbimuddin respectively. Each group was given between eight to eleven camouflaged uniform - 73 - except those in Hj. Musa’s and Agbimuddin’s groups all of whom wore full uniform. Agbimuddin told them not to move around in uniform and carry firearms except a small flag of the Sultanate of Sulu and North Borneo to avoid detection by the Malaysian Government. [96] In Herman’s group, Herman himself carried a Colt .45 pistol and Basil carried a .38 pistol. Basil was given the pistol to control them. Except for Herman and Basil, none of them had any firearm. When they were required to carry out the chores, they had to return the uniforms. He said that while he and Basil were walking at kampong Tg. Labian, he was arrested by the police but Basil managed to run away. He could not remember the date of the arrest. When he was arrested, the police seized a pistol belonging to Basil found inside his bag. Defence of the 2nd appellant (4th accused) [97] He said he had a degree in computer from the College of Isabela City and Furigay College Institute. He said it was difficult to find a job at his place and he became a motorcycle rider. He resided in Kg. Basilan, the Philippines. He said Eddy went to their village with offers of office jobs in Sabah. He recruited fifteen persons in his village. So he followed his friends to come to Kg. Tanduo, Lahad Datu, Sabah. - 74 - [98] Before they left for Sabah, they assembled in a ‘lansa’ (big boat) at Kg. Simunul in the Philippines. He saw many people inside the boat. He heard there were more than hundred people in the boat but he did not see Edie inside the boat. He did not see any weapon except the butt of a firearm which was covered by other things. They left at about 5.00 p.m. He could not remember the date but it was in mid-February. Apart from Edie, his friends in the boat were Felis, Haji Abdullah, Haji Gapur, Bara and Hamid. [99] When they arrived at Kg. Tanduo at 5.00 a.m. the next morning, there was no one to meet or welcome them. They made their way to the house of Hj. Musa. He noticed that many houses were empty and he did not know whose houses they were. [100] At Kg. Tanduo, he saw Hj. Musa and Agbimuddin. He saw weapons such as Garand, M16, Carbine pistols and barung brought to the house of Hj. Musa. He did not know when the weapons were brought to the house. He saw people wearing camouflaged uniform and uniform being washed. He also saw a flag with yellow, green and white colours, with an emblem of a kris and the words ‘Kalimah Allah’ near the house. He said someone put one such small flag inside his bag. He said he did not use the flag. He did not carry any weapon and he did not wear any uniform. - 75 - [101] He said that on that morning, he and Felis planned to escape. They ran away. He arrived first and waited for Felis at two empty houses but Felis did not turn up. He said many people had also collected the safe passage leaflets to run away for a better life. He was hoping that he would be sent back to his kampong. He said he was then arrested by the police in the afternoon. He said nothing was seized from him except his wallet, his hand phone and his cloths including a ‘Lotto’ T-shirt and a ‘Diesel’ T-shirt. Defence of the 3rd appellant (10th accused) [102] He was a farmer in his village at Kg. Sibutu, Tandok Banak, the Philippines. He said he was brought by Herman to Sabah who promised him a job and to make him a ketua kampong whereas a relative of Raja (Agbimuddin) promised him a Malaysian IC if they could claim Sabah. Others were promised money or made generals. He said this relative of Agbimuddin claimed that Sabah belongs to him and promised that there would be no war or fighting. He said if he knew there would be war, he would not have come to Sabah. [103] He said he came to Sabah on 22.2.2013 in two boats, one hundred and thirty in one boat and twenty-eight in the other. He said the people in the boats were all adults. There were no women and children. They came from Tubig Indangan, Bongao, Sulu, Basilan and Zamboanga in the Philippines. Herman was his leader - 76 - in the boat. He saw two Carbine and two Colt .45 in the boat. Herman had one Colt .45. The boats left at about 5.30 p.m. from Sibutu and arrived at Kg. Tanduo at about 3.00 a.m. [104] When he arrived at Kg. Tanduo, he saw that the houses were empty. There was no villager. He went to the house of the son of Hj. Musa. There were two hundred and thirty people staying there. They brought weapons and uniform with them. He said two persons by the name of Aziz and Buyong were carrying a carbine each but they only had ten bullets. He asked them why they carried very few bullets and they said the rest would be brought by the Sultan. He said he himself did not carry any weapon. [105] He said he was afraid of skirmishes and that he wanted to escape on that day. He said he knew there would be boats in the area because the people there were fishermen. He took a small boat at Sg. Bilis and rowed out to sea at Tg. Batu where he was arrested. He said nothing was seized from him except a bag containing his personal belongings. Defence of the 4th appellant (13th accused) [106] He was a carpenter by profession, residing at Sitangkai, the Philippines. He said he was brought by his father-in-law to come to Kg. Tanduo to work as a security guard for the Sultan who promised that there would be no war. He said he agreed to follow the Sultan because of the promise that there would be no war. - 77 - [107] He assembled at Pondok Banak, Sibutu, the Philippines and left for Kg. Tanduo on 10.2.2013 together with hundred people in two boats. There were thirty people in one boat led by Herman Kalun. He was in another boat with seventy people led by Raja Muda Agbimuddin whose son was the skipper of the boat. There were twenty security personnel in army uniform carrying Armalite, Carbine, M14, pistol and barong. He did not carry any weapon in the boat but he was told that he would be given weapon after they arrived in Sabah. The weapons would be brought by another group. [108] When they arrived at Kg. Tanduo, they looked for a place to stay and for food. He said Pedro, who was related to Herman, brought cooked rice from Sg. Bilis. Three days later another boat arrived. Toto, the son of Hj. Musa also arrived. He also saw Ampun Piah (Datu Piah) who arrived from Semporna. He said he could recognize him because he had seen him with the Sultan in Tubig Indangan in the Philippines. [109] He said there were seven groups at the kampong, one led by Herman, one by Raja Muda, the other groups from Basilan, Jolo, Zamboanga, Guru Batak and Ubik Bangao. The groups were provided with camouflaged uniform, combat boots, firearms such as Colt .45. He was wearing a uniform which he bought in Bangao. - 78 - He said if they won and took Lahad Datu, Semporna and Tawau, he was free to move anywhere in Sabah. [110] He said it was only later that he found that there would be war. After the war, he tried to run away to Tg. Batu with Pedro Cabilin. It was on a Saturday. On Sunday, they went back to Kg. Tanduo and there were many soldiers there. He said they decided to run away. He ran to the oil palm estate. He did not know where Pedro ran to. [111] As he came out from the oil palm estate, he was seen by the soldiers who called out to him. He said he ignored them and tried to run away. They shot him but missed. He raised both his hands, surrendered and was arrested. When he was arrested, nothing was seized from him except a ring and amulets. He said he was threatened and assaulted by the police. Defence of the 5th appellant (15th accused) [112] Apart from giving oral evidence under oath, the 5th appellant also tendered his written confession to corroborate his testimony. He originated from Tawi-Tawi in the Philippines. He said he came to Sabah in 1985 and resided in kg. Singgamata, Lahad Datu. In 2012, he moved with his wife, two sons (11th and 12th accused), two daughters by the name of Vilin and Bililin, a son-in-law (9th accused) and grandchildren to Kg. Ladang Atlas, - 79 - Ulu Tungku, Lahad Datu. He worked as a harvester at the oil palm plantation. [113] He testified that in January, 2012, Sultan Esmail came to Sabah to discuss with the Malaysian Government on the status and welfare of the Suluk people who have resided in Sabah for a long time. The Sultan wanted the Malaysian Government to issue ICs to the Suluks so that they could legally stay and work in Sabah. [114] He said his friends by the name of Tahir and Asbudi brought him to meet the Sultan. He said he attended the meeting with the Sultan who told him that he would discuss with the Malaysian Government to issue ICs to the Suluk people residing in Sabah so that they could legally stay and work in Sabah. He said he believed the Sultan and was happy to hear what the Sultan had told him. [115] He said the Sultan appointed him as the Panglima of the Sultanate of Sulu and North Borneo. However, he said he did not receive any document on his appointment because it was done orally. He said he was appointed as such because of his royal (Sharif) family bloodline. [116] He said the Sultan asked him to take down the names of the Suluk people so that an ID would be issued to identify them as - 80 - the followers of the Sultan of Sulu and North Borneo. Based on this, the Sultan would know how many of his followers were in Sabah. If the Malaysian Government agreed to issue ICs to the Suluk people in Sabah, this would be based on the IDs issued by the Sultanate of Sulu. [117] He said that was the first and only time he met the Sultan and his son Datu Amir Bahar. He said he did not know and he never met Datu Agbimuddin. He said he heard the news that Agbimuddin led his people to come to Kg. Tanduo but was asked to leave Sabah but refused. He said he did not know and had never been to Kg. Tanduo. [118] He said he had a hand phone which he used and shared with his two sons. He could not remember the phone number except that it started with 012 under Maxis. He said he did not have nor used any other hand phone. He denied having or used a phone number 014-8594510 or 019-5398122. He said he did not talk on the phone number 019-5398122 and denied the contents of the telephone conversation set out in P472A-P472J. [119] He said there was a time when he received a phone call from Datu Piah and heard about a war. He said he felt angry and afraid because a war would affect everyone in Sabah. - 81 - [120] He said in 25.2.2013 he was sleeping in his quarters at Ladang Atlas when he was arrested together with his sons and son-in-law. He said the police seized his phone which contained a battery and SIM card. He said he could recognize his phone which was seized by the police. He identified P300C. He said when the phone was produced in court, the SIM card was missing. However, the SIM card was tendered as exhibit P300D via PW58 and PW63. Defence of the 6th appellant (16th accused) [121] He also produced his written confession to corroborate his testimony in court. At the time of his arrest, he was 58 years old and a fisherman by profession. He was from Sulu, Parang, in the Philippines. He said he is related to the Sultan but a distant relative. He came to Semporna in 1987 with his mother to visit family. He returned to the Philippines in 1990 but came back to Sabah in 1991 to work as a fisherman. [122] He said in 2007 Sultan Esmail and Datu Agbimuddin came to Sabah to discuss with the Malaysian Government on the rights of the Suluk people in Sabah. He said he was invited to meet Sultan Esmail and Datu Agbimuddin at Kg. Sri Aman, Semporna. They told him about the discussion with the Malaysian Government. He said if the discussion was successful, they would be given ICs and could legally stay and work in Sabah. - 82 - [123] He said in 2008 he was appointed as a Panglima by Sultan Esmail. However, he did not have any power or authority in Sabah and a Panglima is a community leader of the Suluk community. He said he was merely a Ketua Kampung of Kg. Selamat in Semporna. [124] He said he did not know Hj. Musa. Nor did he know about the intrusion at Kg. Tanduo and he was not at Kg. Tanduo when the intrusion took place. He said he did not have any hand phone and did not know how to use one. He denied that he had or used phone number 012-8284091. He denied the contents of the products of communication interceptions set out in P471A-P471J. [125] He said he was not known as Adu and did not use the name of Adu. He said he did not talk to Datu Agbimuddin on the phone at the material times. He said he did not use this phone number and did not talk on this phone number. He said there was a misunderstanding between the Sultan and Agbimuddin and that was the reason why Agbimuddin did not attend the discussion. Defence of the 7th appellant (18th accused) [126] He was a 63 year old Suluk from Jolo, Sulu in the Philippines. He said he came to Sandakan, Sabah by boat in 1982 together with his wife and children. They initially stayed at Kg. Bubul and then moved to Kg. Perigi, Semporna. Prior to his arrest he was a farmer. - 83 - [127] He said his grandfather was a Panglima of the Sultanate of Sulu and North Borneo. After his grandfather died, his father took over. In 2001 he was appointed a Panglima by Sultan Esmail Kiram die to his bloodline. He testified that in 2003 there was a misunderstanding between Sultan Esmail Kiram and Datu Agbimuddin and Datu Agbimuddin asked the Sultan to issue IDs to the Suluk people in the Philippines but the Sultan refused. He said Datu Agbimuddin then asked him to issue the IDs but he did not want to because the IDs could only be issued by the Philippines Government and he was afraid of being caught. He did not want to be involved in the misunderstanding between the two. [128] That was why according to him he left them and did not have any role after that. He said in 2010 he was appointed a Panglima by Sultan Muedzul-Lail Tan Kiram in Jolo. As a Panglima he was only a representative of the Suluk community in Semporna. He did not have work, office, salary or power as a Panglima. [129] He said in February, 2013 he was at home when he heard the news from the people that Datu Agbimuddin came to Sabah but was asked to leave Sabah. He also heard of the skirmishes at Kampung Tanduo and Kg. Simunul. He said he never went to Kg. Tanduo and he did not do anything because he was not involved. - 84 - [130] He said one day while he was sleeping in his house, the police came and arrested him, his wife and children. He said the police asked whether they had documents and he replied they did not have any and so they were arrested. He said the police did not seize anything from the house. [131] He said he did not have any mobile phone as he did not know how to use it. He said he did not know and did not use the phone numbers 012-8388304 and 012-8659270. He was referred to P475A to P475J and he denied that he made the conversations on these two phone numbers. The phone numbers were registered under the name of Jessica Sanchez and Abdul Said bin Jala. He said he did not know them. Defence of the 8th appellant (19th accused) [132] He was 69 years old at the time of the trial. He said he was a carpenter residing at Simpang Gua Madai, Kunak. He originated from Lapa, Maimbong, Jolo. In 1981 he came to Tawau, Sabah before moving to Kunak. He too tendered his confession to substantiate his testimony. [133] He said that in 2005 Sultan Esmail Kiram and the 20th accused came to Sabah to discuss with the Government of Malaysia on the status and welfare of the Suluk people in Sabah, in particular whether IC could be issued to them to enable them to legally stay and obtain employment in Sabah. - 85 - [134] He said he was not interested and did not want to be involved because he had to work to support his family. However, his friend by the name of Ali brought him to attend a meeting with the Sultan. He said he attended the meeting and he felt happy because he would be given IC and could work legally in Malaysia. [135] In 2007, he was appointed a Panglima for Kunak by the Sultan. In 2008, he was appointed the Maharaja. During his meeting with the Sultan, the Sultan told him not to follow any other Sultans who came to Sabah including his brother Raja Muda Agbimuddin. He testified that as a Panglima or Maharaja he had no duty or power and did not receive any salary. He said he was only a representative of the Suluk community in a particular area, like a Ketua Kampung. He was asked to give IDs to the Suluk people so that they could be identified as the Suluk people under the Sultan. He said the IDs were issued by a person by the name of Hassan Bacho whom the Sultan trusted in Semporna. [136] It was put to him that a Maharaja is higher in rank than a Panglima. He disagreed and explained that a Panglima is higher in rank and controlled a Maharaja. He explained that due to his work he was not able to fully perform his obligations as a Panglima and wanted to resign. He said the Sultan then appointed him as the Maharaja instead so that his responsibility would not be so heavy. - 86 - [137] He said he had never been to Kg. Tanduo and did not know where it was. He only heard about Kg. Tanduo in court. He said he heard that there were people who came to claim Kg. Tanduo but he did not do anything and was not involved with them. [138] He testified that on 1.3.2013 the police went to his house to ask him to produce his documents but he could not do so. He said he was then arrested. He said at that time there were twelve people in the house, four of them were his workers, four his children, two grandchildren, his wife and himself. [139] He said nine hand phones were taken by the police from the house. He used one of the phones with the number 017- 8664394. He bought the SIM card from a shop near to his house. He identified his phone in court which was tendered as P428C. He said three of the phones seized were used by his children, two by his workers and three of the phones were without batteries. [140] He said that after his arrest, he was told that there was fighting in Kg. Simunul and Kg. Tanduo between the people of Raja Muda Agbimuddin and the Malaysian security forces. He was referred to the summaries of telephone conversations in exhibits P474A-P474J. He said the phone number 014-6774273 did not belong to him and he did not make those telephone calls. - 87 - Defence of the 9th appellant (20th accused) [141] He was 53 years old at the time of the trial and is the son of Sultan Esmail Kiram II (deceased) of the Sultanate of Sulu and North Borneo. He has a Bachelor of Science in Agriculture and married PW165 in 1985 and has two sons from the marriage. He gave a brief account of the history and institutions of the Sulu Sultanate. He said there are five stars in the flag of the Sulu Sultanate which represent five regions under the Sultanate, one star symbolizes Sulu Tawi-Tawi, the second star for Basilan, the third for Zamboanga Peninsular, the fourth for Palawan and the last star represents North Borneo, now known as Sabah. [142] He said the government of the Sultanate of Sulu is made up of three divisions, namely the judiciary, the political and the military divisions. The judicial division consists of the Royal Council of Datus, the Rumah Bicara, the Imams and the Kadi who is the principal advisor to the Sultan. The political division consists of (i) the Panglima who is the Governor of a province or district and (ii) the Maharaja who is a mayor. However, he said that the Sultanate of Sulu now has no power and the people of Sulu considers the Sultan as a traditional and ecclesiastic leader whereas a Panglima is equivalent to a Ketua Kampung or community leader and a religious leader in that particular area. - 88 - [143] He said that the Royal Security Force (RSF) of the Sultanate of Sulu is its military division led by Datu Agbimuddin Kiram (deceased) who was the then Defence Minister and he himself was the Chief of Staff. The RSF was established after the installation of his father as the Sultan of Sulu to secure and preserve the security of the Sultan and the sovereignty of the Sultanate. [144] In 2001, his father was installed as the Sultan of Sulu and he assisted his father in his activities. After his father was installed as the Sultan, and pursuant to their law of succession and chronological age, Datu Agbimuddin automatically became the Crown Prince, the Defence Minister, the Chairman of the Royal Council of Datus and Chairman of the Rumah Bicara. He said Datu Agbimuddin being the Defence Minister led, controlled and managed the RSF of the Sulu Sultanate. [145] By virtue of his seniority, his brother Datu Phugdar was appointed the Chief of Staff of the RSF. The role of the Chief of Staff was to implement any military matter in respect of the RSF. He said he was appointed as the Chief of Staff by his father to replace his brother Datu Phugdar who was a school teacher with the Philippine Department of Education and could not perform dual positions. - 89 - [146] He said when he was appointed the Chief of Staff, he removed all the ranks of the RSF. He wanted to run it in a different manner so that they must abide by the command of the Sultan and to co-operate with the Philippines Government. He said Datu Agbimuddin did not agree with his implementations because Datu Agbimuddin complained that he did not have any background and experience in military affairs. Under the chain of command, he was to report to Datu Agbimuddin. Instead, he reported directly to his father because he and Datu Agbimuddin were ‘not compatible’ with regard to his implementations of the RSF. [147] He said the Sulu Sultanate did not intend to challenge the sovereignty rights of Malaysia as an independent country but is only concerned with their propriety rights over Sabah. He said Datu Agbimuddin told his father that his father had been fooled by the Government of Malaysia. He also said that Datu Agbimuddin wanted to take an aggressive approach to the Sabah issue and wanted to bring the RSF to Sabah to claim Sabah. He said Datu Agbimuddin wanted to appoint Hj. Musa as the Chief of Staff who was an ex-military man, retired from the intelligence unit of the Philippines army. Further, Hj. Musa is the cousin of the wife of Datu Agbimuddin and Hj. Musa’s son was married to the daughter of Datu Agbimuddin. - 90 - [148] He explained that this caused a split or misunderstanding between his father and his uncle. He said his father did not agree with his uncle to claim Sabah by force. His father wanted a peaceful approach to claim Sabah and therefore they distanced themselves from what Datu Agbimuddin wanted to do in claiming Sabah. [149] He said he first came to Malaysia in 2005. In September 2012, he went to Sabah by ferry because his father asked him to arrange for his father’s trip to Sabah. He met with the District Officer of Semporna to make the arrangements for his father. [150] In December 2012, his father came over to Sabah to discuss the Sabah issue and their claim to Sabah with ACP Zul. After the discussion, his father went back but he and his wife stayed on in Sabah. He testified that on 14.2.2013, Datu Naufal, his father’s cousin and his uncle, who lived in Kampung Likas, Kota Kinabalu called him on behalf of ACP Zul to tell him that the Malaysian Government required the presence of his father to talk to Datu Agbimuddin who had led a group of members of the RSF to occupy Kg. Tanduo to claim Sabah. He said he called his father who told him to represent his father in the negotiation because his father could not travel due to the typhoon season. [151] He said that on 15.2.2013 a person from the special branch by the name of Yusof fetched him from the house of Hajjah Asma - 91 - to go to Kg. Tanduo to talk to Datu Agbimuddin. He said Datu Piah happened to be at the house of Hajjah Asma and Datu Piah decided to follow. They stayed overnight at Felda Sahabat 16. On 16.2.2013 they entered Kg. Tanduo. [152] He said after the negotiation ended, Datu Agbimuddin took him to a room and advised him to convince their people to make problems in Semporna. He said he told Datu Agbimuddin that he respected his father’s decision for him not to be involved in anything which went against the Malaysian authorities. He said Datu Agbimuddin became angry with him and said that nobody could dictate to him, not even his father. [153] He was asked who were the members or followers of his father known to him in his position as the Chief of Staff of the RSF and he listed several names. He said he knew Timhar bin Habil (6th accused) who was an ex-bodyguard of his father. Timhar was employed from 2007 to 2009. In 2009 Timhar left and was hired by the Mayor of Jolo as a security officer. He said he only knew Habil bin Suhaili (5th accused) as the father of Timhar. [154] When Timhar left in 2009, he and his family would not come to their house anymore and there were some family issues. After that they did not see each other. They only met in prison here after they were all arrested. He said they (the family of Habil and Timhar) could not wait for the Sabah issue to be resolved. As - 92 - far as he knew, Timhar had transferred to Sultan Muedzul-Lail T Kiram who is his second cousin and the grandson of Sultan Esmail Kiram I. [155] He said Salib Akhmad bin Emali (15th accused) was appointed by his father as Panglima in Kg. Tungku, Lahad Datu. The last time they spoke to him was in 2012 in Kg. Sri Aman, Semporna when the 15th accused submitted the names of members under his father. He said his father would issue an identity card to these members so that they would be identified as members of the Sultanate of Sulu. [156] He went on to say that Al Wazir bin Osman (16th accused) was appointed by this father as Panglima in Kg. Selamat, Semporna. He said they saw each other sometimes because he stayed in the house of his cousin Hajjah Asma whose house was near Kg. Selamat. [157] Julham bin Rashid (19th accused) was appointed by his father as Panglima in Kg. Madai, Kunak. He said they did not meet because he did not usually come to the house as he was busy with his work. He said they only talked on their cellphones. [158] Tani Lahab bin Dahi (18th accused) was appointed as Panglima in 2001 in Sulu but he left in 2003. He said the 18th accused left because he could not wait for the Sabah issue to be resolved. He said the 18th accused transferred to Sultan Aranan - 93 - Puyu, who was one of the many claimants to the throne of the Sulu Sultanate. [159] He said his wife accompanied him wherever he went. Her role was only to take care of him and laundered his cloths when they were in Semporna and to serve drinks when they had visitors. [160] He was then asked whether it was true that his wife had specifically identified some of the accused as the followers of his father but who had left to follow Datu Agbimuddin and he replied it could not be true because she had no role with regard to the Sulu Sultanate and not the type to know the affairs of the members of his father. He said he did not know why she gave that kind of evidence and not giving the true evidence under oath in court. He said maybe she had been persuaded by the police to testify as such. He was asked and he said he did not know whether she was lying or not. [161] As can be seen, the defence put up by the nine appellants was, by and large, a total denial of their involvement in the intrusion at Kg. Tanduo, i.e. of waging war against the Yang di- Pertuan Agong. Despite the nature of the defence, the record at page 1383-1443 (60 pages) of the record of appeal shows that the learned judge proceeded to carefully and meticulously consider every aspect of the explanation put up by each of them and found that their denial could not be true. - 94 - [162] This is a finding of fact which an appellate court is loathe to interfere with. We have, in this regard, alluded to the relevant principles of law in Part I of this judgment and we do not wish to repeat them save to say that we found no valid reason to interfere with the finding of the learned trial judge. [163] Procedurally, the law is that if the nine appellants had chosen to remain silent when called upon to enter their defence to the charge under section 121 of the PC, the learned trial judge would have had no option but to convict them of the offences: (See Balachandran v. PP [2005] 1 CLJ 85 FC. In Junaidi bin Abdullah v. PP [1993] 4 CLJ 201) the then Supreme Court held as follows at page 206: “By calling an accused to enter his defence, the trial judge must on evaluation of the evidence, have been satisfied that the prosecution had, at the close of the prosecution's case, established a prima facie case which, if unrebutted, would warrant a conviction of the accused.” [164] This is consonant with section 180(4) of the Criminal Procedure Code which reads: “180(4) For the purpose of this section, 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.” (emphasis added) - 95 - [165] Thus, it is a requirement of the law that once a prima facie case has been established and the accused is called upon to enter his defence, he must rebut or explain the case already established against him by the prosecution, failing which his conviction is warranted. If he gives an explanation, it is up to the trial judge whether to accept or reject the explanation having regard to the evidence before the court. In the present case, the convictions of the appellants under section 121 of the PC were warranted as the learned trial judge rejected their explanation as not being reasonably and probably true. [166] Back to issue (i) raised by the appellants, i.e. the burden of proof. The appellants’ complaint was over the following pronouncements made by the learned trial judge in his grounds of judgment: As against the 1st, 4th, 10th and 13th accused “38.58 For these reasons, on a balance of probabilities, their explanations could not be true and the court could not accept the explanations given. Their explanations did not raise a reasonable doubt of their involvement in waging war against the King.” (emphasis added). - 96 - As against the 15th accused “40.18 For the reasons given, on a balance of probabilities, his testimony could not be true and had failed to raise any doubt on the prosecution’s case against him under s. 121 and s. 130KA of the Penal Code.” (emphasis added). As against the 18th accused “43.15. On a balance of probabilities and for the reasons given, the explanation of the 18th accused could not reasonably or probably be true and had failed to raise a doubt on the prosecution’s case made against him.” (emphasis added). As against the 19th accused “44.17. On a balance of probabilities and for the reasons given, the testimony of the 19th accused could not reasonably or probably be true and fai led to raise any doubt on the prosecution’s case against him.” (emphasis added). As against the 20th accused “37.41. On a balance of probabilities, his defence could not be true and his explanations that he was not - 97 - involved in waging war against the King or that he was not a member of a terrorist group could not be accepted which were against the weight of evidence. And for the same reasons he has also failed to raise any doubt on the prosecution’s case against him.” (emphasis added). [167] It was submitted that the learned trial judge misdirected himself by breaching the guideline laid down by Suffian J (as he then was) in Mat v. PP [1963] MLJ 263, which was in the following terms: “The position may be conveniently stated as follows:- (a) If you are satisfied beyond reasonable doubt as to the accused’s guilt Convict (b) If you accept or believe the accused’s explanation Acquit (c) If you do not accept or believe the accused’s Do not convict explanation but consider the next steps below (d) If you do not accept or believe the accused’s explanation and that explanation does not raise in your mind a reasonable doubt as to his guilt Convict (e) If you do not accept or believe the accused’s explanation but nevertheless it raises in your mind a reasonable doubt as to his guilt Acquit”. - 98 - [168] It was submitted that by using the term “on a balance of probabilities”, the learned judge had imposed on the appellants the legal burden of proving their defence on the balance of probabilities when their duty was merely to discharge their evidential burden of raising a reasonable doubt in the prosecution case. [169] It was urged upon us that in view of the misdirection, the proper order that this court should make was to acquit and discharge the appellants. It was submitted that an order of retrial would not be appropriate in the circumstances. Reliance was placed on the Federal Court case of Olier Shekh Awoyal v. PP [2017] 2 CLJ 141 where it was held that the proviso to section 92 of the Courts of Judicature Act 1964 (similar to section 60(1) of the same Act) was not applicable as there were no exceptional circumstances to warrant such an application where the wrong burden of proof had been applied by the learned trial judge. [170] In that case the learned trial judge had said this in dealing with the defence case: “Secara ringkas, landasan pembelaan OKT adalah bukan beliau yang melakukannya tetapi telah dilakukan oleh orang lain. Jika OKT dapat meyakinkan Mahkamah tentang kewujudan orang lain dalam bentuk keterangan maka OKT layak untuk dibebaskan. Mahkamah berpendapat semata-mata - 99 - “vague conjecture” atau inferen kemungkinan OKT tidak bersalah bukanlah reasonable doubt. Pihak pembelaan mestilah menunjukkan “hard evidence” yang kemudiannya boleh mewujudkan keraguan sehingga terputusnya elemen-elemen yang perlu dibuktikan.” [171] Other than that, the learned judge had also said: “Secara amnya, pada peringkat pembelaan, beban adalah di bahu pihak pembelaan untuk membawa keterangan atau keterangan pihak pembelaan mestilah mampu untuk menyangkal keterangan prima facie pihak pendakwaan. Dengan itu pihak pembelaan hanya perlu membangkitkan suatu keraguan yang munasabah atas imbangan kebarangkalian dalam pembelaannya.” [172] From these two passages, it is clear, as indeed found by the Federal Court, that the learned trial judge in that case had misdirected himself when he imposed on the accused the legal burden of proving his defence on the balance of probabilities. [173] The law is trite that in criminal cases, unless the accused has a legal burden to prove a particular fact, such as the burden imposed by section 103 illustration (b) or section 106 illustration (b) of the Evidence Act 1950, or to rebut a statutory presumption, the accused has no burden to prove or to disprove anything. He is entitled to an acquittal if his explanation succeeds in casting a - 100 - reasonable doubt in the court’s mind as to his guilt and this is so even where the court is not convinced of the truth of his explanation. [174] The distinction between legal and evidential burden of proof has been explained in the following terms by the Oxford Dictionary of Law (Seventh Edition): “A distinction is drawn between the persuasive (or legal) burden, which is carried by the party who as a matter of law will lose the case if he fai ls to prove the fact in issue; and the evidential burden (burden of adducing evidence or burden of going forward), which is the duty of showing that there is sufficient evidence to raise an issue fit for the consideration of the trier of fact as to the existence or nonexistence of a fact in issue.” [175] In Popple’s Canadian Criminal Evidence the following passages on burden of proof can be found at pages 416 and 417: “In a criminal case it is always the duty of the prosecution to prove the guilt of the accused “beyond reasonable doubt”. But the expression “burden of proof” has two aspects – (a) that of “establishing a case” (a matter of “law”); (b) that of “introducing evidence” (a matter of “procedure”). The onus of “establishing a case” against the accused rests upon the Crown throughout the trial. It must prove every “essential ingredient” of the crime. But the burden of “introducing evidence” will be satisfied by the production of evidence which, if unanswered and - 101 - believed, raises a “prima facie” case upon which the jury might be justified in finding a verdict. And where the Crown has established such facts as without more will justify the jury in finding the accused “guilty”, he is not entitled to an “acquittal” unless he does satisfy the burden which is then cast upon him of introducing evidence, but the extent of that evidence is not to prove his innocence or honesty but merely to raise a “reasonable doubt” in the minds of the jury as to his guilt. And where an onus is placed upon him by statute to establish his innocence or some other fact, the extent of that onus is only to satisfy the jury of the “probability” of that which he is called upon to establish, for he is not required to prove any fact “beyond reasonable doubt”. [176] The question before us was whether the learned trial judge had imposed on the appellants the legal burden of proving, on the balance of probabilities, that they were not guilty of the offences charged. If he did, then he would have fallen into the same error that the learned trial judge in Olier Shekh Awoyal (supra) had fallen into. [177] The first thing to note with regard to this issue is that the learned trial judge did not say that the appellants had a legal burden to prove their innocence. He said nothing close to what the learned trial judge in Olier Shekh Awoyal had said. Nowhere in the judgment did he say that the burden was on the appellants to prove their defence. What the learned judge said was, on the - 102 - balance of probabilities, the appellants’ explanation could not reasonably or probably be true. He then went on to say, most importantly, that their explanation failed to cast any doubt in the prosecution case. [178] In the manner that the issue was raised before us, the pertinent question to ask is this: What was the context in which the learned judge used the term “on a balance of probabilities”? Was he imposing a legal burden of proof on the appellants to prove their innocence, or was he merely weighing the reasonable probabilities of the case? [179] We have gone through the grounds of judgment carefully and we were unable to say with conviction that in using the term “on a balance of probabilities”, the learned judge was imposing on the appellants the legal burden of proving that they did not commit the offences charged. It was clear to us that in using the term, the learned judge was merely weighing the probabilities of the case. This is clear from the fact that right after saying that the appellants’ explanation could not, “on a balance of probabilities”, reasonably or probably be true, he went on to say that the appellants’ explanation did not raise a reasonable doubt in the prosecution’s case. The learned judge had also said that on the totality of the evidence adduced, the prosecution had proved its case beyond reasonable doubt. - 103 - [180] The learned judge further made it clear that he did not accept or believe the appellants’ explanation, nor did the explanation cast any doubt in his mind as to the guilt of the appellants. He was in fact applying paragraph (d) of the guideline laid down in Mat v. PP (supra). He cannot therefore be said to have offended the ground rules as laid down in that case. We found nothing in the judgment, read as a whole, to suggest that the learned trial had imposed on the appellants the legal burden of proving their innocence on the balance of probabilities. [181] What is also clear from the grounds of judgment is that the term “on a balance of probabilities” was used by the learned judge after he had meticulously assessed and evaluated the entire evidence to determine whether the appellants’ explanation could reasonably or probably be true. In the end, he found the appellants’ explanation be untrue and failed to cast any doubt in the prosecution case. [182] As we mentioned earlier, the defence put up by each of the appellants was that they were not involved in the intrusion at Kg. Tanduo. In determining whether the denial was credible and whether it had succeeded in casting a reasonable doubt in the prosecution case, it was certainly necessary for the learned judge, as a trier of fact, to test their evidence against the rest of the evidence and the probabilities of the case. This was to determine - 104 - whether their explanation could, in the words of the learned judge, “reasonably or probably be true”. He was not using the words “on a balance of probabilities” in the context of a legal burden of proof. [183] The principle is that in determining whether an accused person had succeeded in casting a reasonable doubt in the prosecution case, the trial judge is bound to consider the reasonable probabilities of the case and to disregard fanciful possibilities, regard being had to the totality of the evidence, and this includes the defence put up by the accused. That was exactly what the learned trial judge in this case did and this is the context in which the term “on a balance of probabilities” that the learned judge used must be understood. It was a rather unfortunate choice of words but to suggest that the learned judge had applied the wrong burden of proof is incorrect. [184] At the risk of repetition, it needs to be emphasized that in all those passages where the learned judge used the term “on a balance of probabilities”, he concluded by saying that the appellants failed to raise any doubt in the prosecution’s case. Taken in its proper context, it was in fact a finding by the learned judge that the prosecution had proved its case beyond reasonable doubt, without imposing on the appellants the burden of proving their defence on the balance of probabilities. - 105 - [185] We would agree with learned counsel’s contention if the learned judge had used the term “on a balance of probabilities” without directing his mind at all to the question whether the appellants had succeeded in raising a reasonable doubt in the prosecution case. But that was not the case here. We therefore found no merit in issue (i) raised by the appellants. Issue (ii) - The guilty plea [186] We now come to issue (ii) raised by the appellants. The complaint was that the learned trial judge was wrong to rely on the guilty pleas of the 1st, 4th, 10th and 13th accused to the offence under section 130KA of the PC in considering whether all nine accused were guilty of the offence under section 121 of the PC. We were referred to the following pronouncements by the learned judge: “38.42. As stated above, after a maximum evaluation of the evidence at the end of the prosecution’s case. I have found that the prosecution had made out a prima facie case against these accused for waging war against the King and as members of a terrorist group. They were called to enter their defence. 38.43. At the commencement of the defence these four accused together with the 2nd, 3rd and 14thaccused decided to change their plea to the charge under s. 130KA of the Penal Code. They had pleaded - 106 - guilty to the charge under s. 130KA of the Penal Code that they were members of a terrorist group. 38.44. These confirmed my findings that they were members of a terrorist group, namely being members of the RSF of the Sultanate of Sulu and North Borneo which came to claim Sabah to belong to the Sultanate of Sulu and North Borneo by force. These contradicted their explanations that they were not the armed intruders or that they did not associate with the armed intruders or they were not members of the RSF. These also contradicted their testimonies that they came with promises of offers of jobs and IC but found out that they were cheated and guarded by the armed men and tried to run away. “38.54. The fact that they had pleaded guilty to being members of the terrorist group had contradicted their claims that they were innocent or their purpose for coming to Sabah or that they had been cheated by Datu Agbimuddin, Hj. Musa or Herman in coming to Sabah.” [187] It was submitted that the learned judge had wrongly interpreted the significance of the evidence given by and on behalf of all nine accused. Reference was made to Mohd Amin bin Mohd Razali & Ors v. PP [2003] 4 MLJ 129 where it was held by the Federal Court that in determining whether an accused person had committed an offence under section 121 of the PC, the following factors need to be taken into account: - 107 - (i) No specific number of persons is necessary to constitute an offence under section 121 of the PC; (ii) No actual fighting is necessary to constitute the offence. Enlisting, marching and making preparation without coming to battle are sufficient; (iii) The manner in which they are equipped or armed is not material; (iv) There is no distinction between principal and accessory and all who take part in the unlawful act incur the same guilt; and (v) The offence is a continuing offence and any person can be guilty of the offence at any point of time of his involvement provided such person is aware that the object or purpose for which the gathering had assembled is to stage an insurrection or to challenge the Government’s authority. [188] Particular emphasis was placed on factor (v) above to support the argument that the prosecution must prove mens rea on the part of all nine accused, i.e. that they knew that their presence in Kg. Tanduo was to wage war against the Yang di- Pertuan Agong or to claim Sabah. - 108 - [189] It was argued that since the prosecution was required to prove mens rea on the part of all nine accused in proving the offence under section 121 of the PC, the learned judge should not have allowed his mind to be influenced by the guilty pleas of the 1st, 4th, 10th and 13th accused to the offence under section 130KA of the PC. It was contended that by doing so, the learned judge had allowed his mind to be clouded by irrelevant factors in considering whether the offence under section 121 of the PC had been proved against all nine accused. [190] Now, the undisputed fact is that all nine appellants were charged with both the offence under section 121 and the offence under section 130KA of the PC. It is true that only the 1st, 4th, 10th and 13th accused pleaded guilty to the offence under section 130KA of the PC while the 15th, 16th, 18th, 19th and 20th accused did not, but what needs to be borne in mind is that the offence under section 130KA (of being members of a terrorist group) was inextricably linked to the offence of waging war against the Yang di-Pertuan Agong under section 121 of the PC with respect to which all nine accused were charged with. [191] It is not as if the evidence relating to the offence under section 130KA of the PC had no nexus whatsoever with the evidence relating to the offence under section 121 of the Code. The fact is, the two offences were committed by all nine appellants - 109 - in the same transaction, within the same time frame, i.e. between February 9 and March 23, 2013 and were both committed in furtherance of their common object of waging war against the Yang di-Pertuan Agong. [192] Given the fact that the offence under section 130KA of the PC was inextricably linked to the offence under section 121 of the same Code, with which all nine appellants were charged, clearly the guilty pleas of the 1st, 4th, 10th and 13th accused under section 130KA (being members of a terrorist group) were relevant for the learned judge to determine whether there was any truth to their defence (to the charge under section 121 of the PC) that they were not the armed intruders, that they were not members of the RSF, that they only came to Sabah for jobs, and that they had been cheated by Datu Agbimuddin, Hj. Musa or Herman. [193] In any event, the learned trial judge had considered appellants’ defence separately and had made separate findings as to their guilt under section 121 of the PC. It would therefore be incorrect in the circumstances to say all nine accused had been prejudiced by the learned judge’s reference to the guilty pleas of the 1st, 4th, 10th and 13th accused in finding them guilty under section 121 of the PC. [194] No authority was cited by learned counsel for his proposition that the guilty plea of a co-accused to a different - 110 - offence but committed in the same transaction as the offence with which they are jointly charged cannot be used against the other accused. With due respect to the learned counsel, we do not think that is a correct statement of law applicable to the peculiar facts and circumstances of the present case. In the premises, we do not think any valid criticism can be leveled at the learned judge for referring to the guilty pleas of the 1st, 4th, 10th and 13th accused. [195] Learned counsel for the appellants also took umbrage at the following statements by the learned judge: “38.40. Although they had a copy of their confessions, they chose not to produce them at the earliest opportunity or tender them during the prosecution’s case to explain that they were cheated or that they were not members of a terrorist group or that they did not wage war against the King. If they did, they might have raised doubts on the prosecution’s case against them at that stage.” [196] It was submitted that this remark shows that the learned trial judge had given weight to the confessions of the appellants (which were recorded during the police investigation), and that he had in fact entertained doubts on the truth of the prosecution’s evidence. This according to learned counsel, begged the question: If the confessions were capable of raising a doubt in the prosecution’s case against the appellants, does it mean that they were incapable of raising a doubt if the confessions were tendered - 111 - at a later stage of the trial, bearing in mind the defence was not an afterthought? [197] We found no merit in the complaint. In the first place, the learned judge did not say that the confessions had cast doubts in his mind as to the truth of the prosecution case. He was merely saying that the confessions might have raised doubts in the prosecution case had they been tendered during the prosecution stage of the case. [198] Nor can the statements be construed to mean that the learned judge had made up his mind that the confessions were incapable of raising a doubt in the prosecution’s case for the reason that they were tendered at the defence stage of the case instead of the prosecution stage. It was for the learned trial judge to weigh all the evidence before him before coming to his ultimate finding of guilt or otherwise. For this purpose, it was incumbent on him to take into consideration the confessions which were tendered as evidence during the course of the defence case. [199] As for learned counsel’s contention that the prosecution needed to prove mens rea on the part of the appellants, i.e. that they knew that their presence in Kg. Tanduo was to wage war against the Yang di-Pertuan Agong or to claim Sabah, the proved facts speak for themselves. There can be no doubt whatsoever that the purpose of the armed intrusion was to claim Sabah by - 112 - force. This was clearly an act of waging war against the Yang di- Pertuan Agong. Having regard to what transpired before, during and after the intrusion, it is the height of naivety to suggest that the appellants did not know what their purpose was in coming to Sabah. [200] For these reasons, we found not merit in issue (ii) raised by the appellants. Issue(iii) – Communication interception [201] This ground of appeal only concerns the 15th, 16th, 18th, 19th and 20th accused whilst the 1st, 4th, 10th and 13th accused had no issue with the intercepted communication evidence as it was not raised in their petitions of appeal. By virtue of section 53(2) of the Courts of Judicature Act 1964, they were precluded from raising the issue without leave. This section reads: “(2) Every petition of appeal shall be signed by the appellant or his advocate and shall contain particulars of the matters of law or of fact in regard to which the High Court is alleged to have erred, and, except by leave of the Court of Appeal, the appellant shall not be permitted on the hearing of the appeal to rely on any ground of appeal other than those set out in the petition.” (emphasis added) - 113 - [202] Nevertheless, we have, in fairness to the 1st, 4th, 10th and 13th accused, considered the issue in considering their appeals: PP v. Jitweer Singh Ojagar Singh [2014] 1 CLJ 433 (FC). As for the 5th, 6th, 7th, 8th and 9th appellants, their common ground of appeal on this issue was as follows: “The learned High Court erred in law when the Learned Trial Judge held that it was not mandatory to fill in or complete Paragraph 4 Part C in the communication interception application forms under the First Schedule [Regulation 2] of the Security Offences (Special Measures) (Interception of Communications) Regulations 2012.” [203] It is obvious that the attack was on the procedural defect in the interception process. The appellants’ contention was that the intercepted communications should not have been admitted in evidence as there was failure to comply with the requirements of the First Schedule [Regulation 2] to the Security Offences (Special Measures) (Interception of Communications) Regulations 2012. [204] In their petitions of appeal, the appellants reproduced those parts of the judgment which they alleged were erroneous in law, and they were the following: “12.19. Reading s. 6 of the Act which states that notwithstanding any other written law, this includes Regulations 2012, the discretion is on the PP to decide whether the communication interception is - 114 - likely to contain any information relating to the commission of a security offence. When such an application is made to PP, the application or basis for the application is not provided to the court and it is not in a position to assess and determine whether the communication interception is likely to contain any such information relating to the commission of a security offence. 12.20. The courts have consistently held that legislations for the prevention and detection of terrorism are valid and legal subject to safeguards on intruding individual liberty and the risk of arbitrary misuse of power: 1 see Beghal v Director of Public Prosecutions [2015] 3 WLR 344. The provisions of s. 6 of SOSMA should be construed in accord with its intended purposes. It has been held that where national security is involved the ordinary principles of natural justice are modified for the protection of the realm: R v Home Secretary, Ex parte Hosenball [1977] 1 WLR 766. It is also for the executive and not the courts to decide whether, in any particular case, the requirements of national security outweigh those of fairness: Council of Civil Service Unions & Others v. Minister for the Civil Service [1985] 1 A.C. 374. 12.21. Further, it has been held that the court is not concerned with how the evidence is obtained. Even if it is illegally obtained, it is admissible provided it is relevant: Kuruma v. The Queen [1955] AC 197; Public Prosecutor v. Gan Ah Bee [1975] 2 MLJ 106. - 115 - 12.22. For the reasons given, it was not mandatory to fill or complete section 5.4 of the form before the interception could be carried out.” [205] The power to intercept communication is provided by section 6 of SOSMA, which provides as follows: “6. POWER TO INTERCEPT COMMUNICATION (1) Notwithstanding any other written law, the Public Prosecutor, if he considers that it is likely to contain any information relating to the commission of a security offence, any authorize any police officer or any other person- (a) to intercept, detain and open any postal article in the course of transmission by post; (b) to intercept any message transmitted or received by any communication; or (c) to intercept or listen to any conversation by any communication. (2) The Public Prosecutor, if he considers it is likely to contain any information relating to the communication of a security offence, may – (a) require a communications service provider to intercept and retain a specified communication or communications of a specified description received or transmitted, or about to be received or transmitted by that communications service provider; or - 116 - (b) authorize a police officer to enter any premises and to install on such premises, any device for the interception and retention of a specified communication or communications of a specified description and to remove and retain such evidence. (3) Notwithstanding subsection (1), a police officer not below the rank of Superintendent of police may – (a) Intercept, detain and open any postal article in the course of transmission by post; (b) Intercept any message transmitted or received by any communication; or (c) Intercept or listen to any conversation by any communication, Without authorization of the Public Prosecutor in urgent and sudden cases where immediate action is required leaving no moment of deliberation. (4) If a police officer has acted under subsection (3), he shall immediately inform the Public Prosecutor of his action and he shall be deemed to have acted under the authorization of the Public Prosecutor. (5) The court shall take cognizance of any authorization by the Public Prosecutor under this section. (6) This section shall have effect notwithstanding anything inconsistent with Article 5 of the Federal Constitution. - 117 - (7) For the purposes of this section – “communication” means a communication received or transmitted by post or a telegraphic, telephone or other communication received or transmitted by electricity, magnetism or other means; “communications service provider” means a person who provides services for the transmission or reception of communications.”. [206] A rightly pointed out by learned counsel for the appellants, there are two types of communication interception, one under section 6(1) and the other under section 6(3) of SOSMA. Information that is required to be given in an application for communication interception is regulated by section 31 of SOSMA. For communication interception under 6(1), the requirements of the First Schedule of the Regulations have to be followed and for communication interception under section 6(3) of SOSMA, the requirements of the Second Schedule of the Regulations have to be followed. [207] Section 2 of the Regulations states that any police officer applying for authorization under section 6(1) shall submit a written application which shall contain information as specified in the First Schedule. It was submitted that this is a mandatory requirement as intended by Parliament. - 118 - [208] On the admissibility in evidence of intercepted communication, section 24 of SOSMA provides as follows: “24 ADMISSIBILITY OF INTERCEPTED COMMUNICATION AND MONITORING, TRACKING OR SURVEILLANCE INFORMATION (1) Where a person is charged for a security offence, any information obtained through an interception of communication under section 6 whether before or after such person is charged shall subject to subsection (2), be admissible at his trial in evidence. (2) The information obtained through an interception of communication under section 6 shall only be admissible where tendered under a certificate by the Public Prosecutor stating that the information so obtained had been authorized by the Public Prosecutor. (3) A certificate by the Public Prosecutor issued under subsection (2) together with any document or thing may be exhibited or annexed to the certificate shall be conclusive evidence that the interception of communication had been so authorized, and such certificate shall be admissible in evidence without proof of signature of the Public Prosecutor. (4) No person or police officer shall be under any duty, obligation or liability or be in any manner compelled to disclose in any proceedings the procedure, method, manner or the means or devices used with regard to- (a) anything done under section 6; and (b) any matter relating to the monitoring, tracking or surveillance of any person. - 119 - (5) The information obtained through an intercepted communication under section 6 may be in narrative or verbatim form whether in the original language or as a translation into the national language or the English language.”. [209] It was submitted that the learned judge erred in interpreting the intended purpose of section 6 of SOSMA and the Regulations. It was argued that under the First Schedule (Regulation 2) to the Regulations, it is plain that all information shall be filled in except in circumstances where it expressly states that such information is only “if applicable”. For instance, under Part A, Paragraph 2(f) and 2(g). We reproduce below Regulation 2 of the First Schedule. “FIRST SCHEDULE [Regulation 2] INFORMATION FOR APPLICATION FOR AUTHORISATION TO INTERCEPT COMMUNICATION UNDER SUBSECTION 6(1) OF THE ACT PART A: DETAILS OF APPLICATION AND PERSON, POSTAL OR TELECOMMUNICATION OR INTERNET SERVICE PROVIDER WHOSE COMMUNICATION IS REQUIRED TO BE INTERCEPTED 2. Particulars of the person, postal or telecommunication or internet service provider, if known whose communication is required to be intercepted: (a) name (b) address - 120 - (c) telephone number (d) fax number (e) e-mail address (f) company/business registration number (if applicable) (g) registered address (if applicable) (h) address of operating office (if different from registered address) (i) contact person.”. (emphasis added) [210] It was submitted that if paragraph 5.4 (“the basis for believing that the evidence relating to the ground on which the application will be obtained through interception”) is not a mandatory requirement or such information is unnecessary or negligible, Parliament would have added “if applicable” at the end of the paragraph. Since this was not done, it was submitted that this information is mandatory in the communication interception application forms. [211] It was argued that the information required in section 5.4 would not in any way threaten the national security as demonstrated in R v. Home Secretary, Ex Parte Hosenball [1977] 1 WLR 766. It was submitted that the information required under section 5.4, i.e. Paragraph 4 Part C was merely to - 121 - demonstrate that the police had no other means to get information but by the communication interception. [212] We were invited to examine section 24 of SOSMA before and after amendments. It was pointed out that under the new amendments, section 24(4)(a) of SOSMA states that “no person or police officer shall be under any duty, obligation or liability or be in any manner compelled to disclose in any proceedings the procedure, method, manner or the means or devices used with regard to anything done under section 6”. [213] It was further submitted that the principles of natural justice can be modified in cases involving national security but in this instance where Parliament had used the clear and unambiguous word “shall”, it must mean that such information is compulsory for a communication interception application under section 6(1) of SOSMA. To hold otherwise would be to contradict section 2 of the Regulations as well as Paragraph 2(f) and 2(g) of Part A. In the circumstances, it was submitted that all communication interception applications that had been referred to PW128 by PW49 were defective and all the authorisations that had been given were consequently null and void. [214] It was submitted that the learned judge failed to critically evaluate the oral testimonies given by the processors and the investigating officer (PW158) with the oral testimony given by the - 122 - defence witness (DW6) which clearly demonstrated that there was a serious doubt as to the authenticity of the summaries of the intercepted communications. [215] We have gone through the grounds of judgment carefully and we were not persuaded that the learned trial judge had mishandled the issue of interception of communications as alleged. In fact the learned judge had dealt with the issue admirably and we can do no better than to reproduce verbatim what he said in full below, parts of which we have reproduced earlier in this judgment: “12.9. I shall deal with these. Regulation 2 states that any police officer intending to apply for authorization from the Public Prosecutor under subsection 6(1) of the Act shall submit a written application in the form as provided by the Public Prosecutor which shall contain information as specified in the First Schedule. The form in the First Schedule contains three parts. Part A states ‘Details of applicant and person, postal or telecommunication or internet service provider whose communication is required to be intercepted’. Part B states ‘Grounds for application’ and Part C states ‘Particulars of all facts and circumstances al leged by the applicant in support of the application’. 12.10. Paragraph 4 Part C states ‘The basis for believing that evidence relating to the ground on which the application is made will be obtained through the interception’. The defence had submitted that this - 123 - requirement is mandatory and failure to comply with this requirement would void the application and or the authorization of the PP. The evidence showed that paragraph 4 of Part C was left blank in all the applications for authorization to intercept communication under s.6(1). The court had to decide whether it was mandatory. 12.11. Under s.6(7) of SOSMA, “communication” means a communication received or transmitted by post or a telegraphic, telephonic or other communication received or transmitted by electricity, magnetism or other means and “communications service provider” means a person who provides services for the transmission or reception of communications. The ‘communication service provider’, in the context of this trial, would include Telekom Malaysia, Celcom, Maxis and Digi. 12.12. S.6 provides three modes or procedures under subsections (1), (2) and (3) for communication interception to be carried out in relation to the commission of a security offence. 12.13. S.6(1) states that notwithstanding any other written law, the PP, if he considers that it is likely to contain any information relating to the commission of a security offence, may authorize any police officer – (a) to intercept, detain and open any postal article in the course of transmission by post; (b) to intercept any message transmitted or received by any communication; or - 124 - (c) to intercept or listen to any conversation by any communication. 12.14. Under subsection (2), the PP may (a) require a communications service provider to intercept and retain a specified communication or to be received or transmitted by that communications service provider or (b) authorize a police officer to enter any premises and to install any device for the interception of a specified communication. 12.15. Under s.6(3), in urgent and sudden cases where immediate action is required leaving no moment of deliberation, a police officer not below the rank of Superintendent of Police may intercept including to listen to any conversation by any communication. Under s.6(4) such police officer who has acted under subsection (3) shall immediately inform the PP of his action and he shall then be deemed to have acted under the authorization of the PP. Under Rule 3 of the Regulations, the police officer shall submit a written report to PP containing information as specified in the form in the Second Schedule of the Regulations in respect of the communication interception carried out. 12.16. Regulations 2012 provide for an application to PP for authorization to intercept communications under s.6(1) of the Act whereas s.6(3) only requires a police officer to report to PP after he has intercepted communications in urgent and sudden cases. The Regulations do not provide for or silent on an application for authorization under s.6(2) of the Act - 125 - and the form under the First Schedule only refers to s.6(1) but not to s.6(2) of the Act although Part A of the form refers to postal or telecommunication or internet service provider whose communication is required to be intercepted. It was apparent that there was a lacuna in the Regulations. 12.17. Comparing the form under the First Schedule and the application forms used in this case, for example P235 (IDD43) and P236 (IDD44), there are differences. The forms used i.e. P236 inserted new sections which are not in the form prescribed by the First Schedule. Probably it was an attempt to remedy the lacuna. 12.18. Although paragraph 5.4 of the application forms was left blank in Part C, the police had given the reasons for the applications in these two documents (P235 and P236) used. These formed the basis for believing that evidence relating to the ground on which the applications were made would be obtained through the interceptions. It should be emphasized that there was no requirement to set out the basis for believing that evidence relating to the ground on which the application was made would be obtained through the interception under s.6(3) of the Act for the interception to be carried out. A report would be made after the interception. 12.19. Reading s.6 of the Act which states that notwithstanding any other written law, this includes Regulations 2012, the discretion is on the PP to decide whether the communication interception is likely to - 126 - contain any information relating to the commission of a security offence. When such an application is made to PP, the application or basis for the application is not provided to the court and it is not in a position to assess and determine whether the communication interception is likely to contain any such information relating to the commission of a security offence. 12.20. The courts have consistently held that legislations for the prevention and detection of terrorism are valid and legal subject to safeguards on intruding individual liberty and the risk of arbitrary misuse of power: 1 see Beghal v Director of Public Prosecutions [2015] 3 WLR 344. The provisions of s.6 of SOSMA should be construed in accord with i ts intended purposes. It has been held that where national security is involved the ordinary principles of natural justice are modified for the protection of the realm: R v Home Secretary, Ex parte Hosenball [1977] 1 WLR 766. It is also for the executive and not the courts to decide whether, in any particular case, the requirements of national security outweigh those of fairness: Council of Civil Service Unions & Others v Minister for the Civil Service [1985] 1 A.C. 374. 12.21. Further, it has been held that the court is not concerned with how the evidence is obtained. Even if it is illegally obtained, it is admissible provided it is relevant: Kurana (sic) v The Queen [1955] AC 197; Public Prosecutor v Gan Ah Bee [1975] 2 MLJ 106. - 127 - 12.22. For the reasons given, it was not mandatory to fill or complete section 5.4 of the form before the interception could be carried out.” [216] We fully agree with the learned judge. In the circumstances, we likewise found issue (iii) raised by the appellants to be without merit. [217] Before we conclude on the issue of liability, both in the acquittal and conviction of the respective accused of the respective charges preferred against them, we must say that the learned trial judge had given adequate consideration to the evidence in its totality. The learned trial judge had delivered a well- reasoned judgment which accounted for all the proved facts as discussed in Parts I and II of this judgment. We could not detect any misappreciation of the facts or of any misdirection on the law by the learned trial judge serious enough to vitiate the judgment. The learned trial judge had covered all the substantial issues raised by the parties. We must bear in mind that no judgment can ever be perfect and all-embracing. As stated in the South African case of S v. Noble 2002 NR 67 (HC): “[No] judgment can ever be “perfect and all embracing, and it does not necessarily follow that, because something has not been mentioned therefore it has not been considered”. (See S v Dee Beer 190 Nr 379 (HC) at 381 – J quoting from S v Pillay, 1977 (4) - 128 - SA(a) at 534H – 535G and R v Dhlumayo and Others, 1948 (2) SA 677 (A) at 706)… ” PART III – THE PROSECUTION’S APPEAL AGAINST SENTENCE [218] We now proceed to deal with the appeal by the PP against the sentence of life imprisonment imposed by the learned judge on the nine accused (respondents in this appeal by the PP) who had been convicted under section 121 of the PC. A conviction under section 121 of the PC carries with it two penalties in the alternative, death or life imprisonment, and a third sentence that if death penalty is not pronounced, a convicted person shall be liable to a fine. In sentencing all nine accused to life imprisonment, the learned trial judge held as follows: “47.15. I refer to the Indian Supreme Court’s case of Machhi Singh v State of Punjab 1983 AIR 957 where it ruled that “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 life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances.” It went on to say that the extreme penalty of death need not be inflicted except in gravest cases of extreme culpability. - 129 - 47.16. In Amin’s case (supra), three of the accused were sentenced to death because they were the leaders and masterminds of the Al-Ma’unah group which waged war against the King under s.121 of the Penal Code. These three accused also led and were involved in the attack and exchange of fire with members of the security forces and tortured four persons, two of whom were later brutally killed at Bukit Jenalik. The other accused persons in that case who were also convicted for the offence under s.121 of the Penal Code were sentenced to life imprisonment. They were not the masterminds but only followers. The learned trial judge (as he then was) said that in exercising his discretionary powers, it was the only choice of sentence that he could pass on them under s.121. 47.17. On appeal, the Federal Court overturned the life imprisonment imposed on the 5th accused in that case because he had shot Trooper Matthew in cold blood and his disregard for human life: see [2003] 4 MLJ 129. 47.18. In this case, similarly, it is onerous task in exercising its discretion in passing sentence under section 121 of the Penal Code. Although the 20th accused is the Chief of Staff of the RSF whereas the 15th , 16th, 18th and 19th accused are the Pangl ima of the RSF of the Sultanate of Sulu and North Borneo and that some of the other accused had occupied Kg. Tanduo to claim Sabah by force and they had waged war against the King, on the evidence adduced, the key persons in the intrusion were Datu Agbimuddin, Hj Musa and Herman who actively recruited the members - 130 - to come to claim Sabah by force and in waging war against the King. 47.19. There was no evidence that any of these accused were personally involved in the skirmishes or had pulled the trigger in the exchanges of fire with the security forces which resulted in casualties in Kg. Tanduo or in Kg. Simunul. 47.20. There was no evidence that any of them had killed the police and army personnel who were ki l led during the skirmishes. There was no evidence that they had done so in cold blood. There was no evidence that they had personally injured the personnel who were injured during the skirmishes. 47.21. In passing sentence I have taken into consideration the sentencing principles, the facts and circumstances of the case, their role and involvement, the penalty prescribed and their mitigations. I bear in mind that the victims had suffered and badly affected by the intrusion. I also bear in mind that the prosecution chose not to call them to give their victims’ impact statements in this case. 47.22. In my view, the sentence of life imprisonment is adequate based on the facts and circumstances of this case, in particular on their role and involvement, and bearing in mind that they will be in prison for the rest of their life. This should send a strong message to others not to commit a similar offence.” - 131 - [219] It would appear that learned trial judge’s decision to impose the life imprisonment sentence instead of the death penalty was mainly influenced by the following considerations: (i) The ‘rarest of the rare’ doctrine; and (ii) The roles played by all the nine accused. [220] The learned Deputy Public Prosecutor (“DPP”) submitted that the sentence imposed by the High Court was manifestly inadequate considering the severity of the offence committed and that the national security had been put at stake. The learned DPP posited that this particular case falls under the bracket of the ‘rarest of the rare cases’. All the nine accused are foreigners. Their action was an act of gross aggression against a sovereign nation. They challenged the security forces and showed no remorse nor indication that they would surrender when given the opportunity to leave the country peacefully. It was the prosecution’s submission that the case of Mohd Amin is distinguishable from the facts of the present case. [221] Learned counsel for the nine accused, in his reply, submitted that the adequacy or inadequacy of sentence imposed on the accused must take into account the roles that they played, as propounded in the Federal Court case of Mohd Amin. Based on the facts of the case, it was pointed out that all nine accused were not personally involved in the skirmishes. It was submitted - 132 - that the extreme penalty of death should be reserved for the actual perpetrators of the intrusion. Learned counsel cited the Indian Supreme Court judgments in Bachan Singh v. State of Punjab 1983 AIR 957 and Machhi Singh v. State of Punjab AIR 1980 SC 898 in support of the proposition that the death penalty should only be imposed in the rarest of rare cases. [222] In the case of Mukesh & Anor v State of NCT of Delhi & Ors (Criminal Appeal Nos: 609-610 of 2017), the Indian Supreme Court observed: “116. Question of awarding sentence is a matter of discretion and has to be exercised on consideration of circumstances aggravating or mitigating in the individual cases. The courts are consistently faced with the situation where they are required to answer the new challenges and mould the sentence to meet those challenges. Protection of society and deterring the criminal is the avowed object of law. It is expected of the courts to operate the sentencing system as to impose such sentence which reflects the social conscience of the society. While determining sentence in heinous crimes, Judges ought to weigh its impact on the society and impose adequate sentence considering the collective conscience or society’s cry for justice. While considering the imposition of appropriate punishment, courts should not only keep in view the rights of the criminal but also the rights of the victim and the society at large. https://www.lawkam.org/society/ - 133 - 117. In State of M.P. v Munna Choubey and Anr. [2005] 2 SCC 710, it was observed as under: “10. Therefore, undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc. This position was illuminatingly stated by this Court in Sevaka Perumal v. State of Tamil Naidu [1991] SCC 471).” 118. In Jashubha Bharatsinh Gohil and Ors v. State of Gujarat [1994] 4 SCC 353, while upholding the award of death sentence, this Court held that sentencing process has to be stern where the circumstances demand so. Relevant extract is as under: “12 … The courts are constantly faced with the situation where they are required to answer to new challenges and would the sentencing system to meet those challenges. Protection of society and deterring the criminal is the avowed object of law and that is required to be achieved by imposing appropriate sentence. The change in the legislative intendment relating to award of capital punishment notwithstanding, the opposition by the protagonist of abolition of capital sentence, shows that it is expected of the courts to so operate the sentencing - 134 - system as to impose such sentence which reflects the social conscience of the society. The sentencing process has to be stern where it should be.” [223] Before we proceed to examine the merits of the prosecution’s appeal, it is necessary to discuss the legalese of the matter. The “rarest of the rare” doctrine has its origin in the Indian Supreme Court case of Bachan Singh v. State of Punjab AIR 1980 SC 898, where it upheld the constitutional validity of capital punishment but observed that the death penalty may be invoked only in the “rarest of rare” cases. This principle came up for consideration and elaboration in another Supreme Court decision, Machhi Singh v. State of Punjab 1983 AIR 957. The brief facts of that case are that the main accused along with eleven accomplices, killed seventeen people, men, women and children, for no reason other than they were related to one Amar Singh and his sister Piyaro Bai. The Bench opined at pages 965 - 966 that there may be demand for death penalty in the following circumstances: “32. …It may do so (in rarest of rare cases) when its collective conscience is so shocked that i t wi l l expect the holders of the judicial power centre to inflict d e a t h pena l ty i rrespec tive o f the i r pe rsona l op i n i on as regards desirability or otherwise of retaining death penalty. The community may entertain such a sentiment when the crime is viewed from the platform of the motive for, or the manner of commission of the - 135 - crime, or the anti-social or abhorrent nature of the crime, such as for instance: I. Manner of Commission of Murder When the murder is committed in an extremely brutal, grotesque, diabolical, revolting, or dastardly manner so as to arouse intense and extreme indignation of the community. For instance, (i) When the house of the victim is set aflame with the end in view to roast him alive in the house, (ii) When the victim is subjected to inhuman acts of torture or cruelty in order to bring about his or her death (iii) When the body of the victim is cut into pieces or his body is dismembered in a fiendish manner. II. Motive for commission of murder When the murder is committed for a motive which evinces total depravity and meanness. for instance when (a) a hired assassin commits murder for the sake of money or reward; (b) a cold-blooded murder is committed with a deliberate design in order to inheri t property or to gain control over property of a ward or a person under the control of the murderer or vis-à-vis whom the murderer is in dominating position or in a position of trust; (c) a murder is committed in the course for betrayal of the motherland. III. Anti-social or socially abhorrent nature of the crime (a) When murder of a member of a Schedule Caste or minority community etc., is committed not for personal - 136 - reasons but in circumstances which arouse social wrath. For instance when such a crime is committed in order to terrorize such persons and frighten them into fleeing from a place or in order to deprive them of, or make them surrender, lands or benefits conferred on them with a view to reverse past injustices and in order to restore the social balance. (b) In cases of bride burning and what are known as dowry-deaths or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation. IV. Magnitude of crime When the crime is enormous in proportion. For instance when multiple murders say of all or almost al l the members of a family or a large number of persons of a particular caste, community, or locality, are committed. V. Personality of victim of murder 37.When the victim of murder is (a) an innocent chi ld who could not have or has not provided even an excuse, much less a provocation, for murder; (b) a helpless woman or a person rendered helpless by old age or infirmity; (c) when the victim is a person vis-a- vis whom the murderer is in a position of domination of trust; (d) when the victim is a public figure generally loved and respected by the community for the services rendered by him and the murder is committed for political or similar reasons other than personal reasons.” - 137 - [224] The above principles are generally regarded as the broad guidelines for imposing the death sentence and had been followed by the Indian Supreme Court in many subsequent decisions. In the Indian Supreme Court case of Mohammed Ajmal Mohammad Amir Kasab @ Abu Mujahid v. State of Maharashtra [2012] 8 S.C.R. 295, the appellant (a Pakistani national) and his accomplices, were members of Lashkar-e-Taiba, a militant organisation based in Pakistan. They had carried out a series of 12 coordinated shooting and bombing attacks across Mumbai including the Taj Mahal Palace Hotel and the Oberoi Trident. He was charged with multiple offences including waging war against the Government of India, an offence punishable under section 121 of the Indian Penal Code. The Supreme Court examined the facts of the case in the light of the Machhi Singh decision and held that it had satisfied all the conditions laid down for the imposition of the death sentence and had also presented other reasons in a more magnified way. They waged war against the Government of India by launching an attack on Indian soil in order to demand that India should withdraw from Kashmir, to give rise to communal tension and to create internal strife and insurgency. [225] If we examine the case at hand in light of the Machhi Singh decision, it is clear that all the conditions laid down in that case had been satisfied. This case has the element of conspiracy - 138 - like no other case. The nine accused were part of a conspiracy hatched across the border to wage war against the Government of Malaysia and/or the King, with intent to weaken the country from within so that they could reclaim Sabah. [226] The case presents the element of pre-planning and preparation like no other case. The intrusion was meticulously planned and executed. The route from the Philippines to Sabah, the landing site at Kg. Tanduo, the different targets at Sabah were all pre–determined. A channel of communication between the attacking terrorists and the appellants was put in place before and during the intrusion. [227] The case was of a magnitude like no other and has shocked the collective conscience of Malaysians. Nine Malaysian security personnel were killed and many seriously injured. The bodies of six Malaysian policeman were mutilated, with one beheaded. The local kampong folks were forced to leave their homes because of the intrusion. Heavy lethal weapons such as M- 16 rifles, 9mm pistols and grenades were used during the intrusion. [228] In short, this was an attack by a foreign enemy which is unprecedented in Malaysian history. The conspiracy behind the attack was as deep and large as it was vicious and the execution was ruthless. Negotiations were held between the Malaysian - 139 - security forces and the armed group at Kg. Tanduo but the negotiations failed. The intruders chose not to leave Sabah, but instead chose bloodshed and war. In terms of loss of life and property, not to mention its traumatizing effect, this case stands apart from any other case, and is the rarest of the rare since the birth of the nation. It should therefore attract the ultimate penalty of death. [229] Against all this, the learned trial judge found, in agreeing with learned counsel, that the nine accused played a minimal role in the intrusion and that the persons responsible for the skirmishes were Datu Agbimuddin, Hj Musa and Herman, who, unfortunately, are not before the a court till now. We found it difficult to appreciate this argument. It is true that unlike the accused persons in Mohd Amin, who were the perpetrators, the nine accused in our present case were mere conspirators. However, “waging war” need not necessarily be accompanied by the pomp and pageantry that is usually associated with warfare such as the attackers forming battle-lines and arming themselves with heavy weaponry. The conspiracy in the present case had many dimensions. The accused persons were members of the RSF and continued to be its members till the end. They had a clear and unmistakable intention to be part of a terrorist group and had participated in its design by offering labour and supplies, providing shelter, transmitting information and providing help whenever necessary. - 140 - Having known about the plans and the terrorist activities, they refrained from informing the police and their concealment had facilitated the war that was waged against the Yang di-Pertuan Agong. We were unable to accept the submission that the appellants were mere scapegoats. Short of participating in the actual attack, they did everything to set in motion the diabolic mission. [230] Criminal cases do not fall into set-behaviouristic pattern. Even within the same category of offence, there are infinite variations based upon its configuration of facts. The aggression by a foreign terrorist organisation against the sovereignty of our nation was not a factor that called for consideration in Mohd Amin. To launch an attack on a sovereign democratic State is a terrorist act of the gravest severity and it presents to us in crystal clear terms a spectacle of the rarest of rare cases. [231] The sentence imposed must reflect the abhorrence and condemnation of the Malaysian community against such crime. We were firmly of the view that this was a fit and proper case to impose the death penalty against the nine accused. In this regard, we take note of the observations made by the Indian Supreme Court in the case of Dhananjay Chatterjee @ Dhana v. State of West Bengal [1994] 2 SCC 220 at para 15: - 141 - “ … Imposition of appropriate punishment is the manner in which the courts respond to the society’s cry for justice against the criminals. Justice demands that courts should impose punishment fitting to the crime so that the courts reflect public abhorrence of the crime. The courts must not only keep in view the rights of the criminal but also the rights of the victim of crime and the society at large while considering imposition of appropriate punishment.” [232] For the foregoing reasons, we allowed the prosecution’s appeal and set aside the sentence of life imprisonment passed by the learned judge and substituted it with the death penalty. Order accordingly. Dated: 8th November 2017 sgd. sgd. sgd. (DATO’ ABDUL RAHMAN SEBLI) Judge Court of Appeal Malaysia (DATO’ SETIA MOHD ZAWAWI SALLEH) Judge Court of Appeal Malaysia (DATUK KAMARDIN HASHIM) Judge Court of Appeal Malaysia - 142 - Criminal Appeals No: S-05(LB)-110-03/2016, S-05(LB)-111-03/ 2016, S-05(LB)-112-03/2016, S-05(LB)-113-03/2016, S-05(LB)- 114-03/2016, S-05(LB)-115-03/2016, S-05(LB)-116-03/2016, S-05 (LB)-117-03/2016, S-05(LB)-118-03/2016, S-05(LB)-119-03/2016, S-05(LB)-120-03/2016, S-05(LB)-121-03/2016 and S-05(LB)-370- 10/2016 For the Public Prosecutor: Awang Armadajaya bin Awang Mahmud (Nurulhuda Nur’aini binti Mohd Nor, Wan Shaharuddin bin Wan Ladin, Mohd Hamzah bin Ismail, Adam bin Mohamed, Muhammad Azmi bin Mashud, Muhammad Fadzlan bin Mohd Noor, Nordiyanasari binti Omar with him) Deputy Public Prosecutor Appellate and Trial Division Attorney General’s Chambers Putrajaya. Counsel for the Respondents: N. Sivananthan (Liu Mei Ching, Jay Moy Wei-Jiun, Vivian Oh Xiao Hui with him) Messrs. Sivananthan Suite No.1, L17-01, Pjx Tower No.16A, Persiaran Barat 46050 Petaling Jaya Selangor. Counsel for the Respondent in Abdul Gani bin Zelika Criminal Appeal No Messrs. Abdul Gani Zelika & Amin S-05(LB)-115-03/2016 Advocates & Solicitors Tingkat 2, TB286, Blok 30 Kompleks Komersial Fajar Jalan Haji Karim 91000 Tawau Sabah. - 143 - Criminal Appeals No. S-05(SH)-355-10/2016[73], S-05(SH)-357- 10/2016, S-05(SH)-358-10/2016, S-05(SH)-359-10/2016, S-05 (SH)-360-10/2016, S-05(SH)-362-10/2016, S-05(SH)-364- 10/2016, S-05(SH)-365-10/2016, S-05(SH)-366-10/2016 Counsel for the Appellants: N. Sivananthan (Liu Mei Ching, Jay Moy Wei-Jiun, Vivian Oh Xiao Hui with him) Messrs. Sivananthan Suite No.1, L17-01, Pjx Tower No.16A, Persiaran Barat 46050 Petaling Jaya Selangor. For the Public Prosecutor: Awang Armadajaya bin Awang Mahmud (Nurulhuda Nur’aini binti Mohd Nor, Wan Shaharuddin bin Wan Ladin, Mohd Hamzah bin Ismail, Adam bin Mohamed, Muhammad Azmi bin Mashud, Muhammad Fadzlan bin Mohd Noor, Nordiyanasari binti Omar with him) Deputy Public Prosecutor Appellate and Trial Division Attorney General’s Chambers Putrajaya. Criminal Appeal No. S-05(H)-351-10/2016 For the Public Prosecutor: Awang Armadajaya bin Awang Mahmud (Nurulhuda Nur’aini binti Mohd Nor, Wan Shaharuddin bin Wan Ladin, Mohd Hamzah bin Ismail, Adam bin Mohamed, Muhammad Azmi bin Mashud, Muhammad Fadzlan bin Mohd - 144 - Noor, Nordiyanasari binti Omar with him) Deputy Public Prosecutor Appellate and Trial Division Attorney General’s Chambers Putrajaya. Counsel for the Respondents: N. Sivananthan (Liu Mei Ching, Jay Moy Wei-Jiun, Vivian Oh Xiao Hui with him) Messrs. Sivananthan Suite No.1, L17-01, Pjx Tower No.16A, Persiaran Barat 46050 Petaling Jaya Selangor.

Tika 2.6.0

C-02(NCVC)(W)-425-03/2016

PERAYU TENAGA NASIONAL BERHAD (No. Syarikat: 200866-W) … PERAYU RESPONDEN ASIA KNIGHT BERHAD (No. Syarikat: 71024-T) (Dahulu dikenali sebgai Pahanco Corporation Berhad) … RESPONDEN

Public Utilities — Electricity — Meter-tampering — Foreign object inserted in meter installation — Whether appellant succeeded in proving that meter installation tampered — Whether appellant entitled to claim for loss of revenue — Whether appellant’s claim for expenses proven — Electricity Supply Act [Act 447], s 38(1), (3) & (4)

08/11/2017

YA DATUK VERNON ONG LAM KIATKorumYAA TAN SRI ROHANA BINTI YUSUFYA DATUK VERNON ONG LAM KIATYA DATO' SRI HASNAH DATO' MOHAMMED HASHIM

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=705fe4fe-5f0a-40cf-8d33-a9a812236cfc&Inline=true

DALAM MAHKAMAH RAYUAN MALAYSIA (BIDANG KUASA RAYUAN) RAYUAN SIVIL NO: C-02(NCVC)(W)-425-03/2016 ANTARA TENAGA NASIONAL BERHAD (No. Syarikat: 200866-W) … PERAYU DAN ASIA KNIGHT BERHAD (No. Syarikat: 71024-T) (Dahulu dikenali sebgai Pahanco Corporation Berhad) … RESPONDEN (Dalam Mahkamah Tinggi Malaya Di Kuantan Dalam Negeri Pahang (Bahagian Sivil) Guaman No: 22NCVC-11-02/2014 Antara Tenaga Nasional Berhad (No. Syarikat: 200866-W) … Platintiff Dan Asia Knight Berhad (No. Syarikat: 71024-T) (Dahulu dikenali sebgai Pahanco Corporation Berhad) … Defendan CORAM: ROHANA YUSUF, JCA VERNON ONG LAM KIAT, JCA HASNAH DATO’ MOHAMMED HASHIM, JCA Page 2 of 10 GROUNDS OF JUDGMENT INTRODUCTION [1] This is the plaintiff’s appeal against the dismissal of its claim against the defendant, a registered customer of electricity supply, for loss of revenue and expenses due to meter tampering pursuant to s 38 of the Electricity Act 1990 (“EA 1990”). [2] On 20.2.2017, after hearing of submission of counsel of the parties, we allowed the plaintiff’s appeal with costs. We now set out our reasons for our decision. In this judgment the parties shall be referred to as they were in the court below. BRIEF ACCOUNT OF THE SALIENT FACTS [3] On 29.9.2010, a team of the plaintiff’s employees conducted an inspection of the meter installation at the defendant’s premises. The plaintiff’s employee found physical evidence of tampering to the meter installation in the form of a foreign copper object inserted as a by-pass at the test terminal block (‘TTB’). Photographs taken of the physical evidence of tampering together with the ‘borang siasatan perjangkaan LPC MV/HV’, ‘surat pemakluman semakan meter’, ‘surat pemberitahuan pengambilan barang kes’ and a police report were produced at the trial. Page 3 of 10 FINDINGS OF THE HIGH COURT [4] The claim was dismissed on the main ground that the plaintiff had failed to prove that the defendant had access to the meter installation. In dismissing the plaintiff’s claim, the learned judge found among others, that: a) As the defendant had no access to the meter room, anything that happened in the meter room was not within the defendant’s knowledge and responsibility; b) The plaintiff failed to prove that the foreign copper object at the TTB was inserted by the defendant; c) There was no evidence to prove that the blown fuse was caused by the defendant’s action; d) There was no finality on the findings made of the tampering as the inspection form was not verified by the plaintiff’s senior officer; and e) The calculation of the undercharged amount from 28.9.2008 to 29.9.2010 was not correct because the computation did not take into account, among others, (i) the fact that there was a change of meter on 10.3.2010, (ii) the defendant’s manufacturing activities had shown that there was some fluctuation in the electricity consumption at the defendant’s premises, and (iii) previous inspections at the defendant’s premises on 28.3.2009 and 21.4.2009 had shown that there Page 4 of 10 abnormalities and that the meter was not in good working condition. SUBMISSION OF PARTIES [5] Before us, learned counsel for the plaintiff mounted his case on two main grounds – (i) there was proof of meter tampering and (ii) the computation of loss or revenue and expenses is correct. [6] Firstly, he argued that the plaintiff had succeeded in proving meter tampering on the balance of probabilities despite the learned judge’s finding that the plaintiff had failed to prove that the defendant had access to the meter installation. Section 38 of the EA 1990 does not require the plaintiff to prove that the defendant had access to the meter installation before a claim for loss of revenue can be made by the plaintiff. All that the plaintiff is required to show is that there was evidence of tampering of the meter installation which prevented the meter from duly recording the consumption of electricity by the defendant. Further, in holding that the plaintiff had to prove that the defendant had access to the meter installation and that the tampering was committed by the defendant, the learned judge had imposed a higher standard of proof of beyond reasonable doubt on the plaintiff to prove its case; the plaintiff was only required to prove its case on a balance of probabilities (WRP Asia Pacific Sdn Bhd v Tenaga Nasional Bhd [2012] 4 MLJ 296 (FC)). [7] Learned counsel also argued that under sub-section 38(3) of the EA 1990 the plaintiff need not prove that the defendant tampered with the meter installation; it is sufficient if the plaintiff can show that the meter has been tampered (WRP Asia Pacific Sdn Bhd v Tenaga Nasional Bhd Page 5 of 10 [2015] 6 CLJ 751 (CA)). Further, it is clear that the defendant had benefited from the tampered meter installation and as such it would be abhorrent to justice and fair play for the court to condone a consumer who has benefited to escape payment to the plaintiff for its electricity usage (Tenaga Nasional Bhd v Ternakan Air Wui Kyee Sdn Bhd & Another Appeal [2015] 5 CLJ 955 (CA)). [8] On the second issue, learned counsel argued that the learned judge erred in holding that the plaintiff failed to take into account the defendant’s production report. Instead of producing the complete daily reports the defendant only produced selected daily reports. Daily reports were produced in respect of non-production days even though the defendant’s own witnesses said that when there was no production, no daily report was prepared. Further, daily reports prepared for Sundays actually contradicted the defendant’s evidence that they had not for years operated on most Sundays because of the double overtime costs for their workers. [9] Even if the defendant’s production reports were considered, they would not support the defendant’s defence which were mounted on the following grounds: (i) the usage of electricity at the defendant’s premises was not consistent and was dependent on orders made for the products, (ii) the inconsistency of electricity usage was due to the combination of two production lines at the defendant’s premises, (iii) from 2008 to 2009, there was an economic downturn and therefore production was reduced, (iv) the inconsistency in the electricity usage was also caused by a fire at the factory on 24.7.2010, (v) the defendant bought new machines from China to made wood pallets in 2010, and (vi) the defendant’s electricity Page 6 of 10 usage was consistent with the issued bills and the defendant had paid those bills without fail and without complaint from the plaintiff. [10] In reply, learned counsel for the defendant raised the following arguments. Firstly, the meter installation could not have been tampered because the meter was located in a special room which was locked with the plaintiff’s own padlock and that no one else except for the plaintiff’s staff had the key to the padlock. The learned judge was correct in finding that the plaintiff had failed to prove that the defendant had access to the meter room to tamper with the meter. Secondly, sub-section 38(3) of the EA 1990 did not exempt the plaintiff from having to prove that the defendant tampered with the meter. The onus is on the plaintiff to prove that the meter was tampered. There was no finding of fact of tampering by the learned judge. Thirdly, there were at least two inspections conducted by the plaintiff’s employees on 28.3.2009 and 21.4.2009 prior to 29.9.2010 which did not show any evidence of tampering. Further, the meter was changed about 6 months before the inspection date. As such, there were intervening events during the 2 year period. Lastly, the learned judge was correct in her assessment of the evidence on quantum. As such, the plaintiff had not shown that the learned judge’s findings were plainly wrong. DECISION [11] In our considered opinion, the central issue for determination relates to the question of whether the plaintiff had succeeded in proving that the meter installation was tampered. On a perusal of the appeal record, we are satisfied that there is uncontroverted evidence to show that the meter installation had been tampered. The discovery of the foreign Page 7 of 10 copper object which was inserted in the meter is proof of the fact of tampering. We agree with the submission of learned counsel for the plaintiff that the evidence produced by the plaintiff’s witnesses were consistent and credible. It was also corroborated by the production of the photographs, the ‘borang siasatan perjangkaan LPC MV/HV’, ‘surat pemakluman semakan meter’, ‘surat pemberitahuan pengambilan barang kes’ and police report. In this connection, we have perused the learned judge’s written judgment and note that the learned judge did not make any finding that there was no tampering of the meter. Instead, the learned judge took the position that there was no evidence to prove that the defendant had access to the meter installation or had tampered with the meter. In other words, there was a non-finding on the question of whether the meter was tampered, which in our considered view is a serious misdirection on the facts and on the law. We also find support for our view in the Federal Court decision which held that only a subjective finding of the plaintiff’s employee is required to prove tampering WRP Asia Pacific Sdn Bhd v Tenaga Nasional Bhd (supra). On the totality of the evidence we are of the view that on a balance of probabilities the plaintiff had succeeded in proving that the meter was tampered. [12] Be that as it may, the learned judge also took the view that the defendant could not be liable for the loss of revenue as it was not proved that the defendant had access to the meter room or had tampered with the meter. In our considered view, sub-section 38(3) of the EA 1990 does not require the plaintiff to prove that the perpetrator of the tampering was the defendant or that the defendant had access to the meter installation before a claim for loss of revenue can be made by the plaintiff. We agree with the argument of the plaintiff that the plaintiff’s entitlement to claim for the loss of revenue is a statutory right conferred on the plaintiff under sub- Page 8 of 10 section 38(3) read together with sub-section 38(1) of the EA 1990. We find support for our view in WRP Asia Pacific Sdn Bhd v Tenaga Nasional Bhd [Judicial Review Application No. R1-25-24-2010; WRP Asia Pacific Sdn Bhd v Tenaga Nasional Bhd [2015] 6 CLJ 751 (CA); Tenaga Nasional Bhd v Ternakan Air Wui Kyee Sdn Bhd & Another Appeal [2015] 5 CLJ 955 (CA); Tenaga Nasional Bhd v Empayar Canggih Sdn Bhd [2014] 8 MLJ 280; Tenaga Nasional Bhd v AWP Enterprise (M) Sdn Bhd [2015] 3 MLJ 268 (CA); Tenaga Nasional Bhd v Perniagaan Heng Thye Sdn Bhd [Civil Appeal No. K-04(NCVC)(W)- 59-02/2014). In this connection, we would also add that there is also no legal requirement for there to be a prosecution and conviction first before a claim for loss of revenue is made (Ichi-Ban Plastic (M) Sdn Bhd v Tenaga Nasional Bhd [2014] 6 MLJ 461 (CA); Claybricks & Tiles Sdn Bhd v Tenaga Nasional Bhd [2007] 1 MLJ 217 (CA)). Accordingly, we are constrained to set aside the findings of the learned judge on liability and to hold that the plaintiff is entitled to claim for loss of revenue and expenses from the defendant pursuant to subsection 38(3) of the EA 1990. [13] As to the quantum of the loss of revenue, we observe that the EA 1990 does not prescribe any specific method of calculation for loss of revenue. Nevertheless, we are of the view that on the facts of this particular case (i.e. the sudden drop in electricity consumption of 71%), the average consumption method of computation is a fair, acceptable and reasonable method to be employed in arriving at the quantum of loss of revenue (Tenaga Nasional Bhd v Pelantar Cergas Sdn Bhd [Civil Appeal No. W-02(NCC)(W)-1552-07/2012 (FC)). We have examined the evidence of the executive/engineer (PW4), who conducted the back- billing calculations to generate the amount of loss of revenue under Page 9 of 10 supervision of the main engineer (PW5). PW4 had based the calculation from 28.9.2008 which was the date where there was a sudden drop in the electricity consumption at the defendant’s premises to 29.9.2010, the date of the inspection. In arriving at the amount of under-billing, PW4 applied the average rate of electricity consumption. PW4’s evidence was comprehensive, consistent and credible and demonstrates how the estimate is arrived at in calculating the back charges to be imposed. The defendant has not demonstrated that the back charges to be manifestly unreasonable, excessive or wrong. In her written judgment, the learned judge decided that the plaintiff was not entitled to the loss of revenue and expenses ‘[b]erdasarkan kepada keterangan saksi plaintif pengiraan jumlah terkurang caj daripada 9/2008 – 9/2010 adalah tidak betul dan sangat memprejudiskan defendan apabila penukaran meter baru dibuat pada Mac 2010.’ We are also constrained to find that the learned judge had failed to judicially appreciate the evidence and that if she had done so, she would have found that the plaintiff had established their claim for the loss or revenue on a balance of probabilities. [14] We now turn to the claim for expenses in the sum of RM5,247.46 pursuant to subsection 38(3) of the EA 1990. The claim was dismissed by the learned judge on the grounds that (i) the plaintiff failed to produce any bills or receipts to support the claim, and (ii) the plaintiff failed to provide any particulars of the standard price or the plaintiff’s guideline on the rates. With respect, we think the learned judge had misdirected herself on the law. In this instance, the written statement relating to the expenses incurred dated 29.9.2010 (exhibit P12) was prepared by one Yong Boon Heng, Jurutera SEAL-MV/HV was produced and marked as an exhibit. As such, in accordance with subsection 38(4) of the EA 1990, exhibit P12 specifying the amount of the expenses incurred by the plaintiff shall be Page 10 of 10 prima facie evidence of payment that has to be made by the defendant. In the absence of rebuttal evidence of the prima facie case made out by the plaintiff, we are satisfied that the plaintiff’s claim for expenses incurred has been proved on a balance of probabilities. [15] For the foregoing reasons, we set aside the order of the High Court and allowed the plaintiff’s appeal with costs. sgd (Vernon Ong) Judge Court Of Appeal Malaysia Dated : 8th November 2017 Counsel: For the Appellant: Raja Ahmad Mohzanuddin Shah Raja Mohzan (Nur Fardhiah Mohd Nawawi with him) Messrs Azmi & Associates For the Respondent: Dinesh Nair (CM Lai with him) Messrs Bahari Choy & Nongchik

Tika 2.6.0

05-7-01/2016(W)

PERAYU Pendakwa Raya RESPONDEN AWALLUDDIN BIN SHAM BOKHARI … RESPONDEN

Criminal Procedure — Forfeiture — Appeal — Appeal against setting aside order of forfeiture — High Court made forfeiture order — Prosecution relied heavily on para 32 of affidavit of investigating officer — Whether contents of affidavit satisfied criteria under O 41 r 5 of the Rules of Court 2012 — Whether High Court correct in relying on affidavit — Whether prosecution case proven on balance of probabilities— Whether respondent rebut the evidence against him on the balance of probabilities — Anti-Money Laundering and Anti-Terrorism Financing Act 2001 [Act 613], ss. 3, 4(1), 32(2)(b), 40, 50(1), 55(3), 56(1)(4), 56(4),61(2), 70(1); Penal Code [Act 574], s. 420;Evidence Act, s. 90A(2);Rules of Court 2012, O. 41 r. 5(1)

07/11/2017

YA TAN SRI DATO' SRI ABU SAMAH BIN NORDINKorumYA TAN SRI DATUK SURIYADI BIN HALIM OMARYA TAN SRI DATO' SRI ABU SAMAH BIN NORDINYA TAN SRI DATUK RAMLY BIN HAJI ALIYAA TAN SRI ZAHARAH BINTI IBRAHIMYA TAN SRI JEFFREY TAN KOK WHA

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=00cf4fc5-3bbf-4041-90f9-d3c89851b385&Inline=true

DALAM MAHKAMAH TINGGI MALAYA, KUALA LUMPUR DALAM MAHKAMAH PERSEKUTUAN MALAYSIA (BIDANG KUASA RAYUAN) RAYUAN JENAYAH NO: 05-7-01/2016(W) ________________________________________ 5 ANTARA PENDAKWA RAYA … PERAYU 10 DAN 15 AWALLUDDIN BIN SHAM BOKHARI … RESPONDEN (Dalam Perkara Mahkamah Rayuan Malaysia) Rayuan Jenayah No. W-09-339-11/2014) 20 ANTARA 25 PENDAKWARAYA … PERAYU DAN 30 AWALLUDDIN BIN SHAM BOKHARI … RESPONDEN Coram: Suriyadi bin Halim Omar, FCJ 35 A.Samah Nordin, FCJ Ramly bin Hj Ali, FCJ Zaharah binti Ibrahim, FCJ Jeffrey Tan, FCJ 2 JUDGMENT [1] This is an appeal by the Public Prosecutor (‘the appellant’) against the decision of the Court of Appeal which set aside the order of forfeiture against the properties of the 5 respondent, made by the Kuala Lumpur High Court pursuant to section 56(1) of the Anti-Money Laundering and Anti- Terrorism Financing Act 2001 (“the Act”) Brief facts 10 [2] On 3.11.2011, the appellant filed a criminal application by way of a Notice of Motion for an order of forfeiture of the properties of the respondent and two others, pursuant to section 56(1) of the Act and for a notice to be published in the 15 Gazette pursuant to section 61(2) of the Act calling upon any third party who has interest in the said properties to attend on the date as specified in the Gazette to show cause as to why the said properties should not be forfeited. 20 [3] Section 56(1) of the Act states; “….where in respect of any property frozen or seized under this Act there is no prosecution or conviction for an offence under subsection (4)(1) or a terrorism 25 financing offence, the Public Prosecutor may, before the expiration of twelve months from the date of the 3 freeze or seizure, apply to a judge of the High Court for an order of forfeiture of that property if he is satisfied that such property had been obtained as a result of or in connection with an offence under subsection 4(1) or a terrorism financing offence, as the case may be, or is 5 terrorist property”. [4] In this case, there was no prosecution for an offence under section 4(1) of the Act. The properties had earlier been 10 seized pursuant to orders of seizure made under sections 45(1) and 50(1) of the Act. [5] By the said application the appellant sought an order of forfeiture of the following properties of the respondent: 15 (a) A sum of RM7,274.60 in investment Account No, A80054198 with CIMB Bank Berhad Kuala Lumpur; (b) A motorcycle BMW R 1200 RT bearing registration 20 No. WSX54; (c) A motorcycle, Harley Davidson Sportster – XL 883N bearing registration No. WTY54; 25 (d) A motorvan, Hyundai Starex TQ 2.5 GLS(A) bearing registration No. WTM54; and 4 (e) A motorvan, Toyota Hilux Double Cab 2.5 AT bearing registration No. WSH 854. (collectively called “the properties”) 5 [6] The appellant’s application was supported by the affidavits affirmed by a Deputy Public Prosecutor and two senior police officers, namely Deputy Superintendent Amran bin Yaakob (‘the investigation officer’) and Deputy Superintendent Ku Ismail bin Ku Awang. Both officers filed 10 lengthy affidavits supported by voluminous exhibits. The other two respondents, namely Simathari a/l Somenaidu and Sharafaizan binti Abdul Samad, did not appear at the hearing to contest the application and the High Court thereupon ordered their properties to be forfeited to the government. The 15 case before us is only between the appellant and the respondent. No third party made any claim to the properties. The respondent did not file any affidavit in reply. He elected to contest the application in person, by giving evidence on oath denying that the properties were acquired out of 20 proceeds of an unlawful activity by showing, albeit unconvincingly, that they were acquired through legitimate sources of income including salary and loans from financial 5 institutions. He also called three witnesses to testify on his behalf. In rebuttal, the appellant called three witnesses including the investigation officer, DSP Amran bin Yaakob. Thus, the decision of the High Court against the respondent was based on affidavit evidence as well as oral testimony of 5 witnesses. [7] The crux of the appellant’s case was that the properties had been obtained out of the proceeds of an unlawful activity. The phrase ‘unlawful activity’ is defined in section 3 of the Act 10 as “any activity which is related, directly or indirectly, to any serious offence or any foreign serious offence”. The term ‘serious offence’ refers to, among others, offences specified in the Second Schedule to the Act, which include the offence under section 420 of the Penal Code, that is, cheating and 15 dishonestly inducing delivery of property. A person who engages directly or indirectly in a transaction that involves proceeds of any unlawful activity, knowing or having reason to believe that the property is proceeds from any unlawful activity, is said to be involved in money laundering: See 20 definition of money laundering in section 3 of the Act. Money laundering is an offence under section 4(1) of the Act. 6 [8] The modus operandi of the respondent was quite straightforward. The respondent was an employee of Malaysia Airlines Bhd (MAS), who handled bookings by and sales of airline tickets, to passengers. He was also the sole proprietor of a firm, known as Ashha Leisure Resources, 5 which carried on business as ticketing and commission agent. [9] Simathari a/l Somenaidu (originally 1st respondent) was attached to the Administrative Section of Markas Tentera Laut (“MTL”), Ministry of Defence, Jalan Padang Tembak, Kuala 10 Lumpur, whose duty was to prepare and issue air travel warrants to MAS via various travel agents on behalf of MTL’s personnel. The air travel warrants were only for MTL’s personnel and not for members of the public. 15 [10] Sharafaizan binti Abd Samad (originally 2nd respondent) was a ticketing clerk at YHA Travel and Tours (M) Sdn Bhd. She had frequent dealings with the respondent relating to sales of airline tickets. 20 [11] The respondent, after receiving confirmed bookings of airline tickets from passengers, sent the names of the passengers to Sharafaizan binti Abd Samad, who in turn contacted Simathari a/l Somenaidu for approval before the 7 latter issued the air travel warrants to MAS via YHA Travel and Tours (M) Sdn Bhd. MAS would have to present the warrants to MTL for payment. Each air travel warrant consisted of 4 copies. The 1st copy (original) would be kept by MTL. The other 3 copies were given to the travel agent. 5 The names of the approved passengers, who were members of the public were then entered in the copies of the air travel warrants together with the names of MTL’s personnel. The names of members of the public would not appear in the original warrant. Tickets purchased by the use of the 10 warrants were sold at lower prices. The tickets purchased by members of the public through the travel agents were sold at market price. Members of the public would not know what transpired between the respondent, Simathari and Sharafaizan. Sharafaizan then presented the warrants to 15 MAS for payments and MAS in turn claimed reimbursement from MTL. As a result, MTL ended up paying MAS not only for the costs of travel by MTL’s personnel but also the travelling costs of members of the public, whose names appeared in the warrants. 20 8 [12] The proceeds derived by the respondent through this modus operandi were used by the respondent to purchase the said properties or for investment. This modus operandi was explained in detail in the affidavit of DSP Ku Ismail bin Ku Awang and in the rebuttal testimony of the investigation 5 officer, DSP Amran bin Yaacob. High Court [13] In determining whether the properties were the subject 10 matter of an offence under section 4(1) of the Act, the court shall apply the standard of proof required in civil proceedings: See section 55(3) and section 70(1) of the Act. On 24.10.2014 the High Court allowed the appellant’s application and ordered the respondent’s properties to be forfeited to the 15 government. The High Court was satisfied that the applicant had, on balance of probabilities, shown that the respondent acquired the properties out of proceeds of an unlawful activity. The respondent, on the other hand, had failed to discharge the burden to show that the properties had been acquired 20 through his legitimate sources of income. The High Court found that his income from known legitimate sources were insufficient to support the purchases of the properties. 9 [14] The respondent, being dissatisfied, appealed to the Court of Appeal against the decision of the High Court. The respondent listed fourteen grounds of appeal in his Petition of Appeal. The Court of Appeal was of the opinion that there 5 were only two issues for its determination, namely, “(a) Whether the trial High Court Judge had satisfied the first threshold of section 56(2) of the Act which required the Applicant to prove, on the balance of 10 probabilities, that the seized properties were the subject matter of or used in the commission of an offence under section 4 of the Act. (b) Whether the trial High Court Judge had evaluated 15 the Appellant’s evidence, on the balance of probabilities, before he granted the order of forfeiture in respect of the seized properties”. 20 The correct provision is section 56(4), not section 56(2). [15] On 12.1.2016 the Court of Appeal allowed the respondent’s appeal. The main ground was that the prosecution relied heavily on paragraph 32 of the affidavit of 25 the investigation officer which, “in substance was purely heresay” and that the contents of the affidavit also did not satisfy the criteria set out in Order 41 r.5(1) of the Rules of 10 Court 2012. Paragraph 32 of the investigation officer’s affidavit states, “Saya seterusnya menegaskan bahawa saya telah menjalankan siasatan terhadap Saksi-saksi dan 5 Responden-responden dan merekodkan percakapan Saksi-saksi dan Responden-responden di bawah Seksyen 32 AMLATFA 2001, yang mana saya sesungguhnya mempercayai dari keterangan-keterangan yang ada bahawa harta-harta alih yang disita di atas adalah harta-10 harta yang berkaitan dengan suatu kesalahan di bawah Subseksyen 4(1) AMLATFA 2001 yang mana kesemua harta tersebut telah diperolehi hasil daripada aktiviti haram iaitu hasil daripada pemalsuan Waran-waran Udara MTL untuk menipu TLDM bagi mendapatkan tiket-tiket kapal 15 terbang untuk dijual kepada orang awam yang dilakukan oleh Responden Pertama bersama-sama Responden Kedua dan Responden Ketiga yang merupakan satu kesalahan di bawah Seksyen 420 Kanun Keseksaan. Sebahagian harta-harta Responden Pertama juga 20 diperolehi daripada aktiviti haram iaitu hasil penipuan dalam tuntutan Waran-waran Bas MTL dan tuntutan perbatuan”. 25 [16] The Court of Appeal ruled that the learned trial judge “was in grave error in even relying on an affidavit which is not worth the paper it is written on”. The other ground in setting aside the judgment of the High Court was that the order of forfeiture is against the law and the Federal Constitution. On 30 this ground, we note that this was not an issue which was decided by the High Court nor was it raised in the Petition as 11 a ground of appeal. Perhaps, it would be useful to remind ourselves of what this Court in Dato’ Tan Chin Woh v Dato’ Yalumallai @ M Ramalingam s/o V Muthusamy [2016] 5 MLJ 590 said: 5 “While it is true that the Court of Appeal can consider a point not expressly taken in the memorandum of appeal or argued in the court below based on the broad wording of s 69(4) of the CJA and r 18(2) of the Rules of the Court of Appeal 1994, this is subject to the overriding discretion of 10 this court to do justice. …………………….. In so doing, it is however not the duty of the Court of Appeal, to invent or create a cause of action or a defence under the guise of doing justice for the parties as it is also trite that parties in litigation are bound by the four corners of their pleadings”. 15 [17] The essence of the judgment of the Court of Appeal can be seen in paragraphs 12, 14 and 16 of its judgment: “12. The contents of the affidavit also do not satisfy the 20 criteria set out in Order 41 rule 5(1). In consequence, the learned trial judge was in grave error in even relying on an affidavit which is not worth the paper it is written on. 25 14. Thus, when a case is dealt by affidavit as well as oral evidence, EA 1950 will become applicable save to say that where documents have been exhibited by affidavit, it remains admissible but the Court has to deal with the totality of the evidence to give relevant 30 probative value to the exhibits. Where an exhibit or evidence is credibly challenged the burden of proof of prima facie case placed on a plaintiff or petitioner and/or applicant as the case may be, does not shift 12 even though in a normal trial by oral evidence a plaintiff’s case on prima facie basis need to be established before the defence is obliged to call his evidence. If a prima facie case is not established, a defendant may elect not to call his evidence. The law 5 in this area is well established. However, when the application is by affidavit and oral evidence, the applicant cannot rest on laurels to assume that the affidavit in support with the hearsay evidence and/or exhibit is sufficient to succeed on balance of 10 probabilities, that too in a Quasi-criminal Application like the Anti-Money Laundering and Anti-Terrorism Financing Act 2001, where the statute expressly says that the prosecution has to establish its case on the balance of probabilities. 15 16. We have read the appeal record and the able submission of the parties. After much consideration to the submission of the learned Deputy Public Prosecutor, we take the view that the prosecution has 20 not established the case according to law and the order of forfeiture is against the law and the Federal Constitution and in consequence the order of the High Court is set aside and the property seized is ordered to be returned to the appellant.”. 25 Appeal to the Federal Court [18] The appellant listed six grounds of appeal in his Petition 30 of Appeal to this Court but opted to proceed on only one ground, namely, that the Court of Appeal erred in holding that the affidavit of the investigation officer, in particular, paragraph 32 of DSP Amran bin Yaacob’s affidavit was “in 13 substance purely heresay”. It was submitted that the appellant’s case was not based on the affidavit of DSP Amran bin Yaacob alone. It was also based on the affidavit of DSP Ku Ismail bin Ku Awang and the oral evidence of three rebuttal witnesses who were called to rebut the respondent’s 5 testimony that he acquired the properties from income derived from his salary and earnings from his businesses and that his income was sufficient to purchase the properties. The Court of Appeal totally disregarded the affidavit evidence of DSP Ku Ismail bin Ku Awang and his oral evidence and 10 the evidence of two other witnesses who were called to rebut the oral testimony of the respondent. DSP Ku Ismail bin Ku Awang deposed that he had interviewed and recorded statements from witnesses who purchased tickets from the respondent. He exhibited the warrants containing the names 15 of the purchasers who were members of the public: See for example Ex. KIKA 2, 3, 12, 14, 20 and 21. He had also prepared in minute detail, two charts (Ex. P48 and P49) to show, for example who purchased the tickets and the amount paid. Ex. P48 was a flow chart which showed the amount of 20 money paid in cash or cheques by the members of the public to the respondent, which were then deposited into several bank accounts of the respondent. These members of the 14 public did not know that tickets purchased by the use of the warrants were sold at lower prices. [19] It was contended by the appellant that the contents of the affidavits affirmed by both police officers and the 5 documents exhibited therein were based on their personal knowledge which were directly obtained from witnesses in the course of their investigations under the Act. The powers of the investigation officer are clearly stated in section 32 of the Act. Any property, record, report or document produced 10 pursuant to section 32(2)(b) of the Act, notwithstanding any written law to the contrary, shall be admissible as evidence in any proceeding in any court for or in relation to an offence or any other matter under the Act: See section 40 of the Act, which was overlooked by the Court of Appeal. 15 [20] The respondent denied that the properties were acquired out of proceeds of an unlawful activity. He claimed that they were legitimately acquired from income derived from his salary with MAS and earnings from his businesses. He also 20 produced hire purchase agreements to show that he bought the motorcycles and the vehicles through loans from financial institutions. He admitted purchasing airline tickets for his 15 clients on credit from Sharafaizan through his firm, Ashha Leisure Resources but denied knowing Simathari and that the tickets were purchased through the air travel warrants. He paid Sharafaizan for the tickets purchased through her. He did not deny that he knew the process of purchasing airline 5 tickets through warrants issued by the government but claimed that the tickets were not purchased from MAS through air travel warrants issued to his firm. Learned counsel for the respondent reiterated in his submission what his client said in his testimony. 10 [21] The Act was enacted by Parliament in 2001 to provide for the offence of money laundering and terrorism financing offence, the necessary measures for the prevention of these offences and the powers for the forfeiture of the property 15 involved in or derived from these offences and for matters incidental thereto: See the Long Title. It contains, among others, specific provisions on the powers of investigation, the admissibility of evidence and the standard of proof in determining whether the property is the subject matter of an 20 offence or has been used in the commission of an offence of money laundering or a terrorism financing offence or whether the property is terrorist property. 16 [22] Section 32 of the Act confers wide powers on the investigation officer in investigating an offence of money laundering or terrorism financing offence. He may order any person whom he believes to be acquainted with the facts and circumstances of the case to – 5 (a) attend before him for examination; (b) to produce before him any property, record, report or document; or (c) to furnish to him a statement in writing made on 10 oath or affirmation. Any person who disobeys the order of the investigation officer commits an offence. 15 [23] The investigation officer is empowered to administer an oath or affirmation to the person being examined. The person being examined shall be legally bound to answer all the questions and to state the truth save that he may refuse to answer any question the answer to which would have a 20 tendency to expose him to a criminal charge or penalty or forfeiture. 17 [24] The admissibility of the record of examination of any person or any property, record, report or document obtained by the investigation officer is governed by section 40 of the Act. The section overrides any written law or rule of law to the contrary. It states – 5 “40. The record of an examination under paragraph 32(2)(a), any property, record, report or document produced under paragraph 32(2)(b) or any statement under paragraph 32(2)(c) shall, notwithstanding any 10 written law or rule of law to the contrary, be admissible as evidence in any proceedings in any court for, or in relation to, an offence or any other matter under this Act or any offence under any other written law, regardless whether such proceedings are against the person who was 15 examined, or who produced the property, record, report or document, or who made the written statement on oath or affirmation, or against any other person”. 20 [25] Both DSP Amran bin Yaacob and DSP Ku Ismail bin Ku Awang affirmed in their affidavits that all the information contained therein were true and within their personal knowledge. They obtained the information after examining and recording statements from persons who purchased the 25 tickets from the respondent, Simathari and Sharafaizan. They exhibited copies of the air travel warrants, containing the names of members of the public, the bank accounts or bank statements of the respondent, the documents relating to 18 ownership of the vehicles, the hire purchase agreements and numerous other documents which they obtained in the course of their investigation. They also exhibited the relevant certificates under section 90A(2) of the Evidence Act. 5 [26] DSP Amran bin Yaacob also prepared a flow chart (Ex. P33) showing the names of members of the public who purchased tickets from the respondent at market price and whose names appeared in the air travel warrants. The respondent relayed their names to Sharafaizan by way of 10 telephone calls or SMS. Sharafaizan in turn liaised with Simathari, for approval prior to the issuance of the air travel warrants. [27] DSP Ku Ismail bin Ku Awang produced two flow charts: 15 Ex. P48 and Ex. P49. Ex. P48 showed, among others, the names of members of the public who purchased tickets from the respondent, the amounts paid and the banks where the respondent deposited the money. 20 [28] Let us look at some of the names shown in Ex. P48 as illustrations. In December 2009, Zulkarnain bin Muhammad purchased return tickets for himself, his wife Zarinah bt Ismail, his friend Tun Hairuddin bin Abu Bakar and his wife for travel 19 from KLIA to Dubai and back to KLIA from the respondent for a total sum of RM36,000.00. Zulkarnain also purchased return tickets for himself and his wife to perform Umrah and paid RM6,000.00 to the respondent. Between June 2010 and July 2010, Fatimah bt Abd Rahman booked return tickets for 5 travel from KLIA to London and back to KLIA for herself, Wilson Bayan Dandot, Ismuni bin Ismail, Kamil Danial Yap, Justine Jinggut and Norlia bt Abd Rahman from the respondent at a cost of about RM90,000.00. 10 [29] Sometime between February 2010 and March 2010, Abu Bakar Fikri bin Sulaiman booked a return ticket for travel from KLIA to London and back for RM21,000.00. In June 2009 Ahmad Johari bin Abd Razak and his wife Nooralzeila bt Junid bought return tickets for travel from KLIA to London and 15 back to KLIA at a cost of RM30,000.00. All these names appeared in the air travel warrants. (See Ex. KIKA 2, KIKA 3, KIKA 20, 21, KIKA 12 and KIKA 14). These were not isolated incidents. It showed a pattern of behaviour. The sum total of money paid to the respondent from the sales of these tickets 20 exceeded the respondent’s income from his salary and earnings from his businesses. What had been deposed in DSP Ku Ismail bin Ku Awang’s affidavit was neither disputed 20 nor challenged by the respondent. The way the respondent operated was highly questionable. Why did an employee of MAS who handled bookings and sales of airline tickets to passengers and carrying on business as a ticketing and commission agent through his own firm Ashha Leisure 5 Resources, chose to purchase tickets for his passengers through another travel agent, YHA Travel and Tours (M) Sdn Bhd or its ticketing clerk Sharafaizan? What was his intention? It was not disputed that Simathari used to issue air travel warrants to MAS through YHA Travel and Tours (M) 10 Sdn Bhd. Tickets purchased by way of air travel warrants were priced lower than the market price. [30] Ex. P49 was a flow chart showing the vehicles acquired by the respondent out of the proceeds of an unlawful activity, 15 the amount of monthly instalments and the banks from whom the respondent obtained the loans. It also showed the account number where the respondent invested his money. DSP Ku Ismail bin Ku Awang deposed that the income derived from the respondent’s salary and earnings from his 20 businesses were not sufficient to purchase the properties. That was also the finding of the learned trial judge. 21 [31] In an application for an order of forfeiture of property under section 56(1) where there is no prosecution, the standard of proof to determine whether the property has been obtained as a result of or in connection with an offence under section 4(1) is the standard of proof required in civil 5 proceedings: See section 56(4) of the Act. Any question of fact to be decided by the court in proceedings under the Act shall be decided on the balance of probabilities: See section 70(1) of the Act. 10 [32] We have read the affidavits of DSP Amran bin Yaacob and DSP Ku Ismail bin Ku Awang in their entirety. What was deposed in paragraph 32 of DSP Amran bin Yaacob’s affidavit should not be read in isolation and out of context. The affidavit must be viewed in its entirety. Paragraph 32 of 15 the said affidavit was not evidence per se. It was basically a conclusion based on information extracted from witnesses whose statements had been recorded by the investigation officer and from the numerous records and documents which were exhibited in the affidavit. 20 [33] Any property, record, report or document obtained by the investigation officer pursuant to section 32(2) of the Act are, 22 by virtue of section 40 of the Act, admissible as evidence in any proceedings in any court for or in relation to an offence or any other matter under the Act or any offence under any other written law. The Court of Appeal was clearly in error in holding that paragraph 32 of the investigation officer’s 5 affidavit was “purely heresay”. It also erred in ruling that the learned trial judge committed an error in relying “on an affidavit which is not worth the paper it is written on”. What had been deposed by these two senior police officers in their affidavits, which were based on their personal knowledge 10 acquired in the course of investigation under section 32 of the Act, could not be said as purely heresay. [34] The Court of Appeal was also in error in failing to consider the rebuttal evidence of witnesses called by the 15 appellant. The learned trial judge’s findings that the respondent obtained the properties out of the proceeds of an unlawful activity was based on evidence before him. The respondent failed to rebut the evidence against him on the balance of probabilities. There was no compellable reason to 20 interfere with the findings of fact by the learned trial judge. Accordingly, we allow the appeal, set aside the decision of 23 the Court of Appeal and reinstate the order of forfeiture made by the learned trial judge. Dated this 7th November 2017 5 (A SAMAH NORDIN) Judge of the 10 Federal Court, Malaysia Parties 15 1. Puan Tetralina binti Ahmad Fauzi Deputy Public Prosecutor for the Appellant (Jabatan Peguam Negara) 20 2. Mohd Yunos bin Shariff for the Respondent (Messrs Amran-Yunos)

Tika 2.6.0

WA-28NCC-193-04/2017

PEMOHON LEN ZON MARKETING SDN BHD PETITIONER DEFENDAN SUN BLINDS (M) SDN BHD

07/11/2017

YA TUAN MOHAMED ZAINI BIN MAZLAN

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1 IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR (COMMERCIAL DIVISION) IN THE STATE OF WILAYAH PERSEKUTUAN, MALAYSIA COMPANIES WINDING-UP NO. WA-28NCC-193-04/2017 BETWEEN LEN ZON MARKETING SDN BHD PETITIONER AND SUN BLINDS (M) SDN BHD DEFENDANT JUDGMENT Introduction [1] The petitioner presented a winding-up petition premised on s. 465 Companies Act 2016. It was claimed that the respondent owed the petitioner a sum of RM40,000.00. [2] I had in dismissing the petition, held that there is a bona fide dispute as to the amount claimed. Background facts [3] The facts of this case are uncomplicated. The alleged debt claimed by the petitioner was not a direct debt by the respondent. The amount sought was based on an alleged 2 undertaking given by the respondent, to settle the amount owing to the petitioner by another company called Twin Technic Sdn Bhd („Twin Technic‟). No facts were put forward pertaining to this debt owing by Twin Technic. [4] The alleged undertaking by the respondent was made through 2 cheques issued by the respondent to the petitioner for RM35,000.00 and RM5,000.00 respectively. These cheques were for the settlement of the debt claimed against Twin Technic. These cheques were subsequently dishonoured, leading the petitioner to then issue a notice of demand under the previous provisions of s. 218 Companies Act 1965. [5] The petitioner had prior to commencing this suit against the respondent, filed a winding-up petition against Twin Technic in the Kuala Lumpur High Court. The petition was successful, in that Twin Technic was wound-up with costs of RM5,000.00 on the 28 July 2016. It was only after the winding-up order was made, that the respondent issued the 2 cheques for the debt and costs of the winding-up order against Twin Technic. [6] The respondent admitted to issuing the 2 cheques. However, it denied being indebted to the petitioner, or having given an undertaking to settle the debt. The respondent maintained that it was merely helping out Twin Technic to pay its debt. The respondent claimed that the cheques were dishonoured, 3 as it did not get payment for some projects undertaken, which led to it having insufficient funds. [7] The petitioner took the position that the respondent had in issuing the 2 cheques, had firstly, unequivocally and unconditionally assumed and undertook to settle the debt of Twin Technic, and secondly, admitted the debt due by the respondent to the petitioner. Issues [8] The relevant issue is whether there is a bona fide dispute as to the debt claimed by the petitioner. To answer this question, it is crucial to determine whether the respondent, had by issuing the 2 cheques, assumed the debt of Twin Technic and had undertook to settle it. Findings [9] A bona fide dispute to a debt claimed, will negate the presumption that a respondent‟s neglect to pay within the statutory time limit, connotes that it is unable to pay its debt. The judgment of Mohd Nazlan JC (as he then was) in WWTAI Finance Ltd v IES Energy Holdings Sdn Bhd [2016] MLJU 1591 (HC) on this issue is illuminating. I set out the relevant portion of his lordship‟s judgment:- “However, a neglect and hence a failure to pay the debt as demanded in the valid winding up notice could be justified if 4 the refusal is due to the debt being bona fide disputed. This is a well-established basis to deny a petition because it represents a direct challenge on the existence of the debt itself. In other words, the key requirement in Section 218(2)(a) concerning the debt is being attacked. If the challenge is successful, the presumption does not arise, since it cannot be said that the respondent has neglected to pay. After all, the demand must relate to a specified debt. As such, a company has not neglected or refused to pay the debt if the debt is disputed on substantial grounds (see Securicor (M) Sdn Bhd v Universal Cars Sdn Bhd [1985] 1 MLJ 84.” [p 14-15] [10] For a dispute to be bona fide however, there must be cogent reasons, or evidence proffered for the court to consider. This dispute must give rise to a legitimate challenge to the debt claimed. Similar to an application for summary judgment, the dispute must entitle the respondent to assert that there are issues that have to be tried, and that these issue could not possibly be determined through affidavit evidence alone. [11] Where a bona fide dispute has been raised, it would be most prudent for the petitioner to adjudicate its case by filing a writ action, and have it adjudicated in the usual manner; see Re Nima Travel Sdn Bhd Sun Soon Heng Coach Works Sdn Bhd v Nima Travel Sdn Bhd [1986] 2 MLJ 374. A winding-up court is not the proper forum to adjudicate a claim that is legitimately disputed. 5 [12] Plowman J. in Re Tweed Garages Ltd [1962] 1 All ER 121, cited with approval the following passage from Buckley on the Companies Acts (13th Edn), p 451, where it was stated:- “A winding-up petition is not a legitimate means of seeking to enforce payment of a debt which is bona fide disputed by the company … But, of course, if the debt is not disputed on some substantial ground, the court may decide it on the petition and make the order …”. [13] There were no explanations given pertaining to the debt owing by Twin Technic, and the relationship between Twin Technic and the respondent. The respondent claimed that it had merely forwarded the 2 cheques with the intention of helping Twin Technic with its debt. [14] Now the petitioner claimed that the respondent had in its own words, “unequivocally and unconditionally” assumed the debt of Twin Tech. What is glaringly missing is the evidence to support this claim. There was no evidence to substantiate the respondent‟s alleged undertaking or agreement to have Twin Technic‟s debt assigned to it. All that the respondent had merely done was to offer its help to Twin Tech. [15] For the respondent to be liable, there must be some express condition agreed for the respondent to assume, or undertake to settle Twin Technic‟s debt. The mere act of forwarding cheques with the intention of helping Twin Technic to settle 6 its debt, could not be equated to an undertaking or assumption of debt. [16] Furthermore, the petitioner did not provide any evidence to show that they had in allowing the respondent to assume the debt, had provided some sort of consideration, such as foregoing its claim against Twin Technic. Although Twin Technic has been wound-up, the petitioner‟s claim against it is still alive, until and unless relinquished. [17] I therefore find that there is a bona fide as to the debt claimed. The winding-up court is not the proper forum for a dispute that requires a comprehensive finding of fact to be made. Conclusion [18] I had for these reasons find that the respondent has raised a bona fide dispute as to the debt claimed. The petition is dismissed with costs of RM5,000.00 subject to allocatur. Dated: 7 November 2017 -sgd- (Mohamed Zaini Mazlan) Judge Kuala Lumpur High Court (Commercial Division) 7 Counsel for the plaintiff R. Yogananthan [Messrs R.Y Nanthan & Partners] Counsel for the respondent Prema Arunasalam [Messrs V. Samy & Co]

Tika 2.6.0

03(f)-1-01/2017(D)

PERAYU Kempadang Bersatu Sdn Bhd RESPONDEN Perkayuan O.K.S. No. 2 Sdn Bhd

07/11/2017

YA TAN SRI DATUK ZAINUN BINTI ALIKorumYAA TAN SRI DATO' SERI ZULKEFLI BIN AHMAD MAKINUDINYA TAN SRI DATUK SURIYADI BIN HALIM OMARYA TAN SRI HASAN BIN LAHYA TAN SRI DATUK ZAINUN BINTI ALIYA TAN SRI DATO' WIRA AZIAH BINTI ALI

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1 DALAM MAHKAMAH PERSEKUTUAN MALAYSIA (BIDANG KUASA RAYUAN) RAYUAN SIVIL NO. 03(f)-1-01/2017(D) ANTARA KEMPADANG BERSATU SDN. BHD. … APPELLANT AND PERKAYUAN O.K.S NO. 2 SDN. BHD. … RESPONDENT [In the matter of Civil Appeal No: D-03(IM)-22-02/2016 In the Court of Appeal of Malaysia at Putrajaya] Antara Kempadang Bersatu Sdn. Bhd. … Appellant And Perkayuan O.K.S No. 2 Sdn. Bhd. … Respondent CORAM: ZULKEFLI AHMAD MAKINUDIN, PCA SURIYADI HALIM OMAR, FCJ HASAN LAH, FCJ ZAINUN ALI, FCJ AZIAH ALI, FCJ http://www.kehakiman.gov.my/node/68 http://www.kehakiman.gov.my/node/72 2 JUDGMENT INTRODUCTION 1. The Appellant, Kempadang Bersatu Sdn Bhd (Kempadang) was granted leave by the order of this Court dated 5.1.2017 to appeal the decision of the Court of Appeal dated 29.08.2016 on the following question: Whether an order of a High Court remitting the case back to the Deputy Registrar for damages to be reassessed is a final order which is appealable. FACTS 2. The Respondent, Perkayuan O.K.S no. 2 Sdn Bhd (Perkayuan) entered into an agreement with the Kelantan State Economic Development Corporation (“KSEDC”) on 24.12.1981 (First KSEDC Agreement), whereby Perkayuan was granted the right and privileges to fell and log and remove timber from the concession area. 3. However on 12.12.1998, KSEDC terminated the First KSEDC Agreement on grounds that Perkayuan had breached clause 18 of 3 the same. Perkayuan filed a suit against KSEDC via Civil Suit No. 21-1-1989. The High Court dismissed Perkayuan’s action. 4. However, by an order of the Federal Court dated 24.2.1995, the First KSEDC Agreement was revived. (see Perkayuan OKS No.2 Sdn Bhd v Kelantan SEDC [1995] 1 MLJ). 5. Consequently, Perkayuan entered into an agreement with KSEDC dated 26.9.2002 (the Second KSEDC Agreement). 6. In the meantime, Perkayuan entered into two agreements with Kempadang dated 3.4.1987 and 24.5.1988. Perkayuan engaged Kempadang as a contractor to fell logs and remove timber from the contract area. 7. A dispute arose, when Kempadang got wind off Perkayuan’s contract with a third party contractor to carry out logging in the timber concession area. It was contended by Kempadang that based on the 1987 and 1988 Agreements, the contract work belonged to them (Kempadang). 8. Kempadang then filed the present action against Perkayuan for, inter alia, a declaration that Kempadang had the right to carry out logging in the timber concession area and that the agreement 4 entered between Perkayuan and the third party contractor was void. 9. On 7.7.2010, after a full trial, the High Court Judge gave judgment in favour of Kempadang and ordered that damages be assessed. The Deputy Registrar awarded damages in the sum of RM303,627.10 to be paid by Perkayuan to Kempadang. 10. Perkayuan filed an application to set aside the order of the Registrar on damages, which was then dismissed by the Deputy Registrar. On appeal to the judge in chambers, the learned High Court Judge affirmed the Deputy Registrar’s decision. Perkayuan then took a further appeal to the Court of Appeal. The Court of Appeal Order dated 22.3.2012 11. By an Order dated 22.3.2012, the Court of Appeal allowed Perkayuan’s appeal in part and set aside the orders granted by the trial judge as per paragraph 21(a)-(g) of Kempadang’s statement of claim. The Court agreed with the finding of the trial judge that Perkayuan was in breach of the 1988 Agreement when it entered into an agreement with the third party. However the orders granted by the trial judge as per paragraph 21(a)-(g) of the 5 Statement of claim were found to be inappropriate since the third party had acquired rights to fell log in the remaining area for logging. In lieu of the prayers in paragraph 21, the Court of Appeal granted damages to Kempadang, to be assessed based on the acreage and land for logging, having regard to clause 6 of the 1988 Agreement on expenses and profits only. Of significance is Minute 3 of the order of the Court of Appeal which reads: “Responden menaksirkan gantirugi hanya berdasarkan pada keluasan kawasan dan pembalakan di bawah Perjanjian Lesen Pembalakan bertarikh 24.12.1981 dan Perjanjian Lesen Pembalakan bertarikh 26.9.2002 dan hanya berdasarkan kepada perbelanjaan dan keuntungan seperti yang diperuntukkan di bawah Klausa 6 Perjanjian Lesen Pembalakan bertarikh 25.5.1988.” Translation: The Respondent (Kempadang) is to have its damages assessed based on the logging area pursuant to the KSEDC Agreement and Second KSEDC Agreement and based only on the expenditure and profit as provided for in clause 6 of the KSEDC Agreement Assessment of damages 12. Following Minute 3 of the order of the Court of Appeal, the matter reverted to the Deputy Registrar of the High Court for assessment of damages. On 18.10.2015, the Deputy Registrar dismissed Kempadang’s claim for damages on the ground that damages 6 had not been proven. Aggrieved, Kempadang appealed to the Judge in chambers. DECISION OF THE LEARNED JUDICIAL COMMISSIONER (JC) 13. On 26.1.2016, the learned JC allowed Kempadang’s appeal and set aside the decision of the Deputy Registrar on damages. The learned JC held that the Deputy Registrar failed to abide by Minute 3 of the Court of Appeal, which granted damages to Kempadang, which by the same token, failed to observe the principle of stare decisis. As a result, the learned JC ordered that Kempadang’s damages be assessed again before a different Deputy Registrar. Aggrieved, Perkayuan appealed to the Court of Appeal. DECISION OF THE COURT OF APPEAL 14. Before the Court of Appeal, counsel for Kempadang raised only one issue to oppose the appeal i.e. that the learned JC’s order was not a final decision as defined by section 3 of the Courts of Judicature Act 1964 (the CJA) and was therefore not appealable. Kempadang said that the learned JC’s order was a ruling and that a ruling is not a court decision since it does not finally dispose the 7 rights of parties and thus it is non-appealable. However, the Court of Appeal disagreed with Kempadang’s argument and held that the appeal was competent, i.e. the learned JC’s order was appealable. 15. On the merits of the appeal, the Court of Appeal allowed Perkayuan’s appeal, set aside the learned JC”s order and awarded nominal damages of RM10,000.000 to Kempadang. It also held that Kempadang had been given the opportunity to produce its evidence at the hearing of the assessment of damages yet it failed to prove the amount of damages claimed. Therefore the learned JC had no basis in making an order for reassessment of damages. In the circumstance the learned JC ought to have granted Kempadang nominal damages. THE APPEAL BEFORE THE FEDERAL COURT 16. Referring to the question of law posed before this Court, the issue in the appeal lies in the construction to be given to subsection 67(1) of the CJA. The said provision confers on the Court of Appeal jurisdiction to hear and determine civil appeals from any judgment or order of the High Court made in the exercise of its original or of its appellate jurisdiction. 8 17. Subsection 67(1) of the CJA reads: 67. Jurisdiction to hear and determine civil appeals (1) The Court of Appeal shall have jurisdiction to hear and determine appeals from any judgment or order of any High Court in any civil cause or matter, whether made in the exercise of its original or of its appellate jurisdiction, subject nevertheless to this or any other written law regulating the terms and conditions upon which such appeals shall be brought. APPELLANT’S SUBMISSION 18. The thrust of Kempadang’s argument is that the words “judgment” and “order” in section 67 of the CJA are to be read in the light of section 3 of the CJA. 19. The relevant provision of section 3 reads: "decision" means judgment, sentence or order, but does not include any ruling made in the course of a trial or hearing of any cause or matter which does not finally dispose of the rights of the parties; 20. Applying section 3 of the CJA to the issue at hand, counsel for Kempadang contended that the decision of the learned JC ordering damages to be reassessed before a different Deputy Registrar is not one which finally disposes of the rights of the parties. This renders the decision non-appealable. The following 9 authorities were cited in support: Datuk Seri Tiong King Sing v Datuk Seri Ong Tee Keat & Anor [2015] 1 MLJ 847; Christopher ak Bandi @ Josny v Tumbung ak Akis & Anor (Jamil bin Sindi, third party) [2016] 4 MLJ 100. RESPONDENT’S SUBMISSION 21. However Counsel for Perkayuan took the position that the absence of the word “decision” in subsection 67(1) of the CJA renders section 3 inapplicable; that the words “judgment” and “order” in section 67 of the CJA are specific words and ought not be read within the context of “decision” in section 3 of the CJA. 22. It was further submitted that the meaning of the word “decision” in section 3 of the CJA only applies to criminal appeals. Unlike subsection 67(1), section 50 of the CJA specifically states that “in respect of criminal appeals, the Court of Appeal shall have jurisdiction to hear and determine any appeal against any decision made by the High Court…” (emphasis added). 23. Perkayuan cited the decision of the Court of Appeal in Tycoon Realty Sdn Bhd v Senwara Development Sdn Bhd - [1999] 2 MLJ 696 where NH Chan JCA held that: 10 “It is to be noted that the word 'decision' is not used in s 67(1), so that, there is no compelling reason to refer to s 3 of the Act for its meaning as is in the case of criminal appeals. That being so, the Court of Appeal has jurisdiction to hear appeals 'from any judgment or order of any High Court in any civil cause or matter, whether made in the exercise of its original or of its appellate jurisdiction'. The phrase 'from any judgment or order' is not to be restricted to the meaning given to the word 'decision' in the current version of s 3. This is because, in s 67, civil appeals to the Court of Appeal are from 'any judgment or order' of any High Court, whereas, in the case of criminal appeals they are against 'any decision' made by the High Court. There is no compelling reason to extend the meaning of the words 'any judgment or order' to mean a judgment or order which would finally dispose of the rights of the parties. It is not the business of a court of law to put words into a statutory provision which are not there because to do so would be intruding into the domain of the legislature.” 24. It was further submitted that the word “decision” in section 3 of the CJA was amended by the legislature via Amendment Act A1031 in 1998. Accordingly, if the legislature intends for the amendment to apply to civil appeals, subsection 67(1) would have to be amended. Otherwise, to apply section 3 to section 67(1) would clearly be to add words into a statutory provision which is not the duty of the court. OUR DECISION Construction of Subsection 67(1) of the CJA 11 25. Subsection 67(1) is a general provision conferring jurisdiction on the Court of Appeal to hear and determine appeals against the decision of the High Courts. It states that “any judgment or order” of the High Court which is made in the exercise of its original or of its appellate jurisdiction is appealable. However this right of appeal is always subject to any statutory provisions in the CJA or other statutes limiting appeals. On this basis, the provision of section 67(1) of the CJA is to be read together with the provisions in the CJA and other statutes which impose terms and conditions of an appeal. 26. Civil matters which are not appealable to the Court of Appeal are listed in subsection 68(1). For instance, there can be no appeal against a judgment or order made by consent of parties or a judgment or order which has been declared final by a statute. Another restriction to appeal can be discerned from the provision of section 3 of the CJA when it qualifies the word “decision” as opposed to a “ruling” of the court. 27. Section 3 is not a specific provision limiting appeals. Section 3 is the interpretation section of the CJA. It merely defines what a decision is, for the purpose of the CJA. 12 28. On the interpretation of the word “decision”, the relevant paragraph in section 3 is divided into two parts. The first part identifies “decision” in the form of “judgment, sentence or order” of the court. It provides an extensional definition of the word decision by listing instances of the set of things included therein. In other words the concept of decision is not explained but the objects that fall under this word are listed. 29. The second part of the paragraph qualifies that these forms of decision do not include “any ruling made in the course of a trial or hearing of any cause or matter which does not finally dispose of the rights of the parties”. It is noted that the second part was inserted in section 3 by Act A1031 which came into effect on 31 July 1998. Based on the said provision, at what juncture a ruling is issued plays a vital role in determining whether such an order is a ruling within the context of section 3. There must be a trial in existence or a hearing and that the order is issued in the course of that trial or hearing. Secondly, the ruling must not have the effect of disposing the final rights of the parties. (our emphasis) 30. As regards the application of section 3 of the CJA, Counsel for Perkayuan contended that section 3 applies to criminal appeals but not to civil appeals. The reason is that, unlike subsection 13 67(1) of the CJA, the word “decision” appears in the provision of section 50 of the CJA, on the appellate jurisdiction of the Court of Appeal to determine criminal appeals. 31. In the absence of the word “decision” in subsection 67(1) of the CJA, the question is whether the phrase “judgment or order” mentioned in subsection 67(1) of the CJA is a “decision” within the context of section 3 of the CJA. Putting it in another way, the question is whether the exception provided in section 3, which excludes a “ruling” from the meaning of decision, should be extended to section 67(1), thus restricting any appeal to be filed against any ruling of the High Court? 32. It bears repeating that the words “judgment” and “order” are not defined in section 3 of the CJA. Nevertheless they appear in section 3, to form the meaning of “decision”. The omission of the word “decision” in subsection 67(1) of the CJA is capable of being understood. Section 3 says that “decision” means “judgment, sentence or order…”. It is seen that by the words “judgment” and “order”, subsection 67(1) indicates the form a “decision” will take in section 3 of the CJA where the word “sentence” is absent. This is appropriate since, a civil court does not impose a sentence in its decision. A sentence is a decision given by a judge sitting in a 14 criminal court upon conviction of a criminal charge. Thus the words in subsection 67(1) are clear and unambiguous and the court must give effect to its meaning. 33. The relationship between section 3 on the meaning of the word “decision” and the provisions on appeals in the CJA is apparent when one looks at the purpose of the amendment made by Act A1031 to the definition of the word "decision" in section 3. 34. The courts have always been inclined to take a purposive and literal construction of a provision in a statute. In this regard, the literal meaning of an Act will be given where that meaning is in accordance with the legislative purpose (see the decisions in Tan Kim Chuan & Anor v. Chandu Nair [1991] 2 MLJ 42, United Hokkien Cemetries Penang v. Majlis Perbandaraan Pulau Pinang [1979] 2 MLJ 121; Foo Loke Ying & Anor v. Television Broadcasts Ltd & Ors [1985] 2 MLJ 35; Vengadasalam v. Khor Soon Weng & Ors [1985] 2 MLJ 449). 35. The same principle has been reiterated by the Federal Court recently, in the case of Kesatuan Pekerja-pekerja Bukan Eksekutif Maybank Berhad v Kesatuan Kebangsaan Pekerja- pekerja Bank & Anor - [2017] MLJU 260. Balia FCJ, held that: http://www.lexisnexis.com/my/legal/search/runRemoteLink.do?A=0.5089625145566568&bct=A&service=citation&risb=21_T26585699786&langcountry=MY&linkInfo=F%23MY%23MLJ%23vol%252%25sel1%251991%25page%2542%25year%251991%25sel2%252%25 http://www.lexisnexis.com/my/legal/search/runRemoteLink.do?A=0.8578390882689042&bct=A&service=citation&risb=21_T26585699786&langcountry=MY&linkInfo=F%23MY%23MLJ%23vol%252%25sel1%251979%25page%25121%25year%251979%25sel2%252%25 http://www.lexisnexis.com/my/legal/search/runRemoteLink.do?A=0.2885815650179753&bct=A&service=citation&risb=21_T26585699786&langcountry=MY&linkInfo=F%23MY%23MLJ%23vol%252%25sel1%251985%25page%2535%25year%251985%25sel2%252%25 http://www.lexisnexis.com/my/legal/search/runRemoteLink.do?A=0.34452053402478733&bct=A&service=citation&risb=21_T26585699786&langcountry=MY&linkInfo=F%23MY%23MLJ%23vol%252%25sel1%251985%25page%25449%25year%251985%25sel2%252%25 15 “The function of a court when construing an Act of Parliament is primarily to interpret the statute in order to ascertain what the legislative intent is. And this is primarily done by reference to the words used in the provision.” 36. The intention of the legislature when drafting the amendment to section 3 was that the amendment should serve as a filter process for appeals. It must be emphasised that for this purpose, section 3 is intended to be read together with subsection 67(1) of the CJA. 37. This is evident from the explanatory statement to the Bill of Act A1031 which reads: “2. Clause 2 seeks to amend section 3 of Act 91. At the moment, in the course of hearing a case, if the court decides on the admissibility of any evidence or document, the dissatisfied party may file an appeal. If such appeal is filed, the court has to stop the trial pending the decision of the appeal by the superior court. This cause a long delay in the completion of the hearing, especially when an appeal is filed against every ruling made by the trial court. The amendment is proposed in order to help expedite the hearing of cases in trial courts.” 38. The position on the amended section 3 of the CJA has been clearly set out in the decision of the Federal Court in the case of Dato’ Seri Anwar Ibrahim v PP [2010] 9 CLJ 625. (see also 16 Ahmad Zubair @ Ahmad Zubir bin Hj Murshid v Public Prosecutor [2014] 6 MLJ 831) 39. In the case of Dato’ Seri Anwar Ibrahim (supra) at page 636 the court pointed out the underlying reasons for the amendment to the definition of "decision" in s 3 of the CJA which came into effect on 31 July 1998 in the following manner: "The underlying reason behind the amendment to the definition of "decision" in s. 3 of the CJA is to stop parties from stalling a trial before the trial court by filing appeal after appeal on rulings made by the trial court in the course of a trial. Apart from that, the definition of "decision" by itself is sufficiently clear and it is the court's duty to give effect to the same. Justice demands that cases should move without unnecessary interruption to their final conclusion. That is what the amendment seeks to achieve as evident from the explanatory statement to the Bill which reads: 2. Clause 2 seeks to amend section 3 of Act 91. At the moment, in the course of hearing a case, if the court decides on the admissibility of any evidence or document, the dissatisfied party may file an appeal. If such appeal is filed, the court has to stop the trial pending the decision of the appeal by the superior court. This cause a long delay in the completion of the hearing, especially when an appeal is filed against every ruling made by the trial court. The amendment is proposed in order to help expedite the hearing of cases in trial courts. Quite apart from the explanatory statement to the Bill the definition of "decision" by itself, to our mind, is sufficiently clear, and it is the duty of the court to give effect to the same. Justice demands that cases should move without unnecessary interruption to their final conclusion. That is what the amendment seeks to achieve. The right of a party who is aggrieved by a ruling, after all, is not being compromised, as the party can always 17 raise the issue during the appeal, if any, to be filed after the trial process is brought to its conclusion." 40. At this juncture, it is noted that the decision of the Court of Appeal in Tycoon Realty Sdn Bhd (supra) which was relied on by Perkayuan failed to give regard to the purposive and literal construction of subsection 67(1) and section 3 of the CJA. 41. It is also noted that the case of Pentadbir Tanah Kuala Selangor v Maybank Islamic Berhad [2015] 9 CLJ 197 cited by the Court of Appeal in the present appeal is of no assistance. 42. Thus apart from the provision of subsection 67(1) of the CJA, it is apparent that Perkayuan’s appeal against the order of the learned JC is an appeal against a decision made by a judge in chambers which is governed by O56 r2 of the Rules of Court 2012 (RC 2012). The relevant provision reads: Appeal from Judge (O 56 r 2) Subject to section 68 of the Courts of Judicature Act 1964, a party may appeal to the Court of Appeal against any judgment, order or decision made by a Judge in Chambers. 43. The word “decision” is expressly stated in O56 r2 of the RC 2012 together with the words “judgment” and “order”. The definition of http://www.lexisnexis.com/my/legal/search/runRemoteLink.do?A=0.5594516931054406&bct=A&service=citation&risb=21_T26515380708&langcountry=MY&linkInfo=F%23MY%23USM_PA%23act%2591%25section%2568%25 18 the word “decision” in O56 r2 is not provided in the RC 2012. Generally the powers of the courts mentioned in the RC 2012 are conferred by the provisions provided in the CJA. Thus, in interpreting the word “decision” in O56 r2 of the RC 2012, resort must be had to the meaning given to the word “decision” in section 3 of the CJA. 44. In view of the above, we are unable to agree with the approach taken by learned counsel for Perkayuan, that the scope of a “decision” in section 3 is excluded from subsection 67(1) of the CJA. Subsection 67(1) of the CJA must be read together with section 3 of the CJA. Whether the decision of the learned JC ordering damages to be reassessed before a different Registrar is appealable? 45. The thrust of Kempadang’s argument is that, applying section 3 of the CJA, the decision of the learned JC in ordering damages to be reassessed is not a ruling which finally disposes the rights of the parties, thus rendering the decision non-appealable. 46. However, much emphasis was placed on this argument thus overlooking the question of at what juncture was the learned JC’s order made? It is critical to note that when scrutinising the word 19 “ruling” in section 3 of the CJA, it is important to examine at what juncture an order is made. This and the effect of such order is to be read conjunctively. 47. If an order was not made in the course of a trial or matter, regardless of the fact that it does not dispose of the rights of the parties, such an order is not a ruling as defined in section 3 of the Act and is therefore appealable. This was decided by the Court of Appeal in the case of Syarikat Tingan Lumber Sdn Bhd v Takang Timber Sdn Bhd - [2003] 2 MLJ 495. On the facts of the case, the Court of Appeal held that an appeal against the ruling of the registrar on the admissibility of certain documents in the course of a hearing for assessment of damages is incapable of appeal. 48. The Court of Appeal in the case of Datuk Seri Tiong King Sing v Datuk Seri Ong Tee Keat & Anor - [2015] 1 MLJ 847 had emphasised on the requirement of a ruling made in the course of a trial under section 3 of the CJA. In that case, during the trial of a defamation suit, a witness refused to disclose the identity of the 'sources' referred to in the defamatory article. As a result, the plaintiff made an application for an order to compel the witness to disclose the names and particulars of the 'sources'. The High 20 Court judge dismissed the plaintiff's application. Aggrieved, the plaintiff appealed against the High Court's decision. The Court of Appeal held that the plaintiff’s appeal was incompetent and thus non-appealable. It held that: “An important point which must not be overlooked is that encl 35 was filed and then determined by the learned High Court judge during the course of the trial, even as Joseph Sipalan was in the midst of giving his testimony. Viewed in this way, the fact that a formal application was filed should not make any difference to the matter at hand. What is of greater significance is at what juncture the said ruling was made? We agree with the submissions of learned counsel for Joseph Sipalan and the fourth defendant that in substance what was sought was a ruling by the learned High Court judge in the course of the trial as to whether Joseph Sipalan should be compelled to disclose the identity of the 'sources'.” (my emphasis) 49. In Wong Kie Chie & Ors v Kathryn Ma Wai Fong (as the personal representative, executrix and trustee of the estate of the late Wong Kie Nai) & Anor and other appeals - [2017] 3 MLJ 350, the Court of Appeal held that a recusal order made by the judge before the commencement of trial is not a ruling within section 3 of the CJA, and is thus appealable. Vernon Ong JCA held that: “[43] According to the appeal record, the parties appeared before the learned judge on 18 January 2016 for the conduct of the cross-examination proceedings. After the parties had 21 introduced themselves and before the commencement of the proceedings the learned judge made his recusal order. Clearly, the recusal order was not made in the course of the trial or hearing within the meaning of s 3 of the CJA 1964. We are fortified in our view in that an order to that effect was subsequently drawn up and sealed by Senior Assistant Registrar of the High Court, Sibu. Accordingly, we hold that this court have the jurisdiction to hear and determine the appeals pursuant to s 67(1) of the CJA 1964.” 50. However it must be stated that not all orders given by the court pursuant to interlocutory applications filed by parties in the course of trial are non-appealable. In Mulpha International Bhd & Ors v Mula Holdings Sdn Bhd & Ors and other appeals - [2017] MLJU 445, it was held that the decision of the trial judge dismissing an application to strike out pleadings under O18 r 19 Rules of Court 2012, was not a ruling within the context of section 3 of the CJA although such application was filed in the course of the trial. 51. On this issue, the Court of Appeal applied a purposive approach in interpreting the phrase “in the course of trial or hearing” provided in section 3 of the CJA. Upon a perusal of the explanatory statement to the Bill of Amending Act A1031, the Court concluded that the amendment made to section 3 of the CJA sought to overcome the delay in the completion of a trial as a 22 result of appeals filed against rulings of a trial judge with respect to admissibility of “any evidence or document”. 52. It was then held that the word “ruling” in the context of section 3 of the CJA is to be limited to an objection raised by a party in the course of trial with regard to the admission of any evidence or document. 53. Abdul Rahman Sebli JCA in Mulpha Trading (supra) held that: “The word "ruling" appearing in section 3 of the CJA is not defined but in our view it refers to any ruling made in the course of a trial upon objection raised by any party to the proceedings. An example would be an objection to the admissibility of any evidence or document. [17] A decision by the trial judge to either uphold or overrule the objection would be a "ruling made in the course of a trial or hearing of any cause or matter which does not finally dispose of the rights of the parties." Such decision is not a "judgment" or "order" within the meaning of section 67(1) read with section 3 of the CJA and is therefore not appealable. On the other hand, a decision made pursuant to an application under Order 18 rule 19 of the Rules is not such "ruling". [18] The rationale behind the amendment to the meaning of the word "decision" in section 3 of the CJA was explained by Arifin Zakaria CJ (Malaya) (as he then was) in Dato' Seri Anwar Ibrahim v PP [2010] 9 CLJ 625 in the following terms at page 636: "[24] The underlying reason behind the amendment to the definition of "decision" in s. 3 of the CJA, introduced by Amendment Act A1031 of 1998, which came into effect on 31 July 1998 is to stop parties from stalling a trial before the trial court by filing appeal after appeal on rulings made by the trial court in the course of a trial. 23 This is what the amendment seeks to achieve as evident from the explanatory statement to the Bill…” 54. It is noted that in Christopher Anak Bandi (supra), the Court of Appeal held that an application to amend pleadings filed in the course of a trial is a ruling within the context of section 3 and is thus non appealable. It was held that one needs to merely look at the provision of section 3 of the CJA with respect to the two requirements of a ruling which renders it non appealable. 55. Nevertheless, the decision of the Court in Christopher Anak Bandi (supra) must not be overstated. At the risk of repetition, the facts in Christopher Anak Bandi (supra) involved an application made by the plaintiff to amend its pleading in the course of trial. On this, the decision of the Court of Appeal was also made in the light of a recent decision of the Federal Court in Hong Leong Finance Bhd v Low Thiam Hoe & Another Appeal (2015) 8 CLJ 1, which displaces the principles enunciated in Yamaha Motor Co Ltd v Yamaha (M) Sdn Bhd (1983) 1 CLJ 191, on amendment of pleadings, if such application is made at a later stage of proceedings. 24 56. In Christopher Anak Bandi (supra), David Wong Dak Wah JCA, held that: “[16] In our deliberation, we also find the recent decision of the Hong Leong Finance Bhd v Low Thiam Hoe & Another Appeal (2015) 8 CLJ 1 to be of some significance and valuable guidance… [19] Reverting to the matter before us, to concede to the contention that the appeal before us is appealable, in our view, would no doubt give a party an extra bullet, so to speak, to delay an expeditious trial and would also be inconsistent to the jurisprudence of the present regime of civil procedure. As pointed out by the Learned Chief Judge of Malaya, the Rules of Court 2012 now provides robust pretrial case management by the Courts before the trial is set down. The philosophy behind the new regime of civil procedure is simply to attend a "just, expeditious and economical" disposal of an action. Litigants through their respective counsel must understand that they must put their house in order before a case goes to trial and once the trial commenced Courts will not tolerate any delay except in the most exceptional circumstance. Putting one's house in order simply means that parties and their counsel must be aware that they have a duty to frame their case fully in all their causes of action and defences prior to the start of trial. Conducting one's case by instalment must not be allowed in the context of the present regime of civil procedure. It is an undeniable fact that many cases had been stayed pending appeals to Higher Courts on matters similar to the factual matrix in this case, which undoubtedly had delayed the disposal of these cases.” What then is the exact nature of the learned JC’s order? 57. Reverting to the facts of the present appeal, the order of the learned JC, remitting the matter to a different Registrar of the High Court for reassessment of damages was issued at the end 25 of the hearing of Kempadang’s appeal. It was not issued in the course of the hearing of the appeal. The Order of the High Court dated 26.1.2016, shows that after hearing both parties, the learned JC proceeded to dispose Kempadang’s appeal and set aside the decision of the Registrar dated 18.10.2015 on assessment of damages. 58. In view of the above, the order of the learned JC, remitting the matter to the Registrar of the High Court for reassessment of damages is not caught by the exclusion clause of the word “decision” in section 3 of the CJA and is therefore appealable. 59. At this juncture we would agree with the finding made by the Court of Appeal that the learned JC ought to have allowed Kempadang’s appeal in part by awarding nominal damages. Zamani A.Rahim JCA held that: “ It is obvious that the learned JC concurred with the Deputy Registrar that the plaintiff has failed to discharge its burden of proving the loss suffered as emphasised above. The learned JC was troubled by the fact that the Deputy Registrar did not award any amount of damages despite Minute 3 of the Order of this court, which to the learned JC thought that the plaintiff was entitled to some. In fact, the learned JC felt that at least nominal damages ought to have been awarded. Instead of allowing the appeal in part by awarding nominal damages, the learned JC clearly erroneous when he ordered that the Deputy Registrar’s Order dated 18.10.2015 be set 26 aside and damages to be assessed before different Deputy Registrar… In this respect, it is trite law that no new trial ought to be ordered unless the appellant in question had succeeded in making out a case of manifest injustice (see P.C. RM. L. Lechumanan Chettiar v A.L.S Sadayappa Chettiar [1953] 1 MLJ 45). In addition to the above, a new trial is undesirable and ought not to be ordered unless there is something crucial to a just decision in the case that can be established in the new trial but cannot be established on an assessment of the evidence. If the evidence are already before the court, such an order would not be granted (see Tan Ah Tong v Gee Boon Kee & Ors [2006] 2 MLJ 618).” Conclusion 60. In view of the above, the order of the learned JC remitting the case to a different Deputy Registrar for damages to be reassessed was not a ruling as described in section 3 of the CJA. Thus Perkayuan’s appeal against the decision of the learned JC was competent and properly brought before the Court of Appeal in view of subsection 67(1) and section 3 of the CJA. 61. The question in the appeal is answered in the affirmative. The appeal is dismissed with costs. 27 Dated : 7 November 2017. TAN SRI DATUK ZAINUN ALI Federal Court Judge Malaysia. Counsel For the Appellant: V. Rajadevan Pang Teck Yaw Solicitors For the Appellant: Messrs. Rajadevan & Associates Counsel For the Respondent : Ck Yeoh Solicitors For the Respondent : Messrs Ranjit Singh & Yeoh

Tika 2.6.0

Q-02 (IM)-916-05 / 2016

PERAYU TAI CHOI YU …APPELLANT RESPONDEN MA BOON LAN … RESPONDEN T

Civil Procedure — Application notice to set aside — Appeal by the Second Defendant — Inconsistencies with the intitulement of appeal and in the scope of the appeal — Appellant made no effort to rectify the inconsistencies prior to the hearing of this appeal — Whether fatal — Whether mere irregularities which can be cured despite failure to rectify inconsistencies — Rules of Court 2012, Order 1A , Order 16 , Order 18 rule 19 (1) (b) and (d), Order 28 rules 1 and 8, Order 34 rule 1(3) and (4) & & 2(2) and Order 92 rule 4

07/11/2017

YA DATO' UMI KALTHUM BINTI ABDUL MAJIDKorumYAA TAN SRI DATUK SERI PANGLIMA DAVID WONG DAK WAHYA DATUK DR HAJI HAMID SULTAN BIN ABU BACKERYA DATO' UMI KALTHUM BINTI ABDUL MAJID

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1 IN THE COURT OF APPEAL MALAYSIA (APPELLATE JURISDICTION) CIVIL APPEAL NO. Q – 02 (IM) – 916 – 05 / 2016 BETWEEN TAI CHOI YU …APPELLANT AND MA BOON LAN …RESPONDENT [In the matter of Originating Summons No. MYY 24 – 22 / 8 – 2014 in the High Court of Sabah and Sarawak at Miri Between MA SUAN TONG …PLAINTIFF And 1. UOB Kay Hian Pte Ltd 2. Tai Choi Yu …DEFENDANTS] CORAM DAVID WONG DAK WAH, JCA HAMID SULTAN BIN HAJI ABU BACKER, JCA UMI KALTHUM BINTI ABDUL MAJID, JCA 2 GROUNDS OF JUDGMENT Introduction 1. This was an appeal by the Second Defendant/Appellant against the decision of the learned High Court Judge in Enclosure 49 and Enclosure 57. 2. The learned High Court Judge had allowed Ma Boon Lan’s/3rd Party’s Notice of Application made under Order 18 rule 19 (1) (b) and (d), Order 16 and Order 92 rule 4 of the Rules of Court 2012 (Rules of Court) in Enclosure 49 to set aside, strike out and/or dismiss the Second Defendant’s/Appellant’s Statement of Defence and Counterclaim. 3. The learned High Court Judge had also dismissed the Second Defendant/Appellant’s application in Enclosure 57 under Order 34 rule 1(3) and (4) and rule 2(2) and Order 28 rules 1 and 8 of the Rules of Court to dismiss the Plaintiff’s/Ma Suan Tong’s claim, amongst others. 4. The Second Defendant/Appellant being dissatisfied with the above decisions now appeal to the Court of Appeal. PRELIMINARY OBJECTION 5. On the hearing day of the Second Defendant’s/Appellant’s appeal on 20.4.2017, the Respondent raised preliminary objections on two grounds, which preliminary objections he had intimated earlier to the Second Defendant/Appellant vide his solicitor’s letter ref. APK/CT-42/2014 (2)/Lo dated 1.12.2016 3 6. First, there were some inconsistencies with the intitulement of this appeal vide Notice of Appeal dated 14.4.2016, particularly in relation to the name of the parties cited. In the Notice of Appeal dated 14.4.2016, the Appellant named was Tai Choi Yu and the Respondent named was Ma Boon Lan. However, the intitulement in the Memorandum of Appeal dated 7.6.2016 and the rest of the cause papers and documents filed therein, the Appellant named was Tai Choi Yu and the First Respondent named was Ma Suan Tong and the Second Respondent/3 rd Party named was Ma Boon Lan. 7. Secondly, there was inconsistency in the scope of this very appeal. The Appellant vide his Notice of Appeal indicated that he was appealing against the “whole of the decision” of the learned High Court Judge delivered on 6.4.2016 but in his Memorandum of Appeal, he stated that he was only appealing “against part of the decision”. 8. The Respondent objected to these inconsistencies as they are grave and serious in nature. The Respondent contended that these inconsistencies would have a dire and serious effect on the Respondent as the Respondent would be placed in a very difficult position to respond to this appeal. The Respondent would also be highly prejudiced if this appeal is allowed to proceed as the scope and direction of this appeal are vague and uncertain. 9. The Appellant on the other hand contended that the appeal before the Court was a fit and proper appeal and there would be no prejudice caused to the Respondent. The Appellant further argued that the Respondent’s preliminary objections were frivolous and scandalous. 4 DECISION OF THE COURT 10. Having perused the Record of Appeal filed herein particularly the Notice of Appeal and the Memorandum of Appeal and having examined the intitulement of this appeal, we were satisfied that there were indeed inconsistencies made to the names of the parties cited and there was in fact inconsistency in relation to the scope of this appeal. 11. We were of the view that these inconsistencies were not only grave in nature but were also fundamentally wrong as this appeal could not have been proceeded without causing serious injustice and prejudice to the Respondent. In other words, we were of the view that there was no competent appeal before us. 12. Evidently, the inconsistencies were too obvious to be ignored and were not mere irregularities which can be cured under Order 1A of the Rules of Court. In the Federal Court case of Duli Yang Amat Mulia Tungku Ibrahim Ismail Ibni Sultan Iskandar Al-Haj Tunku Mahkota Johor v Datuk Captain Hamzah bin Mohd Noor and another appeal [2009] 4 MLJ 149, at paragraph 46, page 163, Zaki Azmi (C.J. as he then was) (delivering judgment of the Court) held as follows: “[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 of the 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. Order 1A 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 of the RHC does not apply as the respondents had intentionally disregarded O 6 r 7(2A) for their own reasons.” [Emphasis added] In the absence of any application by the Appellant/Second Defendant to amend the inconsistencies, and we noted that the Appellant/Second 5 Defendant had ample time to do so since 1.12.2016, prior to the hearing of this appeal, the preliminary objections by the Respondent must be allowed. 13. As such, it was our unanimous decision to allow the Respondent’s preliminary objections and accordingly this appeal was struck out with costs of RM 1,000.00 subject to the payment of allocatur’s fee. The deposit was to be refunded. t.t. (UMI KALTHUM BINTI ABDUL MAJID) Judge Court of Appeal Malaysia Putrajaya Dated: 7th November 2017 Counsel for the Appellant: Tai Choi Yu From Messrs. Tai Choi Yu & Co. Counsel for the Respondent: Mr. Louis Achuk From Messrs. Kadir, Wong Lin & Co.

Tika 2.6.0

Q-02 (IM)-916-05 / 2016

PERAYU TAI CHOI YU …APPELLANT RESPONDEN MA BOON LAN … RESPONDEN T

Civil Procedure — Application notice to set aside — Appeal by the Second Defendant — Inconsistencies with the intitulement of appeal and in the scope of the appeal — Appellant made no effort to rectify the inconsistencies prior to the hearing of this appeal — Whether fatal — Whether mere irregularities which can be cured despite failure to rectify inconsistencies — Rules of Court 2012, Order 1A , Order 16 , Order 18 rule 19 (1) (b) and (d), Order 28 rules 1 and 8, Order 34 rule 1(3) and (4) & & 2(2) and Order 92 rule 4

07/11/2017

YA DATO' UMI KALTHUM BINTI ABDUL MAJIDKorumYAA TAN SRI DATUK SERI PANGLIMA DAVID WONG DAK WAHYA DATUK DR HAJI HAMID SULTAN BIN ABU BACKERYA DATO' UMI KALTHUM BINTI ABDUL MAJID

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=0b7e589d-9a24-4dfe-aa40-8264065b9634&Inline=true

1 IN THE COURT OF APPEAL MALAYSIA (APPELLATE JURISDICTION) CIVIL APPEAL NO. Q – 02 (IM) – 916 – 05 / 2016 BETWEEN TAI CHOI YU …APPELLANT AND MA BOON LAN …RESPONDENT [In the matter of Originating Summons No. MYY 24 – 22 / 8 – 2014 in the High Court of Sabah and Sarawak at Miri Between MA SUAN TONG …PLAINTIFF And 1. UOB Kay Hian Pte Ltd 2. Tai Choi Yu …DEFENDANTS] CORAM DAVID WONG DAK WAH, JCA HAMID SULTAN BIN HAJI ABU BACKER, JCA UMI KALTHUM BINTI ABDUL MAJID, JCA 2 GROUNDS OF JUDGMENT Introduction 1. This was an appeal by the Second Defendant/Appellant against the decision of the learned High Court Judge in Enclosure 49 and Enclosure 57. 2. The learned High Court Judge had allowed Ma Boon Lan’s/3rd Party’s Notice of Application made under Order 18 rule 19 (1) (b) and (d), Order 16 and Order 92 rule 4 of the Rules of Court 2012 (Rules of Court) in Enclosure 49 to set aside, strike out and/or dismiss the Second Defendant’s/Appellant’s Statement of Defence and Counterclaim. 3. The learned High Court Judge had also dismissed the Second Defendant/Appellant’s application in Enclosure 57 under Order 34 rule 1(3) and (4) and rule 2(2) and Order 28 rules 1 and 8 of the Rules of Court to dismiss the Plaintiff’s/Ma Suan Tong’s claim, amongst others. 4. The Second Defendant/Appellant being dissatisfied with the above decisions now appeal to the Court of Appeal. PRELIMINARY OBJECTION 5. On the hearing day of the Second Defendant’s/Appellant’s appeal on 20.4.2017, the Respondent raised preliminary objections on two grounds, which preliminary objections he had intimated earlier to the Second Defendant/Appellant vide his solicitor’s letter ref. APK/CT-42/2014 (2)/Lo dated 1.12.2016 3 6. First, there were some inconsistencies with the intitulement of this appeal vide Notice of Appeal dated 14.4.2016, particularly in relation to the name of the parties cited. In the Notice of Appeal dated 14.4.2016, the Appellant named was Tai Choi Yu and the Respondent named was Ma Boon Lan. However, the intitulement in the Memorandum of Appeal dated 7.6.2016 and the rest of the cause papers and documents filed therein, the Appellant named was Tai Choi Yu and the First Respondent named was Ma Suan Tong and the Second Respondent/3 rd Party named was Ma Boon Lan. 7. Secondly, there was inconsistency in the scope of this very appeal. The Appellant vide his Notice of Appeal indicated that he was appealing against the “whole of the decision” of the learned High Court Judge delivered on 6.4.2016 but in his Memorandum of Appeal, he stated that he was only appealing “against part of the decision”. 8. The Respondent objected to these inconsistencies as they are grave and serious in nature. The Respondent contended that these inconsistencies would have a dire and serious effect on the Respondent as the Respondent would be placed in a very difficult position to respond to this appeal. The Respondent would also be highly prejudiced if this appeal is allowed to proceed as the scope and direction of this appeal are vague and uncertain. 9. The Appellant on the other hand contended that the appeal before the Court was a fit and proper appeal and there would be no prejudice caused to the Respondent. The Appellant further argued that the Respondent’s preliminary objections were frivolous and scandalous. 4 DECISION OF THE COURT 10. Having perused the Record of Appeal filed herein particularly the Notice of Appeal and the Memorandum of Appeal and having examined the intitulement of this appeal, we were satisfied that there were indeed inconsistencies made to the names of the parties cited and there was in fact inconsistency in relation to the scope of this appeal. 11. We were of the view that these inconsistencies were not only grave in nature but were also fundamentally wrong as this appeal could not have been proceeded without causing serious injustice and prejudice to the Respondent. In other words, we were of the view that there was no competent appeal before us. 12. Evidently, the inconsistencies were too obvious to be ignored and were not mere irregularities which can be cured under Order 1A of the Rules of Court. In the Federal Court case of Duli Yang Amat Mulia Tungku Ibrahim Ismail Ibni Sultan Iskandar Al-Haj Tunku Mahkota Johor v Datuk Captain Hamzah bin Mohd Noor and another appeal [2009] 4 MLJ 149, at paragraph 46, page 163, Zaki Azmi (C.J. as he then was) (delivering judgment of the Court) held as follows: “[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 of the 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. Order 1A 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 of the RHC does not apply as the respondents had intentionally disregarded O 6 r 7(2A) for their own reasons.” [Emphasis added] In the absence of any application by the Appellant/Second Defendant to amend the inconsistencies, and we noted that the Appellant/Second 5 Defendant had ample time to do so since 1.12.2016, prior to the hearing of this appeal, the preliminary objections by the Respondent must be allowed. 13. As such, it was our unanimous decision to allow the Respondent’s preliminary objections and accordingly this appeal was struck out with costs of RM 1,000.00 subject to the payment of allocatur’s fee. The deposit was to be refunded. t.t. (UMI KALTHUM BINTI ABDUL MAJID) Judge Court of Appeal Malaysia Putrajaya Dated: 7th November 2017 Counsel for the Appellant: Tai Choi Yu From Messrs. Tai Choi Yu & Co. Counsel for the Respondent: Mr. Louis Achuk From Messrs. Kadir, Wong Lin & Co.

Tika 2.6.0

BA-24-485-05/2016

PLAINTIF NCT UNITED DEVELOPMENT SDN BHD DEFENDAN SEMUA ORANG DI DALAM PENGHUNIAN HARAM DI LOT KEDAI 3 TINGKAT FASA 1A, TAMAN KENANGA, DI ATAS TANAH YANG DIPEGANG DI BAWAH HAK MILIK INDUK GRN 162620, LOT 17169 DAN GRN 162621, LOT NO. 17170, MUKIM DENGKIL, DAERAH SEPANG NEGERI SELANGOR DARUL EHSAN

07/11/2017

YA DATUK AZIMAH BINTI OMAR

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1 DALAM MAHKAMAH TINGGI DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN, MALAYSIA SAMAN PEMULA NO. BA-24-485-05/2016 Dalam Perkara milikan kosong Lot Kedai 3 Tingkat Fasa 1A, Taman Kenanga di atas tanah yang dipegang di bawah Hak Milik Induk GRN 162620, Lot 17169 dan GRN162623, Lot 17170, Mukim Dengkil, Daerah Sepang, Negeri Selangor Darul Ehsan DAN Dalam Perkara Aturan 89 Kaedah- Kaedah Mahkamah 2012 ANTARA NCT UNITED DEVELOPMENT SDN BHD … PLAINTIF DAN SEMUA ORANG DI DALAM PENGHUNIAN HARAM DI LOT KEDAI 3 TINGKAT FASA 1A, TAMAN KENANGA, DI ATAS TANAH YANG DIPEGANG DI BAWAH HAK MILIK INDUK GRN 162620, LOT 17169 DAN GRN 162621, LOT NO. 17170, MUKIM DENGKIL, DAERAH SEPANG NEGERI SELANGOR DARUL EHSAN ... DEFENDAN- DEFENDAN 2 1. TAN CHEONG KIE & NG SIEW KIM 2. NAZA PROPERTIES SDN BHD 3. MAK YEW CHONG & WONG YUEN CHOY 4. CHOO POH LING (Sebagai wasi harta pusaka Puah Poh Wah & Puah Joon Weng) 5. SAW MOI CHENG 6. CHAN YEW PING & CHAN CHEE HOW (Sebagai wasi harta pusaka Chan King Hang, Chan Chee How & Saw Booi Hua) 7. Koh Lian Hua 8. ANG KAR AIK & YEE SEOK KWAN 9. CHUNG NYAP YOON PROPERTY SDN BHD 10. CHIA CHIN CHEONG & NG YOK LIAN (Sebagai pentadbir harta pusaka Sim Koi Khiong, Ngan Chin Peng, Tee Kim Lee & Khor Moi Lan) 11. PTM COMMERCIAL (M) SDN BHD 12. AW KAH FOON & CHOO YEAN FONG 13. CHEE WEI KONG 14. LIM SENG KEE & SONS HOLDINGS SDN BHD 15. KIM HUAT SENG SDN BHD 16. CHEN WEI HING & CHEN LI CHENG 17. WONG KICHIN & CHAI YOUN NYOK 18. ANG YOKE LIAN CONSTRUCTION SDN BHD 19. CHIN CHOONG HOI & OON SIEW FONG 20. LOW BOON HING 21. LEE KIM TIAN & CHEAH SIEW KIM 22. LEE LIN FATT & CHONG WOON LENG 23. PEH AN LENG 24. LIM TANG CHEE & KEE CHENG FU 25. CHONG CHAN NAM & LEE NGEE KIEW 3 26. LIGITA JAYA SDN BHD 27. CHIN BROTHERS TILING WORKS (M) SDN BHD 28. CHIN SOW KENG 29. CHIN SHAW LOONG 30. LEE KIT KOK; DAN TSEN FOOK PIN 31. TAN WANG KEAH & WONG YIN RING 32. MACHINERY & INDUSTRIAL SUPPLIES SDN BHD 33. LEE ANG EE SDN BHD (sebelum ini dikenali sebagai Yee Fung Realty Sdn Bhd) … PEMOHON- PEMOHON ALASAN PENGHAKIMAN (Kandungan 26) A. PENGENALAN [1] Kandungan 26 ini adalah merupakan permohonan oleh orang-orang (pihak-pihak) yang mendakwa mereka adalah Defendan-defendan yang tidak dikenal pasti dan tidak dinamakan (penghuni-penghuni dakwaan) yang menghuni di Lot Kedai 3 Tingkat Fasa 1A, Taman Kenanga yang terletak di atas sebidang tanah di bawah hakmilik Induk GRN 162621, Lot 17170, Mukim Dengkil, Daerah Sepang, Negeri Selangor (hartanah tersebut) bagi mengetepikan perintah milikan kosong yang telah diberikan oleh Mahkamah ini menurut Aturan 89 Kaedah-Kaedah Mahkamah 2012 (KKM 2012) pada 31.10.2016. 4 [2] Perlu dinyatakan di sini bahawa penghuni-penghuni dakwaan yang memfailkan permohonan Kandungan 26 ini bukanlah penghuni- penghuni yang telah memohon untuk dijadikan suatu pihak menurut Aturan 89 kaedah 5 KKM 2012. [3] Pemohonan Kandungan 26 telah difailkan oleh penghuni-penghuni dakwaan setelah Mahkamah ini mengeluarkan satu perintah untuk mendapatkan pemilikan kosong hartanah tersebut menurut Aturan 89 KKM 2012 pada 31.10.2016 yang dipohon oleh Plaintif terhadap Semua orang di dalam penghunian haram di lot kedai 3 Tingkat Fasa 1A, Taman Kenanga, di atas tanah yang dipegang di bawah hak milik induk GRN 162620, lot 17169 dan GRN 162621, Lot no. 17170, Mukim Dengkil, Daerah Sepang Negeri Selangor Darul Ehsan. [4] Penghuni-penghuni dakwaan telah memfailkan Kandungan 26 ini menurut Aturan 42 kaedah 13 dan Aturan 89 kaedah 8 KKM 2012. [5] Bagi maksud permohonan Kandungan 26 ini, penghuni-penghuni dakwaan ini akan dirujuk sebagai “Pemohon-Pemohon”. 5 B. LATAR BELAKANG KES [6] Bagi memudahkan kefahaman berkenaan permohonan Kandungan 26 ini, latar belakang kes ini molek diperturunkan terlebih dahulu. Latar belakang kes yang membawa kepada pemfailan Kandungan 26 oleh Pemohon-Pemohon adalah seperti berikut: 6.1 Sebuah syarikat bernama Lengkap Lagenda Sdn Bhd (“LLSB”) adalah merupakan pemilik berdaftar terdahulu bagi tanah yang terkandung di bawah hakmilik Induk GRN 162621, Lot 17170, Mukim Dengkil, Daerah Sepang, Negeri Selangor (“hartanah tersebut”). 6.2 Pada 14.10.1996, LLSB telah memasuki suatu Perjanjian Usahasama (perjanjian usahasama tersebut) dengan sebuah syarikat pemaju bernama Kumpulan Sepang Utama Sdn Bhd ("KSU"). Di dalam perjanjian usahasama tersebut, KSU selaku pemaju telah bersetuju untuk membangunkan hartanah tersebut sebagai suatu projek kediaman dan komersial bercampur yang terdiri daripada antara lainnya, kedai pejabat 3 Tingkat yang dikenali sebagai “Taman Kenanga, Bandar Baru 6 Salak Tinggi” (“Projek tersebut”). Kemudian daripada itu terdapat suatu Perjanjian Tambahan bertarikh 18.3.1997 telah ditandatangani oleh LLB dan KSU. 6.3 Namun demikian, projek tersebut telah terbengkalai dan susulan itu, KSU pula telah digulungkan pada 23.7.2003. 6.4 Susulan dari pengulungan tersebut, Pelikuidasi yang dilantik bagi KSU telah memfailkan satu petisyen di Mahkamah Tinggi Kuala Lumpur (Petisyen No. 26NCC-26-02/20120) bagi memohon perintah mahkamah untuk meluluskan suatu Skim Pengaturan (Skim Pengaturan tersebut) di antara KSU dan pembeli-pembeli skim (scheme purchasers). 6.5 Pada 6.3.2012, Mahkamah Tinggi Kuala Lumpur telah mengeluarkan perintah meluluskan Skim Pengaturan tersebut (perintah tersebut). 6.6 Skim Pengaturan tersebut selain daripada melibatkan KSU dan pembeli-pembeli skim, ianya juga turut melibatkan Plaintif 7 (NCT Development Sdn Bhd) sebagai Pelabur Baru (“White Knight”) kepada projek tersebut. 6.7 Antara terma-terma penting kepada perintah tersebut adalah seperti berikut: a) Malaysia Building Society Berhad, Pempetisyen, Lengkap Legenda Sdn Bhd, Ernest Equity Development Bhd dan NCT United Developmentt Sdn Bhd akan memasuki suatu perjanjian induk; b) NCT United Development Sdn Bhd akan membayar jumlah sebanyak RM80,000,000.00 ("Jumlah Penyelesaian”) kepada Malaysia Building Society Berhad mengikut terma-terma dalam Perjanjian Induk; c) Selepas pembayaran Jumlah Penyelesaian oleh NCT United Development Sdn Bhd dan pematuhan terma- terma di dalam Skim Pengaturan dan Perjanjian Induk, Malaysia Building Society Berhad akan melepaskan dan NCT United Development Sdn Bhd berhak kepada unit- 8 unit yang tidak dijual dan tidak ditebus di dalam Projek tersebut, tanah-tanah Projek dan semua hasil dan penerimaan dibawahnya dan daripadanya; d) Pempetisyen dan Lengkap Lagenda Sdn Bhd akan menyerahhakkan secara mutlak semua hak-hak pembangunan, manfaat dan faedah di bawah Perjanjian Usahasama bertarikh 14 Oktober 1996 dan Perjanjian Tambahan bertarikh 18 Mac 1997 kepada Perjanjian Usahasama bertarikh 14 Oktober 1996, termasuk apa- apa kelulusan, lesen dan perintah pemajuan daripada pihak berkuasa yang berkenaan kepada NCT United Development Sdn Bhd; dan e) Pempetisyen dan Lengkap Lagenda Sdn Bhd akan menyerahhakkan secara mutlak kesemua hak mereka, manfaat dan faedah di bawah perjanjian-perjanjian jual dan bell tersebut yang dimasuki dengan Pembeli-pembeli dan Perjanjian Tambahan kepada NCT United Development Sdn Bhd. 9 (f) NCT United Development Sdn Bhd akan memulihkan dan menyiapkan Fasa 2A, 3A, 4A dan 5A Projek tersebut dan menyerahkan milikan kosong bersama dengan sijil layak menduduki kepada Pembeli-Pembeli Sub-Kelas 1 mengikut terma-terma Skim Pengaturan di dalam Lampiran 1 dengan pindaan-pindaan di perenggan-perenggan 65,66, dan 67 dalam Petisyen; (g) Pembeli-pembeli sub-kelas 1 akan dianggap bersetuju dan menerima terma-terma dan syarat-syarat untuk memulihkan dan menyiapkan Fasa 2A, 3A, 4A dan 5A Projek tersebut mengikut terma-terma skim pengaturan di dalam lampiran 1 dengan pindaan-pindaan di perenggan- perenggan 65,66, dan 67 dalam Petisyen; (h) Pembeli-pembeli sub-kelas 1 yang meneruskan dengan perjanjian jual beli mereka dan Perjanjian Tambahan dengan NCT United Development Sdn Bhd akan dianggap bersetuju dan membayar ke dalam Akaun 10 Kewangan Projek Bayaran Tambahan dalam 4 ansuran yang sama, seperti berikut: (a) Ansuran Pertama dalam masa 90 hari daripada tarikh Permulaan Fizikal (b) Ansuran Kedua dalam masa 6 bulan daripada tarikh Ansuran Pertama (c) Ansuran Ketiga dalam masa 6 bulan daripada tarikh Ansuran Kedua (d) Ansuran Keempat dalam masa 6 bulan daripada tarikh Ansuran Ketiga (i) Bagi tujuan melaksanakan Skim Pengaturan, semua dan sebarang bebanan sedia ada atau bebanan masa hadapan (termasuk tanpa had sebarang kaveat) yang diwujudkan atau bakal diwujudkan terhadap tanah-tanah projek atau mana-mana bahagian daripadanya oleh pemiutang-pemiutang skim, pembiayanya, mana-mana pihak yang menuntut di bawah mereka, dan/atau mana- mana pihak berkuasa relevan kerana jumlah yang kena 11 dibayar atau hutang statutori tidak dibayar, adalah dengan serta-merta dibatalkan ipso facto. 6.8 Lanjutan daripada Skim Pengaturan tersebut, hartanah tersebut telah dipindahmilik kepada Plaintif pada 11.9.2012 dan Plaintif telah menjadi tuanpunya atau pemilik berdaftar hartanah tersebut. 6.9 Plaintif seterusnya telah meneruskan dengan proses membaik pulih (rehabilitasi) pembangunan yang terbengkalai dengan mengkhususkan kepada penyiapkan unit-unit lot kedai untuk diserahkan kepada pembeli-pembeli unit-unit lot kedai tersebut. 6.10 Bagi tujuan meneruskan dengan kerja-kerja pemulihan dan pembangunan hartanah tersebut, Plaintif seterusnya telah mengeluarkan Notis Pengusiran bertarikh 2.3.2016 untuk mengeluarkan orang-orang di dalam penghunian haram hartanah tersebut (Lot Kedai 3 Tingkat Fasa 1A tersebut). 12 6.12 Namun, Notis Pengusiran tersebut telah tidak diendahkan oleh orang-orang/penghuni-penghuni menghuni hartanah tersebut secara haram. Lantaran itu, Plaintif telah memfailkan Saman Pemula (Kandungan 1) menurut Aturan 89 kaedah 1 KKM 2012 di Mahkamah ini bagi mendapatkan suatu perintah milikan kosong terhadap hartanah tersebut. 6.13 Kandungan 1 kemudiannya telah ditetapkan untuk perbicaraan pada 31.10.2016. Pada tarikh 31.10.2016 tersebut Mahkamah ini telah membenarkan permohonan Plaintif di dalam Kandungan 1. Namun bagi unit-unit No. 13, 14, 45 dan 58, Plaintif telah menarikbalik permohonan mereka dengan kebebasan memfailkan semula. [7] Selepas lebih kurang lima bulan dari tarikh perintah Aturan 89 KKM 2012 tersebut diberikan, Pemohon-Pemohon yang mendakwa bahawa mereka masing-masing adalah pemilik-pemilik bagi Lot-lot / unit-unit 8, 10,11,12,25, 28, 29, 30, 32, 34, 35, 36, 37, 39,42, 43, 44, 46, 50, 53, 63, 68, 69, 83, 84, 89, 90, 91, 92, 100, 102, 109, 112, 115, 118, 119 dan 120 (“selepas ini akan disebut sebagai Lot-lot 13 tersebut atau kadang kala dirujuk sebagai unit-unit atau kedai-kedai pejabat tersebut”) yang telah membeli lot-lot tersebut daripada KSU melalui perjanjian-perjanjian jual beli pada pelbagai tarikh telah memfailkan permohonan mereka di Kandungan 26 pada 12.4.2017 bagi mengenepikan perintah yang diberikan Mahkamah ini pada 31.10.2016 (Perintah Pengusiran tersebut) menurut Aturan 42 Kaedah 13 & Aturan 89 Kaedah 8 KKM 2012. C. PERUNTUKAN ATURAN 42 KAEDAH 13 & ATURAN 89 KAEDAH 8 KKM 2012 [8] Di dalam memfailkan Kandungan 26 ini, Pemohon-Pemohon telah bersandarkan kepada Aturan 42 kaedah 13 & Aturan 89 kaedah 8 KKM 2012. [9] Aturan 42 kaedah 13 KKM 2012 memperuntukkan: “Setting aside or varying judgment and Orders (O.42 r. 13) 13. Save as otherwise provided in these Rules, where provisions are made in these Rules for the setting aside or to vary such 14 order or judgment, a party intending to set aside or to vary such order or judgment shall make an application to the court and to serve it on the party who has obtained the order or judgment within thirty days after the receipt of the order or judgment by him”. [10] Aturan 89 Kaedah 8 KKM 2012 memperuntukkan seperti berikut: “Setting aside order (O.89 r. 8) The Court may, on such terms as he thinks just, set aside or vary any order made in proceedings under this Order”. D. PENGATAAN-PENGATAAN/ TEGASAN-TEGASAN PEMOHON- PEMOHON [11] Terdapat sebanyak tiga puluh satu (31) afidavit sokongan telah difailkan oleh Pemohon-Pemohon bagi menyokong permohonan mereka. Di dalam afidavit-afidavit sokongan Pemohon-Pemohon tersebut, pada dasarnya Pemohon-Pemohon membuat pengataan- pengataan/ tegasan-tegasan berikut: 15 i. Pemohon-Pemohon telah memasuki perjanjian-perjanjian jual beli dengan KSU untuk pembelian kedai pejabat 3 Tingkat di Fasa 1 tersebut dan telah mendakwa bahawa bayaran penuh harga belian bagi lot-lot tersebut telah dibayar kepada KSU dan/atau Malaysia Building Society Berhad (“MBSB”) sebagai pemegang cagaran bagi hartanah tersebut berikutan pinjaman yang dibuat oleh KSU. Senarai Pemohon-Pemohon dan unit-unit yang didakwa telah dibeli dengan bayaran penuh yang dikatakan telah dibuat telah disenaraikan sepertimana tertera di perenggan 8 Afidavit Sokongan Ang Kar Aik yang diikrarkan 3.4.2017 (Kandungan 27). ii. Pemohon-Pemohon telah mendakwa bahawa, apabila KSU meninggalkan projek tersebut pada tahun 2003 dan kemudiannya digulungkan pada 23.7.2003, KSU telah memungkiri terma-terma dan syarat-syarat dalam perjanjian jual beli tersebut yang antara lain adalah: a) gagal mendapatkan pengeluaran hakmilik individu berasingan bagi kedai-kedai pejabat tersebut dan 16 seterusnya memindahmilik kepada Pemohon- Pemohon; dan b) gagal mendapatkan Sijil Layak Menduduki (kini dikenali sebagai Sijil Perakuan Siap dan Pematuhan) bagi kedai-kedai Pejabat tersebut. iii. Walaupun Plaintif adalah merupakan pemilik berdaftar hartanah tersebut, Plaintif telah gagal mendedahkan kepada Mahkamah bahawa ia hanyalah pemegang hartanah tersebut sebagai pengganti KSU sementara menunggu pengeluaran hakmilik- hakmilik individu kedai-kedai pejabat tersebut. iv. Berdasarkan kepada Penyata Penerangan kepada Pembeli- Pembeli Skim (Explanatory Statement to the Scheme Purchasers) bertarikh 11.12.2015, Plaintif telah hanya dibenarkan memulakan satu skim pengaturan untuk kerja-kerja pemulihan dalam projek ini untuk mengikat KSU, Malaysia Building Society Bhd (MBSB) dan Pembeli-Pembeli Fasa 2A, 17 3A,3B, 4A, 4B, 5A, 5B dan 5C, Taman Kenanga, Bandar Baru Salak Tinggi, Selangor Darul Ehsan itu. v. Plaintif juga telah mengesahkan bahawa Skim Pengaturan tersebut tidak memasukkan pembeli-pembeli Lot-lot Kedai- Kedai Pejabat Fasa 1 dalam projek tersebut dan memandangkan Pemohon-Pemohon adalah pembeli-pembeli Lot-lot Kedai-Kedai Pejabat Fasa 1, maka Fasa 1 adalah tidak tidak terikat kepada Skim Pengaturan tersebut. vi. Plaintif juga sedia maklum dan/atau mempunyai notis kontruktif bahawa Lot-lot Kedai-Kedai Pejabat di Fasa 1 dalam projek tersebut telah dibeli oleh pembeli-pembeli termasuk Pemohon- Pemohon. vii. Plaintif telah mengesahkan bahawa di dalam Latihan Penentusahan setakat 11.12.2015 seramai 49 orang Pembeli- Pembeli termasuk Pemohon-Pemohon telah mengemukakan bukti pemilikan Kedai-Kedai Pejabat Tersebut kepada Plaintif. 18 viii. Pemohon-Pemohon telah memfailkan beberapa guaman sivil terhadap KSU dan Plaintif untuk mendapatkan antara lain relif- relif berikut: a. satu deklarasi bahawa Perjanjian-Perjanjian Jual Beli yang dimasuki di antara KSU dan Pemohon-Pemohon (Perjanjian-Perjanjian Jual Beli tersebut) adalah mengikat Plaintif dan boleh dikuatkuasakan oleh Pemohon- Pemohon terhadap Plaintif; b. satu deklarasi bahawa Pemohon-Pemohon adalah tuan punya benefisial kedai-kedai pejabat tersebut dan juga bahagian tanah di atas mana lot-lot kedai-kedai pejabat tersebut didirikan; c. satu deklarasi bahawa Plaintif memegang tanah di mana kedai-kedai pejabat tersebut didirikan dan kedai-kedai pejabat tersebut secara amanah bagi pihak Pemohon- Pemohon. 19 d. perlaksanaan spesifik Perjanjian-Perjanjian jual beli tersebut dan satu perintah bahawa Plaintif dalam suatu masa yang munasabah yang akan ditetapkan oleh Mahkamah yang mulia ini untuk:- (i) memohon pecah-bahagi tanah tersebut; (ii) mendapatkan pengeluaran hakmilik individu berasingan kedai-kedai pejabat tersebut; (iii) melaksanakan satu pindahmilik yang sah dan boleh daftar untuk hakmilik tanah individu berasingan kedai-kedai pejabat tersebut memihak kepada Pemohon-Pemohon; dan (iv) melaksanakan kerja-kerja dan tindakan-tindakan yang diperlukan untuk mendapatkan sijil layak menduduki (kini dikenali sebagai Perakuan Siap dan Pematuhan) untuk kedai-kedai pejabat tersebut. 20 ix. Pemohon-Pemohon tidak mempunyai pengetahuan mengenai Saman Pemula Plaintif bertarikh 10-5-2016 (Kandungan 1), Afidavit yang diikrarkan oleh Dato’ Seri Yap Ngan Choy pada 10-5-2016 (“Afidavit Sokongan Plaintif”) dan Perintah bertarikh 31-10-2016 (“Perintah Pengusiran Tersebut”) sehingga pada 20-3-2017, apabila Ang Kar Aik mengunjungi kedai-kedai Pejabat itu dan mendapati Perintah Pengusiran tersebut dilekatkan di Kedai Pejabat tersebut; x. Pemohon-Pemohon telah menegaskan bahawa penyampaian Kandungan 1, Afidavit Sokongan Kandungan 1 dan Perintah Pengusiran tersebut di Kedai-kedai Pejabat Pemohon- Pemohon adalah tidak teratur. E. BALASAN PLAINTIF [12] Plaintif telah menyangkal keras pengataan-pengataan/tegasan- tegasan Pemohon-Pemohon. Plaintif menafikan dengan kerasnya akan tegasan Pemohon-Pemohon yang mereka adalah pemilik benefisial lot-lot kedai tersebut dan telah membuat bayaran penuh kepada KSU dan/atau MBSB. 21 [13] Adalah tidak dipertikaikan di dalam kes ini bahawa Plaintif adalah tuanpunya/pemilik berdaftar keseluruhan hartanah teresebut mulai 11.9.2012. [14] Plaintif telah menegaskan bahawa unit-unit yang dikatakan telah dibeli oleh Pemohon-Pemohon belum lagi ditebus daripada pembiaya pinjaman penyambung, Malaysia Building Society Berhad (“MBSB”). Plaintif telah menyenaraikan unit-unit yang belum ditebus tersebut seperti senaraikan di bawah ini: NO. PEMBELI-PEMBELI NO. LOT 1. Naza Properties Sdn Bhd TKP1/SO-010 TKP1/SO-011 TKP1/SO-012 2. Mak Yew Cheong dan Wong Yuen Choy TKP1/SO-025 3. Choo Poh Ling ( Sebagai pentadbir harta pusaka Puah Poh Wah ) dan Puah Joon Weng TKP1/SO-028 4. Chung Nyap Yoon Property Sdn Bhd TKP1/SO-035 5. Aw Kah Foon dan Choo Yean Fong TKP1/SO-039 22 6. Lim Seng Kee & Sons Holdings Sdn Bhd TKP1/SO-043 TKP1/SO-044 7. Ang Yoke Lian Constructions Sdn Bhd TKP1/SO-063 8. Chin Choong Hoi dan Oon Siew Fong TKP1/SO-068 TKP1/SO-069 9. Low Boon Hing TKP1/SO-083 10. Lee Lin Fatt dan Chong Woon Leng TKP1/SO-089 11. Peh An Leng TKP1/SO-090 12. Chin Sow Keng dan Chin Shaw Loong TKP1/SO-109 [15] Plaintif telah menyangkal dakwaan Pemohon-Pemohon terdapatnya penyerahan pemilikan kosong kerana walhal hakikat yang jelas adalah bahawa sehingga kini, Sijil Kelayakan Menduduki (Certificate of Fitness for Occupation) (“CFO”) (kini dikenali sebagai Pengakuan Siap dan Pematuhan (Certificate of Completion dan Compliance) (“CCC”) masih belum dikeluarkan kepada Pemohon-Pemohon. [16] Menurut Plaintif guaman–guaman sivil yang dimulakan oleh Pemohon-Pemohon adalah tidak relevan dan tidak mempunyai perhubungan dengan pemohonan Plaintif di Kandungan 1 kerana 23 guaman-guaman tersebut adalah bagi mendapatkan remedi yang berbeza dengan apa yang dipohon Plaintif di dalam Kandungan 1. Adalah menjadi tegasan Plaintif bahawa Kandungan 1 telah difailkan bertujuan semata-mata untuk mengusir penceroboh-penceroboh yang telah secara haram menduduki Kedai-kedai Pejabat tersebut tanpa lesen, pengetahuan dan/atau kebenaran Plaintif. Tanpa satu perintah pengusiran dan dengan adanya penceroboh-penceroboh yang menduduki Kedai-kedai Pejabat tersebut pada masa material tersebut, kerja-kerja pemulihan tidak dapat dijalankan oleh Plaintif; [17] Plaintif telah menerima satu senarai yang terkini bagi unit-unit kedai- kedai pejabat tersebut yang telah ditebus daripada MBSB melalui surat MBSB bertarikh 1.6.2017 yang mana salinan karbonnya telah diberi kepada Plaintif. Berdasarkan senarai terkini tersebut, hanya unit yang dibeli oleh seorang bernama Low Boon Hing (No. Lot TKP1/SO-083) telah ditebus sepenuhnya hari MBSB. [18] Plaintif telah menegaskan bahawa kemudahan (facility) yang ada ke atas hartanah tersebut telah diselesaikan sepenuhnya (fully settled) 24 oleh Plaintif sepertimana yang telah disahkan oleh MBSB dalam surat mereka bertarikh 1.6.2017. [19] Kesemua kertas kausa berhubung Kandungan 1 dan perintah bertarikh 31.10.2016 telah dianggap disampaikan dengan sempurnanya menurut Aturan 89 kaedah 4 KKM 2012. F. ISU-ISU UNTUK DIBICARAKAN [20] Berdasarkan kepada pengataan-pengataan/ tegasan-tegasan kedua- dua pihak Pemohon-Pemohon dan Plaintif, isu-isu yang perlu dipertimbangkan dan ditentukan oleh Mahkamah ini bagi pemutusan samada terdapat merit di dalam permohonan Pemohon-Pemohon di Kandungan 26 mereka adalah seperti berikut: (a) samada serahan kertas kausa bagi Lampiran 1 telah diserahkan kepada Pemohon-Pemohon dengan teratur dan sempurna. 25 (b) samada terdapat terdapat isu mengenai fakta dan undang- undang “triable issues” yang mewajarkan suatu perbicaraan penuh dijalankan. (c) samada Plaintif telah memenuhi kriteria-kriteria yang digariskan oleh Aturan 89 Kaedah 1 Kaedah-kaedah Mahkamah 2012 dalam mendapatkan Perintah milikan kosong. Isu (a): samada serahan kertas kausa bagi Lampiran 1 telah diserahkan kepada Pemohon-Pemohon dengan teratur dan sempurna. [21] Pemohon-Pemohon di dalam afidavitnya telah mengatakan bahawa penyampaian kertas-kertas kausa plaintif kepada Pemohon- Pemohon adalah tidak teratur atas sebab-sebab berikut: a) Plaintif telah menyampaikan Saman Pemula, afidavit sokongan dan juga Perintah Pengusiran (kertas-kertas kausa) di kedai- 26 kedai pejabat tersebut sedangkan Plaintif pada sepanjang masa mempunyai pengetahuan dan mengetahui: i) alamat surat-menyurat dan kediaman Defendan- defendan; ii) bahawa kedai-kedai Pejabat tersebut telah terbengkalai dan tiada sesiapa menghuni atau menduduki hartanah tersebut; iii) Pihak Plaintif telah sejak November menghubungi Pemohon-Pemohon melalui telefon, emel dan juga surat yang dihantar ke alamat kediaman terkini Pemohon- Pemohon dan bukannya alamat Kedai-Kedai Pejabat tersebut biarpun Pemohon-Pemohon adalah diwakili oleh peguamcara mereka. b) Akan tetapi peguamcara Plaintif masih memilih untuk menyampaikan kertas-kertas kausa tersebut di alamat Kedai- Kedai Pejabat tersebut dan bukannya ke atas peguamcara 27 Pemohon-Pemohon atau alamat surat-menyurat Defendan- defendan. c) Oleh kerana itu Pemohon-Pemohon mengatakan bahawa serahan kertas kausa kepada Pemohon-Pemohon adalah tidak teratur dan dengan niat jahat untuk menghalang Pemohon- Pemohon daripada mengambil bahagian dalam prosiding Saman Pemula ini. [22] Plaintif di sebaliknya telah menegaskan bahawa serahan kertas kausa kepada Pemohon-Pemohon di premis tersebut adalah memadai dan dianggap teratur seperti yang diperuntukkan di bawah undang-undang. [23] Menurut Plaintif lagi, Plaintif tidak mengetahui pada masa tersebut bahawa Pemohon-Pemohon telah diwakili oleh seorang peguam. Terdapat agak ramai pihak yang diwakili oleh peguamcara Pemohon- Pemohon pada masa tersebut. Lantaran itu, ianya adalah agak membingungkan bagi Plaintif untuk menentukan dan mengesahkan 28 bahawa semua pihak sebenarnya telah diwakili oleh peguamcara yang sama pada masa tersebut atau sebaliknya. [24] Berhubung perkara serahan kertas kausa bagi permohonan Saman Pemula di bawah Aturan 89, Mahkamah ini perlu menyatakan di sini bahawa serahan kertas kausa bagi permohonan Saman Pemula di bawah Aturan 89 adalah sememangnya berbeza daripada permohonan-permohonan melalui saman pemula lain seperti saman pemula bagi perlanjutan dan pemotongan kaveat, untuk perintah deklarasi atau sebagainya. Ini adalah kerana, kaedah serahan kertas kausa bagi permohonan milikan kosong menurut Aturan 89 KKM 2012 telah secara jelas diperuntukkan di bawah Aturan 89 KKM 2012 itu sendiri iaitu di bawah Aturan 89 Kaedah 4 KKM 2012. Aturan 89 Kaedah 4 KKM 2012 jelas dan nyata memperuntukkan seperti berikut: Service of originating summons (O. 89, r. 4) (1) Where any person in occupation of the land is named in the originating summons, the summons together with a copy of the affidavit in support shall be served on him— 29 (a) personally or in accordance with Order 10, rule 5; (b) by leaving a copy of the summons and of the affidavit or sending them to him, at the premises: or (c) in such other manner as the Court may direct. (2) The originating summons shall, in addition to being served on the named defendants, if any, in accordance with paragraph (1) be served, unless the Court otherwise directs, by- a) affixing a copy of the summons and a copy of the affidavit to the main door or other conspicuous part of the premises: and (b) if practicable, inserting through the letter-box at the premises a copy of the summons and a copy of the affidavit enclosed in a sealed envelope addressed to “the occupiers”. 30 (3) Every copy of an originating summons for service under paragraph (1) or (2) shall be sealed with the seal of the Court out of which the summons was issued.”(Penekanan oleh Mahkamah) [25] Justeru, secara jelas dan terang tanpa perlu Mahkamah ini mengupas dengan lebih lanjut tentang isu ini, memadai dengan pembacaan kepada A.89 K.4 sub para 1 (b) dan 2(b), bahawa kaedah penyampaian kertas-kertas kausa Plaintif kepada Pemohon- Pemohon seperti yang telah dinyatakan adalah memadai dan dianggap sebagai serahan yang sempurna. [26] Maka, berhubung penyerahan kertas kausa Kandungan 1, Plaintif adalah tidak bertanggungan untuk menyerahkan kertas-kertas kausa tersebut di alamat terkini atau alamat kediaman Pemohon-Pemohon biarpun Plaintif dan Pemohon-Pemohon ada menghubungi antara satu sama lain. [27] Mahkamah ini perlu menegaskan juga di sini bahawa prosiding yang dibawa Plaintif menurut Aturan 89 KKM 2012 adalah untuk mendapat pemilikan kosong hartanah tersebut daripada mana-mana orang 31 yang telah didapati menduduki atau menghuni {(occupants)(orang- orang tersebut)} tanpa kebenaran Plaintif sebagai tuanpunya berdaftar hartanah tersebut. Perintah pemilikan kosong yang dipohon adalah bertujuan untuk mengeluarkan atau mengusir orang-orang tersebut dari hartanah tersebut. Orang-orang tersebut adalah dkatakan atau telah didapati menduduki atau menghuni hartanah tersebut tanpa kebenaran Plaintif dan dikatakan penceroboh (trespasser) kepada hartanah kepunyaan Plaintif. Memandangkan lot-lot tersebut masih belum diduduki dengan sah kerana tidak ada sijil kelayakan untuk mendudukinya dikeluarkan, maka penghuniannya atau kependudukan orang-orang tersebut adalah sebagai penceroboh. [28] Maka di dalam kedudukan sebegini, bagi menjawab kepada isu pertama, adalah menjadi dapatan Mahkamah ini bahawa serahan kertas-kertas kausa Plaintif kepada orang-orang tersebut di premis- premis yang terletak di atas hartanah tersebut adalah serahan yang sempurna dan sah seperti yang diperuntukkan oleh undang-undang. 32 [29] Lagipun, Pemohon-pemohon di dalam permohonan hanya mendakwa mereka adalah pemilik-pemilik lot-lot di atas hartanah tesebut, namun tidak ada keterangan langsung di dalam kes ini yang menunjukkan atau membuktikan bahawa Pemohon-Pemohon sememangnya adalah orang-orang tersebut yang telah benar-benar menghuni (inhabited/resided/stayed) dan/atau menduduki (oocupied) lot-lot tersebut. Isu (b): samada terdapat pertikaian fakta dan isu “triable issues” yang mewajarkan suatu perbicaraan penuh dijalankan. [30] Adalah menjadi undang-undang mantap dan jitu bahawa A.89 K.1 KKM 2012 merupakan satu prosidur ringkas ‘summary procedure’ yang diperuntukkan oleh Kaedah-Kaedah Mahkamah 2012 yang mana secara amnya, ianya boleh digunapakai dalam situasi yang tidak melibatkan suatu pertikaian fakta dan isu-isu. [31] Pemohon-Pemohon telah cuba menghujahkan bahawa bahawa kes ini membabitkan banyak fakta-fakta dan isu-isu yang perlu dibicarakan maka untuk itu ia tidak boleh dilupuskan melalui 33 ‘summary procedure’ dengan membawa tindakan melalui Saman Pemula. [32] Pemohon-Pemohon telah mendakwa bahawa mereka adalah merupakan pemilik Kedai-kedai Pejabat tersebut melalui perjanjian- perjanjian jual beli tersebut yang dimasuki mereka dengan KSU. Pemohon-Pemohon juga telah mendakwa bahawa walaupun Plaintif adalah tuanpunya berdaftar hartanah tersebut, Plaintif hanyalah memegang hartanah tersebut sebagai pemegang amanah bagi pihak KSU sementara menunggu pengeluaran hakmilik-hakmilik individu Kedai-kedai Pejabat tersebut. Pemohon-Pemohon telah mendakwa bahawa Plaintif telah gagal Plaintif gagal mendedahkan fakta ini kepada Mahkamah. [33] Adalah menjadi tegasan Pemohon-Pemohon bahawa mereka adalah merupakan tuanpunya/pemilik benefisial kepada Kedai-kedai Pejabat tersebut di mana bayaran penuh harga belian telahpun dibuat. 34 [34] Menurut Pemohon-Pemohon lagi, perenggan 1 perintah tersebut secara jelas memperuntukkan bahawa skim tersebut hanya mengikat KSU, MBSB dan pembeli-pembeli Fasa 2A, 3A, 3B, 4A, 4B, 5A,5B dan 5C. Maka, memandangkan Pemohon-Pemohon adalah pembeli- pembeli Fasa 1, perintah tersebut tidak terpakai kepada Pemohon- Pemohon. [35] Dengan yang demikian adalah menjadi tegasan Pemohon-Pemohon bahawa Plaintif telah sedia maklum dan mempunyai notis konstruktif bahawa Kedai-Kedai Pejabat tersebut di Fasa 1 telah dibeli oleh pembeli-pembeli termasuk Pemohon-Pemohon. Lantaran itulah Plaintif melalui Saman Pemula Ex Parte No. 24NCC-419-11/2015 telah memohon untuk mengadakan mesyuarat dengan pembeli- pembeli Kedai 3 Tingkat di Fasa 1 untuk meneruskan kerja-kerja pemulihan di Fasa 1 dalam Projek itu. Pemohon-Pemohon telah seterusnya mendakwa bahawa memandangkan Pemohon-Pemohon telah mencelah di dalam prosiding tersebut Plaintif telah kemudiannya menarik balik permohonan Skim Ke-2 itu dan tidak memperolehi apa-apa perintah untuk memulakan kerja-kerja pemulihan dalam Skim Ke-2 tersebut. 35 [36] Namun demikian, Plaintif telah menyangkal setiap satu dakwaan- dakwaan Pemohon-Pemohon yang Pemohon-Pemohon adalah pemilik-pemilik lot-lot tersebut atau tuan punya benefisial kepada Kedai-kedai Pejabat. Menurut Plaintif, unit-unit selain unit yang dibeli oleh Low Boon Hing, unit-unit Pemohon-Pemohon belum lagi ditebus daripada MBSB. [37] Menurut Plaintif lagi, sehingga kini, Sijil Kelayakan Menduduki (Certificate of Fitness for Occupation) dan “Certificate of Completion and Compliance” masih belum dikeluarkan kepada pembeli-pembeli ataupun kepada Pemohon-Pemohon. [38] Adalah menjadi tegasan Plaintif bahawa walaupun perintah bertarikh 6.3.2012 tersebut tidak melibatkan Fasa 1, Plaintif masih berniat untuk memulihkan Kedai-kedai Pejabat tersebut bagi tujuan untuk memperolehi hakmilik individu dan CFO bagi setiap unit bagi semua Fasa dan termasuklah Fasa 1 yang sememangnya terletak di atas hartanah tersebut yang telah dipindahmilikkan kepada Plaintif untuk kerja-kerja baikpulih. 36 [39] Hakikatnya, setelah KSU digulung, Kedai-kedai Pejabat tersebut telah menjadi terabai, yang kemudiannya telah diletakkan di bawah pengawasan Jabatan Pemulihan Kementerian Kesejahteraan Bandar, Perumahan dan Kerajaan Tempatan (“KPKT”). [40] Perlu diyatakan di sini bahawa berdasarkan kepada geran hakmilik hartanah tersebut di Eksibit “NCT-3” (Kandungan 2) adalah jelas dan nyata bahawa Plaintif adalah merupakan pemilik/tuanpunya keseluruhan 1/1 bahagian hartanah tersebut termasuklah kawasan atau tanah di mana lot-lot kedai Fasa 1 itu berada dan terletak. [41] Maka, berdasarkan perintah Mahkamah bertarikh 6.3.2012 tersebut, Plaintif sememangnya adalah tuanpunya berdaftar ke atas hartanah tersebut. Keempunyaan Plaintif ke atas hartanah tersebut samada bagi Fasa 1 atau sebaliknya adalah tidak boleh disangkal melainkan jika pembeli-pembeli lot-lot kedai tersebut telah dikenalpasti dan terlibat dengan skim pengaturan tersebut. [42] Walaupun Pemohon-Pemohon di sini mengatakan bahawa lot-lot kedai tersebut telah dibeli mereka dari KSU, fakta yang tidak dinafikan oleh mana-mana pihak adalah bahawa hartanah tersebut 37 telah diabaikan dan telah diletakkan di bawah pengawasan Jabatan Pemulihan Kementerian Kesejahteraan Bandar, Perumahan dan Kerajaan Tempatan (“KPKT”). [43] Di samping itu adalah suatu yang tidak dinafikan oleh Pemohon- Pemohon bahawa lot-lot kedai yang dikatakan dimiliki Pemohon- Pemohon ataupun Pemohon-Pemhon tuanpunya benefisial lot-lot tersebut, belumlah lagi ditebus sehingga kini dari pihak MBSB dan sijil layak menduduki juga tidak pernah dikeluarkan. [44] Untuk ini, adalah penting bagi Mahkamah ini merujuk kepada surat- surat-surat pelbagai tarikh yang dikeluarkan oleh KSU pada tahun 2000 kepada pembeli-pembeli lot-lot kedai-kedai di Eksibit “AKA-1” (Kandungan 27) bahawa mereka tidak dibenarkan menduduki lot-lot tersebut sehingga sijil kelayakan menduduki diisu/dikeluarkan: “Kindly also be reminded that you are not allowed to occupy the said property until such time that the CF is issued” 38 [45] Surat-surat dari KSU tersebut juga telah menyatakan bahawa: “In accordance with Clause 15 of the Sale & Purchase Agreement, you shall be deemed to have taken possession of the said property (whether or not you have actually taken possession of the same) upon the expiry of fourteen (14) days from the date hereof. Should you fail to take possession of the said property within the specified period, we will not be liable for any loss or damage to the property…”. [46] Berhubung hal penghunian atau pendudukan hartanah tersebut, berdasarkan surat-surat KSU dan perletakkan hartanah tersebut kepada KPKT, kedudukan yang jelas adalah hartanah tersebut samada Fasa 1 atau Fasa 2 atau Fasa 3 atau fasa seterusnya, hartanah tersebut adalah di dalam keadaan terbiar dan tidak layak diduduki. Oleh demikian secara jelas milikan kosong lot-lot kedai tersebut tidak pernah diperolehi oleh Pemohon-Pemohon. 39 [47] Justeru itu, Mahkamah ini tidak boleh lari dari membuat kesimpulan bahawa lot-lot kedai yang dikatakan milik Pemohon-Pemohon tersebut adalah sebenarnya unit-unit yang tidak dijual dan tidak ditebus dan untuk itu berdasarkan kepada perintah mahkamah bertarikh 6.3.2012 tersebut iaitu secara spesifiknya perenggan (5), Plaintif untuk itu adalah berhak kepada unit-unit tersebut yang tidak dijual dan tidak ditebus. [48] Adalah menjadi dapatan Mahkamah ini bahawa atas hal sedemikian, biarpun perintah mahkamah bertarikh 6.3.2012 tidak secara spesifik merujuk kepada Fasa 1, Plaintif secara jelas mempunyai hak ke atas unit-unit yang kononnya diakui oleh Pemohon-Pemohon sebagai milik mereka. [49] Berbalik kepada guaman-guaman sivil yang dimulakan oleh Pemohon-Pemohon terhadap Plaintif dan KSU, guaman-guaman yang telah difailkan oleh Pemohon-Pemohon adalah bagi mendapatkan relif deklarasi atas perjanjian-perjanjian jual beli yang mereka masuki dengan KSU dan keberhakkan (kempunyaan) mereka ke atas lot-lot tersebut. Tetapi apa yang jelas dan terang adalah guaman-guaman tersebut tidak membuktikan bahawa pada 40 masa Notis Pengusiran dikeluarkan, pada masa Kandungan 1 difailkan dan pada masa perintah pengusiran dikeluarkan, Pemohon- Pemohon mempunyai milikan ke atas lot-lot tersebut ataupun lot-lot/ unit-unit tersebut adalah dalam pemilikan Pemohon-Pemohon atau untuk lebih jelas di dalam bahasa Inggerisnya “the applicants are in possession of those lots/units”. [50] Apa yang jelas adalah, sijil kelayakan menduduki dan milikan kosong lot-lot tersebut tidak pernah diberikan kepada Pemohon-Pemohon sehingga kini. [51] Untuk itu, Mahkamah ini suka merujuk kepada keputusan di dalam kes Bodco Engineering And Constrution Sdn Bhd v Christopher Ak Matthew Mattius & Anor And Other Applications [2016] 7 MLJ 275 yang telah menyatakan antara lain bahawa: [34] This court finds that the date of completion of the said building is the date of the issuance of the certificate of practical completion (‘CPC’) for the following reasons: 41 (a) cl 19(1) of the SPA clearly stipulates that ‘Upon the issuance of a certificate (CPC) by the architect certifying that the construction of the said Building has been DULY completed ...’ ; and (b) pursuant to cl 19(1) of the SPA, the only person qualified to certify the completion of the building is the Architect and not the Council and the said Architect has stated in the CPC as follows; We hereby certify that the above project has been completed according to the approved building plans, and has achieved Practical Completion (exh LC7). [52] Justeru, adalah menjadi dapatan Mahkamah ini bahawa bahawa sesiapa yang menduduki lot-lot kedai tersebut termasuk Pemohon- Pemohon sekiranya benar mereka menduduki lot-lot tersebut, maka selayaknya dianggap sebagai penceroboh. [53] Di samping itu, tanpa suatu perintah milikan kosong oleh mahkamah, kerja-kerja pemulihan pembangunan di atas hartanah tersebut tidak akan dapat dijalankan dan akan terus mengakibatkan prejudis bukan sahaja kepada Plaintif, malah pembeli-pembeli lain yang terlibat di bawah skim pengaturan tersebut. 42 [54] Mahkamah ini juga merujuk kepada kes CHIU WING WA & ORS v ONG BENG CHENG [1994] 1 MLJ 89 di mana Mohamed Azmi, HMA telah menyatakan bahawa: “The summary procedure under O 89 is governed by the same principles as those under O 14 of the RHC 1980. To entitle a defendant to a trial, all he needs to do is to show that there is a triable issue of law or fact. It is only in clear cases of trespass that a summary order can be made under O 89. The learned judicial commissioner did not seem to address his mind sufficiently to the importance of determining the existence or absence of triable issues. It is unfortunate that the learned judicial commissioner did not give due consideration to the Federal Court decision of Leong Yoong v Lee Sem Yoong 3 (cited to him in argument) where it was held that where reliance is placed on the provision of the Act to avoid eviction by landlord, all that the tenant has to do is to show that he is a protected tenant under the Act. In the circumstances, the application by originating summons although remedied by the learned judicial commissioner to one under O 89 of the RHC should be dismissed as there are triable issues of fact and law, and as such the application for vacant possession ought to have been commenced by writ”. 43 [55] Atas alasan-alasan yang telah dinyatakan di atas, adalah menjadi dapatan Mahkamah ini bahawa tiada fakta-fakta atau isu-isu bercanggah di dalam kes ini yang memerlukan suatu perbicaraan penuh dijalan. Apa yang jelas di dalam kes ini penentuan isu yang dibangkitkan boleh dan sesuai di putuskan melalui Saman Pemula menurut A. 89 k.1 KKM 2012. Isu (c): samada Plaintif telah memenuhi kriteria-kriteria yang digariskan oleh Aturan 89 Kaedah 1 KKM 2012 dalam mendapatkan Perintah milikan kosong. [56] Pemohon-Pemohon telah menghujahkan bahawa permohonan Plaintif menurut Aturan 89 tidak sewajarnya dibenarkan kerana Plaintif telah gagal mematuhi/ memenuhi kriteria-kriteria yang telah digariskan bagi mendapatkan milikan kosong di bawah A.89 k.1. [57] Aturan 89 k.1 telah diperuntukkan seperti berkut: “Proceedings to be brought by Originating Summons (O.89 r.1) 44 Where a person claims possession of land which he alleges is occupied solely by a person or persons (not being a tenant or tenants holding over after the termination of the tenancy) who entered into or remained in occupation without his licence or consent or that of any predecessor in title of his, the proceedings may be brought by originating summons in accordance with the provisions of this Order”. [58] Pemohon-Pemohon telah menegaskan mereka bukanlah penceroboh yang menghuni hartanah tersebut tanpa kebenaran dari Plaintif, tetapi sebaliknya merupakan pemilik benefisial lot-lot kedai pejabat tersebut seperti yang diperuntukkan oleh undang-undang. Justeru, tindakan ini tidak boleh dibawa melalui Saman Pemula. [59] Mahkamah ini telahpun menerangkan hal perkara keempunyaan/hakmilik benefisial dan pemilikan (possession) dengan jelas dan panjang lebar di isu (b) tadi, namun bagi mengulangi dapatan-dapatan penting yang telah dibuat, Mahkamah ini sekali lagi menekankan bahawa melalui bukti-bukti dokumentar yang telah 45 dikemukakan, tidak ada langsung yang menunjukkan bukti bahawa Pemohon-Pemohon adalah merupakan pemilik / pemilikan benefisial ataupun mempunyai pemilikan kepada atau terhadap lot-lot kedai tersebut dan tidak juga menunjukkan bahawa mereka merupakan penyewa. [60] Sebaliknya, apa yang jelas dan nyata adalah, Plaintif adalah merupakan pemilik berdaftar keseluruhan bahagian hartanah tersebut yang mana sekaligus mempunyai hak ke atas lot-lot kedai di atas hartanah tersebut. [61] Berdasarkan kedudukan Plaintif di dalam kes ini yang bersandarkan dan disokong dengan keterangan-keterangan dokumentar, Plaintif telahpun memenuhi kriteria-kriteria di bawah A.89 k.1 dan oleh itu perintah milikan kosong yang telah diberikan oleh mahkamah pada 31.10.2016 terhadap Plaintif adalah teratur dan tidak sewajarnya diketepikan. 46 H. KEPUTUSAN MAHKAMAH [62] Berdasarkan alasan-alasan di atas, permohonan Pemohon-Pemohon di Kandungan 26 untuk mengetepikan Perintah Mahkamah bertarikh 31.10.2016 dengan ini adalah ditolak dengan kos sebanyak RM5,000.00. t.t. ..................................................... (DATUK AZIMAH BINTI OMAR) Hakim Mahkamah Tinggi Shah Alam (Saman Pemula) Selangor Darul Ehsan Bertarikh 07hb November 2017 Peguam Plaintif - Tetuan Dennis Nik & Wong Cik Siti Mardhiyyah Zamani Peguam Defendan - Tetuan Tan Chap & Associates Cik SY Cheung Cik YY Lim

Tika 2.6.0

BA-12B-10-01/2016

PERAYU 1. JEFFREY BIN MUSA 2. BERSERI CHICKEN TRADING RESPONDEN 1. TEBANRAJ A/L MARIMUTHU 2. IZUDIN BIN MOHAMED 3. MOHD SALLEH BIN ZAINOL 4. NAZLI BIN ABDUL RAHIM 5. PENGARAH JABATAN PENGANGKUTAN JALAN MALAYSIA 6. KERAJAAN MALAYSIA

06/11/2017

YA DATIN ZALITA BINTI DATO' HJ. ZAIDAN (PK)

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=57434b8d-7368-4670-9a9e-e066db350210&Inline=true

DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN, MALAYSIA RAYUAN SIVIL NO.: BA-12B-10-01/2016 ANTARA 1. JEFFREY BIN MUSA 2. BERSERI CHICKEN TRADING … PERAYU-PERAYU DAN 1. TEBANRAJ A/L MARIMUTHU 2. IZUDIN BIN MOHAMED 3. MOHD SALLEH BIN ZAINOL 4. NAZLI BIN ABDUL RAHIM 5. PENGARAH JABATAN PENGANGKUTAN JALAN MALAYSIA 6. KERAJAAN MALAYSIA … RESPONDEN-RESPONDEN (DALAM MAHKAMAH SESYEN DI SELAYANG DALAM NEGERI SELANGOR DARUL EHSAN, MALAYSIA GUAMAN NO. A53KJ-98-03/2014 ANTARA TEBANRAJ A/L MARIMUTHU … PLAINTIFF DAN 1. JEFFREY BIN MUSA 2. BERSERI CHICKEN TRADING 3. IZUDIN BIN MOHAMED 4. MOHD SALLEH BIN ZAINOL 5. NAZLI BIN ABDUL RAHIM 6. PENGARAH JABATAN PENGANGKUTAN JALAN MALAYSIA 7. KERAJAAN MALAYSIA … DEFENDAN-DEFENDAN) GROUND OF JUDGMENT Introduction [1] This is an appeal by the Appellants (1st - 2nd Defendants) against the decision of the learned Session Judge of 8.12.2015 in allowing one of the Respondents’ claim, the Plaintiff after a full trial. The Sessions Court decided that the Appellants are 20% liable, the 2nd – 6th Respondents are 80% liable and Plaintiff not liable. The appeal is on liability and for loss of earnings. [2] This appeal was heard together with the other appeal BA-12B-11-01-2016, involving the same road accident alleged by Plaintiff. I shall introduce the parties as they were known at the Sessions Court. The 1st Respondent who is the Plaintiff brought the suit against seven Defendants including the 1st and 2nd Defendants. The 2nd, 3rd, and 4th Respondents are the 3rd, 4th and 5th Defendants, who are the officers of the Road Transport Department, Malaysia (JPJ). The 5th Respondent (6th Defendant) and the 6th Respondent (7th Defendant) are the Director General of the Road Transport Department, Malaysia and Government of Malaysia respectively. [3] For this appeal, the action is between the 1st and 2nd Defendants and the Respondents are the Plaintiff and the 3rd – 7th Defendants. In the appeal BA-12B-11-01/2016, the 3rd – 7th Defendants are the appellants appealing the Sessions Court’s decision of 80% liability and quantum where the case is between the 3rd – 7th Defendants and the Plaintiff, as the respondent. [4] This Court allowed the appeal on 13.7.2017 and also set aside the Session Judge’s award for loss of earnings with costs. [5] In this judgement, the parties will be referred to, as they were in the Sessions Court. Facts [6] The relevant factual background giving rise to this appeal may be briefly stated as follows: (a) The Plaintiff is a person of unsound mind not so found by inquisition, is represented by Marimuthu a/l Mariapan. The Plaintiff was the rider of motorcycle bearing registration number WPB 6894 that was involved in the accident. (b) The Plaintiff claimed that the 1st Defendant, the driver of vehicle lorry bearing registration number WUC 5600 and the 2nd Defendant, is the registered owner of the said vehicle lorry, had caused the accident due to the negligence of the 1st Defendant (paragraphs 3 and 7 of Amended Statement of Claim, page 5 and 6 of Appeal Record). (c) The Plaintiff also pleaded that the 3rd – 5th Defendants are agents or servants authorized by the 6th Defendant and/or 7th Defendant in controlling, on the authority and driving the vehicle bearing registration number WRD 7645 and had caused the accident due to their negligence and caused nuisance (paragraph 7 of Amended Statement of Claim, page 5 of Appeal Record). (d) The Plaintiff pleaded (paragraph 6 of the Amended Statement of Claim, page 5 of Appeal Record) of the accident: “Pada 3hb Disember 2013, Plaintif adalah secara sah menunggang motorsikal bernombor WPB 6894 dan apabila sampai di KM 440.3 Bukit Beruntung-Rawang, Selangor Darul Ehsan, motorlori WUC 5600 yang dipandu oleh Defendan Pertama sebagai ejen atau orang gaji atau orang yang memandu dengan keizinan Defendan Kedua yang datang dari arah yang sama sebelah kanan Plaintif secara tiba-tiba telah menukar haluan ke kiri lalu memberhentikan motorlorinya secara mengejut dan tanpa memberi sebarang isyarat setelah ditahan oleh Defendan Ketiga, Defendan Keempat, Defendan Kelima yang bertindak sebagai ejen atau orang gaji dengan keizinan Defendan Keenam dan/atau Defendan Ketujuh di lebuhraya tersebut yang mempunyai pengawalan, penguasaan dan pembawaan motokar WRD 7645 dengan mewujudkan kacau ganggu di lebuharaya tersebut oleh yang demikian, Plaintif terpaksa melanggar motorlori tersebut dan akibat perlanggaran tersebut Plaintiff telah mengalami kecederaan, kerosakan dan kerugian.” (e) The Plaintiff claimed that the accident was caused by 1st and 2nd Defendants negligence due to the signal to stop by the 3rd – 7th Defendants. The negligence caused by the 1st and 2nd Defendants are as meted out in paragraphs (a) – (n) of the Amended Statement of Claim (pages 6-7 of the Appeal Record). Due to the accident, the Plaintiff claimed that he suffered injury, damages and loss. (f) The 1st and 2nd Defendants in its Defence claimed that the Plaintiff’s negligence was caused wholly by the Plaintiff while riding its motorcycle. It was pleaded that it was a straight road with three lanes and one emergency lane. (g) The 1st - 2nd Defendants pleaded that his assistant was asleep while he took the motor lorry permit and driving license as he dismounted from his lorry and that the 3rd – 7th Defendants’ vehicle of WRD 7645 stopped in front of the motor lorry about 10 -15 meters and had its hazard lights switched on. (h) The 1st Defendant claimed that while he was discussing with the 3rd Defendant, another JPJ officer was circling the vehicle lorry and after five minutes, a motorcycle registration number WBP 6894 of Kriss model knocked at the back right side of the motor lorry belonging to the 2nd Defendant. (i) The 1st Defendant claimed that the Plaintiff was found under the motor lorry and the accident was on the emergency lane. (j) The Session Judge made a finding that based on Plaintiff’s and 1st - 2nd Defendants’ witnesses, liable at 20% and the 3rd – 7th Defendants are liable at 80% and awarded General Damages and Special Damages to the Plaintiff. (k) The 1st - 2nd Defendants dissatisfied with the Sessions Court’s decision, filed the Notice of Appeal on 18.12.2015. 1st and 2nd Defendants’ case [8] The learned counsel for the 1st – 2nd Defendants submitted 8 grounds for this appeal which can be found in the Memorandum of Appeal (paragraphs 1-8 of the Appeal Record) and I will focus on the main grounds. The counsel for the 1st – 2nd Defendants’ main contention is that the Session Judge was erred that the Plaintiff was found not negligent and instead found 1st – 2nd Defendants liable at 20%. [9] Referring to the sketch plan (page 38 Appeal Record of BA-12B-10-01/2016 file), the 1st and 2nd Defendants’ counsel submitted that the 1st and 2nd Defendants and the Plaintiff were travelling on the same direction at KM440.3 PLUS Highway where the 1st and 2nd Defendants were ordered to stop its motor lorry bearing registration number WUC 5600 by the 3rd – 7th Defendants at the emergency lane. [10] The counsel averred that the Session Judge was erred in facts and law in finding the Plaintiff not negligent when the Plaintiff had made contradictory statements as to the occurrence of the accident during the examination-in-chief and cross- examination. It was submitted that the Plaintiff kept changing its story when he found out that the 3rd Defendant made a police report and during the cross-examination, Plaintiff strongly denied the accident was due to the negligence of the 3rd – 7th Defendants. It was submitted that the Plaintiff reported that he was riding on the left most which is between lanes A2-A3 as in the sketch plan, and the vehicle lorry was driving on lane A3-A4 next to Plaintiff, but during the cross-examination, Plaintiff admitted that he was riding on lane A1-A2 which is the emergency lane. [11] The counsel for the 1st and 2nd Defendants submitted that the dispute as to the position of the JPJ vehicle on the emergency lane, whether in the front of the vehicle lorry or behind, was not pleaded by the Plaintiff. It was brought to the Court’s attention that the 1st Defendant’s version is the JPJ vehicle stopped in the front of the motor lorry whereas the 3rd Defendant pleaded that it stopped behind the motor lorry. [12] It was submitted that based on the investigating police officer (IO), it was revealed (pages 117 – 118 of Supplementary Appeal Record 1) that the accident (“kesan kemalangan”) is on the emergency lane. The counsel pointed out that this could be inferred that the accident occurred when the vehicle lorry stopped on the emergency lane. The counsel argued that as the 1st and 2nd Defendants were stopped by the JPJ officers, the ‘physical control’ of the vehicle of the 1st – 2nd Defendants would be by the JPJ and Government of Malaysia and no longer of the control by the 1st - 2nd Defendants as pleaded in its Defence (paragraph 9, page 35 of Appeal Record). [13] The counsel submitted that based on 3rd – 7th Defendants’ Defence, the JPJ suspects that the motor lorry was above the required weight and following section 59(1) Road Transport Act 1987 (RTA) and section 55 of RTA, any road transport officer, may require any motor vehicle to be stopped and detained for inspection (page 17-18 of written submission of 2nd – 6th Respondents). The counsel averred in its oral submission that the portion of 80% liability should be on the Plaintiff and 20% on the 1st – 2nd Defendants, briefly, for the following reasons: (1) JPJ’s ordered to stop vehicle lorry was legal; (2) If not stopped, 1st – 2nd Defendants would be against the law; (3) The 1st – 2nd Defendant had stopped at the emergency lane for 5 minutes and this fact was not pleaded by Plaintiff. [15] The counsel for the 1st – 2nd Defendants submitted that this Court should intervene as the trial judge had come to the wrong conclusion on the facts, relying on the case of Chung Hwa Ying v Phang Mun Mooi & Anor [1987] 2 MLJ 693, a Supreme Court case. The counsel prayed for liability of 20% be changed or that there be no liability and submitted for the Judge to hold liable between the Plaintiff and 3rd – 7th Defendants. [16] In relation to loss of earnings, it was contended by the counsel for the 1st – 2nd Defendants that the Plaintiff failed to adduce any evidence nor the Plaintiff’s employer and there should be no award for loss of earnings. For loss of earning capacity of RM50,000.00, it was submitted that the Plaintiff did not prove that he was healthy as required under section 28A 2(c) of Civil Law Act 1956. The counsel averred that the loss of earnings and loss of future earnings claimed by Plaintiff be dismissed as there was no proof, relying on the Supreme Court case of Aidi Abdullah v Ngooi Ku Siong & Anor [1985] 1 MLJ 30. Plaintiff’s case [17] Briefly, the learned counsel for the Plaintiff started off with quantum, submitted that the award by the Sessions Court should be retained. On loss of earnings, Plaintiff’s counsel submitted that the Plaintiff was in good health and was looked after by his parents after the accident (page 42 Supplementary Appeal Record 1). With regards to Plaintiff’s employment, the employer testified that the Plaintiff receives a salary of RM50-RM60 per day work and had not been paid salary after the accident (page 46 of Supplementary Appeal Record 1). [18] On liability, Plaintiff’s counsel’s contention is that the 3rd – 7th Defendants do not have the right to stop the motor lorry for inspection at the emergency lane. It was averred that the Plaintiff could not recall as to the actual cause of the accident and relied on the IO and the oral evidence of all the defendants in reference to the authorities Husiana Rani Naina Mohamed v Ahmad Nadzri Kamaruddin & Anor [1997] 3 CLJ 500, Kuppusamy L. Sundarajoo v Nithananthan Muniandy [1990] 2 CLJ (Rep) 302 and Dawason v Murex Ltd [1942] 1 All ER 483. It was brought to this Court’s attention that the width of the emergency lane is not sufficient to accommodate the motor lorry for an inspection to be carried out (page 135 Supplementary Appeal Record 1). To this, the counsel pointed out that the IO was unsure of the 3rd - 7th Defendants’ usage of the emergency lane. The Plaintiff’s counsel submitted that it would be reasonable for the 1st Defendant to be liable at 20% for his failure to call the co-driver to testify that the 1st Defendant was taking precaution to ensure that no one would be behind the motor lorry (page 153 Supplementary Appeal Record 1). [19] The Plaintiff’s counsel averred that the IO’s investigation was incomplete for not taking statements from the 3rd-7th Defendants. It was asserted that the accident was caused by the JPJ’s instructions to stop the motor lorry, there was no warning signage by the 3rd – 7th Defendants where the area the motor lorry was stationed was not well lighted. In addition, there were contradictory statements about the location of the 3rd – 7th Defendants prior to the occurrence of the accident. [20] The Plaintiff’s counsel also pointed out that the police report made by the 3rd – 7th Defendants was made two hours after the accident, at 22.00hrs at night whereas the 1st Defendant reported earlier, at 21.15hrs at night. The Sessions Court’s Decision [21] The Session Judge had narrated in detail the Plaintiff’s and 1st – 2nd Defendant’s version as to the occurrence of the accident. The Session Judge’s decision can be found at the Supplementary Record Appeal where some the salient points on liability and loss of earnings are reproduced, as follows: “… 5. Mahkamah juga meneliti keterangan Plaintif yang tidak ingat samada kenderaan JPJ ada ketika kemalangan berlaku dan bagaimana kemalangan berlaku dan telah bersetuju dengan peguamcara Defendan bahawa laporan polis Plaintif dibuat atas bantuan ayahnya. ….. 6. Mahkamah mendapati gambar-gambar yang dikemukakan di Mahkamah menunjukkan kerosakan motorlori Defendan Kedua adalah di Bahagian besi belakang di tengah dan sebelah kanan dan kerosakan motorsikal adalah tertumpu di Bahagian hadapan. 7. Mahkamah juga menimbangkan siasatan Pegawai penyiasat tidak lengkap kerana tidak mengambil keterangan daripada Pegawai-pegawai JPJ yang terlibat tetapi saman di bawah Rule 10 LNM telah dikeluarkan terhadap Plaintif dan Plaintif tidak membayar saman tersebut. 8. Mahkamah juga meneliti dan menimbangkan keterangan Plaintif yang tidak ingat mengenai kenderaan JPJ, keterangan Defendan Pertama yang memandu motorlori Defendan Kedua memberitahu kedudukan kenderaan JPJ adalah di hadapan motorlori dan keterangan Defendan Ketiga hingga Defendan Kelima iaitu Pegawai JPJ memberitahu bahawa kedudukan kenderaan JPJ adalah di belakang motorlori tersebut. 8.1 Mahkamah turut mendapati pegawai penyiasat tidak dapat mengesahkan kedudukan kenderaan JPJ semasa kemalangan berlaku. 8.2 Mahkamah menerima keterangan Defendan Pertama bahawa kenderaan JPJ berada di hadapan motorlori kerana keterangannya disokong oleh Plaintif yang tidak boleh ingat mengenai kenderaan JPJ kerana tidak nampak kenderaan tersebut. 8.3 Mahkamah mendapati kesan kerosakan pada belakang tengah dan kanan motorlori adalah jelas menunjukkan motorsikal Plaintif telah melanggar di Bahagian tengah dan sekiranya kenderaan JPJ berada di belakang motorlori tersebut, adalah mustahil untuk motorsikal melintasi kenderaan JPJ dan masuk semula ke Bahagian tengah lorong kecemasan tersebut. ….. 10.3 Persoalannya juga adalah samada sekiranya Seksyen 3, Akta Pengangkutan Jalan 1987 membenarkan Pegawai JPJ membuat penahanan kenderaan di mana-mana sahaja termasuk lorong kecemasan, maka atas tanggungjawab siapakah untuk memastikan keselamatan kenderaan lain yang sedang dipandu dari belakang motorlori tersebut? 10.4 Mahkamah berpendapat di dalam soal keselamatan dan pengawalan trafik adalah terletak pada kedua-dua pihak daripada motorlori dan kenderaan JPJ pada hari tersebut. 10.5 Mahkamah juga berpendapat bahawa sekiranya motorlori yang dipandu oleh Defendan Pertama tidak mengubah lorong akibat diarahkan oleh Pegawai JPJ (Defendan Ketiga hingga Defendan Kelima) pada hari tersebut seperti yang dalam keterangan Plaintif, maka kemalangan tidak akan berlaku. 10.6 Begitu juga jika kemalangan berlaku setelah 5 minit motorlori diberhentikan oleh defendan Pertama atas arahan Pegawai JPJ (Defendan Ketiga hingga Defendan Kelima), maka kemalangan tidak akan berlaku. ….. 15. Untuk menentukan kemalangan ini berpunca daripada siapa dan liabilitinya, Mahkamah telah merujuk kepada kes Azam bin Kasman dan Satu Lagi v Ramachandran a/l Muthusamy [1996] 1 LNS 14. ….. 16. Oleh yang demikian, setelah mendengar dan meneliti semua keterangan daripada saksi-saksi kedua-dua pihak, hujahan kedua-dua pihak berserta kes-kes dan otoriti yang telah dikemukakan, Mahkamah membuat keputusan di atas Imbangan Kebarangkalian bahawa Defendan Pertama dan Defendan Kedua adalah berliabiliti sebanyak 20% kerana tidak mengambil tindakan keselamatan semasa mengubah motorlori dan memberhentikan motorlori dan Defendan Ketiga hingga Defendan Ketujuh adalah berliabiliti sebanyak 80% kerana telah mengarahkan motorlori yang dipandu oleh Defendan Pertama supaya berhenti di lorong kecemasan tanpa mengambil langkah-langkah keselamatan kenderaan lain yang datang dari belakang motorlori. 16.1 Mahkamah berpendapat baahwa tindakan Defendan Ketiga hingga Defendan Kelima mengarahkan motorlori Defendan Kedua berhenti di lorong kecemasan adalah tidak selamat dan membahayakan dan motorlori tersebut boleh diarahkan memandu ke stesyen timbang JPJ di Kalumpang untuk pemeriksaan lanjut yang mana terletak tidak jauh daripada kawasan kemalangan kes ini. J. ALASAN MAHKAMAH i) ISU AWARD ….. 7.7 Defendan-Defendan tidak menawarkan apa-apa tawaran dan setelah meneliti dan mempertimbangkan kesemua laporan pakar daripada kedua-dua pihak, keadaan umur Plaintif yang masih muda, keupayaan pemikiran Plaintif dan keupayaan untuk Plaintif bergerak melakukan kerja-kerja dan kelulusan akademik Plaintif yang tidak tinggi, maka Mahkamah telah membenarkan RM500.00 x 192 bulan berjumlah RM96,000.00 tanpa faedah. 7.8 Mahkamah membenarkan jumlah RM500.00 setelah ditolak dengan “living expenses” dan mengambil kira jenis kerja yang Plaintif mampu lakukan sebelum kemalangan adalah tidak tetap dan bergantung kepada bilangan rumah yang dapat dibuat tar jalan dan juga keadaan faktor cuaca pada bulan tersebut. 7.9 Mahkamah menerima keterangan majikan Plaintif dan berpendapat bahawa jumlah RM500.00 sebulan adalah sesuai dan munasabah serta tidak melampaui. ….” THE COURT’S FINDING [22] Both parties submitted the trite law that an appellate court will be slow to interfere with the findings of facts and judicial appreciation of the facts by the trial judge. The legal position is clear and can be found in a number of great authorities that an appellate court should but rarely interfere with conclusion arrived at by the trial judge who had the advantage of hearing the witnesses unless it is satisfied that the judge has acted on a wrong principle of law or has made a wholly erroneous estimate of damage suffered, either due to an omission to consider relevant materials or admitting irrelevant considerations: Multar Masngud v Lim Kim Chet & Anor [1982] CLJ 237, Federal Court. The authorities are as submitted by the 1st – 2nd Defendants’ counsel and in the recent decision of the Federal Court in Ming Holdings (M) Sdn Bhd v Syed Azahari Noh Shahabudin & Anor [2010] 6 CLJ 857 where it was remarked that a trial judge had the advantage over an appellant court in hearing the witnesses and should be slow in interfering with the trial judge’s decision. [23] However, where there is a clear misdirection of law and findings by the trial judge, it is incumbent upon this Court to intervene and correct the findings of the lower court. In the Federal Court case of Tan Kuan Yau v Suhindrimani Angasamy [1985] CLJ (Rep) 323, it was held that, “Although an appellate Court is always slow to interfere with the trial Judge’s findings, it is the duty of the appellate Court to interfere if it is satisfied that there has been a wholly errorneous estimate of damage.” [24] Both counsels advanced several arguments on the grounds of the appeal. For the purpose of this judgment, I will be brief, focusing on the main grounds. I would start of by staying that this suit was brought by the Plaintiff and the burden rests on the Plaintiff to prove its claim, based on the balance of probabilities. The burden of proof as well as the initial onus to prove the claim rest with the Plaintiff and the Plaintiff is to discharge its onus to prove its cause of action against the Defendant as decided by the Federal Court in the case of Letchumanan Chettiar Alagappan @ L. Allagapan, M. Venkatachalam S/O Venkatachalam Chettiar v Secure Plantation Sdn Bhd No. 02-78-10/2014. Based on Letchumanan Chettiar (supra) case, section 101 of the Evidence Act 1950 was referred holding that the burden to establish the case rests throughout on the party who asserts the affirmative of the issue. [25] There are contradictory facts between the parties. The Plaintiff pleaded that the 1st – 2nd Defendants travelling on the same direction, being on Plaintiff’s right side and suddenly changed lane to the left without any warning before stopping and as a result, Plaintiff had to collide with the 1st - 2nd Defendants’ motor lorry. The exact words pleaded by Plaintiff as in paragraph 6 of the Amended Statement of Claim, is extracted, “…. Defendan Pertama sebagai ejen atau orang gaji atau orang yang memandu dengan keizinan Defendan Kedua yang datang dari arah yang sama sebelah kanan Plaintif secara tiba-tiba telah menukar haluan ke kiri lalu memberhentikan motorlorinya secara mengejut dan tanpa memberi sebarang isyarat setelah ditahan oleh Defendan Ketiga, Defendan Keempat, Defendan Kelima yang bertindak sebagai ejen atau orang gaji dengan keizinan Defendan Keenam dan/atau Defendan Ketujuh di lebuhraya tersebut yang mempunyai pengawalan, penguasaan dan pembawaan motokar WRD 7645 dengan mengwujudkan kacau ganggu di lebuhraya tersebut oleh yang demikian, Plaintif terpaksa melanggar motorlori tersebut …. .” [26] In a case where negligence is claimed as the cause of action, prove of negligence will be placed on the plaintiff. The plaintiff must first prove before it can discharge its burden, and the onus to adduce the evidence rests on the Plaintiff in this instant appeal. Based on cases of Neo Chan Eng v Koh Yong Hoe [1960] 26 MLJ 291, Ng Chui Sia v Maimon b. Ali [1983] 1 MLJ 110 and Mohd Tarmizi Mat Hassan & Anor v Arief Fitri Ahmad Zainuddin [2014] 1 LNS 1005, the evidential burden will shift to the defendant to disprove negligence on his part when the plaintiff has established a prima facie case of negligence as pleaded. [27] The Plaintiff had pleaded the occurrence of the accident as such but when testified, could not recall how the accident took place. Pertinent to the evidence by the Plaintiff in this appeal, this Court rely on the case of Ng Aik Sian & Anor v Sia Loh Sia [1997] 2 CLJ 218 where Justice Abdul Malik Ishak had occasion to say, “It is trite law drivers and the witnesses on each side tell conflicting and divergent stories, the photographs, plans, measurements of the scene of the accident and the nature of the damage to each vehicle will be the guiding force – the reliable guide to rely upon.” [28] As the Plaintiff may not be able to recall, the evidence submitted before this Court must be scrutinised, which comprises sketch plan, the photographs of the scene of the accident and the damage to the vehicles, known as the silent evidence, and the investigation carried out by the investigating officer (IO). The IO testified that the accident occurred on the emergency lane (pages 117-118 Supplementary Appeal Record 1) as there were blood and debris of accident which was marked ‘B’ on the sketch plan, that is the emergency lane (page 33 of Supplementary Appeal Record (cross-examination of Plaintiff)), are pure evidence consistent with the version that the point of collision occurred on the emergency lane. [29] Relying on authorities of the Federal Court case of Samuel Naik Siang Ting v Public Bank Bhd [2015] 8 CLJ 944 and Dato’ Tan Chin Who v Dato’ Yalumallai @ M Ramalingam s/o V Muthusamy [2016] MLJU 641 which clearly stated that parties are bound by their pleadings, this Court finds that the evidence adduced by the Plaintiff contradicts its own pleadings. The Plaintiff’s police report of 7.10.2014 stated among others that, “…SAYA IKUT DI LORONG KIRI TIBA-TIBA SEBUAH M/LORI NO. WUC 5600 JENIS TIDAK PASTI TELAH MASUK KELORONG KECEMASAN DENGAN TIBA-TIBA LALU SAYA BREK DAN ELAK TETAPI TERLANGGAR BELAKANG M/LORI TERSEBUT. M/SIKAL ROSAK TERUK. …” In contradiction to Plaintiff’s police report and as pleaded, the Plaintiff testified agreeing that he was driving on lane A1-A2 which is the emergency lane (page 54 of Supplementary Appeal Record). The Plaintiff did not agree that the vehicle lorry was already on the emergency lane but testified that he collided at the back of the motor lorry which was on the emergency lane (pages 57 – 58 of Supplementary Appeal Record). The Plaintiff’s evidence was challenged based on the damage found to his motorcycle and yet refused to agree that the damage would be on the right side of his motorcycle if the 1st – 2nd Defendants were coming from his right onto the Plaintiff’s lane. Yet, the Plaintiff admitted that he knocked the back of the motor lorry while the motor lorry was on the emergency lane. [30] The Plaintiff’s oral evidence during the cross-examination proves to show that the Plaintiff knocked on the back of the motor lorry while the motor lorry was stationed on the emergency lane. The Plaintiff’s admission that he knocked on the back of the motor lorry and not on the left side of the motor lorry is an admission under section 17 of the Evidence Act 1950 that the accident was caused by Plaintiff’s own negligence. [31] This Court holds the view that if the 1st – 2nd Defendants were coming from Plaintiff’s right and out of a sudden, went onto Plaintiff’s lane as pleaded, the Plaintiff would have knocked on the left side of the motor lorry and the damage to Plaintiff’s motorcycle would be on the right side and not the front cover of Plaintiff’s motorcycle as found by IO in his investigation. I viewed that the Plaintiff was riding on the emergency lane and did not see the vehicle lorry which caused him to collide the back of the motor lorry. This evidence corroborates with the silent evidence of the sketch plan, the photographs of the debris and the damage to the motorcycle and the motor lorry. [32] This Court finds that the damage to the motor lorry is consistent with the police report made by the 1st – 2nd Defendants where the lights and the registration number at the back of the vehicle lorry were found to be broken. The Plaintiff only reported that his motorcycle was badly damaged (“M/SIKAL ROSAK TERUK”) but no details of the damage were listed by the Plaintiff. [33] It was not disputed that the motor lorry was stopped for inspection by the 3rd – 7th Defendants and the motor lorry was ordered to stop at the emergency lane. This is following the provision of the RTA, section 59(1) Road Transport Act 1987 which is allowed by law and as agreed by the IO during the oral evidence that it was legal to stop on the emergency lane (page 123 Supplementary Appeal Record (1)). This Court viewed that it would be unreasonable to link the cause of the accident to the directive of the 3rd – 7th Defendants. Riding on the emergency lane is an offence under Rule 53(1) Road Traffic Rules LN 166/59. In addition, there was no evidence produced by the Plaintiff that the directive of the 3rd – 7th Defendants was not in accordance with section 59(1) Road Transport Act 1987, for instance that it was unauthorized, to rebut 1st – 2nd Defendants’ defence. [34] In view of the evidence given by the Plaintiff and Plaintiff’s witnesses, this Court viewed that following the authority of Lee Ing Chin & Ors v Gan Yook Chin & Anor [2003] 2 CLJ 19, Justice Gopal Sri Ram (as he then was) at page 33, should be adhered to, whom remarked that the trial judge must test the oral evidence of the witness against the evidence placed before him: “A judge who is required to adjudicate upon a dispute must arrive at his decision on an issue of fact by assessing, weighing and, for good reasons, either accepting or rejecting the whole or any part of the evidence placed before him. …If there are contemporary documents, then he must test the oral evidence of a witness against these. …. A trier of fact who makes findings based purely upon the demeanour of a witness without undertaking a critical analysis of that witness’ evidence runs the risk of having his findings corrected on appeal. …” [35] The fact that the Plaintiff admitted he collided the back of 1st – 2nd Defendants’ motor lorry, while the motor lorry was stationed on the emergency lane which was consistent with the silent evidence and investigation of the IO, was acknowledged by the Session Judge at paragraph 6 of her written judgment. However this fact and evidence may have been inadvertently overlooked by the Session Judge in determining Plaintiff’s case of negligence. Based on the evidence adduced by the Plaintiff, this Court holds the view that the burden has not shifted to the 1st-2nd Defendants, there was no proof that the 1st – 2nd Defendants caused the accident that resulted Plaintiff’s injury. [36] The cases referred by the Session Judge, Azam bin Kasman dan Satu Lagi v Ramachandran a/l Muthusamy [1996] 1 LNS 14 and Mohd Zamri Khalid & Anor v Johari Khalid & Anor [1983] 1 MLRH must be distinguished from the current case where the 1st – 2nd Defendants motor lorry was stationed on the emergency lane of the highway which is a straight road, and with their motor lorry lights switched on. [37] With regards to loss of earnings, this Court was informed that it was difficult to get the Plaintiff’s employer to attend court and only after a warrant of arrest was issued, the employer came to testify, however without the salary slips to prove Plaintiff’s employment. The fact that a warrant of arrest was issued to Plaintiff’s employer to testify in court and yet no document could be produced to proof that Plaintiff was employed. In addition, there was no company search done on the existence of the Plaintiff’s employer’s company to show to court that the Plaintiff is employed in a company as testified. Based on the oral evidence of the Plaintiff’s witness, the Plaintiff seemed to have only worked for a month before the accident (pages 62-63 of Supplementary Appeal Record (2) of BA-12B-11-01-2016). [38] In the Supreme Court case of Tan Kim Chuan v Chandu Nair [1991] 1 MLJ 42, it was decided that an injured claimant ought not to get damages in a claim for loss of future earnings or loss of earning capacity unless at the date of the accident he was in fact receiving earnings. Therefore for the prerequisite under section 28(A)(2) of the Civil Law Act 1956 to be applicable, there must be evidence that the injured claimant was in fact receiving earnings and based on case laws, there must be a real and substantial risk that his injury will constrained or diminished his earning capacity, for loss of earning capacity claim: Ngooi Ku Siong & Anor v Aidi Abdullah [1984] 1 CLJ (Rep) 294. [39] In determining for loss of earning capacity, the Plaintiff must show that if he goes back to work, there is a real and substantial risk that he may lose his job or is restrained from working due to his diminished capacity, based on the authorities of Ngooi Ku Siong (supra) case and Sumarni v Yow Bing Kwong & Anor [2008] 3 CLJ 489 case. I hold the view that it is too early to determine that there is real and substantial risk of diminished earning capacity of the Plaintiff. [40] The Plaintiff was 17 years of age at the time of accident. The specialist medical report mentioned that the Plaintiff will be able to work (page 5 of Specialist Medical Report of 20.5.2014 of Appeal Record). There was no report to state that the Plaintiff will not be able to work totally. The specialist medical report of Plaintiff dated 9.7.2014 stated that the current problems of Plaintiff’s face with the estimated cost of RM67,000. The latest specialist medical report of 1.10.2014 finds the patient can be independent and employment prospect significantly reduced at the moment. Therefore, I find that based on the facts and evidence adduced, there is no real and substantial risk of diminished earning capacity of the Plaintiff. [41] Reversing the Session Judge’s decision, I allow the appeal on liability where the Plaintiff is wholly liable, at 100% and set aside the Session Judge’s decision for the award for loss of future earnings. I disallow for loss of earning capacity even as an alternative to loss of future earnings, a passing remark orally submitted by the counsel for the 1st – 2nd Defendants, in view of 1st – 2nd Defendants’ appeal is limited to the grounds set out in their memorandum of appeal: Perembun (M) Sdn Bhd v Conlay Construction Sdn Bhd [2012] 4 MLJ 149, at 154. In light of the above reasons, I allow the appeal with cost. Dated: 6 November 2017 (ZALITA BINTI DATO’ ZAIDAN) Judicial Commissioner Shah Alam High Court COUNSEL FOR THE APPELLANT / 1st & 2nd DEFENDANTS MOHD APANDI BIN MOHD YATIM 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 [Ref: L237/1403/AmG-29/RHZ] Tel: 03-6203 6816 Fax: 03-6203 6817 COUNSEL FOR THE 1st RESPONDENT / PLAINTIFF MOHD SAUFI BIN SAMSUDDIN G. Dorai & Co. Peguamcara dan Peguambela No. 7, Jalan Mawar 1, Taman Mawar 48000 Rawang [Ref: PGD/KR/0213/13] Tel: 03-6093 6890 Fax: 03-6093 3677 COUNSEL FOR THE 2nd – 6th RESPONDENTS / 3rd – 7th DEFENDANTS SAFIYYAH BINTI OMAR Peguam Persekutuan Jabatan Peguam Negara, Malaysia Bahagian Guaman Sivil No. 45, Persiaran Perdana, Presint 4 62199 Putrajaya [Ruj: PN/TR/HQ/SGI/18/53/2015] 24

Tika 2.6.0

BA-12B-10-01/2016

PERAYU 1. JEFFREY BIN MUSA 2. BERSERI CHICKEN TRADING RESPONDEN 1. TEBANRAJ A/L MARIMUTHU 2. IZUDIN BIN MOHAMED 3. MOHD SALLEH BIN ZAINOL 4. NAZLI BIN ABDUL RAHIM 5. PENGARAH JABATAN PENGANGKUTAN JALAN MALAYSIA 6. KERAJAAN MALAYSIA

06/11/2017

YA DATIN ZALITA BINTI DATO' HJ. ZAIDAN (PK)

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=57434b8d-7368-4670-9a9e-e066db350210&Inline=true

DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN, MALAYSIA RAYUAN SIVIL NO.: BA-12B-10-01/2016 ANTARA 1. JEFFREY BIN MUSA 2. BERSERI CHICKEN TRADING … PERAYU-PERAYU DAN 1. TEBANRAJ A/L MARIMUTHU 2. IZUDIN BIN MOHAMED 3. MOHD SALLEH BIN ZAINOL 4. NAZLI BIN ABDUL RAHIM 5. PENGARAH JABATAN PENGANGKUTAN JALAN MALAYSIA 6. KERAJAAN MALAYSIA … RESPONDEN-RESPONDEN (DALAM MAHKAMAH SESYEN DI SELAYANG DALAM NEGERI SELANGOR DARUL EHSAN, MALAYSIA GUAMAN NO. A53KJ-98-03/2014 ANTARA TEBANRAJ A/L MARIMUTHU … PLAINTIFF DAN 1. JEFFREY BIN MUSA 2. BERSERI CHICKEN TRADING 3. IZUDIN BIN MOHAMED 4. MOHD SALLEH BIN ZAINOL 5. NAZLI BIN ABDUL RAHIM 6. PENGARAH JABATAN PENGANGKUTAN JALAN MALAYSIA 7. KERAJAAN MALAYSIA … DEFENDAN-DEFENDAN) GROUND OF JUDGMENT Introduction [1] This is an appeal by the Appellants (1st - 2nd Defendants) against the decision of the learned Session Judge of 8.12.2015 in allowing one of the Respondents’ claim, the Plaintiff after a full trial. The Sessions Court decided that the Appellants are 20% liable, the 2nd – 6th Respondents are 80% liable and Plaintiff not liable. The appeal is on liability and for loss of earnings. [2] This appeal was heard together with the other appeal BA-12B-11-01-2016, involving the same road accident alleged by Plaintiff. I shall introduce the parties as they were known at the Sessions Court. The 1st Respondent who is the Plaintiff brought the suit against seven Defendants including the 1st and 2nd Defendants. The 2nd, 3rd, and 4th Respondents are the 3rd, 4th and 5th Defendants, who are the officers of the Road Transport Department, Malaysia (JPJ). The 5th Respondent (6th Defendant) and the 6th Respondent (7th Defendant) are the Director General of the Road Transport Department, Malaysia and Government of Malaysia respectively. [3] For this appeal, the action is between the 1st and 2nd Defendants and the Respondents are the Plaintiff and the 3rd – 7th Defendants. In the appeal BA-12B-11-01/2016, the 3rd – 7th Defendants are the appellants appealing the Sessions Court’s decision of 80% liability and quantum where the case is between the 3rd – 7th Defendants and the Plaintiff, as the respondent. [4] This Court allowed the appeal on 13.7.2017 and also set aside the Session Judge’s award for loss of earnings with costs. [5] In this judgement, the parties will be referred to, as they were in the Sessions Court. Facts [6] The relevant factual background giving rise to this appeal may be briefly stated as follows: (a) The Plaintiff is a person of unsound mind not so found by inquisition, is represented by Marimuthu a/l Mariapan. The Plaintiff was the rider of motorcycle bearing registration number WPB 6894 that was involved in the accident. (b) The Plaintiff claimed that the 1st Defendant, the driver of vehicle lorry bearing registration number WUC 5600 and the 2nd Defendant, is the registered owner of the said vehicle lorry, had caused the accident due to the negligence of the 1st Defendant (paragraphs 3 and 7 of Amended Statement of Claim, page 5 and 6 of Appeal Record). (c) The Plaintiff also pleaded that the 3rd – 5th Defendants are agents or servants authorized by the 6th Defendant and/or 7th Defendant in controlling, on the authority and driving the vehicle bearing registration number WRD 7645 and had caused the accident due to their negligence and caused nuisance (paragraph 7 of Amended Statement of Claim, page 5 of Appeal Record). (d) The Plaintiff pleaded (paragraph 6 of the Amended Statement of Claim, page 5 of Appeal Record) of the accident: “Pada 3hb Disember 2013, Plaintif adalah secara sah menunggang motorsikal bernombor WPB 6894 dan apabila sampai di KM 440.3 Bukit Beruntung-Rawang, Selangor Darul Ehsan, motorlori WUC 5600 yang dipandu oleh Defendan Pertama sebagai ejen atau orang gaji atau orang yang memandu dengan keizinan Defendan Kedua yang datang dari arah yang sama sebelah kanan Plaintif secara tiba-tiba telah menukar haluan ke kiri lalu memberhentikan motorlorinya secara mengejut dan tanpa memberi sebarang isyarat setelah ditahan oleh Defendan Ketiga, Defendan Keempat, Defendan Kelima yang bertindak sebagai ejen atau orang gaji dengan keizinan Defendan Keenam dan/atau Defendan Ketujuh di lebuhraya tersebut yang mempunyai pengawalan, penguasaan dan pembawaan motokar WRD 7645 dengan mewujudkan kacau ganggu di lebuharaya tersebut oleh yang demikian, Plaintif terpaksa melanggar motorlori tersebut dan akibat perlanggaran tersebut Plaintiff telah mengalami kecederaan, kerosakan dan kerugian.” (e) The Plaintiff claimed that the accident was caused by 1st and 2nd Defendants negligence due to the signal to stop by the 3rd – 7th Defendants. The negligence caused by the 1st and 2nd Defendants are as meted out in paragraphs (a) – (n) of the Amended Statement of Claim (pages 6-7 of the Appeal Record). Due to the accident, the Plaintiff claimed that he suffered injury, damages and loss. (f) The 1st and 2nd Defendants in its Defence claimed that the Plaintiff’s negligence was caused wholly by the Plaintiff while riding its motorcycle. It was pleaded that it was a straight road with three lanes and one emergency lane. (g) The 1st - 2nd Defendants pleaded that his assistant was asleep while he took the motor lorry permit and driving license as he dismounted from his lorry and that the 3rd – 7th Defendants’ vehicle of WRD 7645 stopped in front of the motor lorry about 10 -15 meters and had its hazard lights switched on. (h) The 1st Defendant claimed that while he was discussing with the 3rd Defendant, another JPJ officer was circling the vehicle lorry and after five minutes, a motorcycle registration number WBP 6894 of Kriss model knocked at the back right side of the motor lorry belonging to the 2nd Defendant. (i) The 1st Defendant claimed that the Plaintiff was found under the motor lorry and the accident was on the emergency lane. (j) The Session Judge made a finding that based on Plaintiff’s and 1st - 2nd Defendants’ witnesses, liable at 20% and the 3rd – 7th Defendants are liable at 80% and awarded General Damages and Special Damages to the Plaintiff. (k) The 1st - 2nd Defendants dissatisfied with the Sessions Court’s decision, filed the Notice of Appeal on 18.12.2015. 1st and 2nd Defendants’ case [8] The learned counsel for the 1st – 2nd Defendants submitted 8 grounds for this appeal which can be found in the Memorandum of Appeal (paragraphs 1-8 of the Appeal Record) and I will focus on the main grounds. The counsel for the 1st – 2nd Defendants’ main contention is that the Session Judge was erred that the Plaintiff was found not negligent and instead found 1st – 2nd Defendants liable at 20%. [9] Referring to the sketch plan (page 38 Appeal Record of BA-12B-10-01/2016 file), the 1st and 2nd Defendants’ counsel submitted that the 1st and 2nd Defendants and the Plaintiff were travelling on the same direction at KM440.3 PLUS Highway where the 1st and 2nd Defendants were ordered to stop its motor lorry bearing registration number WUC 5600 by the 3rd – 7th Defendants at the emergency lane. [10] The counsel averred that the Session Judge was erred in facts and law in finding the Plaintiff not negligent when the Plaintiff had made contradictory statements as to the occurrence of the accident during the examination-in-chief and cross- examination. It was submitted that the Plaintiff kept changing its story when he found out that the 3rd Defendant made a police report and during the cross-examination, Plaintiff strongly denied the accident was due to the negligence of the 3rd – 7th Defendants. It was submitted that the Plaintiff reported that he was riding on the left most which is between lanes A2-A3 as in the sketch plan, and the vehicle lorry was driving on lane A3-A4 next to Plaintiff, but during the cross-examination, Plaintiff admitted that he was riding on lane A1-A2 which is the emergency lane. [11] The counsel for the 1st and 2nd Defendants submitted that the dispute as to the position of the JPJ vehicle on the emergency lane, whether in the front of the vehicle lorry or behind, was not pleaded by the Plaintiff. It was brought to the Court’s attention that the 1st Defendant’s version is the JPJ vehicle stopped in the front of the motor lorry whereas the 3rd Defendant pleaded that it stopped behind the motor lorry. [12] It was submitted that based on the investigating police officer (IO), it was revealed (pages 117 – 118 of Supplementary Appeal Record 1) that the accident (“kesan kemalangan”) is on the emergency lane. The counsel pointed out that this could be inferred that the accident occurred when the vehicle lorry stopped on the emergency lane. The counsel argued that as the 1st and 2nd Defendants were stopped by the JPJ officers, the ‘physical control’ of the vehicle of the 1st – 2nd Defendants would be by the JPJ and Government of Malaysia and no longer of the control by the 1st - 2nd Defendants as pleaded in its Defence (paragraph 9, page 35 of Appeal Record). [13] The counsel submitted that based on 3rd – 7th Defendants’ Defence, the JPJ suspects that the motor lorry was above the required weight and following section 59(1) Road Transport Act 1987 (RTA) and section 55 of RTA, any road transport officer, may require any motor vehicle to be stopped and detained for inspection (page 17-18 of written submission of 2nd – 6th Respondents). The counsel averred in its oral submission that the portion of 80% liability should be on the Plaintiff and 20% on the 1st – 2nd Defendants, briefly, for the following reasons: (1) JPJ’s ordered to stop vehicle lorry was legal; (2) If not stopped, 1st – 2nd Defendants would be against the law; (3) The 1st – 2nd Defendant had stopped at the emergency lane for 5 minutes and this fact was not pleaded by Plaintiff. [15] The counsel for the 1st – 2nd Defendants submitted that this Court should intervene as the trial judge had come to the wrong conclusion on the facts, relying on the case of Chung Hwa Ying v Phang Mun Mooi & Anor [1987] 2 MLJ 693, a Supreme Court case. The counsel prayed for liability of 20% be changed or that there be no liability and submitted for the Judge to hold liable between the Plaintiff and 3rd – 7th Defendants. [16] In relation to loss of earnings, it was contended by the counsel for the 1st – 2nd Defendants that the Plaintiff failed to adduce any evidence nor the Plaintiff’s employer and there should be no award for loss of earnings. For loss of earning capacity of RM50,000.00, it was submitted that the Plaintiff did not prove that he was healthy as required under section 28A 2(c) of Civil Law Act 1956. The counsel averred that the loss of earnings and loss of future earnings claimed by Plaintiff be dismissed as there was no proof, relying on the Supreme Court case of Aidi Abdullah v Ngooi Ku Siong & Anor [1985] 1 MLJ 30. Plaintiff’s case [17] Briefly, the learned counsel for the Plaintiff started off with quantum, submitted that the award by the Sessions Court should be retained. On loss of earnings, Plaintiff’s counsel submitted that the Plaintiff was in good health and was looked after by his parents after the accident (page 42 Supplementary Appeal Record 1). With regards to Plaintiff’s employment, the employer testified that the Plaintiff receives a salary of RM50-RM60 per day work and had not been paid salary after the accident (page 46 of Supplementary Appeal Record 1). [18] On liability, Plaintiff’s counsel’s contention is that the 3rd – 7th Defendants do not have the right to stop the motor lorry for inspection at the emergency lane. It was averred that the Plaintiff could not recall as to the actual cause of the accident and relied on the IO and the oral evidence of all the defendants in reference to the authorities Husiana Rani Naina Mohamed v Ahmad Nadzri Kamaruddin & Anor [1997] 3 CLJ 500, Kuppusamy L. Sundarajoo v Nithananthan Muniandy [1990] 2 CLJ (Rep) 302 and Dawason v Murex Ltd [1942] 1 All ER 483. It was brought to this Court’s attention that the width of the emergency lane is not sufficient to accommodate the motor lorry for an inspection to be carried out (page 135 Supplementary Appeal Record 1). To this, the counsel pointed out that the IO was unsure of the 3rd - 7th Defendants’ usage of the emergency lane. The Plaintiff’s counsel submitted that it would be reasonable for the 1st Defendant to be liable at 20% for his failure to call the co-driver to testify that the 1st Defendant was taking precaution to ensure that no one would be behind the motor lorry (page 153 Supplementary Appeal Record 1). [19] The Plaintiff’s counsel averred that the IO’s investigation was incomplete for not taking statements from the 3rd-7th Defendants. It was asserted that the accident was caused by the JPJ’s instructions to stop the motor lorry, there was no warning signage by the 3rd – 7th Defendants where the area the motor lorry was stationed was not well lighted. In addition, there were contradictory statements about the location of the 3rd – 7th Defendants prior to the occurrence of the accident. [20] The Plaintiff’s counsel also pointed out that the police report made by the 3rd – 7th Defendants was made two hours after the accident, at 22.00hrs at night whereas the 1st Defendant reported earlier, at 21.15hrs at night. The Sessions Court’s Decision [21] The Session Judge had narrated in detail the Plaintiff’s and 1st – 2nd Defendant’s version as to the occurrence of the accident. The Session Judge’s decision can be found at the Supplementary Record Appeal where some the salient points on liability and loss of earnings are reproduced, as follows: “… 5. Mahkamah juga meneliti keterangan Plaintif yang tidak ingat samada kenderaan JPJ ada ketika kemalangan berlaku dan bagaimana kemalangan berlaku dan telah bersetuju dengan peguamcara Defendan bahawa laporan polis Plaintif dibuat atas bantuan ayahnya. ….. 6. Mahkamah mendapati gambar-gambar yang dikemukakan di Mahkamah menunjukkan kerosakan motorlori Defendan Kedua adalah di Bahagian besi belakang di tengah dan sebelah kanan dan kerosakan motorsikal adalah tertumpu di Bahagian hadapan. 7. Mahkamah juga menimbangkan siasatan Pegawai penyiasat tidak lengkap kerana tidak mengambil keterangan daripada Pegawai-pegawai JPJ yang terlibat tetapi saman di bawah Rule 10 LNM telah dikeluarkan terhadap Plaintif dan Plaintif tidak membayar saman tersebut. 8. Mahkamah juga meneliti dan menimbangkan keterangan Plaintif yang tidak ingat mengenai kenderaan JPJ, keterangan Defendan Pertama yang memandu motorlori Defendan Kedua memberitahu kedudukan kenderaan JPJ adalah di hadapan motorlori dan keterangan Defendan Ketiga hingga Defendan Kelima iaitu Pegawai JPJ memberitahu bahawa kedudukan kenderaan JPJ adalah di belakang motorlori tersebut. 8.1 Mahkamah turut mendapati pegawai penyiasat tidak dapat mengesahkan kedudukan kenderaan JPJ semasa kemalangan berlaku. 8.2 Mahkamah menerima keterangan Defendan Pertama bahawa kenderaan JPJ berada di hadapan motorlori kerana keterangannya disokong oleh Plaintif yang tidak boleh ingat mengenai kenderaan JPJ kerana tidak nampak kenderaan tersebut. 8.3 Mahkamah mendapati kesan kerosakan pada belakang tengah dan kanan motorlori adalah jelas menunjukkan motorsikal Plaintif telah melanggar di Bahagian tengah dan sekiranya kenderaan JPJ berada di belakang motorlori tersebut, adalah mustahil untuk motorsikal melintasi kenderaan JPJ dan masuk semula ke Bahagian tengah lorong kecemasan tersebut. ….. 10.3 Persoalannya juga adalah samada sekiranya Seksyen 3, Akta Pengangkutan Jalan 1987 membenarkan Pegawai JPJ membuat penahanan kenderaan di mana-mana sahaja termasuk lorong kecemasan, maka atas tanggungjawab siapakah untuk memastikan keselamatan kenderaan lain yang sedang dipandu dari belakang motorlori tersebut? 10.4 Mahkamah berpendapat di dalam soal keselamatan dan pengawalan trafik adalah terletak pada kedua-dua pihak daripada motorlori dan kenderaan JPJ pada hari tersebut. 10.5 Mahkamah juga berpendapat bahawa sekiranya motorlori yang dipandu oleh Defendan Pertama tidak mengubah lorong akibat diarahkan oleh Pegawai JPJ (Defendan Ketiga hingga Defendan Kelima) pada hari tersebut seperti yang dalam keterangan Plaintif, maka kemalangan tidak akan berlaku. 10.6 Begitu juga jika kemalangan berlaku setelah 5 minit motorlori diberhentikan oleh defendan Pertama atas arahan Pegawai JPJ (Defendan Ketiga hingga Defendan Kelima), maka kemalangan tidak akan berlaku. ….. 15. Untuk menentukan kemalangan ini berpunca daripada siapa dan liabilitinya, Mahkamah telah merujuk kepada kes Azam bin Kasman dan Satu Lagi v Ramachandran a/l Muthusamy [1996] 1 LNS 14. ….. 16. Oleh yang demikian, setelah mendengar dan meneliti semua keterangan daripada saksi-saksi kedua-dua pihak, hujahan kedua-dua pihak berserta kes-kes dan otoriti yang telah dikemukakan, Mahkamah membuat keputusan di atas Imbangan Kebarangkalian bahawa Defendan Pertama dan Defendan Kedua adalah berliabiliti sebanyak 20% kerana tidak mengambil tindakan keselamatan semasa mengubah motorlori dan memberhentikan motorlori dan Defendan Ketiga hingga Defendan Ketujuh adalah berliabiliti sebanyak 80% kerana telah mengarahkan motorlori yang dipandu oleh Defendan Pertama supaya berhenti di lorong kecemasan tanpa mengambil langkah-langkah keselamatan kenderaan lain yang datang dari belakang motorlori. 16.1 Mahkamah berpendapat baahwa tindakan Defendan Ketiga hingga Defendan Kelima mengarahkan motorlori Defendan Kedua berhenti di lorong kecemasan adalah tidak selamat dan membahayakan dan motorlori tersebut boleh diarahkan memandu ke stesyen timbang JPJ di Kalumpang untuk pemeriksaan lanjut yang mana terletak tidak jauh daripada kawasan kemalangan kes ini. J. ALASAN MAHKAMAH i) ISU AWARD ….. 7.7 Defendan-Defendan tidak menawarkan apa-apa tawaran dan setelah meneliti dan mempertimbangkan kesemua laporan pakar daripada kedua-dua pihak, keadaan umur Plaintif yang masih muda, keupayaan pemikiran Plaintif dan keupayaan untuk Plaintif bergerak melakukan kerja-kerja dan kelulusan akademik Plaintif yang tidak tinggi, maka Mahkamah telah membenarkan RM500.00 x 192 bulan berjumlah RM96,000.00 tanpa faedah. 7.8 Mahkamah membenarkan jumlah RM500.00 setelah ditolak dengan “living expenses” dan mengambil kira jenis kerja yang Plaintif mampu lakukan sebelum kemalangan adalah tidak tetap dan bergantung kepada bilangan rumah yang dapat dibuat tar jalan dan juga keadaan faktor cuaca pada bulan tersebut. 7.9 Mahkamah menerima keterangan majikan Plaintif dan berpendapat bahawa jumlah RM500.00 sebulan adalah sesuai dan munasabah serta tidak melampaui. ….” THE COURT’S FINDING [22] Both parties submitted the trite law that an appellate court will be slow to interfere with the findings of facts and judicial appreciation of the facts by the trial judge. The legal position is clear and can be found in a number of great authorities that an appellate court should but rarely interfere with conclusion arrived at by the trial judge who had the advantage of hearing the witnesses unless it is satisfied that the judge has acted on a wrong principle of law or has made a wholly erroneous estimate of damage suffered, either due to an omission to consider relevant materials or admitting irrelevant considerations: Multar Masngud v Lim Kim Chet & Anor [1982] CLJ 237, Federal Court. The authorities are as submitted by the 1st – 2nd Defendants’ counsel and in the recent decision of the Federal Court in Ming Holdings (M) Sdn Bhd v Syed Azahari Noh Shahabudin & Anor [2010] 6 CLJ 857 where it was remarked that a trial judge had the advantage over an appellant court in hearing the witnesses and should be slow in interfering with the trial judge’s decision. [23] However, where there is a clear misdirection of law and findings by the trial judge, it is incumbent upon this Court to intervene and correct the findings of the lower court. In the Federal Court case of Tan Kuan Yau v Suhindrimani Angasamy [1985] CLJ (Rep) 323, it was held that, “Although an appellate Court is always slow to interfere with the trial Judge’s findings, it is the duty of the appellate Court to interfere if it is satisfied that there has been a wholly errorneous estimate of damage.” [24] Both counsels advanced several arguments on the grounds of the appeal. For the purpose of this judgment, I will be brief, focusing on the main grounds. I would start of by staying that this suit was brought by the Plaintiff and the burden rests on the Plaintiff to prove its claim, based on the balance of probabilities. The burden of proof as well as the initial onus to prove the claim rest with the Plaintiff and the Plaintiff is to discharge its onus to prove its cause of action against the Defendant as decided by the Federal Court in the case of Letchumanan Chettiar Alagappan @ L. Allagapan, M. Venkatachalam S/O Venkatachalam Chettiar v Secure Plantation Sdn Bhd No. 02-78-10/2014. Based on Letchumanan Chettiar (supra) case, section 101 of the Evidence Act 1950 was referred holding that the burden to establish the case rests throughout on the party who asserts the affirmative of the issue. [25] There are contradictory facts between the parties. The Plaintiff pleaded that the 1st – 2nd Defendants travelling on the same direction, being on Plaintiff’s right side and suddenly changed lane to the left without any warning before stopping and as a result, Plaintiff had to collide with the 1st - 2nd Defendants’ motor lorry. The exact words pleaded by Plaintiff as in paragraph 6 of the Amended Statement of Claim, is extracted, “…. Defendan Pertama sebagai ejen atau orang gaji atau orang yang memandu dengan keizinan Defendan Kedua yang datang dari arah yang sama sebelah kanan Plaintif secara tiba-tiba telah menukar haluan ke kiri lalu memberhentikan motorlorinya secara mengejut dan tanpa memberi sebarang isyarat setelah ditahan oleh Defendan Ketiga, Defendan Keempat, Defendan Kelima yang bertindak sebagai ejen atau orang gaji dengan keizinan Defendan Keenam dan/atau Defendan Ketujuh di lebuhraya tersebut yang mempunyai pengawalan, penguasaan dan pembawaan motokar WRD 7645 dengan mengwujudkan kacau ganggu di lebuhraya tersebut oleh yang demikian, Plaintif terpaksa melanggar motorlori tersebut …. .” [26] In a case where negligence is claimed as the cause of action, prove of negligence will be placed on the plaintiff. The plaintiff must first prove before it can discharge its burden, and the onus to adduce the evidence rests on the Plaintiff in this instant appeal. Based on cases of Neo Chan Eng v Koh Yong Hoe [1960] 26 MLJ 291, Ng Chui Sia v Maimon b. Ali [1983] 1 MLJ 110 and Mohd Tarmizi Mat Hassan & Anor v Arief Fitri Ahmad Zainuddin [2014] 1 LNS 1005, the evidential burden will shift to the defendant to disprove negligence on his part when the plaintiff has established a prima facie case of negligence as pleaded. [27] The Plaintiff had pleaded the occurrence of the accident as such but when testified, could not recall how the accident took place. Pertinent to the evidence by the Plaintiff in this appeal, this Court rely on the case of Ng Aik Sian & Anor v Sia Loh Sia [1997] 2 CLJ 218 where Justice Abdul Malik Ishak had occasion to say, “It is trite law drivers and the witnesses on each side tell conflicting and divergent stories, the photographs, plans, measurements of the scene of the accident and the nature of the damage to each vehicle will be the guiding force – the reliable guide to rely upon.” [28] As the Plaintiff may not be able to recall, the evidence submitted before this Court must be scrutinised, which comprises sketch plan, the photographs of the scene of the accident and the damage to the vehicles, known as the silent evidence, and the investigation carried out by the investigating officer (IO). The IO testified that the accident occurred on the emergency lane (pages 117-118 Supplementary Appeal Record 1) as there were blood and debris of accident which was marked ‘B’ on the sketch plan, that is the emergency lane (page 33 of Supplementary Appeal Record (cross-examination of Plaintiff)), are pure evidence consistent with the version that the point of collision occurred on the emergency lane. [29] Relying on authorities of the Federal Court case of Samuel Naik Siang Ting v Public Bank Bhd [2015] 8 CLJ 944 and Dato’ Tan Chin Who v Dato’ Yalumallai @ M Ramalingam s/o V Muthusamy [2016] MLJU 641 which clearly stated that parties are bound by their pleadings, this Court finds that the evidence adduced by the Plaintiff contradicts its own pleadings. The Plaintiff’s police report of 7.10.2014 stated among others that, “…SAYA IKUT DI LORONG KIRI TIBA-TIBA SEBUAH M/LORI NO. WUC 5600 JENIS TIDAK PASTI TELAH MASUK KELORONG KECEMASAN DENGAN TIBA-TIBA LALU SAYA BREK DAN ELAK TETAPI TERLANGGAR BELAKANG M/LORI TERSEBUT. M/SIKAL ROSAK TERUK. …” In contradiction to Plaintiff’s police report and as pleaded, the Plaintiff testified agreeing that he was driving on lane A1-A2 which is the emergency lane (page 54 of Supplementary Appeal Record). The Plaintiff did not agree that the vehicle lorry was already on the emergency lane but testified that he collided at the back of the motor lorry which was on the emergency lane (pages 57 – 58 of Supplementary Appeal Record). The Plaintiff’s evidence was challenged based on the damage found to his motorcycle and yet refused to agree that the damage would be on the right side of his motorcycle if the 1st – 2nd Defendants were coming from his right onto the Plaintiff’s lane. Yet, the Plaintiff admitted that he knocked the back of the motor lorry while the motor lorry was on the emergency lane. [30] The Plaintiff’s oral evidence during the cross-examination proves to show that the Plaintiff knocked on the back of the motor lorry while the motor lorry was stationed on the emergency lane. The Plaintiff’s admission that he knocked on the back of the motor lorry and not on the left side of the motor lorry is an admission under section 17 of the Evidence Act 1950 that the accident was caused by Plaintiff’s own negligence. [31] This Court holds the view that if the 1st – 2nd Defendants were coming from Plaintiff’s right and out of a sudden, went onto Plaintiff’s lane as pleaded, the Plaintiff would have knocked on the left side of the motor lorry and the damage to Plaintiff’s motorcycle would be on the right side and not the front cover of Plaintiff’s motorcycle as found by IO in his investigation. I viewed that the Plaintiff was riding on the emergency lane and did not see the vehicle lorry which caused him to collide the back of the motor lorry. This evidence corroborates with the silent evidence of the sketch plan, the photographs of the debris and the damage to the motorcycle and the motor lorry. [32] This Court finds that the damage to the motor lorry is consistent with the police report made by the 1st – 2nd Defendants where the lights and the registration number at the back of the vehicle lorry were found to be broken. The Plaintiff only reported that his motorcycle was badly damaged (“M/SIKAL ROSAK TERUK”) but no details of the damage were listed by the Plaintiff. [33] It was not disputed that the motor lorry was stopped for inspection by the 3rd – 7th Defendants and the motor lorry was ordered to stop at the emergency lane. This is following the provision of the RTA, section 59(1) Road Transport Act 1987 which is allowed by law and as agreed by the IO during the oral evidence that it was legal to stop on the emergency lane (page 123 Supplementary Appeal Record (1)). This Court viewed that it would be unreasonable to link the cause of the accident to the directive of the 3rd – 7th Defendants. Riding on the emergency lane is an offence under Rule 53(1) Road Traffic Rules LN 166/59. In addition, there was no evidence produced by the Plaintiff that the directive of the 3rd – 7th Defendants was not in accordance with section 59(1) Road Transport Act 1987, for instance that it was unauthorized, to rebut 1st – 2nd Defendants’ defence. [34] In view of the evidence given by the Plaintiff and Plaintiff’s witnesses, this Court viewed that following the authority of Lee Ing Chin & Ors v Gan Yook Chin & Anor [2003] 2 CLJ 19, Justice Gopal Sri Ram (as he then was) at page 33, should be adhered to, whom remarked that the trial judge must test the oral evidence of the witness against the evidence placed before him: “A judge who is required to adjudicate upon a dispute must arrive at his decision on an issue of fact by assessing, weighing and, for good reasons, either accepting or rejecting the whole or any part of the evidence placed before him. …If there are contemporary documents, then he must test the oral evidence of a witness against these. …. A trier of fact who makes findings based purely upon the demeanour of a witness without undertaking a critical analysis of that witness’ evidence runs the risk of having his findings corrected on appeal. …” [35] The fact that the Plaintiff admitted he collided the back of 1st – 2nd Defendants’ motor lorry, while the motor lorry was stationed on the emergency lane which was consistent with the silent evidence and investigation of the IO, was acknowledged by the Session Judge at paragraph 6 of her written judgment. However this fact and evidence may have been inadvertently overlooked by the Session Judge in determining Plaintiff’s case of negligence. Based on the evidence adduced by the Plaintiff, this Court holds the view that the burden has not shifted to the 1st-2nd Defendants, there was no proof that the 1st – 2nd Defendants caused the accident that resulted Plaintiff’s injury. [36] The cases referred by the Session Judge, Azam bin Kasman dan Satu Lagi v Ramachandran a/l Muthusamy [1996] 1 LNS 14 and Mohd Zamri Khalid & Anor v Johari Khalid & Anor [1983] 1 MLRH must be distinguished from the current case where the 1st – 2nd Defendants motor lorry was stationed on the emergency lane of the highway which is a straight road, and with their motor lorry lights switched on. [37] With regards to loss of earnings, this Court was informed that it was difficult to get the Plaintiff’s employer to attend court and only after a warrant of arrest was issued, the employer came to testify, however without the salary slips to prove Plaintiff’s employment. The fact that a warrant of arrest was issued to Plaintiff’s employer to testify in court and yet no document could be produced to proof that Plaintiff was employed. In addition, there was no company search done on the existence of the Plaintiff’s employer’s company to show to court that the Plaintiff is employed in a company as testified. Based on the oral evidence of the Plaintiff’s witness, the Plaintiff seemed to have only worked for a month before the accident (pages 62-63 of Supplementary Appeal Record (2) of BA-12B-11-01-2016). [38] In the Supreme Court case of Tan Kim Chuan v Chandu Nair [1991] 1 MLJ 42, it was decided that an injured claimant ought not to get damages in a claim for loss of future earnings or loss of earning capacity unless at the date of the accident he was in fact receiving earnings. Therefore for the prerequisite under section 28(A)(2) of the Civil Law Act 1956 to be applicable, there must be evidence that the injured claimant was in fact receiving earnings and based on case laws, there must be a real and substantial risk that his injury will constrained or diminished his earning capacity, for loss of earning capacity claim: Ngooi Ku Siong & Anor v Aidi Abdullah [1984] 1 CLJ (Rep) 294. [39] In determining for loss of earning capacity, the Plaintiff must show that if he goes back to work, there is a real and substantial risk that he may lose his job or is restrained from working due to his diminished capacity, based on the authorities of Ngooi Ku Siong (supra) case and Sumarni v Yow Bing Kwong & Anor [2008] 3 CLJ 489 case. I hold the view that it is too early to determine that there is real and substantial risk of diminished earning capacity of the Plaintiff. [40] The Plaintiff was 17 years of age at the time of accident. The specialist medical report mentioned that the Plaintiff will be able to work (page 5 of Specialist Medical Report of 20.5.2014 of Appeal Record). There was no report to state that the Plaintiff will not be able to work totally. The specialist medical report of Plaintiff dated 9.7.2014 stated that the current problems of Plaintiff’s face with the estimated cost of RM67,000. The latest specialist medical report of 1.10.2014 finds the patient can be independent and employment prospect significantly reduced at the moment. Therefore, I find that based on the facts and evidence adduced, there is no real and substantial risk of diminished earning capacity of the Plaintiff. [41] Reversing the Session Judge’s decision, I allow the appeal on liability where the Plaintiff is wholly liable, at 100% and set aside the Session Judge’s decision for the award for loss of future earnings. I disallow for loss of earning capacity even as an alternative to loss of future earnings, a passing remark orally submitted by the counsel for the 1st – 2nd Defendants, in view of 1st – 2nd Defendants’ appeal is limited to the grounds set out in their memorandum of appeal: Perembun (M) Sdn Bhd v Conlay Construction Sdn Bhd [2012] 4 MLJ 149, at 154. In light of the above reasons, I allow the appeal with cost. Dated: 6 November 2017 (ZALITA BINTI DATO’ ZAIDAN) Judicial Commissioner Shah Alam High Court COUNSEL FOR THE APPELLANT / 1st & 2nd DEFENDANTS MOHD APANDI BIN MOHD YATIM 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 [Ref: L237/1403/AmG-29/RHZ] Tel: 03-6203 6816 Fax: 03-6203 6817 COUNSEL FOR THE 1st RESPONDENT / PLAINTIFF MOHD SAUFI BIN SAMSUDDIN G. Dorai & Co. Peguamcara dan Peguambela No. 7, Jalan Mawar 1, Taman Mawar 48000 Rawang [Ref: PGD/KR/0213/13] Tel: 03-6093 6890 Fax: 03-6093 3677 COUNSEL FOR THE 2nd – 6th RESPONDENTS / 3rd – 7th DEFENDANTS SAFIYYAH BINTI OMAR Peguam Persekutuan Jabatan Peguam Negara, Malaysia Bahagian Guaman Sivil No. 45, Persiaran Perdana, Presint 4 62199 Putrajaya [Ruj: PN/TR/HQ/SGI/18/53/2015] 24

Tika 2.6.0

WA-22IP-51-12/2016

PLAINTIF NOVAVIRO TECHNOLOGY SDN BHD (Co. No.: 527092-U) … PLAINTIF F DEFENDAN 1. QL PLANTATION SDN BHD (Co. No.: 50414-M) 2. QL RESOURCES SDN BHD (Co. No.: 428915-X) … DEFENDAN TSPIHAK KETIGAWATERMECH ENGINEERING SDN BHD (Co. No.: 93334-W) … THIRD PARTY

06/11/2017

YA DATUK WONG KIAN KHEONG

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=2630f934-d600-4647-aee9-742df3afd6b7&Inline=true

1 IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR (COMMERCIAL DIVISION) IN THE FEDERAL TERRITORY OF KUALA LUMPUR, MALAYSIA CIVIL SUIT NO: WA-22IP-51-12/2016 BETWEEN NOVAVIRO TECHNOLOGY SDN BHD (Co. No.: 527092-U) … PLAINTIFF AND 1. QL PLANTATION SDN BHD (Co. No.: 50414-M) 2. QL RESOURCES SDN BHD (Co. No.: 428915-X) … DEFENDANTS AND WATERMECH ENGINEERING SDN BHD (Co. No.: 93334-W) … THIRD PARTY JUDGMENT (Court enclosure nos. 5 & 20) A. Issues 1. In this case, two defendant companies (Defendants) apply in court enc. no. 5 (Enc. 5) to strike out the suit filed by the plaintiff company (Plaintiff). In court enc. no. 20, the third party company (Third Party) apply to strike out this action (Enc. 20). 2. Encs. 5 and 20 raise the following questions: 2 (1) whether a suit can be struck out on any one or more of the following gounds - (a) the contents of a Statement of Claim (SOC) are scandalous within the meaning of O 18 r 19(1)(b) [Paragraph (b)] of the Rules of Court 2012 (RC); (b) the Plaintiff is estopped from filing this suit because, among others, the Plaintiff has filed an earlier suit [Kuala Lumpur High Court Civil Suit No. 22(IP)-47-2011 against, among others, the Third Party (1st Suit)] and has obtained judgment against, among others, the Third Party after a trial (Judgment); (c) this suit is barred by an application of the issue estoppel principle, the second limb of res judicata doctrine; (d) the Plaintiff’s claim for tort of breach of confidence is time-barred under s 6(1)(a) of the Limitation Act 1953 (LA); and (e) the Plaintiff’s claim for unjust enrichment is barred by limitation under s 6(6) LA; and (2) whether the Third Party can apply to strike out this action pursuant to O 16 rr 4(3), (4), 6, O 18 r 19(1), O 92 r 4 RC and/or the court’s inherent jurisdiction. 3 B. Background 3. The Plaintiff is an exclusive licensee of a system developed by Keck Seng (Malaysia) Bhd. and known as a “Continuous Flow Stirred Tank Reactor Anaerobic Digester System” (CSTR System). The CSTR System is applied to recover methane from treatment of palm oil mill effluents (POME). 4. The second defendant company (2nd Defendant) is a public listed company which wholly owns QL Oil Sdn. Bhd. (QLO). QLO wholly owns the first defendant company (1st Defendant). The 1st Defendant runs a palm oil processing mill at Tawau, Sabah (Mill). 5. The Plaintiff entered into a joint venture arrangement with the Third Party (JV). By way of the JV, the Plaintiff shared confidential information regarding the CSTR System (Confidential Information). The JV was terminated on or about 10.3.2009. 6. The Defendants wished to build a biogas power plant at the Mill which would utilize POME to generate power (Plant). 7. On or about 18.3.2010, the Plaintiff submitted a proposal to the 1st Defendant to design, build and commission the Plant based on the CSTR System (Plaintiff’s Proposal). Subsequently, the Plaintiff was appointed by the Defendants to be a consultant to apply to the Department of Environment of Sabah (DOE) to obtain DOE’s approval to upgrade the capacity of the Mill to contain a POME treatment system. 4 8. The 1st Defendant received a proposal from the Third Party regarding the Plant (Third Party’s Proposal) on 20.3.2010. 9. On 30.4.2010, the Defendants informed the Plaintiff that the Defendants had accepted the Third Party’s Proposal (which was a lower bid than the Plaintiff’s Proposal). 10. By an email dated 3.5.2010, the Plaintiff informed the 2nd Defendant that, among others, any unauthorised use of Confidential Information would be an infringement of the Plaintiff’s rights. The Defendants replied by an email dated 11.5.2010 which stated, among others – (1) the Defendants respect intellectual property (IP) rights; and (2) the Defendants would not engage a contractor who deliberately infringes rights of a third party. The Plaintiff did not reply to this email by the Defendants. 11. The 2nd Defendant obtained an indemnity dated 14.6.2010 from the Third Party whereby the Third Party agreed to indemnify the 2nd Defendant against any infringement of IP right with regard to the Third Party’s system (Third Party’s System) which would be installed at the Plant (1st Indemnity). 12. By a letter dated 19.10.2010 from the Plaintiff’s solicitors to the Defendants (Plaintiff’s Legal Demand), among others – 5 (1) the Plaintiff’s solicitors notified the Defendants that the Third Party had used Confidential Information in respect of the construction of the Plant and this had infringed the Plaintiff’s rights; and (2) the Defendants were requested to provide an undertaking to cease construction of the Plant which had used the Confidential Information. 13. By a letter dated 28.10.2010, the Third Party confirmed to the 2nd Defendant that the Third Party had employed its own technology in installing the Third Party’s System in the Plant and did not use Confidential Information. 14. In a letter dated 1.11.2010, the Defendants’ previous solicitors, among others, rejected the request by the Plaintiff’s solicitors to cease construction of the Plant. The Plaintiff’s solicitors did not respond to this letter from the Defendants’ previous solicitors. 15. The Plaintiff commenced the 1st Suit based on, among others, the tort of breach of confidence by the Third Party when the Third Party’s System was installed in the Plant by use of Confidential Information after the termination of the JV. 16. The 1st Suit was commenced by the Plaintiff against the Third Party and Mr. Goh Eng Huat (the alter ego of the Third Party) (Mr. Goh). In the 1st Suit – (1) after a trial, Judgment was delivered by the High Court in favour of the Plaintiff against the Third Party and Mr. Goh; 6 (2) the Third Party’s appeal to the Court of Appeal against the Judgment had been dismissed (Court of Appeal’s Decision); and (3) the Federal Court did not grant leave to the Third Party to appeal to the Federal Court against the Court of Appeal’s Decision. 17. In 2 letters dated 5.5.2016 and 9.5.2016, the Plaintiff’s solicitors demanded for payment of RM1,500,000.00 from the Defendants for breach of confidence in respect of the Confidential Information. 18. The Third Party sent a letter dated 12.5.2017 to the Defendants which, among others, undertook to indemnify the Defendants on a “full indemnity basis” for any loss and legal costs which might be suffered by the Defendants in any action to be brought by the Plaintiff (2nd Indemnity). 19. The construction of the Plant based on the Third Party’s System commenced in June 2010. 20. In reply to the Plaintiff’s 2 letters dated 5.5.2016 and 9.5.2016, the 1st Defendant wrote a letter dated 13.5.2016 which stated, among others, as follows: (1) the Defendants were not parties to the 1st Suit and had no knowledge of it; (2) the Third Party had “represented/assured” to the Defendants that the Third Party had never copied or used Confidential Information in the construction of the Plant; and 7 (3) the Defendants requested for documents to prove that Confidential Information had been used in the construction of the Plant. 21. The Plant was commissioned on 19.8.2011 – please see “GenSet Handing- over Certificate”. 22. By a letter dated 28.11.2016, the Plaintiff’s solicitors, among others – (1) enclosed certain documents obtained in the 1st Suit which showed that the Third Party had utilised Confidential Information in the construction of the Plant; (2) referred to certain parts of the Judgment which held that the Plant had essential features of CSTR System and the Third Party had breached its duty of confidentiality owed to the Plaintiff (Third Party’s Breach); and (3) the Defendants had enjoyed the benefit of the Third Party’s Breach since the commissioning of the Plant in June 2011. 23. The Plaintiff pleaded, among others, as follows in the SOC: (1) the Defendants have received Confidential Information and owe a duty of confidentiality to the Plaintiff; (2) the Defendants breached their duty of confidentiality to the Plaintiff when Confidential Information was used to build the Plant which was commissioned on or about July 2011; and 8 (3) additionally or alternatively, the Defendants were unjustly enriched by their wrongful use of the Confidential Information when the Plant was operational on or about July 2011. C. Enc. 5 24. In Enc. 5, the Defendants applied to strike out this action pursuant to O 18 re 19(1)(a), (b), (c) and (d) RC as well as the court’s inherent jurisdiction. Enc. 5 is based on the following 3 grounds: (1) the Plaintiff is estopped from filing this suit because the Plaintiff has filed the 1st Suit and obtained Judgment; (2) this suit is barred by the issue estoppel principle; and (3) this action is barred by limitation. 25. To decide Enc. 5 under O 18 r 19(1)(a) RC [Paragraph (a)] – (1) according to O 18 r 19(2) RC, the Court cannot consider affidavit evidence – please see the Court of Appeal’s judgment delivered by Ramly Ali JCA (as he then was) in See Thong v Saw Beng Chong [2013] 3 MLJ 235, at paragraphs 9 and 10; and (2) the court will assume that the contents of the SOC are true - please see the Court of Appeal’s judgment given by Mahadev Shankar JCA in Tuan Haji Ishak bin Ismail v Leong Hup Holdings Bhd & other appeals [1996] 1 MLJ 661, at 679. 9 26. It is not disputed that the court may consider affidavits filed by both the Plaintiff and Defendants in deciding Enc. 5 pursuant to Order 18 rule 19(1)(b), (c), (d) and the court’s inherent jurisdiction (which is also provided in O 92 r 4 RC). D. Can this suit be struck out under Paragraph (a)? 27. The Plaintiff’s SOC discloses 2 causes of action against the Defendants, namely the tort of breach of confidence and unjust enrichment (2 Causes of Action). For the purpose of Paragraph (a), the court will assume that the contents of the Plaintiff’s SOC regarding the 2 Causes of Action are true - Tuan Haji Ishak bin Ismail. In the circumstances, Enc. 5 cannot succeed under Paragraph (a). E. Whether court should strike out this suit on the grounds that SOC is scandalous or a fair trial is prejudiced, embarrassed or delayed 28. The use of the permissive term “may” in O 18 r 19(1) RC means that the court has a discretionary power to strike out a suit under any one or more of the paragraphs in O 18 r 19(1)(a) to (d) RC. 29. I am of the view that the contents of the SOC in this action are not “wholly unnecessary or irrelevant” and are therefore not scandalous under Paragraph (b) – please see Low Hop Bing J’s (as he then was) judgment in the High Court case Technointan Holding Sdn Bhd v Tetuan Tan Kim Siong & Teh Hong Jet [2006] 7 CLJ 541, at paragraph 28. As such, there 10 is no basis for this court to exercise its discretion to strike the Plaintiff’s SOC under Paragraph (b). 30. Even if it is assumed that the contents of the Plaintiff’s SOC are scandalous, this court will not exercise its discretion to strike out this suit under Paragraph (b). This is because the SOC has pleaded 2 Causes of Action - please see Mokhtar Sidin JCA’s judgment in the Court of Appeal case of Abdul Rahim bin Abdul Hamid & Ors v Perdana Merchant Bankers Bhd & Ors [2000] 2 MLJ 417, at 428. 31. There is no basis for the Defendants to strike out this action pursuant to O 18 r 19(1)(c) RC [Paragraph (c)] because there is no evidence that a fair trial of this case will be prejudiced, embarrassed or delayed. F. Whether Plaintiff is estopped from filing this suit 32. The Defendants had contended that this action should be struck out because equitable estoppel doctrine would bar the Plaintiff from filing this action. The Defendants had relied on the Federal Court’s judgment in Boustead Trading (1985) Sdn Bhd v Arab-Malaysian Merchant Bank Bhd [1995] 4 CLJ 283. 33. I am of the view that a suit cannot be struck out under any one of the paragraphs in O 18 r 19(1) RC by mere reliance on the operation of the equitable estoppel doctrine. This decision is based on the following reasons: 11 (1) even if it is assumed that a party is estopped from enforcing a cause of action, this does not mean that - (a) the suit does not disclose a cause of action within the meaning of Paragraph (a); (b) the action is scandalous, frivolous or vexatious under Paragraph (b); (c) a fair trial of the action may be prejudiced, embarrassed or delayed in a manner which attracts the application of Paragraph (c); and (d) the suit constitutes an abuse of court process pursuant to O 18 r 19(1)(d) [Paragraph (d)] and/or O 92 r 4 RC as well as the court’s inherent jurisdiction; and (2) whether a party is estopped or not from enforcing a cause of action is an issue which should be tried - Abdul Rahim, at p. 427-428. In other words, the fact that a defendant relies on the operation of equitable estoppel doctrine, does not make it a plain and obvious case for the defendant to strike out a suit – please see Mohd. Dzaiddin SCJ’s (as he then was) judgment in the Supreme Court case of Bandar Builder Sdn Bhd & Ors v United Malayan Banking Corporation Bhd [1993] 3 MLJ 36, at 43. 34. It is to be noted that Boustead Trading does not concern a striking out application. 12 G. Whether Plaintiff is barred by issue estoppel from filing this suit 35. The Plaintiff submits that this action is not barred by the issue estoppel principle for the following reasons: (1) the 1st Suit had been filed against the Third Party and Mr. Goh. Hence, the 1st Suit concerned parties who were different from this case; (2) in this case, the Plaintiff has relied on a new cause of action (unjust enrichment) which has not been raised in the 1st Suit; and (3) the Plaintiff is entitled to sue any defendant as the Plaintiff pleases provided that the Plaintiff is able to prove its claim and does not obtain double recovery of damages. 36. In opposing Enc. 5, the Plaintiff cited, among others, the following cases: (1) Peh Swee Chin FCJ’s judgment in the Supreme Court case of Asia Commercial Finance (M) Bhd v Kawal Teliti Sdn Bhd [1995] 3 MLJ 189; (2) the judgment of the Court of Appeal delivered by Mary Lim JCA in Wawasan Dengkil Properties Sdn Bhd & Ors v Khoo Peng Lai & Ors [2016] 6 MLJ 330; (3) the decision of the Privy Council delivered by Lord Templeman in an appeal from Hong Kong, China and South Sea Bank Ltd v Tan [1989] 3 All ER 839; and 13 (4) Nallini Pathmanathan JC’s (as she then was) judgment in the High Court case of Tekital Sdn Bhd v Sarina bt Kamaludin & Ors [2012] 8 MLJ 734. 37. In Asia Commercial Finance, at p. 197-198, 198 and 199-200, it has been explained that the doctrine of res judicata consists of 2 limbs, namely cause of action estoppel and issue estoppel. 38. The following decisions of our apex courts have given a wide application of the issue estoppel principle, the second limb of res judicata doctrine: (1) in the Supreme Court case of Superintendent of Pudu Prison & Ors v Sim Kie Chon [1986] CLJ (Rep) 256, at 261 (Sim Kie Chon), Eusoffe Abdoolcader SCJ decided as follows - “The earlier action instituted by the respondent on 2 July 1985 and which was struck out sought relief on the ground of discrimination in breach of Article 8 of the Constitution but in the present proceedings the grounds for relief have been augmented and declarations sought to the effect we have indicated earlier. The appellants plead res judicata in this regard and we think the point is well taken and is supported by authority, and we would refer to the pronouncement of the Privy Council in Hoystead & Ors. v. Commissioner of Taxation [1926] AC 155 (at pp. 165 - 166) and a catenation of cases to the like effect, namely, that the plea of res judicata applies, except perhaps where special circumstances may conceivably arise of sufficient merit to exclude its operation, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every 14 point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.” (emphasis added); (2) it was decided as follows in Asia Commercial Finance, at p. 199-200 – “… the issue estoppel literally means simply an issue which a party is estopped from raising in a subsequent proceeding. However, the issue estoppel, in a nutshell, from a consideration of case law, means in law a lot more, ie that neither of the same parties or their privies in a subsequent proceeding is entitled to challenge the correctness of the decision of a previous final judgment in which they, or their privies, were parties. … There is one school of thought that issue estoppel applies only to issues actually decided by the court in the previous proceedings and not to issues which might have been and which were not brought forward, either deliberately or due to negligence or inadvertence, while another school of thought holds the contrary view that such issues which might have been and which were not brought forward as described, though not actually decided by the court, are still covered by the doctrine of res judicata, ie doctrine of estoppel per rem judicatum. We are of the opinion that the aforesaid contrary view is to be preferred; it represents for one thing, a correct even though broader approach to the scope of issue estoppel. It is warranted by the weight of authorities to be illustrated later. It is completely 15 in accord or resonant with the rationales behind the doctrine of res judicata, in other words, with the doctrine of estoppel per rem judicatum. It is particularly important to bear in mind the question of the public policy that there should be finality in litigation in conjunction with the exploding population; the increasing sophistication of the populace with the law and with the expanding resources of the courts being found always one step behind the resulting increase in litigation.” (emphasis added); and (3) in Government of India v Petrocon India Ltd [2016] 3 MLJ 435, at paragraph 53 (Petrocon India), Arifin Zakaria CJ delivered the following judgment of the Federal Court - “[53] It is settled law that for issue estoppel to operate against a party the decision on an issue must have been a ‘necessary step’ to the decision or ‘a matter which it was necessary to decide, and which was actually decided, as the groundwork of the decision’ (see Carl Zeiss Stiftung v Rayner and Keeler Ltd (No 2), Rayner and Keeler Ltd v Courts [1967] 1 AC 853 at p 965). To put it simply, the issue in question must have been litigated between the parties and the issue was material to the decision of the court.” (emphasis added). 39. Sim Kie Chon and Asia Commercial Finance (M) Bhd have decided that the issue estoppel principle has a wide application which may bar any – (1) party; and 16 (2) party’s “privy” - from raising any issue in any second and subsequent proceedings which – (a) has been raised; or (b) can be raised with “reasonable diligence” - in the first proceedings between the parties and/or their privies. 40. According to the issue estoppel principle, if there is a decision in the first litigation between parties “A” and “B”, the issue estoppel principle may bar – (1) A; (2) B; and (3) all the privies of A and B - from raising any issue which (a) has been raised; or (b) can be raised be raised with reasonable diligence - in the first litigation from being raised in the second and subsequent proceedings. 17 41. In Gleeson v J. Wippell & Co Ltd [1977] 1 WLR 510, at 514, Megarry VC decided in the English High Court that a party “C” may be a privy of A or B by way of – (1) blood relationship between C (on the one part) with A or B (on the other part); (2) title assumed by C from A or B; or (3) interest between – (a) C (on the one part); and (b) A or B (on the other part). 42. In Iradar Sdn Bhd v Nutech Co Ltd & Anor [2017] 1 MLRH 15, at paragraphs 1(2), 2 and 18 – (1) there was a previous suit regarding a patent which had been tried and decided by Azizah Nawawi J (Earlier Suit); (2) a subsequent suit was filed in Iradar to invalidate the same patent (2nd Suit); (3) despite the fact that the plaintiffs in the Earlier Suit [Plaintiffs (Earlier Suit)] were different from the plaintiff in Iradar [Plaintiff (2nd Suit)], I decided that there was a “privity of commercial interest” between the Plaintiffs (Earlier Suit) and the Plaintiff (2nd Suit). Accordingly, I struck out the suit in Iradar based on the application of the issue estoppel 18 principle, namely the Plaintiff (2nd Suit) as the privy for the Plaintiffs (Earlier Suit) was estopped from filing the 2nd Suit regarding the same issue concerning the same patent; and (4) the above decision has been affirmed by the Court of Appeal. 43. I am of the view that the Plaintiff is barred by the issue estoppel principle from commencing this action against the Defendants. This decision is premised on the following evidence and reasons: (1) there is a “privity of commercial interest” between the Third Party and the Defendants (please see Iradar) which is evidenced by the following - (a) the Defendants had accepted the Third Party’s Proposal and the Third Party’s System had been installed at the Plant; and (b) the 1st and 2nd Indemnities had been given by the Third Party to the Defendants regarding the installation of the Third Party’s System at the Plant; (2) the issue of tort of breach of confidence regarding the Confidential Information raised in this case, is the same question which has been decided in the 1st Suit (please see Petrocon India); (3) this case concerns the same material facts regarding the Confidential Information as in the 1st Suit; 19 (4) based on Sim Kie Chon, with reasonable diligence, the Plaintiff could have cited the Defendants in the 1st Suit and raised the 2 Causes of Action against the Defendants therein. In fact, by way of the Plaintiff’s Legal Demand on 19.10.2010, the Plaintiff’s solicitors had demanded for the Defendants to furnish an undertaking to cease construction of the Plant which had used the Confidential Information. In view of the Plaintiff’s Legal Demand, the Plaintiff could not claim that there was an oversight in not suing the Defendants in the 1st Suit. Furthermore, the Defendant’s previous solicitors had sent a letter dated 1.11.2010 which had rejected the Plaintiff’s Legal Demand; and (5) the 2 limbs of res judicata doctrine are not mandatory statutory provisions intended by Parliament to be applicable in all circumstances - please see Iradar, at paragraph 19. Res judicata doctrine is based on case law and should not be applied indiscriminately so as to cause an injustice - please see Gopal Sri Ram JCA’s (as he then was) judgment in the Court of Appeal case of Chee Pok Choy & Ors v Scotch Leasing Sdn Bhd [2001] 4 MLJ 346, at 356, 357 and 358. This court decides that it is just and equitable to apply the issue estoppel principle to bar the Plaintiff from filing this suit because – (a) the Plaintiff had obtained the Judgment which provided for, among others, an inquiry of damages (to be paid by the Third Party to the Plaintiff) and an account of profits (to be paid by the Third Party and Mr. Goh to the Plaintiff). There is no evidence that the Third Party and Mr. Goh are insolvent and cannot satisfy the Judgment. 20 On the contrary, the Third Party has given the 1st and 2nd Indemnities to the Defendants Accordingly, even if this action is struck out, there is no prejudice to the Plaintiff because the Plaintiff has the right to enforce the Judgment against the Third Party and Mr. Goh; and (b) if this suit is allowed to proceed and assuming the court decides this action in favour of the Plaintiff, the Plaintiff is not entitled to have double recovery against the Third Party (by virtue of the Judgment) and the Defendants - please see Tekital, at paragraph 114. In other words, in view of the Judgment, the Plaintiff has no monetary benefit in pursuing this suit against the Defendants. 44. I am of the following view regarding the cases cited by the Plaintiff: (1) cause of action estoppel principle (not issue estoppel principle) was applied in Asia Commercial Finance (M) Bhd; (2) in Wawasan Dengkil Properties, at paragraphs 35-37, the issue estoppel principle could not bar a suit to set aside an amended High Court order given in an oppression petition under the then s 181 of the Companies Act 1965 because, among others, the issues in those 2 proceedings were different; (3) in Tekital, at paragraphs 113-115, the cause of action and parties in the 2 suits were different. Furthermore, there was no privity between the parties in the 2 proceedings in question; and 21 (4) China and South Sea Bank did not concern the application of issue estoppel principle. H. Is Plaintiff’s cause of action for tort of breach of confidence time- barred? 45. Sub-paragraph 15.1 of the Defence filed in this case, had pleaded that this suit is time-barred under s 6 LA. As such, the Defendants have complied with s 4 LA – please see the Federal Court’s judgment delivered by James Foong FCJ in Tasja Sdn Bhd v Golden Approach Sdn Bhd [2011] 3 CLJ 751, at paragraphs 26-28. 46. The relevant part of s 6 LA provides as follows: “Limitation of actions of contract and tort and certain other actions. 6(1) Save as hereinafter provided the following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued, that is to say - (a) actions founded on a contract or on tort; … (6) Subject to the provisions of sections 22 and 32 of this Act the provisions of this section shall apply (if necessary by analogy) to all claims for specific performance of a contract or for an injunction or for other equitable relief whether the same be founded upon any contract or tort or upon any trust or other ground in equity.” (emphasis added). 22 47. The Plaintiff contended that its cause of action for the tort of breach of confidence only accrued when the Defendants enjoyed the benefit of the Confidential Information. The Defendants enjoyed the benefit of the Confidential Information when the Plant was commissioned on 19.8.2011. Accordingly, the six-year limitation period for the Plaintiff’s cause of action for the tort of breach of confidence only expired on 20.8.2017. As this suit was filed on 27.12.2016, the Plaintiff’s cause of action for the tort of breach of confidence was not time-barred under s 6(1)(a) LA. 48. In Dynacast (Melaka) Sdn Bhd & Ors v Vision Cast Sdn Bhd & Anor [2016] 6 CLJ 176, at paragraph 31, Richard Malanjum CJ (Sabah & Sarawak) in the Federal Court followed Megarry J’s (as he then was) decision in the English High Court case of Coco v AN Clark (Engineers) Ltd [1969] RPC 41, at 46-47, that the tort of breach of confidence has the following 3 elements [3 Elements (Tort of Breach of Confidence)]: (1) the information in question must have the necessary quality of confidence; (2) the information must have been imparted in circumstances importing an obligation of confidence; and (3) there must be an unauthorised use of the confidential information to the detriment of the party communicating it (Unauthorised Use). 49. Firstly, it is clear from Dynacast that the 3 Elements (Tort of Breach of Confidence) do not include any benefit which can or will be enjoyed from the Unauthorised Use (Benefit From Unauthorised Use). I am not able to 23 accept the Plaintiff’s submission that the cause of action for the tort of breach of confidence only accrues when a defendant enjoys the Benefit From Unauthorised Use. This decision is premised on the following reasons: (1) the Plaintiff’s contention regarding Benefit From Unauthorised Use is clearly contrary to trite case law, such as Dynacast, which has clearly laid down the 3 Elements (Tort of Breach of Confidence); (2) the acceptance of the Plaintiff’s submission regarding Benefit From Unauthorised Use, may cause an injustice as follows – (a) a plaintiff cannot file a suit and apply for an interlocutory injunction to restrain the Unauthorised Use until there is evidence of Benefit From Unauthorised Use. The Benefit From Unauthorised Use may take some time to materialise and in such an event, the plaintiff cannot take legal action and may have suffered irreparable harm; and/or (b) there may be cases where there is Unauthorised Use but there may not be any Benefit From Unauthorised Use. If the Plaintiff’s contention is accepted, this means that there cannot be any remedy for the Unauthorised Use in such cases; and (3) it has been explained by Hashim Yeop A. Sani CJ (Malaya) in the Supreme Court case of Credit Corporation (M) Bhd v Fong Tak Sin [1991] 1 MLJ 409, at 413-414, that a limitation defence is based on a public policy consideration (to ensure a finality in litigation). To achieve 24 such a public policy consideration, the limitation period should commence from the earliest time when a cause of action accrues. I cite Shaik Daud JCA’s judgment in the Court of Appeal in Nik Che Kok @ Nik Soo Kok v Public Bank Bhd [2001] 2 MLJ 328, at 331, as follows: “It is our view that for the purpose of limitation, time began to run from the earliest time at which the creditor could have brought an action.” (emphasis added). If a cause of action for the tort of breach of confidence only accrues after there is Benefit From Unauthorised Use (as contended by the Plaintiff), this will mean a plaintiff has more time to file a suit and this in turn will defeat the above public policy consideration underpinning a limitation defence (to ensure a finality in litigation). 50. My research has not revealed any previous Malaysian case which has decided when a cause of action for the tort of breach of confidence accrues. I am of the view that a cause of action for the tort of breach of confidence accrues on a date when the 3 Elements (Tort of Breach of Confidence) are satisfied and – (1) a plaintiff is entitled to commence an action for such a tort on that date; and 25 (2) the six-year limitation period for the purpose of s 6(1)(a) LA will commence to run from that date. The above decision is based on the following judgments of our apex courts: (a) it was decided in Credit Corporation (M), at p. 411 - “From established authorities we can now accept that the cause of action normally accrues when there is in existence a person who can sue and another who can be sued, and when all the facts have happened which are material to be proved to entitle the plaintiff to succeed.” (emphasis added); and (b) Jeffrey Tan FCJ decided as follows in the Federal Court case of Tenaga Nasional Bhd v Kamarstone Sdn Bhd [2014] 2 MLJ 749, at paragraphs 12 and 14 – “[12] In Letang v Cooper [1965] 1 QB 232, at pp 242–243, Lord Diplock defined a 'cause of action' as 'a factual situation the existence of which entitled one person to obtain from the court a remedy against another', which definition was adopted in Hock Hua Bank Bhd v Leong Yew Chin [1987] 1 MLJ 230, where Abdul Hamid Ag LP, as he then was, appended that 'there must be a cause of action before a plaintiff can claim a relief in an action'. In Government of Malaysia v Lim Kit Siang United Engineers (M) Berhad v Lim Kit Siang[1988] 2 MLJ 12 at p 19, the Supreme Court per Salleh Abbas CJ, expounded that to make up 'a cause of action', first, the 26 plaintiff has a right at law or by statue and secondly, the right has been affected by the act of the defendant: … … [14] Other authorities, inter alia, Tuan Haji Ishak bin Ismail & Ors v Leong Hup Holdings Bhd and other appeals [1996] 1 MLJ 661, Mohamed Yusop bin Abdul Wahab v American Express (M) Sdn Bhd [2002] 6 MLJ 507, Goh Joon v Kerajaan Negeri Johor & Ors [1998] 7 MLJ 621, applied the following definition found in Stroud's Judicial Dictionary (5th Ed) at p 378: A 'cause of action' is the entire set of facts that gives rise to an enforceable claim; the phrase comprises every fact which, if traversed, the plaintiff must prove in order to obtain judgment (per Esher MR, Read v Brown (1888) 22 QBD 128; this case was applied in Bennett v White [1910] 2 KB 643).” (emphasis added). 51. Based on the above reasons, the 3 Elements (Tort of Breach of Confidence) are satisfied on 30.4.2010 when the Defendants used the Confidential Information by examining, making, retaining and providing copies of drawings of the Third Party’s Proposal to other parties (to construct the Plant). As such, the six-year limitation period for the Plaintiff’s cause of action for the tort of breach of confidence would have expired on 1.5.2016. When this suit was filed on 27.12.2016, the Plaintiff’s cause of action for the tort of breach of confidence was time-barred under s 6(1)(a) LA. It is to be noted that the Plaintiff’s Legal Demand on 19.10.2010 (for Defendants to give an undertaking to cease construction of the Plant based 27 on Confidential Information) had been sent before the Plant was commissioned on 19.8.2011. If the Plaintiff had truly believed that its cause of action for the tort of breach of confidence only accrued when the Defendants enjoyed the benefit of the Confidential Information on 19.8.2011, the Plaintiff’s Legal Demand would not have been sent. 52. Additionally or alternatively, the Defendants first received and enjoyed the benefit of the Confidential Information on 30.4.2010 (when the Defendants had first used the Confidential Information in the construction of the Plant). As held in Nik Che Kok, limitation period commences at the earliest time when a plaintiff can commence a suit. Accordingly, even if I have accepted the Plaintiff’s submission that the Plaintiff’s cause of action for the tort of breach of confidence had only accrued on the date when the Defendants had received the Benefit From Unauthorised Use, this action based on the tort of breach of confidence would still have been time-barred under s 6(1)(a) LA. I. Has limitation set in for Plaintiff’s unjust enrichment claim? 53. The Plaintiff submitted that the Defendants had been unjustly enriched on 19.8.2011 when the Plant had been commissioned. The Plaintiff relied on the opinion of Mr. Low Weng Tchung in “The Law of Restitution and Unjust Enrichment in Malaysia” (2015), at paragraph 12.16, p. 790, as follows: “The better view is that a claim for restitution accrues at the date when the enrichment is received or the date the ground of restitution is established, whichever is the later.” 28 (emphasis added). Mr. Low’s above opinion is based on the view of Mr. Andrew Burrows, “The Law of Restitution”, 3rd Edition (2011), at p. 608. 54. I cannot find any previous Malaysian case which has decided when a cause of action for unjust enrichment accrues for the purpose of deciding whether limitation has set in or not. Nor is there any Malaysian judgment which has decided whether s 6 LA [be it subsection (1) or (6)] applies or not to a cause of action for unjust enrichment. 55. In United Logistics Sdn Bhd v Stamford College (PJ) Sdn Bhd [2016] MRLHU 782, at paragraphs 56-58 and 61, I have decided that there are 2 bases for an unjust enrichment claim in Malaysia as follows: (1) s 71 of the Contracts Act 1950 (CA); and (2) Azahar Mohamed FCJ’s judgment in the Federal Court case of Dream Property Sdn Bhd v Atlas Housing Sdn Bhd [2015] 2 MLJ 441. The decision in United Logistics has been affirmed by the Court of Appeal. 56. Section 71 CA provides as follows: “Obligation of person enjoying benefit of non-gratuitous act 71. Where a person lawfully does anything for another person, or delivers anything to him, not intending to do so gratuitously, and such other person enjoys the benefit thereof, the latter is bound to 29 make compensation to the former in respect of, or to restore, the thing so done or delivered.” (emphasis added). 57. In an appeal from Malaysia, Lord Upjohn held as follows in the Privy Council case of Siow Wong Fatt v Susur Rotan Mining Ltd & Anor [1967] 2 MLJ 118, at 120: “It has been common ground before their Lordships that four conditions must be satisfied to establish a claim under section 71. The doing of the act or the delivery of the thing referred to in the section: (1) must be lawful (2) must be done for another person (3) must not be intended to be done gratuitously (4) must be such that the other person enjoys the benefit of the act or the delivery.” (emphasis added). 58. In this case, the Plaintiff’s SOC pleaded that the Defendants had been unjustly enriched by the commission of a tort of breach of confidence. Accordingly, the first condition for the application of s 71 CA (the act or thing in question must be lawful) cannot be fulfilled in this case. It is thus clear that the Plaintiff’s SOC is not relying on s 71 CA. 30 59. It has been decided as follows in Dream Property, at paragraphs 110, 117 and 118: “110 Restitution simply means that a party who has received a benefit must restore the benefit received by him. The theoretical foundation of the right to restitution remedy as it is understood today is that it is founded on the law of unjust enrichment which fall outside the domains of contract and tort. The law of contract/tort and the law of unjust enrichment are conceptually distinct. Unjust enrichment describes a cause of action. On the other hand restitution describes a remedy. Restitution as a response to wrongdoing is therefore a different topic from restitution as a response to unjust enrichment (see Goff & Jones on The Law of Unjust Enrichment para 1-04). The courts have found it necessary to make available, independent of the law of contract and civil wrongs, for the restoration of benefits on the grounds of unjust enrichment. … 117 The above passages from the judgments of the House of Lords are instructive and are significant contribution to the development of law of unjust enrichment. The principle underlying the cases of Banque Financiere de la Cite v Parc (Battersea) Ltd and Sempra Metals Ltd (formerly Metallgesellschaft Ltd) v IRC is that, in the context of the present case, a cause of action in unjust enrichment can give rise to a right to restitution where it can be established that: (a) the plaintiff must have been enriched; (b) the enrichment must be gained at the defendant's expense; 31 (c) that the retention of the benefit by the plaintiff was unjust; and (d) there must be no defence available to extinguish or reduce the plaintiff's liability to make restitution. 118 Nearer home, there is now no longer any question that unjust enrichment law is a new developing area of law which is recognised by our courts. That the principle of unjust enrichment is the basis to justify an award of restitutionary relief can be seen in Sediperak Sdn Bhd v Baboo Chowdhury [1999] 5 MLJ 220 and in Air Express International (M) Sdn Bhd v MISC Agencies Sdn Bhd [2012] 4 MLJ 59. Nevertheless, it has to be said that despite the increase in judicial reference to the expression of unjust enrichment to justify an award of restitutionary reliefs, the law of unjust enrichment is still in its formative stage in our jurisdiction (see article entitled 'An Introduction to the Law of Unjust Enrichment' [2013] 5 MLJ i by Alvin WL See). In our view, the time has come for this court to recognise the law of unjust enrichment by which justice is done in a range factual circumstances, and that the restitutionary remedy is at all times so applied to attain justice.” (emphasis added). 60. I am of the following view regarding when a cause of action for unjust enrichment accrues: (1) a claim for unjust enrichment is a claim for “equitable relief” within the meaning of s 6(6) LA. Accordingly, by reason of s 6(6) LA, the six-year limitation period in s 6(1) LA applies to a cause of action for unjust enrichment; and 32 (2) a cause of action for unjust enrichment accrues when a defendant has retained the benefit in question – please see the third element for an unjust enrichment claim as laid down in Dream Property. The Limitation Act 1980 of the United Kingdom [LA 1980 (UK)] is materially different from our s 6(6) LA. Having said that, the following English High Court decisions have held that a cause of action for unjust enrichment accrues when a defendant has retained the benefit in question – (a) Lightman J’s judgment in Fuller v Harry Shopper Markets Ltd & Anor [2001] 1 WLR 1681, at paragraph 13; and (b) in Michael Agapios Diamandis v Sir David Seton Wills & Anor [2015] EWHC 312, Stephen Morris QC (sitting as a Deputy High Court Judge) (as he then was) decided as follows - “… First, whilst the point is not entirely free from doubt and whilst I accept that the case of Phillips v Bath Housing may be distinguishable as suggested by the Claimant, the balance of authority (both judicial and academic) is that common law claims in unjust enrichment (including the present claim for restitutionary quantum meruit/free acceptance) are generally statute barred after six years under s 5 [LA 1980 (UK)]: Goff and Jones , supra, §§33–06 to 33–08; Burrows: Restatement of the English Law of Unjust Enrichment §30(2) and Metcalfe v Dennison TCC HH Judge Raynor QC 6 December 2013 at §§28–30. As to the date of accrual of the cause of action in 33 restitution, this is normally the date when the defendant receives the benefit. …” (emphasis added). Despite the differences in wording between our s 6(6) LA and LA 1980 (UK), I accept the above English cases regarding when a cause of action for unjust enrichment accrues. This is because our Federal Court in Dream Property has followed English cases in recognising a new cause of action in unjust enrichment. In view of the above reasons, with respect, I am unable to accept Mr. Low’s opinion regarding the accrual of a cause of action for unjust enrichment. Furthermore, as decided in Nik Che Kok, limitation period commences at the earliest time when a plaintiff can commence a suit, namely when a defendant has retained a benefit which is the subject matter of an unjust enrichment claim. 61. In this case, s 6(6) LA is subject to ss 22 and 32 LA. It is clear that neither s 22 LA (limitation of actions in respect of trust property) nor s 32 LA (nothing in LA shall affect any equitable jurisdiction to refuse relief on the ground of acquiescence, laches or otherwise) applies in this case. 62. I decide that the Defendants had retained the benefit of the Confidential Information on 30.4.2010 (when the Defendants had first used the Confidential Information in the construction of the Plant). In accordance with Nik Che Kok (limitation period commences at the earliest time when a plaintiff can commence a suit), limitation period for the Plaintiff’s cause of 34 action for unjust enrichment accrued on 30.4.2010 and would be time- barred on 1.5.2016. Consequently, this suit based on a claim for unjust enrichment (filed on 27.12.2016) was time-barred under s 6(6) LA. J. Whether court should strike out this action 63. As this suit is barred by issue estoppel principle (please see Part G) and limitation (please refer to Parts H and I) - (1) this action - (a) is frivolous and/or vexatious pursuant to Paragraph (b); and/or (b) constitutes an abuse of court process under Paragraph (d), O 92 r 4 RC and/or the court’s inherent jurisdiction; (2) the court has a discretionary power under O 18 r 19(1) RC to amend the SOC (instead of striking out a SOC) [please see Mahadev Shankar JCA’s judgment in the Court of Appeal case of Muniandy s/o Subrayan & Ors v Chairman & Board Members of Koperasi Menara Maju Bhd [1997] 1 MLJ 557, at 560 and 561]. Having considered the application of issue estoppel principle and the defence of limitation in this case, this suit cannot be “saved” by any amendment to the SOC; and (3) it is plain and obvious that this action should be struck out on the ground that it is obviously unsustainable - Bandar Builder. 35 K. Can Third Party strike out this suit? 64. Firstly, upon the striking out of this action, the third party notice will also be consequently set aside – please see MMIP Services Sdn Bhd v Overseas Assurance Corporation (M) Bhd, IUB Greengold Bhd, Third Party [2016] 3 AMR 143, at paragraph 39. The decision in MMIP Services has been affirmed by the Court of Appeal. 65. O 16 rr 4(3), (4), (5), 6 and O 18 r 19(1) RC provide as follows: “O 16 r 4(3) On an application for directions under this rule, the Court may – (a) if the liability of the third party to the defendant who issued the third party notice is established on the hearing, order such judgment as the nature of the case may require to be entered against the third party in favour of the defendant; (b) order any claim, question or issue stated in the third party notice to be tried in such manner as the Court may direct; or (c) dismiss the application and terminate the proceedings on the third party notice, and may do so either before or after any judgment in the action has been signed by the plaintiff against the defendant. r 4(4) On an application for directions under this rule, the Court may give the third party leave to defend the action, either alone or jointly with any defendant, upon such terms as may be just, or to appear at the trial and to take such part therein as may be just, and generally may make such 36 orders and give such directions as appear to the Court proper for having the rights and liabilities of the parties most conveniently determined and enforced and as to the extent to which the third party is to be bound by any judgment or decision in the action. r 4(5) Any order made or direction given under this rule shall be in Form 23 and may be varied or rescinded by the Court at any time. r 6. Proceedings on a third party notice may, at any stage of the proceedings, be set aside by the Court. O 18 r 19. (1) The Court may at any stage of the proceedings order to be struck out or amended any pleading or the endorsement, of any writ in the action, or anything in any pleading or in the endorsement, on the ground that - …” (emphasis added). 66. I cannot find any previous Malaysian case which has decided on whether a third party may apply to court to strike out an action or otherwise. I am of the view that a third party cannot apply to court under RC to strike out a suit or a counterclaim. This decision is premised on the following reasons: (1) a third party may apply to court under O 16 r 6 RC to set aside a third party notice - MMIP Services, at paragraph 46. O 16 r 6 RC does not however allow a third party to apply to court to strike out an action by a plaintiff or a defendant’s counterclaim; (2) O 18 r 19(1) RC applies to a striking out application by a plaintiff or a defendant regarding the main suit. O 18 r 19(1) RC also allows a third 37 party to apply to court to strike out a third party notice - MMIP Services, at paragraphs 46-48. There is however nothing in O 18 r 19(1) RC, either expressly or by necessary implication, which permits a third party to apply to court to strike out a suit or a counterclaim; (3) if the Rules Committee had intended for RC to provide for a third party to apply to court to strike out a suit or a counterclaim, the Rules Committee would have expressly provided for such an avenue in O 16 r 6 or O 18 r 19(1) RC. The Rules Committee however did not do so. This is understandable because the striking out of a suit or a counterclaim, is a draconian measure which will deprive a plaintiff (regarding a suit) or a defendant (concerning a counterclaim) of his or her fundamental right under article 5(1) of our Federal Constitution to have access to justice – please see Gopal Sri Ram FCJ’s judgment in the Federal Court case of Sivarasa Rasiah v Badan Peguam Malaysia [2010] 3 CLJ 507, at 514-515. Moreover, a plaintiff may not have any dispute with a third party which can justify an application by a third party to strike out an action; (4) O 16 r 4(3) and (4) RC, either expressly or by necessary implication, do not provide that a third party can apply to court to strike out a suit or a counterclaim. Furthermore, any direction or order issued by the court under O 16 r 4 RC “may be varied or rescinded by the Court at any time” according to O 16 r 4(5) RC. It is clear that by virtue of of O 16 r 4(5) RC, all directions and orders issued by the court pursuant to O 16 r 4 RC, are tentative and can be re-visited by the court at any time (before a final decision of the court); and 38 (5) the court should not exercise its inherent jurisdiction or inherent powers under O 92 r 4 RC to allow a third party to strike out a suit or a counterclaim. This is firstly due to the reasons expressed in the above sub-paragraph (3). In any event, the court’s inherent jurisdiction should not be invoked to allow a third party to strike out a suit or a counterclaim because – (a) there is no injustice to a third party if the third party cannot strike out an action or counterclaim. On the contrary, there will be an injustice to a plaintiff or a defendant if the court allows a third party to strike out a suit or a counterclaim; and/or (b) there is no abuse of court process if a third party is disallowed from striking out a suit or a counterclaim. This is because an action or a counterclaim does not necessarily affect a third party adversely. 67. Premised on the above reasons, I am constrained to dismiss Enc. 20 with costs. L. Summary of court’s decision 68. Enc. 5 is allowed with costs (to be paid by Plaintiff to Defendants) because this action is barred by - (1) issue estoppel principle; and/or (2) limitation. 39 Accordingly, this suit - (a) is frivolous and/or vexatious within the meaning of Paragraph (b) and/or (b) constitutes an abuse of court process under Paragraph (d), O 92 r 4 RC and/or the court’s inherent jurisdiction. 69. Enc. 20 is dismissed with costs (to be paid by Third Party to Plaintiff) because the Third Party cannot apply to strike out this action pursuant to O 16 rr 4(3), (4), 6, O 18 r 19(1), O 92 r 4 RC and/or the court’s inherent jurisdiction. WONG KIAN KHEONG Judicial Commissioner High Court (Commercial Division) Kuala Lumpur DATE: 6 NOVEMBER 2017 Counsel for Plaintiff: Mr. Gerald Samuel, Mr. Gregory Ling Lee Yi & Ms. Villasini a/p Nethiganantarajah (Messrs Ranjit Singh & Yeoh) Counsel for Defendant: Mr. Alan Wong & Mr. Cliff Siow (Messrs Zain Megat & Murad) Counsel for Third Party: Mr. Yap Yoon Jan (Messrs GideonTan Razali Zaini)

Tika 2.6.0

BA-12B-11-01/2016

PERAYU 1. IZUDIN BIN MOHAMED 2. MOHD SALLEH BIN ZAINOL 3. NAZLI BIN ABDUL RAHIM 4. PENGARAH JABATAN PENGANGKUTAN JALAN MALAYSIA 5. KERAJAAN MALAYSIA RESPONDEN 1.TEBANRAJ A/L MARIMUTHU

06/11/2017

YA DATIN ZALITA BINTI DATO' HJ. ZAIDAN (PK)

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DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN, MALAYSIA RAYUAN SIVIL NO.: BA-12B-11-01/2016 ANTARA 1. IZUDIN BIN MOHAMED 2. MOHD SALLEH BIN ZAINOL 3. NAZLI BIN ABDUL RAHIM 4. PENGARAH JABATAN PENGANGKUTAN JALAN MALAYSIA 5. KERAJAAN MALAYSIA … PERAYU-PERAYU DAN 1. TEBANRAJ A/L MARIMUTHU … RESPONDEN (DALAM MAHKAMAH SESYEN DI SELAYANG DALAM NEGERI SELANGOR DARUL EHSAN MALAYSIA GUAMAN NO. A53KJ-98-03/2014 ANTARA TEBANRAJ A/L MARIMUTHU … PLAINTIF DAN 1. JEFFREY BIN MUSA 2. BERSERI CHICKEN TRANDING 1. IZUDIN BIN MOHAMED 2. MOHD SALLEH BIN ZAINOL 3. NAZLI BIN ABDUL RAHIM 4. PENGARAH JABATAN PENGANGKUTAN JALAN MALAYSIA 5. KERAJAAN MALAYSIA … DEFENDAN-DEFENDAN) GROUND OF JUDGMENT Introduction [1] This is an appeal by the Appellants who are the 3rd – 7th Defendants against the Sessions Court’s decision of 8.12.2015 in allowing the Respondent’s claim who is the Plaintiff after a full trial. [2] This appeal was heard together with the other appeal BA-12B-10-01-2016, involving the same road accident alleged by Plaintiff. I shall introduce the parties as they were known at the Sessions Court. The Respondent brought the suit against seven Defendants. In this appeal, the Appellants who are the 3rd, 4th and 5th Defendants are the officers of the Road Transport Department, Malaysia (JPJ). The 6th Defendant and the 7th Defendant are the Director General of the Road Transport Department, Malaysia and Government of Malaysia respectively. The 1st Defendant was driving the motor lorry bearing registration number WUC 5600 belonging to 2nd Defendant that was stopped by the 3rd – 7th Defendants. [3] The Sessions Court had made a finding that the 3rd – 7th Defendants are liable at 80% and the 1st and 2nd Defendants in the other appeal case are liable at 20%. The Plaintiff was found not negligent. [4] There would be cross-reference to the facts and findings in the appeal case BA-12B-10-01-2016 and for ease of reference, I shall refer the parties as they were in the Sessions Court. Facts [5] The relevant factual background giving rise to this appeal may be briefly stated as follows: (a) The Plaintiff is a person of unsound mind not so found by inquisition and is represented by Marimuthu a/l Mariapan. The Plaintiff was the rider of motorcycle bearing registration number WPB 6894 that was involved in the accident. (b) The Plaintiff pleaded (at paragraph 6 of the Amended Statement of Claim, page 5 of Appeal Record) of the accident: “Pada 3hb Disember 2013, Plaintif adalah secara sah menunggang motorsikal bernombor WPB 6894 dan apabila sampai di KM 440.3 Buit Beruntung-Rawang, Selangor Darul Ehsan, motorlori WUC 5600 yang dipandu oleh Defendan Pertama sebagai ejen atau orang gaji atau orang yang memandu dengan keizinan Defendan Kedua yang datang dari arah yang sama sebelah kanan Plaintif secara tiba-tiba telah menukar haluan ke kiri lalu memberhentikan motorlorinya secara mengejut dan tanpa memberi sebarang isyarat setelah ditahan oleh defendan Ketiga, Defendan Keempat, defendan Kelima yang bertindak sebagai ejen atau orang gaji dengan keizinan Defendan Keenam dan/atau Defendan Ketujuh di lebuhraya tersebut yang mempunyai pengawalan, penguasaan dan pembawaan motokar WRD 7645 dengan mewujudkan kacau ganggu di lebuharay tersebut oleh yang demikian, Plaintif terpaksa melanggar motorlori tersebut dan akibat perlanggaran tersebut Plaintiff telah mengalami kecederaan, kerosakan dan kerugian.” (c) The Plaintiff pleaded that the 3rd – 5th Defendants are agents or servants authorized by the 6th Defendant and/or 7th Defendant in controlling, on the authority and driving the vehicle bearing registration number WRD 7645 and had caused the accident due to their negligence and caused nuisance (paragraph 7 of Amended Statement of Claim, page 5 of Appeal Record). The Plaintiff claimed that the accident was caused by 1st and 2nd Defendants negligence due to the signal to stop by the 3rd – 7th Defendants. (d) The 3rd – 7th Defendants pleaded as in their Defence of 16.4.2015 that, “(a) Pada 3 Disember 2013, Defendan Ketiga sehingga Ketujuh dalam tugasan rasmi membuat rondaan disekitar kawasan Bukit Beruntung – Rawang. Pada jam lebih kurang 7.50 sehingga 8.00 malam, Defendan Ketiga sehingga Ketujuh menahan sebuah motorlori bernombor pendaftaran WUC 5600 di km 440.3 Bukit Beruntung – Rawang Lebuhraya Utara Selatan kerana disyaki terlebih muatan; (b) Defendan Ketiga telah memberhentikan kenderaan WRD 7645 di belakang motorlori bernombor pendaftaran WUC 5600 tersebut untuk membuat pemeriksaan ke atas motorlori WUC 5600 tersebut; (c) Defendan Pertama yang memandu motorlori bernombor pendaftaran WUC 5600 tersebut berhenti di lorong kecemasan setelah Defendan Keempat mengarahkan motorlori tersebut berhenti dengan memberikan lampu mata arah kenderaan WRD 7645. (d) Lebih kurang 10 minit kemudian, tiba-tiba terdengar bunyi dentuman dari belakang kenderaan motorlori WUC 5600 tersebut dan Defendan Ketiga sehingga Ketujuh mendapati bahawa Plaintif dan motorsikal bernombor pendaftaran WPB 6894 berada di Bahagian kanan belakang motorlori WUC 5600 tersebut; dan (e) Kemalangan ini berlaku atas kecuaian Plaintif sepenuhnya dengan mengambilkira kemalangan berlaku dilorong kecemasan, keadaan cuaca dan jalan raya pada masa material.” (e) The Sessions Court found the 3rd – 7th Defendants are liable at 80%, the 1st – 2nd Defendant in the appeal case 12B-10-01/2016 are liable at 20% and Plaintiff is not liable and was awarded General Damages and Special Damages. (f) The 3rd – 7th Defendants dissatisfied with the Sessions Court’s decision, filed the Notice of Appeal on 8.12.2015. (g) The 3rd – 7th Defendants filed its Amended Memorandum of Appeal of 15.3.2016 (Supplementary Appeal Record). 3rd – 7th Defendants’ case [6] The learned Federal Counsel for the 3rd – 7th Defendants submitted twelve grounds of appeal on liability and three grounds of appeal on quantum (Amended Memorandum of Appeal of 15.3.2016, pages 54-60 of Supplementary Appeal Record). It was submitted that this Court should interfere with the findings of the trial judge were there was a misdirection of facts and law, relying on a number of authorities, Chung Hwa Ying v Phang Mun Mooi & Anor [1987] 2 MLJ 693; Herchun Singh & Ors v Public Prosecutor [1969] 2 MLJ 209; Borhan bin Hj Daud & Ors v Abd Malek bin Hussin [2010] and Ng Chui Sia v Maimon Bt. Ali [1983] 1 MLJ 110. [7] Focusing on the fact that the accident occurred on the emergency lane, the Federal Counsel submitted that the accident was caused by the Plaintiff’s negligence and/or contributory negligence as evidenced by IO’s investigation (pages 117-118 of Supplementary Appeal Record 1 of case 12B-10-01/2016) and as admitted by the Plaintiff (pages 22 and 29 of Supplementary Appeal Record 2 and page 66 of Supplementary Appeal Record 1 of 12B-10-01/2016). It was submitted that the Session Judge had been erred in facts and law for failure to assess the probable version based on the evidence adduced following the Federal Court case of Yahaya Mohamad v Chin Tuan Nam [1975] 2 MLJ 117. [8] It was submitted by the Federal Counsel that the debris found on the emergency lane is the point of impact of the accident based on the authority Yahaya Mohamad (supra) which was consistently testified by all defendants to the suit by Plaintiff, which proved the Plaintiff’s contributory negligence following the Federal Court case of Kek Kee Leng v Teresa Bong Nguk Chin & Anor [1978] 1 MLJ 61. [9] It was submitted that the Session Judge failed to consider the IO’s testimony and decided that the IO’s investigation was incomplete when IO had then taken statements from 3rd – 7th Defendants and summoned the Plaintiff under Rule 10 of Road Traffic Rules LN 166/1959 (pages 31 – 32 of Supplementary Appeal of Record 2) and relied on the Federal Court case of Yahaya Bin Mat & Anor v Abdul Rahman bin Abu [1982] 1 MLJ 202. [10] In relation to the position of the 3rd – 7th Defendants’ vehicle, the Federal Counsel submitted that the Session Judge had erred in facts and law for inferring the said issue (page 21 of Session Judge’s written judgment) which was not pleaded by the Plaintiff. It was brought to this Court’s attention that the statement on the position of the 3rd – 7th Defendants was raised during the oral evidence. Relying on the authorities that parties are bound by their pleadings, the Federal Counsel averred that the Court cannot rely on a plea borne out of pleadings: Order 18 rule 10(1) Rules of Court 2012; State Government of Perak v Muniandy [1986] 1 MLJ 490, SC and Tan Sri Norian Mai & Anor Suzana Md Aris [2011] 1 LNS 1912. [11] The Federal Counsel submitted that safety measures were adhered in exercising their authority to stop the motor lorry WUC 5600 based on their Standard Operating Procedure and following the provisions of the Road Transport Act 1987 (RTA). The Federal Counsel submitted on section 59(1) of RTA and section 55 of RTA on the duty to stop vehicles on demand and that it is a duty following the Federal Court of Selvaraju A/L Ponniah v Suruhanjaya Perkhidmatan Awam & Kerajaan Malaysia [2007] 7 MLJ 1 which held that the term ‘shall’ stipulated in section 2(a) of the Public Authorities Protection Act 1948 connotes a mandatory meaning. It was submitted that the Session Judge’s finding that the 3rd – 7th Defendants stopping the motor lorry was unjustified and caused the accident. Quantum [12] The Federal Counsel relied on the Specialist Medical Report of 20.5.2014 which reported that the Plaintiff suffered a mild brain injury and averred that the award for mild brain injury Rm100,000.00 by the Session Judge is excessive, following the case of Muhammad Iqmal Daniel B Abdullah & Anor v Tan Choon Chwa & Anor [2012] 1 PIR 8 where the court awarded RM65,000.00 as compensation, arguing that the award for the current case should be reduced to the figure of RM30,000.00. It was submitted that this is also consistent with the evidence of the Plaintiff’s witnesses whom testified that the Plaintiff can walk without the walking stick and can be independent. [13] In relation to the injury ‘multiple maxillofacial fracture with left zygomatic complex and roof and lateral wall of the orbit’ where the Session Judge awarded RM46,000.00, the Federal Counsel relied on the authority Mohd Sukri bin Mohd Kanawai v Md Yahya b Mat [2013] 1 PIR [22], and submitted that the court in that cases awarded RM20,000 and the Federal Counsel submitted for RM18,000.00. [14] For the injury ‘open comminuted fracture distal end right radius’, it was submitted that based on the medical report (Appeal Record Jilid 1, page 128, paragraph 5), which reported that the fracture distal end left radius had united but still having pain and may need operation. It was submitted that the award by the Session Judge of RM22,000.00 should be reduced to RM20,000.00. The Special Damages for treatment and follow up amounting to RM1,000 and Rm500 for medical expenses in Government hospital should be dismissed as they were not proven. [15] For loss of future earnings, it was submitted by the Federal Counsel that there was no proof that Plaintiff was working before the accident and Plaintiff failed to produce any salary slips and no proof of the existence of the company, relying on the authority under section 28A of Civil Law Act 1956 where for loss of future earnings, the Plaintiff must prove that he is in good health based on the case of Ngooi Ku Siong & Anor v Aidi Abdullah [1989] 1 MLJ 31. It was submitted that the award loss of future earnings by the Session Judge should be dismissed or be set aside. Plaintiff’s case [16] Briefly, the learned counsel for the Plaintiff started off with quantum, submitted that the award by the Sessions Court should be retained. On loss of earnings, Plaintiff’s counsel submitted that the Plaintiff was in good health and was looked after by his parents after the accident (page 42 Supplementary Appeal Record 1). With regards to Plaintiff’s employment, the employer testified that the Plaintiff receives a salary of RM50-RM60 per day work and had not been paid salary after the accident (page 46 of Supplementary Appeal Record 1). [17] In relation to the quantum for head injury, the Plaintiff’s counsel submitted that the Plaintiff’s specialist medical report of 20.5.2014 verified Plaintiff’s disabilities due to the accident and relying on a number of authorities where the awards given ranged between RM180,000.00 to RM120,000.00 and averred that the award by the Session Judge for RM100,000.00 is reasonable. [18] In relation to the injury ‘multiple maxillofacial fracture with left zygomatic complex and roof and lateral wall of the orbit’, the Session Judge awarded RM46,000.00 to which Plaintiff submitted that the sum is reasonable considering Plaintiff’s injury is serious. The counsel for the Plaintiff prayed to this Court that the award by the Session Judge be retained. [19] On liability, Plaintiff’s counsel’s contention is that the 3rd – 7th Defendants do not have the right to stop the motor lorry for inspection at the emergency lane. It was averred that the Plaintiff could not recall as to the actual cause of the accident and relied on the IO and the oral evidence of all the defendants in reference to the authorities Husiana Rani Naina Mohamed v Ahmad Nadzri Kamaruddin & Anor [1997] 3 CLJ 500, Kuppusamy L. Sundarajoo v Nithananthan Muniandy [1990] 2 CLJ (Rep) 302 and Dawason v Murex Ltd [1942] 1 All ER 483. It was brought to this Court’s attention that the width of the emergency lane is not sufficient to accommodate the motor lorry for an inspection to be carried out (page 135 Supplementary Appeal Record 1). To this, the counsel pointed out that the IO was unsure of the 3rd - 7th Defendants’ usage of the emergency lane. The Plaintiff’s counsel submitted that it would be reasonable for the 1st Defendant to be liable at 20% for his failure to call the co-driver to testify that the 1st Defendant was taking precaution to ensure that no one would be behind the motor lorry (page 153 Supplementary Appeal Record 1). [20] The Plaintiff’s counsel averred that the IO’s investigation was incomplete for not taking statements from the 3rd-7th Defendants. It was asserted that the accident was caused by the 3rd – 7th Defendants’ instructions to stop the motor lorry without any warning signage by the 3rd – 7th Defendants and the place was not well lighted. In addition, there were contradictory statements about the position of the 3rd – 7th Defendants’ vehicle prior to the occurrence of the accident. [21] The Plaintiff’s counsel also pointed out that the police report made by the 3rd – 7th Defendants was made two hours after the accident, at 22.00hrs at night whereas the 1st Defendant reported earlier, at 21.15hrs at night. The Sessions Court’s Decision [22] The Session Judge had narrated in detail the Plaintiff’s and 3rd – 7th Defendants’ versions as to the occurrence of the accident. The Session Judge’s decision can be found at the Supplementary Record Appeal to which some of the salient points on liability and award were reproduced in the judgment for appeal 12B-10-01/2016. THE COURT’S FINDING [23] Both counsels advanced several arguments on the grounds of the appeal. For the purpose of this judgment, I will be brief, focusing on the main grounds. In appeal case 12B-10-01/2016 which was heard together with this appeal, I allowed the appeal. In this appeal, I hold the same view that the Plaintiff, on the balance of probability, failed to discharge the burden to prove as well as the onus to produce evidence and this Court finds that the Plaintiff is wholly liable. My grounds of judgment follow to which I will start by stating the laws that is the burden of proof following section 101 of the Evidence Act 1950. [24] This suit was brought by the Plaintiff and the burden rests on the Plaintiff to prove its claim, based on the balance of probabilities. The burden of proof as well as the initial onus to prove the claim rest with the Plaintiff and the Plaintiff is to discharge its onus to prove its cause of action against the Defendant as decided by the Federal Court in the case of Letchumanan Chettiar Alagappan @ L. Allagapan, M. Venkatachalam S/O Venkatachalam Chettiar v Secure Plantation Sdn Bhd No. 02-78-10/2014. Based on Letchumanan Chettiar (supra) case, section 101 of the Evidence Act 1950 was referred holding that the burden to establish the case rests throughout on the party who asserts the affirmative of the issue. [25] Both counsels submitted the trite law that an appellate court will be slow to interfere with the findings of facts and judicial appreciation of the facts by the trial judge. The legal position is clear and can be found in a number of great authorities that an appellate court should but rarely interfere with conclusion arrived at by the trial judge who had the advantage of hearing the witnesses unless it is satisfied that the judge has acted on a wrong principle of law or has made a wholly erroneous estimate of damage suffered, either due to an omission to consider relevant materials or admitting irrelevant considerations: Multar Masngud v Lim Kim Chet & Anor [1982] CLJ 237, Federal Court and in the recent decision of the Federal Court in Ming Holdings (M) Sdn Bhd v Syed Azahari Noh Shahabudin & Anor [2010] 6 CLJ 857. [26] This Court viewed that there was a clear misdirection of law and findings by the trial judge and it is incumbent upon this Court to intervene and correct the findings: Tan Kuan Yau v Suhindrimani Angasamy [1985] CLJ (Rep) 323. This was based on the unfolding events leading to the decision of the Session Judge where facts and evidence were not considered following section 101 of the evidence Act 1950 and the Federal Court case of Letchumanan Chettiar (supra). [27] I do not wish to repeat myself and deliberate at length on the misdirection of the trial judge on the burden of proof and the liability following the accident which occurred on the emergency lane. Suffice to say that this court holds the view that in the case where negligence is claimed as the cause of action, prove of negligence will be placed on the Plaintiff and in this case, the Plaintiff failed to discharge its burden and onus to adduce evidence, relying on the authority attributed by the Federal Counsel, the Federal Court case of Kek Kee Leng (supra) and other authorities, Neo Chan Eng v Koh Yong Hoe [1960] 26 MLJ 291, Ng Chui Sia v Maimon b. Ali [1983] 1 MLJ 110 and Mohd Tarmizi Mat Hassan & Anor v Arief Fitri Ahmad Zainuddin [2014] 1 LNS 1005. [28] I wish to reiterate that as the Plaintiff was unable to recall, the evidence submitted before this Court must be scrutinised which comprises sketch plan, the photographs of the scene of the accident and the damage to the vehicles, known as the silent evidence, and the investigation carried out by the investigating officer (IO). The IO testified that the accident occurred on the emergency lane (pages 117-118 Supplementary Appeal Record 1) as there were blood and debris of accident, marked as ‘B’ on the sketch plan, that is the emergency lane (page 33 of Supplementary Appeal Record (cross-examination of Plaintiff)), are pure evidence consistent with the version that the point of collision occurred on the emergency lane. [29] In addition, the Plaintiff testified agreeing that he was driving on lane A1-A2 which is the emergency lane (page 54 of Supplementary Appeal Record). The Plaintiff’s admission that he was riding on the emergency lane (page 66 of Supplementary Appeal Record 1) is an admission under section 17 of the Evidence Act 1950 which proves to show that the accident was caused by Plaintiff’s own negligence. This Court viewed that what remains to be a fact is that the collision by the Plaintiff was at the back of the motor lorry which was stationed on the emergency lane. [30] In relation to the issue of the position of the 3rd – 7th Defendants’ vehicle, relying on the authorities of the Federal Court case of Samuel Naik Siang Ting v Public Bank Bhd [2015] 8 CLJ 944 and Dato’ Tan Chin Who v Dato’ Yalumallai @ M Ramalingam s/o V Muthusamy [2016] MLJU 641 which clearly stated that parties are bound by their pleadings, this Court finds that such issue cannot be raised here as this was never pleaded by the Plaintiff. Furthermore, the fact remains that the collision is between the Plaintiff and the 1st – 2nd Defendants of the other appeal case 12B-10-01/2016. [31] It was not disputed that the motor lorry was stopped for inspection by the 3rd – 7th Defendants and the motor lorry was ordered to stop at the emergency lane. This is following the provision of the RTA, section 59(1) Road Transport Act 1987 which is allowed by law and as agreed by the IO during the oral evidence that it was legal to stop on the emergency lane (page 123 Supplementary Appeal Record (1)). Based on section 55 of RTA, “55. Duty to stop vehicles on demand Any person driving a motor vehicle on a road shall stop the motor vehicle on being so required by a police officer in uniform, a traffic warden in uniform or a road transport officer in uniform, and if he fails so to do he shall be guilty of an offence.” [32] This Court viewed that the Plaintiff’s argument to prove the chain of causation of the 3rd – 7th Defendants to the accident must fail for the reasons that it was admitted by Plaintiff that he was riding on the emergency lane which is an offence under Rule 53(1) Road Traffic Rules LN 166/59. Based on the authority of Kek Kee Leng (supra) which was attributed by the Federal Counsel, this Court viewed that had not the Session Judge referred to the Road Traffic Rules and the Federal Court’s decision in Kek Kee Leng (supra) case, she may have arrived at a different finding. [33] In addition, this Court viewed that there was no evidence produced by the Plaintiff that the directive of the 3rd – 7th Defendants to stop the motor lorry of the 1st – 2nd Defendants was not in accordance with section 59(1) RTA (page 93 of the Supplementary Appeal Record 1) and section 55 of RTA. This Court finds that there was no proof by the Plaintiff to link the 3rd – 7th Defendants to the accident. [34] In relation to quantum, I stand to be guided by the Federal Court’s case of Inas Faiqah Mohd Helmi (a child suing through her father and next friend, Mohd Helmi Abdul Aziz) v Kerajaan Malaysia & 2 Ors [2016] 2 CLJ 885, where damages is served as a compensation and not a reward, therefore claim for damages must be proven. Based on the latest specialist medical report of 1.10.2014 (Appeal Record Jilid 1), the Plaintiff is diagnosed to suffer mild head injury and is found to be independent in his daily living activities and does not require any form of institutionalized care or nursing care, to which this Court finds that the award of RM100,000.00 is excessive and should be reduced to RM80,000. For the injury ‘multiple maxillofacial fracture’ based on the Compendium referred and taking into account a global award be used as a basis, the award of RM46,000 is reduced to RM30,000.00. The injury ‘open comminuted fracture’ is retained at RM22,000.00. I find that the claim for special damages for transport cost and medical expenses are without proof and therefore must fail. [35] Pertaining to the claim for loss of future earnings, I have allowed the appeal for the case 12B-10-01/2016 and I too allow the appeal here. I wish to reiterate that there was no evidence that the Plaintiff was employed at the time of accident (pages 62-63 of Supplementary Appeal Record (2) of BA-12B-11-01-2016). In the Supreme Court case of Tan Kim Chuan v Chandu Nair [1991] 1 MLJ 42, it was decided that an injured claimant ought not to get damages in a claim for loss of future earnings or loss of earning capacity unless at the date of the accident he was in fact receiving earnings. Therefore for the prerequisite under section 28(A)(2) of the Civil Law Act 1956 to be applicable, the two limbs must be fulfilled that is there must be evidence that the injured claimant was in good health and was in fact receiving earnings. As there was no evidence adduced on the salary slips to proof Plaintiff’s employment and that Plaintiff’s witness testified without proof of Plaintiff’s employment, claim for loss of earnings must fail: Ngooi Ku Siong & Anor v Aidi Abdullah [1984] 1 CLJ (Rep) 294. [36] In relation to loss of earning capacity, as decided in the other appeal 12B-10-01/2016, I find that based on the latest specialist medical report of 1.10.2014, the Plaintiff is reported to be independent and that his employment prospects may be significantly reduced “at the moment” (by Dr. Ravi Krishnapillai of Sunway Healthcare, Appeal Record Jilid 1) to which I find no real and substantial risk of diminished earning capacity of the Plaintiff. [37] In light of the above reasons, I allow the appeal and set aside the award for the General Damages and Special Damages except for the award for ‘open comminuted fracture’. Dated: 6 November 2017 (ZALITA BINTI DATO’ ZAIDAN) Judicial Commissioner Shah Alam High Court COUNSEL FOR THE APPELLANTS/3rd– 7th DEFENDANTS SAFIYYAH BINTI OMAR Peguam Persekutuan Jabatan Peguam Negara Bahagian Guaman, Aras 6 No. 45, Persiaran Perdana, Presint 4 Pusat Pentadbiran Kerajaan Persekutuan 62100 Putrajaya [Ruj: PN/TR/HQ/SGI/18/53/2015] COUNSEL FOR THE RESPONDENT MOHD SAUFI BIN SAMSUDDIN G. Dorai & Co. Peguamcara dan Peguambela No. 7, Jalan Mawar 1, Taman Mawar 48000 Rawang [Ruj: PGD/KR/01213/14/INS/ak] Tel: 03-6093 6890 Fax: 03-6093 3677 19

Tika 2.6.0

BA-12B-11-01/2016

PERAYU 1. IZUDIN BIN MOHAMED 2. MOHD SALLEH BIN ZAINOL 3. NAZLI BIN ABDUL RAHIM 4. PENGARAH JABATAN PENGANGKUTAN JALAN MALAYSIA 5. KERAJAAN MALAYSIA RESPONDEN 1.TEBANRAJ A/L MARIMUTHU

06/11/2017

YA DATIN ZALITA BINTI DATO' HJ. ZAIDAN (PK)

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DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN, MALAYSIA RAYUAN SIVIL NO.: BA-12B-11-01/2016 ANTARA 1. IZUDIN BIN MOHAMED 2. MOHD SALLEH BIN ZAINOL 3. NAZLI BIN ABDUL RAHIM 4. PENGARAH JABATAN PENGANGKUTAN JALAN MALAYSIA 5. KERAJAAN MALAYSIA … PERAYU-PERAYU DAN 1. TEBANRAJ A/L MARIMUTHU … RESPONDEN (DALAM MAHKAMAH SESYEN DI SELAYANG DALAM NEGERI SELANGOR DARUL EHSAN MALAYSIA GUAMAN NO. A53KJ-98-03/2014 ANTARA TEBANRAJ A/L MARIMUTHU … PLAINTIF DAN 1. JEFFREY BIN MUSA 2. BERSERI CHICKEN TRANDING 1. IZUDIN BIN MOHAMED 2. MOHD SALLEH BIN ZAINOL 3. NAZLI BIN ABDUL RAHIM 4. PENGARAH JABATAN PENGANGKUTAN JALAN MALAYSIA 5. KERAJAAN MALAYSIA … DEFENDAN-DEFENDAN) GROUND OF JUDGMENT Introduction [1] This is an appeal by the Appellants who are the 3rd – 7th Defendants against the Sessions Court’s decision of 8.12.2015 in allowing the Respondent’s claim who is the Plaintiff after a full trial. [2] This appeal was heard together with the other appeal BA-12B-10-01-2016, involving the same road accident alleged by Plaintiff. I shall introduce the parties as they were known at the Sessions Court. The Respondent brought the suit against seven Defendants. In this appeal, the Appellants who are the 3rd, 4th and 5th Defendants are the officers of the Road Transport Department, Malaysia (JPJ). The 6th Defendant and the 7th Defendant are the Director General of the Road Transport Department, Malaysia and Government of Malaysia respectively. The 1st Defendant was driving the motor lorry bearing registration number WUC 5600 belonging to 2nd Defendant that was stopped by the 3rd – 7th Defendants. [3] The Sessions Court had made a finding that the 3rd – 7th Defendants are liable at 80% and the 1st and 2nd Defendants in the other appeal case are liable at 20%. The Plaintiff was found not negligent. [4] There would be cross-reference to the facts and findings in the appeal case BA-12B-10-01-2016 and for ease of reference, I shall refer the parties as they were in the Sessions Court. Facts [5] The relevant factual background giving rise to this appeal may be briefly stated as follows: (a) The Plaintiff is a person of unsound mind not so found by inquisition and is represented by Marimuthu a/l Mariapan. The Plaintiff was the rider of motorcycle bearing registration number WPB 6894 that was involved in the accident. (b) The Plaintiff pleaded (at paragraph 6 of the Amended Statement of Claim, page 5 of Appeal Record) of the accident: “Pada 3hb Disember 2013, Plaintif adalah secara sah menunggang motorsikal bernombor WPB 6894 dan apabila sampai di KM 440.3 Buit Beruntung-Rawang, Selangor Darul Ehsan, motorlori WUC 5600 yang dipandu oleh Defendan Pertama sebagai ejen atau orang gaji atau orang yang memandu dengan keizinan Defendan Kedua yang datang dari arah yang sama sebelah kanan Plaintif secara tiba-tiba telah menukar haluan ke kiri lalu memberhentikan motorlorinya secara mengejut dan tanpa memberi sebarang isyarat setelah ditahan oleh defendan Ketiga, Defendan Keempat, defendan Kelima yang bertindak sebagai ejen atau orang gaji dengan keizinan Defendan Keenam dan/atau Defendan Ketujuh di lebuhraya tersebut yang mempunyai pengawalan, penguasaan dan pembawaan motokar WRD 7645 dengan mewujudkan kacau ganggu di lebuharay tersebut oleh yang demikian, Plaintif terpaksa melanggar motorlori tersebut dan akibat perlanggaran tersebut Plaintiff telah mengalami kecederaan, kerosakan dan kerugian.” (c) The Plaintiff pleaded that the 3rd – 5th Defendants are agents or servants authorized by the 6th Defendant and/or 7th Defendant in controlling, on the authority and driving the vehicle bearing registration number WRD 7645 and had caused the accident due to their negligence and caused nuisance (paragraph 7 of Amended Statement of Claim, page 5 of Appeal Record). The Plaintiff claimed that the accident was caused by 1st and 2nd Defendants negligence due to the signal to stop by the 3rd – 7th Defendants. (d) The 3rd – 7th Defendants pleaded as in their Defence of 16.4.2015 that, “(a) Pada 3 Disember 2013, Defendan Ketiga sehingga Ketujuh dalam tugasan rasmi membuat rondaan disekitar kawasan Bukit Beruntung – Rawang. Pada jam lebih kurang 7.50 sehingga 8.00 malam, Defendan Ketiga sehingga Ketujuh menahan sebuah motorlori bernombor pendaftaran WUC 5600 di km 440.3 Bukit Beruntung – Rawang Lebuhraya Utara Selatan kerana disyaki terlebih muatan; (b) Defendan Ketiga telah memberhentikan kenderaan WRD 7645 di belakang motorlori bernombor pendaftaran WUC 5600 tersebut untuk membuat pemeriksaan ke atas motorlori WUC 5600 tersebut; (c) Defendan Pertama yang memandu motorlori bernombor pendaftaran WUC 5600 tersebut berhenti di lorong kecemasan setelah Defendan Keempat mengarahkan motorlori tersebut berhenti dengan memberikan lampu mata arah kenderaan WRD 7645. (d) Lebih kurang 10 minit kemudian, tiba-tiba terdengar bunyi dentuman dari belakang kenderaan motorlori WUC 5600 tersebut dan Defendan Ketiga sehingga Ketujuh mendapati bahawa Plaintif dan motorsikal bernombor pendaftaran WPB 6894 berada di Bahagian kanan belakang motorlori WUC 5600 tersebut; dan (e) Kemalangan ini berlaku atas kecuaian Plaintif sepenuhnya dengan mengambilkira kemalangan berlaku dilorong kecemasan, keadaan cuaca dan jalan raya pada masa material.” (e) The Sessions Court found the 3rd – 7th Defendants are liable at 80%, the 1st – 2nd Defendant in the appeal case 12B-10-01/2016 are liable at 20% and Plaintiff is not liable and was awarded General Damages and Special Damages. (f) The 3rd – 7th Defendants dissatisfied with the Sessions Court’s decision, filed the Notice of Appeal on 8.12.2015. (g) The 3rd – 7th Defendants filed its Amended Memorandum of Appeal of 15.3.2016 (Supplementary Appeal Record). 3rd – 7th Defendants’ case [6] The learned Federal Counsel for the 3rd – 7th Defendants submitted twelve grounds of appeal on liability and three grounds of appeal on quantum (Amended Memorandum of Appeal of 15.3.2016, pages 54-60 of Supplementary Appeal Record). It was submitted that this Court should interfere with the findings of the trial judge were there was a misdirection of facts and law, relying on a number of authorities, Chung Hwa Ying v Phang Mun Mooi & Anor [1987] 2 MLJ 693; Herchun Singh & Ors v Public Prosecutor [1969] 2 MLJ 209; Borhan bin Hj Daud & Ors v Abd Malek bin Hussin [2010] and Ng Chui Sia v Maimon Bt. Ali [1983] 1 MLJ 110. [7] Focusing on the fact that the accident occurred on the emergency lane, the Federal Counsel submitted that the accident was caused by the Plaintiff’s negligence and/or contributory negligence as evidenced by IO’s investigation (pages 117-118 of Supplementary Appeal Record 1 of case 12B-10-01/2016) and as admitted by the Plaintiff (pages 22 and 29 of Supplementary Appeal Record 2 and page 66 of Supplementary Appeal Record 1 of 12B-10-01/2016). It was submitted that the Session Judge had been erred in facts and law for failure to assess the probable version based on the evidence adduced following the Federal Court case of Yahaya Mohamad v Chin Tuan Nam [1975] 2 MLJ 117. [8] It was submitted by the Federal Counsel that the debris found on the emergency lane is the point of impact of the accident based on the authority Yahaya Mohamad (supra) which was consistently testified by all defendants to the suit by Plaintiff, which proved the Plaintiff’s contributory negligence following the Federal Court case of Kek Kee Leng v Teresa Bong Nguk Chin & Anor [1978] 1 MLJ 61. [9] It was submitted that the Session Judge failed to consider the IO’s testimony and decided that the IO’s investigation was incomplete when IO had then taken statements from 3rd – 7th Defendants and summoned the Plaintiff under Rule 10 of Road Traffic Rules LN 166/1959 (pages 31 – 32 of Supplementary Appeal of Record 2) and relied on the Federal Court case of Yahaya Bin Mat & Anor v Abdul Rahman bin Abu [1982] 1 MLJ 202. [10] In relation to the position of the 3rd – 7th Defendants’ vehicle, the Federal Counsel submitted that the Session Judge had erred in facts and law for inferring the said issue (page 21 of Session Judge’s written judgment) which was not pleaded by the Plaintiff. It was brought to this Court’s attention that the statement on the position of the 3rd – 7th Defendants was raised during the oral evidence. Relying on the authorities that parties are bound by their pleadings, the Federal Counsel averred that the Court cannot rely on a plea borne out of pleadings: Order 18 rule 10(1) Rules of Court 2012; State Government of Perak v Muniandy [1986] 1 MLJ 490, SC and Tan Sri Norian Mai & Anor Suzana Md Aris [2011] 1 LNS 1912. [11] The Federal Counsel submitted that safety measures were adhered in exercising their authority to stop the motor lorry WUC 5600 based on their Standard Operating Procedure and following the provisions of the Road Transport Act 1987 (RTA). The Federal Counsel submitted on section 59(1) of RTA and section 55 of RTA on the duty to stop vehicles on demand and that it is a duty following the Federal Court of Selvaraju A/L Ponniah v Suruhanjaya Perkhidmatan Awam & Kerajaan Malaysia [2007] 7 MLJ 1 which held that the term ‘shall’ stipulated in section 2(a) of the Public Authorities Protection Act 1948 connotes a mandatory meaning. It was submitted that the Session Judge’s finding that the 3rd – 7th Defendants stopping the motor lorry was unjustified and caused the accident. Quantum [12] The Federal Counsel relied on the Specialist Medical Report of 20.5.2014 which reported that the Plaintiff suffered a mild brain injury and averred that the award for mild brain injury Rm100,000.00 by the Session Judge is excessive, following the case of Muhammad Iqmal Daniel B Abdullah & Anor v Tan Choon Chwa & Anor [2012] 1 PIR 8 where the court awarded RM65,000.00 as compensation, arguing that the award for the current case should be reduced to the figure of RM30,000.00. It was submitted that this is also consistent with the evidence of the Plaintiff’s witnesses whom testified that the Plaintiff can walk without the walking stick and can be independent. [13] In relation to the injury ‘multiple maxillofacial fracture with left zygomatic complex and roof and lateral wall of the orbit’ where the Session Judge awarded RM46,000.00, the Federal Counsel relied on the authority Mohd Sukri bin Mohd Kanawai v Md Yahya b Mat [2013] 1 PIR [22], and submitted that the court in that cases awarded RM20,000 and the Federal Counsel submitted for RM18,000.00. [14] For the injury ‘open comminuted fracture distal end right radius’, it was submitted that based on the medical report (Appeal Record Jilid 1, page 128, paragraph 5), which reported that the fracture distal end left radius had united but still having pain and may need operation. It was submitted that the award by the Session Judge of RM22,000.00 should be reduced to RM20,000.00. The Special Damages for treatment and follow up amounting to RM1,000 and Rm500 for medical expenses in Government hospital should be dismissed as they were not proven. [15] For loss of future earnings, it was submitted by the Federal Counsel that there was no proof that Plaintiff was working before the accident and Plaintiff failed to produce any salary slips and no proof of the existence of the company, relying on the authority under section 28A of Civil Law Act 1956 where for loss of future earnings, the Plaintiff must prove that he is in good health based on the case of Ngooi Ku Siong & Anor v Aidi Abdullah [1989] 1 MLJ 31. It was submitted that the award loss of future earnings by the Session Judge should be dismissed or be set aside. Plaintiff’s case [16] Briefly, the learned counsel for the Plaintiff started off with quantum, submitted that the award by the Sessions Court should be retained. On loss of earnings, Plaintiff’s counsel submitted that the Plaintiff was in good health and was looked after by his parents after the accident (page 42 Supplementary Appeal Record 1). With regards to Plaintiff’s employment, the employer testified that the Plaintiff receives a salary of RM50-RM60 per day work and had not been paid salary after the accident (page 46 of Supplementary Appeal Record 1). [17] In relation to the quantum for head injury, the Plaintiff’s counsel submitted that the Plaintiff’s specialist medical report of 20.5.2014 verified Plaintiff’s disabilities due to the accident and relying on a number of authorities where the awards given ranged between RM180,000.00 to RM120,000.00 and averred that the award by the Session Judge for RM100,000.00 is reasonable. [18] In relation to the injury ‘multiple maxillofacial fracture with left zygomatic complex and roof and lateral wall of the orbit’, the Session Judge awarded RM46,000.00 to which Plaintiff submitted that the sum is reasonable considering Plaintiff’s injury is serious. The counsel for the Plaintiff prayed to this Court that the award by the Session Judge be retained. [19] On liability, Plaintiff’s counsel’s contention is that the 3rd – 7th Defendants do not have the right to stop the motor lorry for inspection at the emergency lane. It was averred that the Plaintiff could not recall as to the actual cause of the accident and relied on the IO and the oral evidence of all the defendants in reference to the authorities Husiana Rani Naina Mohamed v Ahmad Nadzri Kamaruddin & Anor [1997] 3 CLJ 500, Kuppusamy L. Sundarajoo v Nithananthan Muniandy [1990] 2 CLJ (Rep) 302 and Dawason v Murex Ltd [1942] 1 All ER 483. It was brought to this Court’s attention that the width of the emergency lane is not sufficient to accommodate the motor lorry for an inspection to be carried out (page 135 Supplementary Appeal Record 1). To this, the counsel pointed out that the IO was unsure of the 3rd - 7th Defendants’ usage of the emergency lane. The Plaintiff’s counsel submitted that it would be reasonable for the 1st Defendant to be liable at 20% for his failure to call the co-driver to testify that the 1st Defendant was taking precaution to ensure that no one would be behind the motor lorry (page 153 Supplementary Appeal Record 1). [20] The Plaintiff’s counsel averred that the IO’s investigation was incomplete for not taking statements from the 3rd-7th Defendants. It was asserted that the accident was caused by the 3rd – 7th Defendants’ instructions to stop the motor lorry without any warning signage by the 3rd – 7th Defendants and the place was not well lighted. In addition, there were contradictory statements about the position of the 3rd – 7th Defendants’ vehicle prior to the occurrence of the accident. [21] The Plaintiff’s counsel also pointed out that the police report made by the 3rd – 7th Defendants was made two hours after the accident, at 22.00hrs at night whereas the 1st Defendant reported earlier, at 21.15hrs at night. The Sessions Court’s Decision [22] The Session Judge had narrated in detail the Plaintiff’s and 3rd – 7th Defendants’ versions as to the occurrence of the accident. The Session Judge’s decision can be found at the Supplementary Record Appeal to which some of the salient points on liability and award were reproduced in the judgment for appeal 12B-10-01/2016. THE COURT’S FINDING [23] Both counsels advanced several arguments on the grounds of the appeal. For the purpose of this judgment, I will be brief, focusing on the main grounds. In appeal case 12B-10-01/2016 which was heard together with this appeal, I allowed the appeal. In this appeal, I hold the same view that the Plaintiff, on the balance of probability, failed to discharge the burden to prove as well as the onus to produce evidence and this Court finds that the Plaintiff is wholly liable. My grounds of judgment follow to which I will start by stating the laws that is the burden of proof following section 101 of the Evidence Act 1950. [24] This suit was brought by the Plaintiff and the burden rests on the Plaintiff to prove its claim, based on the balance of probabilities. The burden of proof as well as the initial onus to prove the claim rest with the Plaintiff and the Plaintiff is to discharge its onus to prove its cause of action against the Defendant as decided by the Federal Court in the case of Letchumanan Chettiar Alagappan @ L. Allagapan, M. Venkatachalam S/O Venkatachalam Chettiar v Secure Plantation Sdn Bhd No. 02-78-10/2014. Based on Letchumanan Chettiar (supra) case, section 101 of the Evidence Act 1950 was referred holding that the burden to establish the case rests throughout on the party who asserts the affirmative of the issue. [25] Both counsels submitted the trite law that an appellate court will be slow to interfere with the findings of facts and judicial appreciation of the facts by the trial judge. The legal position is clear and can be found in a number of great authorities that an appellate court should but rarely interfere with conclusion arrived at by the trial judge who had the advantage of hearing the witnesses unless it is satisfied that the judge has acted on a wrong principle of law or has made a wholly erroneous estimate of damage suffered, either due to an omission to consider relevant materials or admitting irrelevant considerations: Multar Masngud v Lim Kim Chet & Anor [1982] CLJ 237, Federal Court and in the recent decision of the Federal Court in Ming Holdings (M) Sdn Bhd v Syed Azahari Noh Shahabudin & Anor [2010] 6 CLJ 857. [26] This Court viewed that there was a clear misdirection of law and findings by the trial judge and it is incumbent upon this Court to intervene and correct the findings: Tan Kuan Yau v Suhindrimani Angasamy [1985] CLJ (Rep) 323. This was based on the unfolding events leading to the decision of the Session Judge where facts and evidence were not considered following section 101 of the evidence Act 1950 and the Federal Court case of Letchumanan Chettiar (supra). [27] I do not wish to repeat myself and deliberate at length on the misdirection of the trial judge on the burden of proof and the liability following the accident which occurred on the emergency lane. Suffice to say that this court holds the view that in the case where negligence is claimed as the cause of action, prove of negligence will be placed on the Plaintiff and in this case, the Plaintiff failed to discharge its burden and onus to adduce evidence, relying on the authority attributed by the Federal Counsel, the Federal Court case of Kek Kee Leng (supra) and other authorities, Neo Chan Eng v Koh Yong Hoe [1960] 26 MLJ 291, Ng Chui Sia v Maimon b. Ali [1983] 1 MLJ 110 and Mohd Tarmizi Mat Hassan & Anor v Arief Fitri Ahmad Zainuddin [2014] 1 LNS 1005. [28] I wish to reiterate that as the Plaintiff was unable to recall, the evidence submitted before this Court must be scrutinised which comprises sketch plan, the photographs of the scene of the accident and the damage to the vehicles, known as the silent evidence, and the investigation carried out by the investigating officer (IO). The IO testified that the accident occurred on the emergency lane (pages 117-118 Supplementary Appeal Record 1) as there were blood and debris of accident, marked as ‘B’ on the sketch plan, that is the emergency lane (page 33 of Supplementary Appeal Record (cross-examination of Plaintiff)), are pure evidence consistent with the version that the point of collision occurred on the emergency lane. [29] In addition, the Plaintiff testified agreeing that he was driving on lane A1-A2 which is the emergency lane (page 54 of Supplementary Appeal Record). The Plaintiff’s admission that he was riding on the emergency lane (page 66 of Supplementary Appeal Record 1) is an admission under section 17 of the Evidence Act 1950 which proves to show that the accident was caused by Plaintiff’s own negligence. This Court viewed that what remains to be a fact is that the collision by the Plaintiff was at the back of the motor lorry which was stationed on the emergency lane. [30] In relation to the issue of the position of the 3rd – 7th Defendants’ vehicle, relying on the authorities of the Federal Court case of Samuel Naik Siang Ting v Public Bank Bhd [2015] 8 CLJ 944 and Dato’ Tan Chin Who v Dato’ Yalumallai @ M Ramalingam s/o V Muthusamy [2016] MLJU 641 which clearly stated that parties are bound by their pleadings, this Court finds that such issue cannot be raised here as this was never pleaded by the Plaintiff. Furthermore, the fact remains that the collision is between the Plaintiff and the 1st – 2nd Defendants of the other appeal case 12B-10-01/2016. [31] It was not disputed that the motor lorry was stopped for inspection by the 3rd – 7th Defendants and the motor lorry was ordered to stop at the emergency lane. This is following the provision of the RTA, section 59(1) Road Transport Act 1987 which is allowed by law and as agreed by the IO during the oral evidence that it was legal to stop on the emergency lane (page 123 Supplementary Appeal Record (1)). Based on section 55 of RTA, “55. Duty to stop vehicles on demand Any person driving a motor vehicle on a road shall stop the motor vehicle on being so required by a police officer in uniform, a traffic warden in uniform or a road transport officer in uniform, and if he fails so to do he shall be guilty of an offence.” [32] This Court viewed that the Plaintiff’s argument to prove the chain of causation of the 3rd – 7th Defendants to the accident must fail for the reasons that it was admitted by Plaintiff that he was riding on the emergency lane which is an offence under Rule 53(1) Road Traffic Rules LN 166/59. Based on the authority of Kek Kee Leng (supra) which was attributed by the Federal Counsel, this Court viewed that had not the Session Judge referred to the Road Traffic Rules and the Federal Court’s decision in Kek Kee Leng (supra) case, she may have arrived at a different finding. [33] In addition, this Court viewed that there was no evidence produced by the Plaintiff that the directive of the 3rd – 7th Defendants to stop the motor lorry of the 1st – 2nd Defendants was not in accordance with section 59(1) RTA (page 93 of the Supplementary Appeal Record 1) and section 55 of RTA. This Court finds that there was no proof by the Plaintiff to link the 3rd – 7th Defendants to the accident. [34] In relation to quantum, I stand to be guided by the Federal Court’s case of Inas Faiqah Mohd Helmi (a child suing through her father and next friend, Mohd Helmi Abdul Aziz) v Kerajaan Malaysia & 2 Ors [2016] 2 CLJ 885, where damages is served as a compensation and not a reward, therefore claim for damages must be proven. Based on the latest specialist medical report of 1.10.2014 (Appeal Record Jilid 1), the Plaintiff is diagnosed to suffer mild head injury and is found to be independent in his daily living activities and does not require any form of institutionalized care or nursing care, to which this Court finds that the award of RM100,000.00 is excessive and should be reduced to RM80,000. For the injury ‘multiple maxillofacial fracture’ based on the Compendium referred and taking into account a global award be used as a basis, the award of RM46,000 is reduced to RM30,000.00. The injury ‘open comminuted fracture’ is retained at RM22,000.00. I find that the claim for special damages for transport cost and medical expenses are without proof and therefore must fail. [35] Pertaining to the claim for loss of future earnings, I have allowed the appeal for the case 12B-10-01/2016 and I too allow the appeal here. I wish to reiterate that there was no evidence that the Plaintiff was employed at the time of accident (pages 62-63 of Supplementary Appeal Record (2) of BA-12B-11-01-2016). In the Supreme Court case of Tan Kim Chuan v Chandu Nair [1991] 1 MLJ 42, it was decided that an injured claimant ought not to get damages in a claim for loss of future earnings or loss of earning capacity unless at the date of the accident he was in fact receiving earnings. Therefore for the prerequisite under section 28(A)(2) of the Civil Law Act 1956 to be applicable, the two limbs must be fulfilled that is there must be evidence that the injured claimant was in good health and was in fact receiving earnings. As there was no evidence adduced on the salary slips to proof Plaintiff’s employment and that Plaintiff’s witness testified without proof of Plaintiff’s employment, claim for loss of earnings must fail: Ngooi Ku Siong & Anor v Aidi Abdullah [1984] 1 CLJ (Rep) 294. [36] In relation to loss of earning capacity, as decided in the other appeal 12B-10-01/2016, I find that based on the latest specialist medical report of 1.10.2014, the Plaintiff is reported to be independent and that his employment prospects may be significantly reduced “at the moment” (by Dr. Ravi Krishnapillai of Sunway Healthcare, Appeal Record Jilid 1) to which I find no real and substantial risk of diminished earning capacity of the Plaintiff. [37] In light of the above reasons, I allow the appeal and set aside the award for the General Damages and Special Damages except for the award for ‘open comminuted fracture’. Dated: 6 November 2017 (ZALITA BINTI DATO’ ZAIDAN) Judicial Commissioner Shah Alam High Court COUNSEL FOR THE APPELLANTS/3rd– 7th DEFENDANTS SAFIYYAH BINTI OMAR Peguam Persekutuan Jabatan Peguam Negara Bahagian Guaman, Aras 6 No. 45, Persiaran Perdana, Presint 4 Pusat Pentadbiran Kerajaan Persekutuan 62100 Putrajaya [Ruj: PN/TR/HQ/SGI/18/53/2015] COUNSEL FOR THE RESPONDENT MOHD SAUFI BIN SAMSUDDIN G. Dorai & Co. Peguamcara dan Peguambela No. 7, Jalan Mawar 1, Taman Mawar 48000 Rawang [Ruj: PGD/KR/01213/14/INS/ak] Tel: 03-6093 6890 Fax: 03-6093 3677 19

Tika 2.6.0

Guaman No: D5-22-592-2009

PLAINTIF MISC Berhad DEFENDAN 1. Market Asia Link Sdn Bhd (No. Syarikat: 224777-W) 2. Yahya Mohd Khalid

Company - Contracts - lifting the corporate veil of the company - whether the Managing Director can in law be regarded as the alter ego of the Company - whether the 2nd Defendant was in full control of the 1st Defendant’s finance and operations - whether the Managing Director should be personally liable for the amount owed by the Company

06/11/2017

YA DATUK HAJJAH AZIZAH BINTI HAJI NAWAWI

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=9c571ce4-e5f2-415f-ac43-517578b91981&Inline=true

DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR (BAHAGIAN DAGANG) GUAMAN NO: D5 – 22 – 592 – 2009 ANTARA MISC BERHAD … PLAINTIF DAN 1. MARKET ASIA LINK SDN BHD (No. Syarikat: 224777-W) 2. YAHYA MOHD KHALID … DEFENDAN-DEFENDAN Grounds of Judgment Azizah Nawawi, J: Introduction [1] The plaintiff’s (“MISC”) claim against the defendants is for the sum of USD8,550,684.32. MISC’s claim against the 1st defendant (“MAL”) arises out of the contracts entered between the parties. [2] MISC claim against the 2nd defendant (“Yahya”) is that Yahya, as the alter ego of MAL, should be personally responsible for the said amount. [3] Summary judgment was entered against MAL in the sum of USD8,550,684.32. Subsequently, MAL was wound up. [4] This trial proceeded against Yahya. At the end of the trial, this court finds that MISC has establish its case against Yahya on the balance of probability and judgment was entered against Yahya. The Salient Facts [5] The plaintiff is a public listed company, incorporated in Malaysia with its core business is in the shipping industry. [6] The 1st defendant, Market Asia Ling Sdn Bhd is a private limited company established in 1991. It is a family-owned and family-run business. The 2nd defendant, Yahya Mohd Khalid was at all material times the Managing Director and a majority shareholder of MAL. The rest of MAL’s shares were owned by his wife and two (2) sons. [7] MAL had entered into various fixed term and ad hoc contracts with MISC for the supply of bunker since 2005. Bunker is essentially marine fuel oil for use in ships. MAL would purchase the bunkers from various suppliers around the world to supply to ships owned, operated or chartered by MISC. The terms and conditions of the fixed term contracts, inter alia, are as follows: (i) that MAL undertook to supply and deliver MISC’s requirement of bunkers at the time and for the quantity as MISC may prescribe in an order issued from time to time; (ii) that payment for the bunkers shall be made within 30 days of MISC receiving MAL original invoice and supporting documents evidencing receipt by MISC’s vessels of the bunkers; (iii) that MAL shall be liable to and indemnify MISC against any loss or damages sustained, costs, fines, penalties and/or expenses incurred or any liabilities incurred as a result of or in connection with the performance of the contract to the extent that such loss, damages, costs, fines and expenses are caused by or attributable to MAL’s act or omission; and (iv) that any provision pertaining to promises by one party to indemnify the other or to limitations of liability shall survive any termination, repudiation or other cancellations of the contract. [8] On or around November 2008, MISC received demands and threats from various bunker suppliers, including Avin International Bunkers Supply SA, Bakri International Energy Co. Ltd and O.W Bunker & Trading A/S. They claimed that MAL never paid for the bunker that it purchased which were supplied to MISC vessels. MISC’s vessels were in some instances, arrested. [9] MISC was thus constrained to pay these bunker suppliers although in most of the cases, it had already paid MAL for these purchases. [10] Yahya had held meetings with MISC and signed letters agreeing to MISC paying the affected suppliers directly. Therefore, a sum of USD 8,550,684.32 was disbursed to these suppliers. MISC was however never reimbursed by MAL for these payments. [11] MISC then commenced this action to secure reimbursement for the amounts that it had paid the suppliers of the bunkers. On 22.12.2009, MISC obtained a summary judgment against MAL. MAL’s appeal was dismissed by the Court of Appeal. [12] MAL is now in liquidation. At the time when MISC secured a Mareva Order on 1.4.2009, MAL only had RM120,104.98 in its bank accounts. It was also ascertained that another sum of RM97,664.31 had been removed on 4.3.2009, just prior to the said order, leaving only RM22,440.67 in MAL’s bank accounts. The judgment sum therefore remains unsatisfied. [13] The claim against Yahya is on the basis that at all material times, MAL was under the absolute and effective control and/or direction of Yahya, and that Yahya was the alter ego of MAL. Hence, the plaintiff is seeking an order from this court to lift MAL’s corporate veil in order to do justice between the parties. The Findings of the Court [14] Bearing in mind that the core issue in this case is whether MAL’s corporate veil should be lifted in order for Yahya be made personally liable for the judgment sum of USD 8,550,684.32, this court must first ascertain the principles applicable in lifting the corporate veil. [15] The plaintiff referred to the Supreme Court case of Aspatra Sdn Bhd & 21 Ors v Bank Bumiputra Malaysia Bhd & Anor [1988] 1 MLJ 97, where it was held that: “…the court would generally lift the corporate veil in order to do justice particularly when an element of fraud is involved although the consequences of lifting the veil would vary according to the circumstances of each case.” [16] The plaintiff also referred to the case of Golden Vale Golf Range & Country Club Sdn Bhd v Hong Huat Enterprise Sdn Bhd (Airport Auto Centre Sdn Bhd & Anor as third parties) [2005] 5 MLJ 64, where the Court stated as follows: “In Abdul Manaf, Anuar J (later CJ(M)) explained at pp 2111 to 2112 that because a company has a legal personality and a separate legal entity of its own distinct from its member or directors, there have been and will be instances where its members or controllers hide behind its corporate entity or are otherwise hidden from the view or shielded by what has come to be described as its corporate veil to manipulate it fraudulently for unjust personal gains, and that in such an exceptional case, the court, in order to do justice, will not hesitate to lift the corporate veil by cutting across the legal boundary of corporate structure in order to see the faces and discover the true identities of these members or controllers who use the company as an extension of themselves and make them personally liable or responsible for the debts and liabilities of the company where the evidence justifies such a remedy.” (emphasis added) [17] The plaintiff also submits on the Court of Appeal decision in Mayban Trustees Bhd v CIMB Bank Bhd and other appeals [2012] 6 MLJ354 where the court had lifted the corporate veil of the company to make the majority shareholder responsible for the acts of the company.In arriving at its decision, the court made the following findings: (i) “First, it was all so evident that Rafie and Murnina absolutely ruled the roost.” (ii) “…all major decisions of Pesaka were taken by Rafie, (ii) that the only directors of the Amdac Group of Companies was Rafie and Murnina and Murnina practically owned the entire equity of the Amdac Group of Companies…” (iii) “Rafie testified that whatever belonged to him belonged to Pesaka, that he and Murnina owned nearly 90% of Pesaka and that he regarded Pesaka as his personal property and or as his family company.” (iv) “The directing minds of Pesaka and the Amdac Group were Rafie and Murnina who had absolute control of those companies at all material times.” [18] Therefore, from the above cases, it is common ground that the courts will only lift the corporate veil of the company if the following elements are established: (i) that the individual concerned has absolute or effective control over the company and is its directing mind; and (ii) that where special circumstances exist in order to do justice including circumstances where the company is used for fraudulent purposes for personal gain. [19] As such, premised on the above cases, the parties have agreed to the following issues to be tried: (i) Whether the 1st Defendant (MAL) was at all material times under the control and/or direction of the 2nd Defendant (Yahya) such that, Yahya can in law be regarded as the alter ego of the 1st Defendant? (ii) Whether in the circumstances of this case, the corporate veil of MAL ought to be lifted and Yahya be made personally liable for the amount owed by MAL to the plaintiff in the sum of USD8,550,684.32 or its equivalent in Ringgit Malaysia plus interest and costs; and (iii) whether Yahya had knowledge of and/or was directly or indirectly involved in the fraudulent activities and/or conduct in the affairs of MAL. Issue (i) [20] It is not in dispute that Yahya established MAL in 1991. It is also not in dispute that all the shares in MAL are owned by Yahya’s immediate family. Yahya is the largest shareholder of MAL, holding 439,200 or 54.9% shares, while the rests of the shares are owned by his immediate family, namely: (i) Dannio bin Yahya (son) 240,000 (30%) (ii) Shun YuetMui @ Dania bte Abdullah(wife) 72,000 (9%) (iii) Jannio Shun bin Yahya (son) 48,800 (6.1%) [21] Yahya had always been the Managing Director of MAL. The other directors of MAL are Yahya’s wife, his son and Nordin Sulaiman, the person who only deals with public relations. Yahya’s wife however, was not involved in the management of MAL as she was a housewife, whilst his son was only 19 years old when he was appointed a director. In his evidence, Yahya agreed that he is the person having control over MAL and its business activities: “RES Jadi di dalam hal keadaan ini En Yahya, orang yang membuat atau individu yang membuat keputusan-keputusan di dalam syarikat Market Asia Link dan mengarah hala tujuans yarikat sudah tentu EnYahya sendiri, betul? YAHYA Betul.” (see pg 393/NOP) [22] Yahya also employed several of his family members to work at MAL. Siti Hajar, who was the Head of Operations and Special Assistant to the Managing Director, is Yahya’s sister. Mohd Yazid Mohd Khalid, who was the Head of Technical and Operation, is Yahya’s brother. Mohd Syukor Mohd Khalid, who was the Operation Executive, is also Yahya’s brother. As such, I agree with the plaintiff that Yahya helmed MAL with his immediate family members in key positions. [23] With regards to MAL’s finances, Yahya signed the statutory accounts as the director primarily responsible for the financial management of MAL. He was given daily reports of the cash flow of MAL from the operations side. Yahya is also the sole signatory for all of MAL’s bank accounts. In fact, almost all of the cheques that were disclosed by Affin Bank pursuant to the discovery order dated 2.3.2016 contained Yahya’s signature. Therefore, I am of the considered opinion that in respect of the financial aspects of MAL, Yahya was in absolute control. [24] Yahya also gave evidence that MISC was MAL’s only client. Yahya was the person who had met with the management of MISC to secure and maintain MISC as a client of MAL. Yahya was also the person who had personally met with the senior officers from Affin Bank to secure the necessary credit facilities for MAL. In fact, when MAL underwent a crisis, it was Yahya who personally met the bankers and MISC’s representatives in an attempt to resolve the matter after the demands from the bunker suppliers surfaced. It was Yahya who had signed the letters agreeing to MISC paying the affected suppliers directly. [25] Therefore, I am of the considered opinion and I agree with the plaintiff that Yahya was indeed in control of all material aspects of MAL’s affairs. The evidence of the plaintiff’s witnesses who had personally dealt with MAL said that only Yahya acted for MAL in their meetings and that Yahya is the one in control of MAL who made all the decisions relating to the company. [26] In fact, Yahya himself does not deny being in control of MAL. “RES Dan Lembaga Pengarah bagi Market Asia Link juga dikuasai oleh En Yahya dan ahli-ahli keluarga EnYahyaya? YAHYA Betul. RES Semenjak Market Asia Link ditubuhkan pada tahun 1991, En Yahya seorang sahaja yang menjadi Pengarah Urusan Syarikat Market Asia Link, betul? YAHYA Betul. RES Jadi En Yahya sentiasa mengetuai ahli atau mengetuai Lembaga Pengarah Market Asia Link, betul? YAHYA Waktu itu, betul.” (see page 388/NOP) “RES Jadihal-hal kawalan mengenai operasi dan pengurusan bukan PR ya hal-hal operasi dan pengurusan Market Asia Link adalah di bawah kawalan En Yahya? YAHYA Betul.” (see page 391/NOP) [27] Therefore, having considered all the evidence before this court, I find that MAL, which was established by Yahya, was under the full control of Yahya. Yahya was also in full control of MAL’s finance and operations. Yahya is the sole signatory to all of MAL accounts. Yahya had secured the contract with MISC as well as the credit facilities with Affin Bank. As such, I find that MAL was under the control and/or direction of Yahya and that Yahya was the alter ego of MAL. Issues (ii) and (iii) [28] The circumstances where the corporate veil of the company can be lifted to attach the liability of the company to its directors can be seen from the following cases. In the case of Law Kam Loy v. Boltex Sdn Bhd & Ors [2005] 3 CLJ 355, the Court of Appeal underlined the principle as follows: “In my judgment, in the light of the more recent authorities such as Adams v. Cape Industries Plc, it is not open to the courts to disregard the corporate veil purely on the ground that it is in the interests of justice to do so. It is also my respectful view that the special circumstances to which Lord Keith referred include cases where there is either actual fraud at common law or some inequitable or unconscionable conduct amounting to fraud in equity”. (emphasis added) [29] The ratio in Law Kam Loy was accepted with approval by the Federal Court in the case of Solid Investments Ltd v. Alcatel Lucent (Malaysia) Sdn Bhd [2014] 3 CLJ 73, whereby the Court clearly stated that: “[46]  We agree with the Court of Appeal that the learned trial judge erred in lifting the corporate veil of the defendant to make the defendant liable to account to the plaintiff. The reason given by the learned trial judge was that it was in the interest of justice to prevent associated companies of Alcatel Group including the defendant from "darting in and out with the corporate labyrinth" before the court. We also agree with the Court of Appeal that there must be evidence either of actual fraud or some conduct amounting to fraud in equity to justify the lifting of corporate veil. The position of the law on this subject had been clearly stated by Gopal Sri Ram JCA (as he then was) in Law Kam Loy v. Boltex Sdn Bhd [2005] 3 CLJ 355 at p. 362…” (emphasis added) [30] In the case of Takako Sakao v. Ng Pek Yuen & Anor [2010] 1 CLJ 381, Gopal Sri Ram FCJ (as he then was) had elaborated the principle to be as follows: “(11)  Where there is fraud, an agency relationship or if the company is a myth or fiction, the doctrine of corporate personality will not insulate the shareholders or directors from being assailed directly. A litigant who seeks the court's intervention to pierce the corporate veil must establish special circumstances showing that the company in question is a mere facade concealing the true facts. Fraud includes equitable fraud. However, an intention to deceive - which is a necessary ingredient in common law fraud - is not an ingredient of equitable fraud, which is essentially unconscionable conduct in circumstances where there exists or is implied or imposed a relationship of trust or confidence. The instant case was a case in which there were special circumstances showing that the second respondent company was a mere facade concealing the true facts. The trial judge was therefore correct in holding the second respondent accountable to the appellant for the trust property….” (emphasis added) [31] However, it is the contention of the defendants that in order to lift the corporate veil, the latest test is premised on the Federal Court decision in Gurbachan Singh Bagawan Singh & Ors v Vellasamy Pennusamy & Other Appeals [2015] 1 CLJ 719, where the court held that the court will lift the corporate veil in the following circumstances: (i) if such corporation was set up for fraudulent purposes; or (ii) where such corporation was established to avoid an existing obligation; or (iii) or even to prevent the abuse of corporate personality. [32] The defendant relied on ground (i) and (ii) in Gurbachan’s case and submits that: (i) that MAL was not established for fraudulent purposes as MAL was performing very well before MISC entered into a contractual relationship with MAL. MISC had made an assessment on MAL and found that MAL had satisfied all the necessary requirements before contracting MAL to supply the bunkers; (ii) that MAL was not established to avoid an existing obligation as MAL had a successful contractual relationship before the problems came about in 2008, which Yahya blamed on the increase in the price of crude oil; and (iii) that the defendant did not commit fraud against the plaintiff, MISC, whether in equity or common law. This is because the fraud of RM99 million was committed against Affin Bank. It was Affin Bank that lost the RM99 million and Affin Bank had sued MAL and secured judgment against MAL and its directors; and (iv) that there was no evidence that Yahya had falsified or was involved in the falsifying of the 46 bunkers delivery notes. [33] I am of the considered opinion there is no issue here that MAL was set up for fraudulent purpose nor was it established in order to avoid an existing obligation. [34] The issue here is on ground (iii) of Gurbachan’s case, that is, whether the corporate veil should be uplifted in order to prevent the abuse of corporate personality. [35] In Gurbachan’s case, on issue (iii), that is to prevent the abuse of corporate veil, the Federal Court has referred to the decision of the House of Lord in Prest v. Prest and others [2013] UKSC 34, where Lord Sumption said as follows: “34. These considerations reflect the broader principle that the corporate veil may be pierced only to prevent the abuse of corporate legal personality. It may be an abuse of the separate legal personality of a company to use it to evade the law or to frustrate its enforcement …. 35. I conclude that there is a limited principle of English law which applies when a person is under an existing legal obligation or liability or subject to an existing legal restriction which he deliberately evades or whose enforcement he deliberately frustrates by interposing a company under his control. The court may then pierce the corporate veil for the purpose, and only for the purpose, of depriving the company or its controller of the advantage they would otherwise have obtained by the company’s separate legal personality.” [36] The above principle is consistent with the decision in the case of Takako Sakao case, where the Federal Court held that to uplift the corporate veil, the plaintiff must establish special circumstances showing that the company in question is a mere façade concealing the true facts. [37] Therefore the issue is still whether there are any special circumstances where there are “actual fraud at common law or some inequitable or unconscionable conduct amounting to fraud in equity” showing that MAL is a mere façade concealing the true facts. [38] It is not in dispute that there were fraudulent activities in MAL. There was falsification of the documents submitted to Affin Bank by MAL. MAL had fabricated 46 purported bunker transactions. It created 46 fictitious transactions between MAL and MISC. Changes were made to various documents by employees of MAL. [39] With the falsified documents, MAL had withdrawn funds from the credit facilities that MAL had with Affin Bank. The sum that was involved was over RM99 million. The falsification induced Affin Bank to release this sum into MAL’s bank account. The evidence before this court is that MAL had been falsifying documents for at least the last 2 years. This was based on the testimony of Yahya’s own witness, DW-2: “RES Pemalsuan dokumen-dokumen di syarikat Market Asia Link Puan, permalsuan tersebut sebenarnya bermula lebih awal lagi, ya, daripada tahun lebihkurang 2005. Betulkan? SUHANA Saya tak pasti. RES Tak pasti, ya? Tapi boleh Puan sahkan selain daripada pemalsuan dalam tahun 2008, terdapat pemalsuan sebelum, tahun-tahun sebelum ini? SUHANA Ya. RES Betul, ya? SUHANA Betul. RES Betul. Boleh Puan tolong beri anggaran kepada Mahkamah berapa tahun sudah pemalsuan dilakukan? Anggaran, ya, Puan? SUHANA Anggaran. Dalam dua tahun lebih.” (see: page 317NOP) [40] Yahya did not dispute the fraudulent activities in MAL. However, he takes the position that he was not involved in the fraud as the falsification of the 46 bunker transactions were committed on the instruction of his sister, Siti Hajar without the knowledge of Yahya. Therefore, Yahya submits that since he had not committed the fraud and was not involved in the fraudulent activities, then this court cannot pierce MAL’s corporate veil. [41] However, it is not in dispute that Yahya knew from MAL’s financial statements that MAL was suffering losses in 2008.Based on its Financial Statement which Yahya had signed, MAL’s net loss for the financial year in 2008 was RM123,207,757.00, and MAL only made a net profit of RM329,742.00 in 2007. [42] Yahya was also aware of MAL’s cash flow problems in 2008. Under cross examination, Yahya said this: ”RES: Dan pada tahun selepasnya iaitu pada tahun 2008, En Yahya, merupakan tahun di mana syarikat Market Asia Link mengalami masalah kewangan, betul? YAHYA: Betul. … RES: Jadi pada tahun 2008, En Yahya, selepas harga bunkers naik, aliran wang memang tidak mencukupi untuk membayar pembekal-pembekal. Betul? YAHYA: Ya.” (see pg 437-438 NOP) [43] Yahya was also aware that Affin Bank had refused to approve MAL’s request for additional credit facilities. At the same time, Yahya was receiving daily cash flow reports regarding MAL’s finances from its employees. As such, Yahya must have known that substantial sums (over RM99 million) were finding its way into MAL’s Account although there were no transactions to support these incoming funds. This can be seen from his evidence: “RES: Soalan saya, semasa En Yahya membuat bayaran RM99 juta kepada pembekal-pembekal, En Yahya tahu syarikat Market Asia Link mengalami masalah aliran wang dan oleh itu sebenarnya tidak cukup untuk membayar pembekal-pembekal. YAHYA: Ok, betul.” (see page 445 NOP) [44] Yahya simply knew that legitimate funds were simply insufficient. “RES: Bermakna En Yahya tahu semasa membuat bayaran RM99 juta itu, wang masuk yang sah tidak mencukupi untuk membuat bayaran, betul? Faham maksud? Betul? YAHYA: Betul. Kerana minyak naik mendadak.” (see page 447 NOP) [45] Therefore, I find that the necessary inference from these facts is that it is highly improbable that Yahya had no inkling that MAL’s employees were falsifying documents to enable extra funds to flow into MAL’s accounts. The employees themselves had nothing to gain from these unlawful acts. [46] Yahya was the one who signed all the documents that were falsified on MAL’s part. Yahya was also the one who had the most to lose if MAL was unable to continue its business as a going concern. This large scale falsification simply could not have been committed by MAL without the authorisation or consent of Yahya, given the control that he had over MAL. [47] A similar inference was upheld by Arifin Zakaria JCA (as he then was) in Victor Cham & Anor v Loh Bee Tuan [2006] 5 MLJ 359 at 366. The Judge found that the fraudulent misrepresentation could not have been committed by the first defendant without the authorization or consent of the first appellant, who was not only the director and secretary of the first defendants but also held a substantial shareholding in the first defendant company and was in complete control of the company. [48] Therefore, having considered the evidence, I am of the considered opinion that it cannot be said that in view of the magnitude of the fraudulent activities spanning over two years, Yahya is ignorant of the same. Since Yahya is the substantial shareholder of MAL and having complete control over MAL, it is highly improbable that Yahya has no knowledge of the fraudulent activities that was going on for more than 2 years by his sister and the employees of MAL. As such, I find that the fraudulent activities in MAL could not have been committed without the authorization and/or consent and/or knowledge of Yahya. [49] Despite operating on the red, MAL’s financial statements showed that a sum of over RM33 million had been extended as ‘loan to directors’. From the notation in the statements, these ‘loans’ had no fixed term of repayment and were interest free. And during trial, the evidence clearly shows that when these RM33 millions were paid to Yahya, that there were no loan agreements, that these loans were not supported by adequate documentation and that Yahya had not repaid any part of this sum at all. [50] As such, I agree with the plaintiff that under the guise of the ‘loans to directors’, Yahya is simply treating MAL’s monies as his own. And that despite knowing MAL’s financial difficulties and its inability to pay its creditors, Yahya never repaid a single cent of the money he took from MAL’s account under the guise of a ‘loan’. This resulted in MISC having to pay MAL’s suppliers after MAL was being laden with the current substantial debt. [51] Yahya even admitted that part of the monies from Affin Bank, to be used for the bunkers, was used by Yahya for his personal use: “RES …Jadi En Yahya wang dikeluarkan daripada akaun 819 dan digunakan untuk perbelanjaan peribadi En Yahya betul? YAHYA Betul.” RES Betul ya. Dan daripada akaun 819 init ermasuk wang yang dibayar oleh Affin Bank selaras dengan kemudahan kredit yang dipohon oleh Market Asia Link betul? YAHYA Betul. RES Jadi sebahagian daripada wang yang telahpun di masukkan ke dalam akaun 819 ini oleh Affin Bank digunakan untuk perbelanjaan peribadi EnYahya juga. YAHYA Betul.” (see pgs 407-408 NOP) [52] Therefore, I agree with the plaintiff that Yahya was treating MAL’s funds like his own. This included the funds that were paid by Affin Bank pursuant to the credit facilities that were supposed to be used to pay MAL’s bunker suppliers.The payments included payments for his credit cards, his son’s school fees and cars. [53] Further, given MAL’s financial statements in 2007 and 2008, it was experiencing cash flow problems and was in financial difficulty at the material time. The balance sheets show that MAL had no reasonable prospect of paying its debts at that time. Notwithstanding this, Yahya continued to purchase bunker that MAL could not afford to pay. [54] Therefore, I am of the considered opinion that this is a case where there is an abuse of corporate legal personality. Yahya had made use of MAL’s funds for his own personal benefit and then hide behind MAL’s corporate legal personality. [55] Another issue raised by Yahya is that MISC is not the victim of the fraud. The fraud was committed on Affin Bank and Affin Bank had since secured a judgment against MAL and it directors. [56] From the authorities cited, there is nothing to indicated that fraud must be committed on MISC, before MISC can commence this action. The Supreme Court in Aspatra Sdn Bhd (supra) has held that “the court would generally lift the corporate veil in order to do justice particularly when an element of fraud is involved…”. What is pertinent is the elements of fraud. In the present case, even though the fraud was not committed on MISC directly, but the fraudulent acts had affected MISC, directly or indirectly. [57] It is not in dispute that it was Yahya who signed letters authorising MISC to make payments directly to the bunker suppliers and are to be reimbursed by MAL. But MAL could not reimburse MISC as Yahya had used MAL’s funds for his own personal use. About RM33 millions of MAL’s funds had been taken out as ‘director’s loan’, which are not supported by documents with no repayments. As such, the effect of the fraud led to the financial collapse of MAL, which resulted, inter alia, in MISC having to take over the contractual responsibilities of MAL and to pay for the bunkers directly and thereby incurring loss in the sum of USD8,550,684.32. [58] In the factual circumstances of this case, I am of the considered opinion that Yahya, being the founder of MAL is also the directing mind and will of MAL. As such, the corporate veil of MAL ought to be lifted and that Yahya should be made personally liable for the amount owed by MAL to MISC in the sum of USD8,550,684.32. [59] With regards to Yahya’s claim for damages incurred due to the Mareva Injunction, there is no basis for such claim as the granting of the injunction was affirmed by the Court of Appeal and Yahya’s application for leave to the Federal Court was refused. In any event, I am also of the considered opinion that the same is not supported by the evidence. [60] Premised on the reasons enumerated above, I find that the plaintiff has proven its case on the balance of probability and the plaintiff’s claim against Yahya is allowed with costs. (AZIZAH BINTI HAJI NAWAWI) JUDGE HIGH COURT MALAYA (Appellate and Special Powers Division 2) KUALA LUMPUR Dated: 6 November 2017 For the Plaintiff : Raja Eileen Soraya Messrs Raja Darryl & Loh Kuala Lumpur. For the 2nd Defendant : Yusfarizal Yusoff and Mohd Zaid Bin Daid Messrs Yusfarizal Aziz & Zaid Kuala Lumpur. 23

Tika 2.6.0

Guaman No: D5-22-592-2009

PLAINTIF MISC Berhad DEFENDAN 1. Market Asia Link Sdn Bhd (No. Syarikat: 224777-W) 2. Yahya Mohd Khalid

Company - Contracts - lifting the corporate veil of the company - whether the Managing Director can in law be regarded as the alter ego of the Company - whether the 2nd Defendant was in full control of the 1st Defendant’s finance and operations - whether the Managing Director should be personally liable for the amount owed by the Company

06/11/2017

YA DATUK HAJJAH AZIZAH BINTI HAJI NAWAWI

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=9c571ce4-e5f2-415f-ac43-517578b91981&Inline=true

DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR (BAHAGIAN DAGANG) GUAMAN NO: D5 – 22 – 592 – 2009 ANTARA MISC BERHAD … PLAINTIF DAN 1. MARKET ASIA LINK SDN BHD (No. Syarikat: 224777-W) 2. YAHYA MOHD KHALID … DEFENDAN-DEFENDAN Grounds of Judgment Azizah Nawawi, J: Introduction [1] The plaintiff’s (“MISC”) claim against the defendants is for the sum of USD8,550,684.32. MISC’s claim against the 1st defendant (“MAL”) arises out of the contracts entered between the parties. [2] MISC claim against the 2nd defendant (“Yahya”) is that Yahya, as the alter ego of MAL, should be personally responsible for the said amount. [3] Summary judgment was entered against MAL in the sum of USD8,550,684.32. Subsequently, MAL was wound up. [4] This trial proceeded against Yahya. At the end of the trial, this court finds that MISC has establish its case against Yahya on the balance of probability and judgment was entered against Yahya. The Salient Facts [5] The plaintiff is a public listed company, incorporated in Malaysia with its core business is in the shipping industry. [6] The 1st defendant, Market Asia Ling Sdn Bhd is a private limited company established in 1991. It is a family-owned and family-run business. The 2nd defendant, Yahya Mohd Khalid was at all material times the Managing Director and a majority shareholder of MAL. The rest of MAL’s shares were owned by his wife and two (2) sons. [7] MAL had entered into various fixed term and ad hoc contracts with MISC for the supply of bunker since 2005. Bunker is essentially marine fuel oil for use in ships. MAL would purchase the bunkers from various suppliers around the world to supply to ships owned, operated or chartered by MISC. The terms and conditions of the fixed term contracts, inter alia, are as follows: (i) that MAL undertook to supply and deliver MISC’s requirement of bunkers at the time and for the quantity as MISC may prescribe in an order issued from time to time; (ii) that payment for the bunkers shall be made within 30 days of MISC receiving MAL original invoice and supporting documents evidencing receipt by MISC’s vessels of the bunkers; (iii) that MAL shall be liable to and indemnify MISC against any loss or damages sustained, costs, fines, penalties and/or expenses incurred or any liabilities incurred as a result of or in connection with the performance of the contract to the extent that such loss, damages, costs, fines and expenses are caused by or attributable to MAL’s act or omission; and (iv) that any provision pertaining to promises by one party to indemnify the other or to limitations of liability shall survive any termination, repudiation or other cancellations of the contract. [8] On or around November 2008, MISC received demands and threats from various bunker suppliers, including Avin International Bunkers Supply SA, Bakri International Energy Co. Ltd and O.W Bunker & Trading A/S. They claimed that MAL never paid for the bunker that it purchased which were supplied to MISC vessels. MISC’s vessels were in some instances, arrested. [9] MISC was thus constrained to pay these bunker suppliers although in most of the cases, it had already paid MAL for these purchases. [10] Yahya had held meetings with MISC and signed letters agreeing to MISC paying the affected suppliers directly. Therefore, a sum of USD 8,550,684.32 was disbursed to these suppliers. MISC was however never reimbursed by MAL for these payments. [11] MISC then commenced this action to secure reimbursement for the amounts that it had paid the suppliers of the bunkers. On 22.12.2009, MISC obtained a summary judgment against MAL. MAL’s appeal was dismissed by the Court of Appeal. [12] MAL is now in liquidation. At the time when MISC secured a Mareva Order on 1.4.2009, MAL only had RM120,104.98 in its bank accounts. It was also ascertained that another sum of RM97,664.31 had been removed on 4.3.2009, just prior to the said order, leaving only RM22,440.67 in MAL’s bank accounts. The judgment sum therefore remains unsatisfied. [13] The claim against Yahya is on the basis that at all material times, MAL was under the absolute and effective control and/or direction of Yahya, and that Yahya was the alter ego of MAL. Hence, the plaintiff is seeking an order from this court to lift MAL’s corporate veil in order to do justice between the parties. The Findings of the Court [14] Bearing in mind that the core issue in this case is whether MAL’s corporate veil should be lifted in order for Yahya be made personally liable for the judgment sum of USD 8,550,684.32, this court must first ascertain the principles applicable in lifting the corporate veil. [15] The plaintiff referred to the Supreme Court case of Aspatra Sdn Bhd & 21 Ors v Bank Bumiputra Malaysia Bhd & Anor [1988] 1 MLJ 97, where it was held that: “…the court would generally lift the corporate veil in order to do justice particularly when an element of fraud is involved although the consequences of lifting the veil would vary according to the circumstances of each case.” [16] The plaintiff also referred to the case of Golden Vale Golf Range & Country Club Sdn Bhd v Hong Huat Enterprise Sdn Bhd (Airport Auto Centre Sdn Bhd & Anor as third parties) [2005] 5 MLJ 64, where the Court stated as follows: “In Abdul Manaf, Anuar J (later CJ(M)) explained at pp 2111 to 2112 that because a company has a legal personality and a separate legal entity of its own distinct from its member or directors, there have been and will be instances where its members or controllers hide behind its corporate entity or are otherwise hidden from the view or shielded by what has come to be described as its corporate veil to manipulate it fraudulently for unjust personal gains, and that in such an exceptional case, the court, in order to do justice, will not hesitate to lift the corporate veil by cutting across the legal boundary of corporate structure in order to see the faces and discover the true identities of these members or controllers who use the company as an extension of themselves and make them personally liable or responsible for the debts and liabilities of the company where the evidence justifies such a remedy.” (emphasis added) [17] The plaintiff also submits on the Court of Appeal decision in Mayban Trustees Bhd v CIMB Bank Bhd and other appeals [2012] 6 MLJ354 where the court had lifted the corporate veil of the company to make the majority shareholder responsible for the acts of the company.In arriving at its decision, the court made the following findings: (i) “First, it was all so evident that Rafie and Murnina absolutely ruled the roost.” (ii) “…all major decisions of Pesaka were taken by Rafie, (ii) that the only directors of the Amdac Group of Companies was Rafie and Murnina and Murnina practically owned the entire equity of the Amdac Group of Companies…” (iii) “Rafie testified that whatever belonged to him belonged to Pesaka, that he and Murnina owned nearly 90% of Pesaka and that he regarded Pesaka as his personal property and or as his family company.” (iv) “The directing minds of Pesaka and the Amdac Group were Rafie and Murnina who had absolute control of those companies at all material times.” [18] Therefore, from the above cases, it is common ground that the courts will only lift the corporate veil of the company if the following elements are established: (i) that the individual concerned has absolute or effective control over the company and is its directing mind; and (ii) that where special circumstances exist in order to do justice including circumstances where the company is used for fraudulent purposes for personal gain. [19] As such, premised on the above cases, the parties have agreed to the following issues to be tried: (i) Whether the 1st Defendant (MAL) was at all material times under the control and/or direction of the 2nd Defendant (Yahya) such that, Yahya can in law be regarded as the alter ego of the 1st Defendant? (ii) Whether in the circumstances of this case, the corporate veil of MAL ought to be lifted and Yahya be made personally liable for the amount owed by MAL to the plaintiff in the sum of USD8,550,684.32 or its equivalent in Ringgit Malaysia plus interest and costs; and (iii) whether Yahya had knowledge of and/or was directly or indirectly involved in the fraudulent activities and/or conduct in the affairs of MAL. Issue (i) [20] It is not in dispute that Yahya established MAL in 1991. It is also not in dispute that all the shares in MAL are owned by Yahya’s immediate family. Yahya is the largest shareholder of MAL, holding 439,200 or 54.9% shares, while the rests of the shares are owned by his immediate family, namely: (i) Dannio bin Yahya (son) 240,000 (30%) (ii) Shun YuetMui @ Dania bte Abdullah(wife) 72,000 (9%) (iii) Jannio Shun bin Yahya (son) 48,800 (6.1%) [21] Yahya had always been the Managing Director of MAL. The other directors of MAL are Yahya’s wife, his son and Nordin Sulaiman, the person who only deals with public relations. Yahya’s wife however, was not involved in the management of MAL as she was a housewife, whilst his son was only 19 years old when he was appointed a director. In his evidence, Yahya agreed that he is the person having control over MAL and its business activities: “RES Jadi di dalam hal keadaan ini En Yahya, orang yang membuat atau individu yang membuat keputusan-keputusan di dalam syarikat Market Asia Link dan mengarah hala tujuans yarikat sudah tentu EnYahya sendiri, betul? YAHYA Betul.” (see pg 393/NOP) [22] Yahya also employed several of his family members to work at MAL. Siti Hajar, who was the Head of Operations and Special Assistant to the Managing Director, is Yahya’s sister. Mohd Yazid Mohd Khalid, who was the Head of Technical and Operation, is Yahya’s brother. Mohd Syukor Mohd Khalid, who was the Operation Executive, is also Yahya’s brother. As such, I agree with the plaintiff that Yahya helmed MAL with his immediate family members in key positions. [23] With regards to MAL’s finances, Yahya signed the statutory accounts as the director primarily responsible for the financial management of MAL. He was given daily reports of the cash flow of MAL from the operations side. Yahya is also the sole signatory for all of MAL’s bank accounts. In fact, almost all of the cheques that were disclosed by Affin Bank pursuant to the discovery order dated 2.3.2016 contained Yahya’s signature. Therefore, I am of the considered opinion that in respect of the financial aspects of MAL, Yahya was in absolute control. [24] Yahya also gave evidence that MISC was MAL’s only client. Yahya was the person who had met with the management of MISC to secure and maintain MISC as a client of MAL. Yahya was also the person who had personally met with the senior officers from Affin Bank to secure the necessary credit facilities for MAL. In fact, when MAL underwent a crisis, it was Yahya who personally met the bankers and MISC’s representatives in an attempt to resolve the matter after the demands from the bunker suppliers surfaced. It was Yahya who had signed the letters agreeing to MISC paying the affected suppliers directly. [25] Therefore, I am of the considered opinion and I agree with the plaintiff that Yahya was indeed in control of all material aspects of MAL’s affairs. The evidence of the plaintiff’s witnesses who had personally dealt with MAL said that only Yahya acted for MAL in their meetings and that Yahya is the one in control of MAL who made all the decisions relating to the company. [26] In fact, Yahya himself does not deny being in control of MAL. “RES Dan Lembaga Pengarah bagi Market Asia Link juga dikuasai oleh En Yahya dan ahli-ahli keluarga EnYahyaya? YAHYA Betul. RES Semenjak Market Asia Link ditubuhkan pada tahun 1991, En Yahya seorang sahaja yang menjadi Pengarah Urusan Syarikat Market Asia Link, betul? YAHYA Betul. RES Jadi En Yahya sentiasa mengetuai ahli atau mengetuai Lembaga Pengarah Market Asia Link, betul? YAHYA Waktu itu, betul.” (see page 388/NOP) “RES Jadihal-hal kawalan mengenai operasi dan pengurusan bukan PR ya hal-hal operasi dan pengurusan Market Asia Link adalah di bawah kawalan En Yahya? YAHYA Betul.” (see page 391/NOP) [27] Therefore, having considered all the evidence before this court, I find that MAL, which was established by Yahya, was under the full control of Yahya. Yahya was also in full control of MAL’s finance and operations. Yahya is the sole signatory to all of MAL accounts. Yahya had secured the contract with MISC as well as the credit facilities with Affin Bank. As such, I find that MAL was under the control and/or direction of Yahya and that Yahya was the alter ego of MAL. Issues (ii) and (iii) [28] The circumstances where the corporate veil of the company can be lifted to attach the liability of the company to its directors can be seen from the following cases. In the case of Law Kam Loy v. Boltex Sdn Bhd & Ors [2005] 3 CLJ 355, the Court of Appeal underlined the principle as follows: “In my judgment, in the light of the more recent authorities such as Adams v. Cape Industries Plc, it is not open to the courts to disregard the corporate veil purely on the ground that it is in the interests of justice to do so. It is also my respectful view that the special circumstances to which Lord Keith referred include cases where there is either actual fraud at common law or some inequitable or unconscionable conduct amounting to fraud in equity”. (emphasis added) [29] The ratio in Law Kam Loy was accepted with approval by the Federal Court in the case of Solid Investments Ltd v. Alcatel Lucent (Malaysia) Sdn Bhd [2014] 3 CLJ 73, whereby the Court clearly stated that: “[46]  We agree with the Court of Appeal that the learned trial judge erred in lifting the corporate veil of the defendant to make the defendant liable to account to the plaintiff. The reason given by the learned trial judge was that it was in the interest of justice to prevent associated companies of Alcatel Group including the defendant from "darting in and out with the corporate labyrinth" before the court. We also agree with the Court of Appeal that there must be evidence either of actual fraud or some conduct amounting to fraud in equity to justify the lifting of corporate veil. The position of the law on this subject had been clearly stated by Gopal Sri Ram JCA (as he then was) in Law Kam Loy v. Boltex Sdn Bhd [2005] 3 CLJ 355 at p. 362…” (emphasis added) [30] In the case of Takako Sakao v. Ng Pek Yuen & Anor [2010] 1 CLJ 381, Gopal Sri Ram FCJ (as he then was) had elaborated the principle to be as follows: “(11)  Where there is fraud, an agency relationship or if the company is a myth or fiction, the doctrine of corporate personality will not insulate the shareholders or directors from being assailed directly. A litigant who seeks the court's intervention to pierce the corporate veil must establish special circumstances showing that the company in question is a mere facade concealing the true facts. Fraud includes equitable fraud. However, an intention to deceive - which is a necessary ingredient in common law fraud - is not an ingredient of equitable fraud, which is essentially unconscionable conduct in circumstances where there exists or is implied or imposed a relationship of trust or confidence. The instant case was a case in which there were special circumstances showing that the second respondent company was a mere facade concealing the true facts. The trial judge was therefore correct in holding the second respondent accountable to the appellant for the trust property….” (emphasis added) [31] However, it is the contention of the defendants that in order to lift the corporate veil, the latest test is premised on the Federal Court decision in Gurbachan Singh Bagawan Singh & Ors v Vellasamy Pennusamy & Other Appeals [2015] 1 CLJ 719, where the court held that the court will lift the corporate veil in the following circumstances: (i) if such corporation was set up for fraudulent purposes; or (ii) where such corporation was established to avoid an existing obligation; or (iii) or even to prevent the abuse of corporate personality. [32] The defendant relied on ground (i) and (ii) in Gurbachan’s case and submits that: (i) that MAL was not established for fraudulent purposes as MAL was performing very well before MISC entered into a contractual relationship with MAL. MISC had made an assessment on MAL and found that MAL had satisfied all the necessary requirements before contracting MAL to supply the bunkers; (ii) that MAL was not established to avoid an existing obligation as MAL had a successful contractual relationship before the problems came about in 2008, which Yahya blamed on the increase in the price of crude oil; and (iii) that the defendant did not commit fraud against the plaintiff, MISC, whether in equity or common law. This is because the fraud of RM99 million was committed against Affin Bank. It was Affin Bank that lost the RM99 million and Affin Bank had sued MAL and secured judgment against MAL and its directors; and (iv) that there was no evidence that Yahya had falsified or was involved in the falsifying of the 46 bunkers delivery notes. [33] I am of the considered opinion there is no issue here that MAL was set up for fraudulent purpose nor was it established in order to avoid an existing obligation. [34] The issue here is on ground (iii) of Gurbachan’s case, that is, whether the corporate veil should be uplifted in order to prevent the abuse of corporate personality. [35] In Gurbachan’s case, on issue (iii), that is to prevent the abuse of corporate veil, the Federal Court has referred to the decision of the House of Lord in Prest v. Prest and others [2013] UKSC 34, where Lord Sumption said as follows: “34. These considerations reflect the broader principle that the corporate veil may be pierced only to prevent the abuse of corporate legal personality. It may be an abuse of the separate legal personality of a company to use it to evade the law or to frustrate its enforcement …. 35. I conclude that there is a limited principle of English law which applies when a person is under an existing legal obligation or liability or subject to an existing legal restriction which he deliberately evades or whose enforcement he deliberately frustrates by interposing a company under his control. The court may then pierce the corporate veil for the purpose, and only for the purpose, of depriving the company or its controller of the advantage they would otherwise have obtained by the company’s separate legal personality.” [36] The above principle is consistent with the decision in the case of Takako Sakao case, where the Federal Court held that to uplift the corporate veil, the plaintiff must establish special circumstances showing that the company in question is a mere façade concealing the true facts. [37] Therefore the issue is still whether there are any special circumstances where there are “actual fraud at common law or some inequitable or unconscionable conduct amounting to fraud in equity” showing that MAL is a mere façade concealing the true facts. [38] It is not in dispute that there were fraudulent activities in MAL. There was falsification of the documents submitted to Affin Bank by MAL. MAL had fabricated 46 purported bunker transactions. It created 46 fictitious transactions between MAL and MISC. Changes were made to various documents by employees of MAL. [39] With the falsified documents, MAL had withdrawn funds from the credit facilities that MAL had with Affin Bank. The sum that was involved was over RM99 million. The falsification induced Affin Bank to release this sum into MAL’s bank account. The evidence before this court is that MAL had been falsifying documents for at least the last 2 years. This was based on the testimony of Yahya’s own witness, DW-2: “RES Pemalsuan dokumen-dokumen di syarikat Market Asia Link Puan, permalsuan tersebut sebenarnya bermula lebih awal lagi, ya, daripada tahun lebihkurang 2005. Betulkan? SUHANA Saya tak pasti. RES Tak pasti, ya? Tapi boleh Puan sahkan selain daripada pemalsuan dalam tahun 2008, terdapat pemalsuan sebelum, tahun-tahun sebelum ini? SUHANA Ya. RES Betul, ya? SUHANA Betul. RES Betul. Boleh Puan tolong beri anggaran kepada Mahkamah berapa tahun sudah pemalsuan dilakukan? Anggaran, ya, Puan? SUHANA Anggaran. Dalam dua tahun lebih.” (see: page 317NOP) [40] Yahya did not dispute the fraudulent activities in MAL. However, he takes the position that he was not involved in the fraud as the falsification of the 46 bunker transactions were committed on the instruction of his sister, Siti Hajar without the knowledge of Yahya. Therefore, Yahya submits that since he had not committed the fraud and was not involved in the fraudulent activities, then this court cannot pierce MAL’s corporate veil. [41] However, it is not in dispute that Yahya knew from MAL’s financial statements that MAL was suffering losses in 2008.Based on its Financial Statement which Yahya had signed, MAL’s net loss for the financial year in 2008 was RM123,207,757.00, and MAL only made a net profit of RM329,742.00 in 2007. [42] Yahya was also aware of MAL’s cash flow problems in 2008. Under cross examination, Yahya said this: ”RES: Dan pada tahun selepasnya iaitu pada tahun 2008, En Yahya, merupakan tahun di mana syarikat Market Asia Link mengalami masalah kewangan, betul? YAHYA: Betul. … RES: Jadi pada tahun 2008, En Yahya, selepas harga bunkers naik, aliran wang memang tidak mencukupi untuk membayar pembekal-pembekal. Betul? YAHYA: Ya.” (see pg 437-438 NOP) [43] Yahya was also aware that Affin Bank had refused to approve MAL’s request for additional credit facilities. At the same time, Yahya was receiving daily cash flow reports regarding MAL’s finances from its employees. As such, Yahya must have known that substantial sums (over RM99 million) were finding its way into MAL’s Account although there were no transactions to support these incoming funds. This can be seen from his evidence: “RES: Soalan saya, semasa En Yahya membuat bayaran RM99 juta kepada pembekal-pembekal, En Yahya tahu syarikat Market Asia Link mengalami masalah aliran wang dan oleh itu sebenarnya tidak cukup untuk membayar pembekal-pembekal. YAHYA: Ok, betul.” (see page 445 NOP) [44] Yahya simply knew that legitimate funds were simply insufficient. “RES: Bermakna En Yahya tahu semasa membuat bayaran RM99 juta itu, wang masuk yang sah tidak mencukupi untuk membuat bayaran, betul? Faham maksud? Betul? YAHYA: Betul. Kerana minyak naik mendadak.” (see page 447 NOP) [45] Therefore, I find that the necessary inference from these facts is that it is highly improbable that Yahya had no inkling that MAL’s employees were falsifying documents to enable extra funds to flow into MAL’s accounts. The employees themselves had nothing to gain from these unlawful acts. [46] Yahya was the one who signed all the documents that were falsified on MAL’s part. Yahya was also the one who had the most to lose if MAL was unable to continue its business as a going concern. This large scale falsification simply could not have been committed by MAL without the authorisation or consent of Yahya, given the control that he had over MAL. [47] A similar inference was upheld by Arifin Zakaria JCA (as he then was) in Victor Cham & Anor v Loh Bee Tuan [2006] 5 MLJ 359 at 366. The Judge found that the fraudulent misrepresentation could not have been committed by the first defendant without the authorization or consent of the first appellant, who was not only the director and secretary of the first defendants but also held a substantial shareholding in the first defendant company and was in complete control of the company. [48] Therefore, having considered the evidence, I am of the considered opinion that it cannot be said that in view of the magnitude of the fraudulent activities spanning over two years, Yahya is ignorant of the same. Since Yahya is the substantial shareholder of MAL and having complete control over MAL, it is highly improbable that Yahya has no knowledge of the fraudulent activities that was going on for more than 2 years by his sister and the employees of MAL. As such, I find that the fraudulent activities in MAL could not have been committed without the authorization and/or consent and/or knowledge of Yahya. [49] Despite operating on the red, MAL’s financial statements showed that a sum of over RM33 million had been extended as ‘loan to directors’. From the notation in the statements, these ‘loans’ had no fixed term of repayment and were interest free. And during trial, the evidence clearly shows that when these RM33 millions were paid to Yahya, that there were no loan agreements, that these loans were not supported by adequate documentation and that Yahya had not repaid any part of this sum at all. [50] As such, I agree with the plaintiff that under the guise of the ‘loans to directors’, Yahya is simply treating MAL’s monies as his own. And that despite knowing MAL’s financial difficulties and its inability to pay its creditors, Yahya never repaid a single cent of the money he took from MAL’s account under the guise of a ‘loan’. This resulted in MISC having to pay MAL’s suppliers after MAL was being laden with the current substantial debt. [51] Yahya even admitted that part of the monies from Affin Bank, to be used for the bunkers, was used by Yahya for his personal use: “RES …Jadi En Yahya wang dikeluarkan daripada akaun 819 dan digunakan untuk perbelanjaan peribadi En Yahya betul? YAHYA Betul.” RES Betul ya. Dan daripada akaun 819 init ermasuk wang yang dibayar oleh Affin Bank selaras dengan kemudahan kredit yang dipohon oleh Market Asia Link betul? YAHYA Betul. RES Jadi sebahagian daripada wang yang telahpun di masukkan ke dalam akaun 819 ini oleh Affin Bank digunakan untuk perbelanjaan peribadi EnYahya juga. YAHYA Betul.” (see pgs 407-408 NOP) [52] Therefore, I agree with the plaintiff that Yahya was treating MAL’s funds like his own. This included the funds that were paid by Affin Bank pursuant to the credit facilities that were supposed to be used to pay MAL’s bunker suppliers.The payments included payments for his credit cards, his son’s school fees and cars. [53] Further, given MAL’s financial statements in 2007 and 2008, it was experiencing cash flow problems and was in financial difficulty at the material time. The balance sheets show that MAL had no reasonable prospect of paying its debts at that time. Notwithstanding this, Yahya continued to purchase bunker that MAL could not afford to pay. [54] Therefore, I am of the considered opinion that this is a case where there is an abuse of corporate legal personality. Yahya had made use of MAL’s funds for his own personal benefit and then hide behind MAL’s corporate legal personality. [55] Another issue raised by Yahya is that MISC is not the victim of the fraud. The fraud was committed on Affin Bank and Affin Bank had since secured a judgment against MAL and it directors. [56] From the authorities cited, there is nothing to indicated that fraud must be committed on MISC, before MISC can commence this action. The Supreme Court in Aspatra Sdn Bhd (supra) has held that “the court would generally lift the corporate veil in order to do justice particularly when an element of fraud is involved…”. What is pertinent is the elements of fraud. In the present case, even though the fraud was not committed on MISC directly, but the fraudulent acts had affected MISC, directly or indirectly. [57] It is not in dispute that it was Yahya who signed letters authorising MISC to make payments directly to the bunker suppliers and are to be reimbursed by MAL. But MAL could not reimburse MISC as Yahya had used MAL’s funds for his own personal use. About RM33 millions of MAL’s funds had been taken out as ‘director’s loan’, which are not supported by documents with no repayments. As such, the effect of the fraud led to the financial collapse of MAL, which resulted, inter alia, in MISC having to take over the contractual responsibilities of MAL and to pay for the bunkers directly and thereby incurring loss in the sum of USD8,550,684.32. [58] In the factual circumstances of this case, I am of the considered opinion that Yahya, being the founder of MAL is also the directing mind and will of MAL. As such, the corporate veil of MAL ought to be lifted and that Yahya should be made personally liable for the amount owed by MAL to MISC in the sum of USD8,550,684.32. [59] With regards to Yahya’s claim for damages incurred due to the Mareva Injunction, there is no basis for such claim as the granting of the injunction was affirmed by the Court of Appeal and Yahya’s application for leave to the Federal Court was refused. In any event, I am also of the considered opinion that the same is not supported by the evidence. [60] Premised on the reasons enumerated above, I find that the plaintiff has proven its case on the balance of probability and the plaintiff’s claim against Yahya is allowed with costs. (AZIZAH BINTI HAJI NAWAWI) JUDGE HIGH COURT MALAYA (Appellate and Special Powers Division 2) KUALA LUMPUR Dated: 6 November 2017 For the Plaintiff : Raja Eileen Soraya Messrs Raja Darryl & Loh Kuala Lumpur. For the 2nd Defendant : Yusfarizal Yusoff and Mohd Zaid Bin Daid Messrs Yusfarizal Aziz & Zaid Kuala Lumpur. 23

Tika 2.6.0

02(f)-11-02/2017 (W)

PERAYU VIEW ESTEEM SDN BHD … APPELLANT RESPONDEN BINA PURI HOLDINGS BERHAD … RESPONDEN T

Building and Construction Law — Appeal — Adjudication award — Construction contracts — Payment disputes — Whether a jurisdictional challenge can be made any time by way of application or whether such an application can only be made upon the application to set aside an Adjudication Award — Application to challenge jurisdiction of the Adjudicator — Whether the Adjudicator has the right to exclude the defences of the appellant — Whether the exclusion of defence amounts to a denial of natural justice — Whether the Adjudicator had acted in breach of natural justice in excluding and refusing to consider certain defences — Application seeking the registration and enforcement of the adjudication decision as a judgment of the Court — Application to set aside and/or stay the award— Whether applications ought to be set aside and dismissed — Construction Industry Payment and Adjudication Act 2012 [Act 746], section 2, section 3, section 4, section 5, section 6, section 15, section 16, section 26, section 27, section 28, section 41

06/11/2017

YAA TAN SRI DATO' SERI ZULKEFLI BIN AHMAD MAKINUDINKorumYAA TAN SRI DATO' SERI ZULKEFLI BIN AHMAD MAKINUDINYA TAN SRI DATUK SURIYADI BIN HALIM OMARYAA TAN SRI ZAHARAH BINTI IBRAHIMYA DATO' BALIA YUSOF BIN HAJI WAHIYA TAN SRI DATO' WIRA AZIAH BINTI ALI

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=4e3556a4-a9ba-4023-b344-e11c13de8d81&Inline=true

1 IN THE FEDERAL COURT OF MALAYSIA (APPELLATE DIVISION) CIVIL APPEAL NO. 02(f)-11-02/2017 (W) BETWEEN VIEW ESTEEM SDN BHD … APPELLANT AND BINA PURI HOLDINGS BERHAD … RESPONDENT Coram: Zulkefli bin Ahmad Makinudin, PCA Suriyadi Halim Omar, FCJ Zaharah binti Ibrahim, FCJ Balia Yusof bin Hj. Wahi, FCJ Aziah binti Ali, FCJ JUDGMENT OF THE COURT Background Facts 1. This is an appeal by the appellant against the decision of the Court of Appeal affirming the decision of the High Court in relation to three applications filed by the appellant and the respondent at the 2 High Court on issues pertaining to the relevant provisions of the Construction Industry Payment And Adjudication Act 2012 [“CIPAA”]. 2. The three applications by way of Originating Summonses relate to the same adjudication claim and had been consolidated and heard together. 3. The three applications are as follows: (i) The first application was made by the appellant to challenge the jurisdiction of the adjudicator under the provision of section 41 of CIPAA. The said section 41 reads as follows: “Savings 41. Nothing in this Act shall affect any proceedings relating to any payment dispute under a construction contract which had been commenced in any court or arbitration before the coming into operation of this Act.” (ii) The second application was made by the respondent seeking the registration and enforcement of the adjudication decision as a judgment of the Court pursuant 3 to section 28 of CIPAA. The said section 28 reads as follows: “Enforcement of adjudication decision as judgment 28(1) A party may enforce an adjudication decision by applying to the High Court for an order to enforce the adjudication decision as if it is a judgment or order of the High Court. (2) The High Court may make an order in respect of the adjudication decision either wholly or partly and may make an order in respect of interest on the adjudicated amount payable. (3) The order made under subsection (2) may be executed in accordance with the rules on execution of the orders or judgment of the High Court.” (iii) The third application was made by the appellant to set aside and/or stay the award of the adjudication pursuant to sections 15 and 16 of CIPAA. The said sections 15 and 16 read as follows: “Improperly Procured Adjudication Decision 15. An aggrieved party may apply to the High Court to set aside an adjudication decision on one or more of the following grounds: 4 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. “Stay of Adjudication Decision 16.(1) A party may apply to the High Court for a stay of an adjudication decision in the following circumstances: a. an application to set aside the adjudication decision under section 15 has been made; or b. the subject matter of the adjudication decision is pending final determination by arbitration or the court. (2) The High Court may grant a stay of the adjudication decision or order the adjudicated amount or part of it to be deposited with the Director of the KLRCA or make any other order as it thinks fit.” 4. The learned judge of the High Court dismissed both of the appellant’s applications and allowed the respondent’s application to enforce the adjudication decision. The Court of Appeal affirmed all the three decisions of the High Court. 5 5. The following are the Questions of law approved by the Federal Court in this appeal: “(1) Whether a jurisdictional challenge as to the application of the Construction Industry Payment and Adjudication Act 2012 [“CIPAA”] can be made any time by way of application or whether such an application can only be made upon the application to set aside an Adjudication Award under section 15 of the CIPAA; (2) Whether section 41 of the CIPAA operates to exclude any proceedings from the operation of the CIPAA if the whole or any part of such a claim has been brought to court or Arbitration prior to the coming into force of the CIPAA; (3) Whether section 6(4) of the CIPAA allows a responding party to raise matters not raised in Payment Response under section 6(2) of the CIPAA during the filing of the Adjudication Response under section 10(1) of the CIPAA; (4) If the answer to question (3) above is in the affirmative, whether the exclusion of a defence that has not been raised in the Payment Response under section 6(4) but raised under section 10(1) of the CIPAA amounts to a denial of natural justice under section 15 of the CIPAA; 6 (5) Whether the adjudicator has the power under section 26 of the CIPAA to remedy any non-compliance with section 6(2) of the CIPAA; (6) If the answer to question (5) is in the affirmative, whether the exclusion of a defence that has not been raised in the Payment Response under section 6(4) but raised under section 10(1) of the CIPAA amounts to a denial of natural justice under section 15 of the CIPAA; (7) Whether an application for stay or partial stay on terms under section 16 of the CIPAA can be granted to remedy an injustice caused by a breach of natural justice or errors arising in an adjudication award; and (8) Whether an application for a stay under section 16 of the CIPAA can be made concurrently with an application to set aside an award under section 15 of the CIPAA or whether an application for a stay under section 16 of the CIPAA can only be made after an application to set aside an award under section 15 of the CIPAA is made.” Decision of this Court 6. This is an appeal on the scope and application of CIPAA, a new legislation which came into force on 15th April 2014. It is noted that CIPAA was enacted to introduce statutory adjudication to address 7 lengthy payment times that affected the contractors in the Construction Industry. It is intended as an interim measure to ease the contractors’ cash flow. This appeal also focusses on the transitional period when CIPAA came into force and the exclusion from its ambit of claims already commenced, and further the decision- making process of the Adjudicator under CIPAA. 7. The Questions posed before this Court can be classified and considered under the following three (3) heads. Questions 1 and 2 will be classified and considered as the jurisdictional challenge under section 41 of CIPAA. Questions 3, 4, 5 and 6 will be classified and considered as the alleged right of the adjudicator to exclude defences. Questions 7 and 8 will be classified and considered as the setting aside and stay issues. 8. We shall first deal with the jurisdictional challenge under section 41 of CIPAA. Section 41 seeks to exclude from its application a payment dispute that had been commenced in any Court or arbitration as at the date of coming into operation of CIPAA. 8 9. The application of section 41 of CIPAA had been earlier considered and decided by the High Court in the case of UDA Holdings Bhd. v. Bisraya Construction Sdn. Bhd. & Anor. [2015] 5 CLJ 527 which held that CIPAA as a new Act applied retrospectively. The High Court held that CIPAA applies to construction contracts entered into before the coming into force of CIPAA and also to payment disputes that arose before the enforcement of CIPAA. 10. It is significant to note that in the case of UDA Holdings Bhd. the KLRCA as the body designated by CIPAA as “the adjudication authority” (see section 32) had itself propounded that this new Act should apply only to payment disputes that arise after CIPAA has come into force. The High Court in UDA Holdings Bhd. held that CIPAA has a full retrospective effect to cover both construction contracts and payment disputes that arose before CIPAA came into force. In the result, it would appear that section 41 of CIPAA is not only a “saving provision” but also a “transitional provision” as CIPAA has been declared by case-law to apply retrospectively to pre-existing payment disputes. 9 11. In the present case, we noted that the application of section 41 of CIPAA was considered fully by the High Court on its merits. Although learned counsel for the respondent seemed to contend that the Court of Appeal had dealt on its merits the section 41 question, we take the view that the Court of Appeal did not do so. The view taken by the Court of Appeal was a procedural one, namely that the application raising the section 41 issue should be dismissed in limine because it was brought as a separate application and not as an application under section 15 of CIPAA to set aside the adjudication decision. 12. With respect, we are of the view that the Court of Appeal was wrong as it failed to distinguish between a case where CIPAA did not apply at all and a case where CIPAA applies but the adjudicator acting under CIPAA had exceeded his jurisdiction. Section 15 of CIPAA relates to the latter. Section 15 is predicated on CIPAA applying to the case and to an adjudication decision made under CIPAA. It relates specifically to a complaint that the adjudicator had “acted in excess of his jurisdiction” presupposing the existence of the adjudicator’s jurisdiction under CIPAA in the first place. 10 13. Learned counsel for the respondent contended that a section 15 of CIPAA challenge can only be made after an Adjudication decision is given. There are no provisions in CIPAA which allow a party to seek court intervention in the midst of adjudication. 14. Learned counsel for the respondent fortified his argument that a section 15 of CIPAA challenge can only be made after an Adjudicator’s decision is given by making reference to section 27 of CIPAA as follows: (a) Section 27(1) of CIPAA limits the jurisdiction of the adjudicator to matters raised in the Payment Claim and Payment Response, pursuant to sections 5 and 6 of CIPAA respectively. Section 27(2) of CIPAA allows for that jurisdiction to be extended by agreement of the parties. (b) Section 27(3) of CIPAA gives the adjudicator a discretion to proceed with the adjudication even where a jurisdictional challenge has been raised, but preserves the right of the parties to apply to set aside the Adjudication Decision under section 15 of CIPAA or to oppose the enforcement of that Adjudication Decision. 11 15. We are of the view in substance, the “jurisdiction” spoken of in section 15(d) of CIPAA are in circumstances where CIPAA applies and where there is a dispute if the adjudicator has kept himself within his jurisdiction. Thus, by section 27(2) of CIPAA the parties may by consent extend the jurisdiction of the adjudicator to decide on matters outside the claim on which he first acquired jurisdiction. This is possible only if the term “jurisdiction” is used in the sense of CIPAA being applicable in the first place. 16. The term “jurisdiction” under CIPAA is not used in the administrative or public law sense but in relation to matters within the scope of CIPAA. On this point, in Terminal Perintis Sdn. Bhd. v. Tan Ngee Hong Construction Sdn. Bhd. & Anor. [2017] MLJU 242, Lee Swee Seng J. observed as follows (at [70]): “In the application of our CIPAA, we are free from the shackles of the language of administrative law and judicial review. The word ‘jurisdiction’ is used in section 15(d) as in the Adjudicator having acted in ‘excess of his jurisdiction’ as a ground for setting aside an Adjudication Decision. It is also used in section 27(1) with respect to an Adjudicator’s jurisdiction being limited to the matters raised in the 12 Payment Claim and the Payment Response. Then there is a reference to it in section 27(2) with respect to extending his jurisdiction by way of agreement in writing to deal with matters not specifically raised in the Payment Claim and Payment Response. Finally there is the reference to a ‘jurisdictional’ challenge, which when raised, does not prevent the Adjudicator from proceeding and completing the Adjudication without prejudice to the rights of any party to set it aside under section 15 or to oppose its enforcement under section 28 … … Issues as to whether there is a valid cause of action, does not go towards jurisdiction but rather to the merits of the claim…” 17. The learned judge also made note of the various types of jurisdictional complaints within CIPAA which may be categorized as core jurisdiction, competence jurisdiction and contingent jurisdiction. The common feature in all of them is the presupposition that CIPAA applies to determine if the adjudicator had kept within his jurisdiction. 18. We are in agreement with the contention of the appellant that the error in the judgment of the Court of Appeal is the failure to recognize that the jurisdictional complaint in the present case is that CIPAA did not apply at all because of section 41, and not an “excess 13 of jurisdiction” under section 15, on the basis that CIPAA applied. It is what is termed as an absolute lack of jurisdiction that may be taken up at any time. On this point, the Singapore High Court case of Chip Hup Hup Kee Construction Pte. Ltd. v. Ssangyong Engineering & Construction Co. Ltd [2010] 1 SLR 658 had this to say: “Thus, it seemed that when what was being alleged was an absolute lack of jurisdiction on the part of a particular tribunal or court to hear a particular dispute, ‘jurisdiction’ being used in the strict sense of capacity to hear, then if the tribunal concerned does not have such jurisdiction, any party to the dispute may assert the lack of jurisdiction at any stage and can never be held to be estopped from doing so or to have waived its right of protest. On the contrary, when it is a question of irregularity of procedure or contingent jurisdiction or non- compliance with a statutory condition precedent to the validity of a step in the litigation, such irregularity or non-compliance can be waived because the effect of the waiver would not be to create or confer any jurisdiction that did not previously exist.” 19. It is our considered view that the appellant had rightly not invoked section 15 of CIPAA at the beginning in making its application to challenge jurisdiction because it could not on the one 14 hand complain that CIPAA did not apply to the case and yet on the other hand invoke a provision of CIPAA to seek relief. In the circumstances, our answer to Question 1 posed in this appeal is in the positive in the first part and negative in the second part. 20. We shall now deal with Question 2. Question 2 deals with the merits of the section 41 issue i.e. whether CIPAA applies to the present case in view of the words in the section of a “payment dispute… commenced in any court or arbitration before the coming into operation of the Act”. 21. The problem on this issue arises following the decision in the UDA Holdings Bhd. that CIPAA applies retrospectively, not only to construction contracts made before CIPAA came into force, but also to payment disputes arising before CIPAA came into operation. In the result, in transitional cases like the present case, a determination has to be made each time under section 41 of CIPAA whether the exclusion applies. 22. As stated earlier, in the present case the Court of Appeal did not consider the issue on its merits. Both the Adjudicator and the 15 High Court had held that section 41 of CIPAA did not exclude the present claim. 23. The Adjudicator merely ruled as follows: “I find and hold that these CIPAA proceedings can proceed independently despite previous and/or on-going litigation or arbitral proceedings and I dismissed the respondent’s section 41 challenge.” 24. It is significant that the view taken by the Adjudicator was to equate “previous” litigation with “on-going” litigation or arbitration. There was no importance attached to the word “commenced… .. before” which are the express qualifying words found in section 41 of CIPAA. 25. The approach taken by the High Court was substantially similar to that of the Adjudicator, which is to read section 41 of CIPAA as applying to “pending claims”. The High Court observed as follows: “In short, the proceedings or the claims must be or is pending in Court or arbitration, in order to be ‘saved’ or exempted or excluded from the operation of CIPAA 2012. If there are no pending proceedings in Court or arbitration over that particular payment 16 dispute, then it is not ‘saved’. It will fall or come within the operation of CIPAA 2012.” [See paragraph 36 of the Judgment]. 26. Later in the Judgment, the above position was reiterated by the High Court as follows: “The intent behind section 41 is to preserve the law on payment disputes which are already pending in Court or arbitration; and not on all payment disputes. Since the two payment disputes are distinctly different, section 41 does not apply. … … Now, in order for the old law to continue to apply or operate, the proceedings which had been commenced must logically, still be pending completion. Otherwise, there would be no need for such a provision in the first place.” [See paragraph 45 of the Judgment]. 27. We are of the view that the word “commenced” in section 41 of CIPAA is not the same as the word “pending” which is not found in section 41 of CIPAA. It also ignores the word “before” in section 41 of CIPAA. If it was intended by the legislature that section 41 of CIPAA should apply to “pending” claims then such word should have been used as seen in section 16(1)(b) of CIPAA or the word “concurrently” in section 37(1) of CIPAA in respect of on-going 17 claims. The words “commenced” and “before” as found in section 41 of CIPAA, therefore have distinct meanings and not equated with the word “pending” found elsewhere in CIPAA. 28. The argument against reading the words “commenced” and “before” as meaning “pending” is strengthened by the context in which the words appear namely “had been commenced …”. It refutes any suggestion that the payment dispute must be pending or on-going for it to be excluded. It is our considered view that both the adjudicator and the High Court had read section 41 of CIPAA wrongly by interpreting the exclusion thereon as applicable to pending payment disputes. This interpretation has narrowed the scope of section 41 of CIPAA and is contrary to its intended operation as a saving and transitional provision. 29. It is important to note that such interim claims previously and at the time of commencement of CIPAA were claims that could only be brought before the civil court or at an arbitration. The object of a saving provision is clear enough that is not to interfere with existing rights. In In Re Thompson Bedford v. Teal [1890] 30 Ch.D.161, Cotton LJ observed (at p. 173): 18 “A saving clause as a general rule is not intended to give power to a corporation or body to do something which they could not otherwise do, but to prevent the enactment from interfering with rights already acquired.” 30. A saving provision narrows the application of the new Act and not enlarge it. In Lim Phin Khian v. Kho Su Ming @ Seng Meng [1996] 1 CLJ 529 the Federal Court per Edgar Joseph, FCJ observed (at p. 538): “It is a well-known canon of construction that the intention of a saving provision is to narrow the effect of the enactment in which it is found so as to preserve some existing legal rule or right, as the case may be, from its operation.” 31. The saving provision is also a transitional provision. It is essentially temporary in duration and would become spent in the course of time in tandem with the new Act which deals with the new circumstances. As observed by the House of Lords in Britnell v. Secretary of State for Social Security [1991] 2 All ER 726 per 19 Lord Keith it should not be read “as widening the ambit of the substantive legislation” (at pp. 729-30): “The purpose of a transitional provision being to facilitate the change from one statutory regime to another, it could not properly be regarded as authorizing innovation by widening the ambit of the substantive legislation. As Staughton LJ observed in the Court of Appeal, it is not possible to give a definitive description of what constitutes a transitional provision. In Thornton on Legislative Drafting (3rd edn.1987) p. 319 it is said: ‘The function of a transitional provision is to make special provision for the application of legislation to the circumstances which exist at the time when that legislation comes into force.’ One feature of a transitional provision is that its operation is expected to be temporary, in that it becomes spent when all the past circumstances with which it is designed to deal have been dealt with, while the primary legislation continues to deal indefinitely with the new circumstances which arise after its passage.” 20 32. We are of the view it would be sufficient to establish a right of exclusion under section 41 of CIPAA if the paying party demonstrates that a claim covering the present claim had previously been commenced in court or arbitration. It is based on the fact that in the construction industry progress claims (on which interim certificates are issued) are cumulative in nature and do not exist in separate stand-alone compartments. It is the appellant’s case that this is the position pertaining to the present appeal. On this point in Julian Bailey, Construction Law Vol. 1, under the sub-chapter on “progress payment”, the learned author observed at paragraph 6.59 as follows: “As a matter of presentation, a progress claim may include the value of work previously performed for which payment has been made, even though amounts claimed and previously paid are no longer due and payable.” 33. In the contract between the parties here, the progress claims did not stand alone in separate compartments but were cumulative in nature. Learned counsel for the appellant submitted that this can be 21 seen in the Summary Presentation of Progress Claims Nos. 23 to 26 and the related Interim Certificates Nos. 23 to 26R where the description of the contract works, to be noted, remains the same (subject to variation orders) but the amounts claimed vary according to work done to date and payment adjustments to date. 34. It is the appellant’s case that Progress Claim No. 28 for the sum of RM23.8 million which is the subject matter of the present payment dispute falls within the exclusion of section 41 of CIPAA as a claim that “had been commenced in court or arbitration before” the Act came into operation. The basis of this contention is that Progress Claim 28 is cumulative of earlier progress claims contained in Interim Certificates Nos. 23 to 26R, in respect of which action had been commenced in Civil Suit No. 22NCC-405-05/2013 [“the 405 suit”]. This was a suit commenced by the respondent in May 2013 against the appellant at the Kuala Lumpur High Court, making a claim for RM12,860,689.02 under the present contract, based on Interim Certificates Nos. 23 to 26R. 35. It is our judgment that section 41 of CIPAA applies to exclude the respondent’s claim under Progress Claim 28 for RM23.8 million 22 under CIPAA. The matter falls under the words ‘commenced’ and ‘before’ in section 41 of CIPAA and therefore applies to exclude the application of CIPAA to the respondent’s claim. 36. For the above stated reasons we would answer Question 2 posed in this appeal in the affirmative. 37. We shall now deal with Questions 3 to 6 posed in this appeal. These questions relate to whether the Adjudicator has the right to exclude the defences of the appellant. The Adjudicator excluded for consideration three (3) vital defences raised by the appellant as the respondent in the adjudication process. They were in the nature of set-off and cross-claims towards reduction of the respondent’s payment claim of RM23.8 million. The excluded defences were: (1) the fact of the advance of RM2 million to the respondent; (2) defective works and the cost of rectification; and (3) encroachment into the adjoining land by the flyover bridge causing damage. 38. The Adjudicator justified the right to exclude for consideration three defences as they were not stated as reasons in the first 23 payment response under section 6 of CIPAA, though pleaded in the Adjudication Response before him under section 10 of CIPAA. The Adjudicator had evidently excluded the defences, relying on section 27(1) of CIPAA, as a matter of jurisdiction. Section 27(1) reads as follows: “Jurisdiction of adjudicator 27(1) Subject to subsection (2), the adjudicator’s jurisdiction in relation to any dispute is limited to the matter referred to adjudication by the parties pursuant to sections 5 and 6.” 39. The High Court agreed with the Adjudicator and held that sections 5 and 6 of CIPAA are determinative of jurisdiction, and that the Adjudicator’s jurisdiction did not extend to matters in the Adjudication Claims and the Adjudication Response or even the Adjudication Reply found in sections 9 to 11 of CIPAA. [See paragraph 60 of the High Court Judgment]. 40. The High Court justified its conclusion by reasoning out that the Adjudication pleadings under sections 9 to 11 of CIPAA are merely 24 “manifestations” of the matters in sections 5 and 6 of CIPAA. In the words of the High Court: “the whole adjudication process that takes place after that from the appointment of the Adjudicator to the filing of the Adjudication Claim, the Adjudication Response and the Adjudication Reply are substantially formal manifestations of the dispute containing greater details of the claim, response or reply, as the case may be of the first Payment Claim and Payment Response”. The Court of Appeal agreed fully with the High Court. 41. With respect to the above reasoning of the High Court it is untenable to reduce the Adjudication pleadings in sections 9 to 11 of CIPAA to mere “formal manifestations” of the dispute. If it were so, and speed is the overriding consideration under CIPAA, it would be easier for the legislative draftsman to dispense altogether with adjudication pleadings and proceed purely on the statements contained in the Payment Claim and the Payment Response under sections 5 and 6 of CIPAA. 25 42. We are also doubtful if mere changes in the Adjudication pleadings from the time of the first documents under sections 5 and 6 of CIPAA would delay the process because of the strict time line of a 10 day period for parties to respond to each other’s pleadings, and of the Adjudicator’s time line to deliver his decision within 45 working days from the last date of the documents being filed. 43. It should also be noted that while the Payment Response under section 6(2) of CIPAA requires the non-paying party to merely state “amount disputed and the reasons for the dispute” the Adjudication Response under section 10 of CIPAA on the other hand requires the respondent to “answer the adjudication claim”. The latter, is in our view is in the nature of a legal response with the obligation to “answer” imposed by a statute, to mean a real opportunity to defend a claim, and not something illusory. 44. It should be noted that on the claimant’s side, the Adjudication Claim under section 9(1) of CIPAA requires the unpaid party to state “the nature and description of the dispute and the remedy sought” whereas the preceding Payment Claim under section 5 of CIPAA 26 merely requires him to state the amount claimed and the contract involved sufficient to “identify the cause of action.” 45. It needs to be emphasised here that the Adjudication Response under section 10(1) of CIPAA requires the non-paying party to “answer the adjudication claim” meaning the “nature and description of the dispute and the remedy” as claimed by the claimant in its Adjudication Claim. It is also significant to note that it is at this stage of the proceedings that the unpaid party is termed by the CIPAA as “the claimant”, and the non-paying party as “the respondent”, by which terms they are thereafter respectively referred to. It comes about after the “initiation of adjudication” under section 8 of CIPAA where an adjudicator is appointed signifying the start of the adjudication process. The adjudication pleadings under section 9 to 11 of CIPAA comes after this and before the adjudication hearing begins under section 12 of CIPAA. 46. We are of the considered view that the scheme of the two stage process under CIPAA does not warrant giving a reduced importance to the Adjudication pleadings and a greater, if not overriding, 27 significance given to the initial documents under sections 5 and 6 of CIPAA. 47. Learned counsel for the appellant impressed upon us that there is no express power given to the Adjudicator to reject “new” defences because they did not appear in the payment response, unlike, for example, in the counterpart legislations in Singapore and Australia (NSW). 48. In Singapore under section 15(3) of the Building and Construction Industry Security of Payment Act 2006 [“S’pore Act 2006”] the adjudicator is expressly empowered not to consider “any reason” for withholding payment unless “the reason was included in the relevant payment response”. Section 15 of the S’pore Act 2006 comes under “Adjudication Response”, equivalent to our section 10 of CIPAA but has this additional subsection: “(3) The respondent shall not include in the adjudication response, and the adjudicator shall not consider, any reason for withholding any amount, including but not limited to any cross-claim, counterclaim and set-off, unless – 28 (a) where the adjudication relates to a construction contract, the reason was included in the relevant payment response provided by the respondent to the claimant; or …” 49. The Singapore Court of Appeal in dealing with this subsection (3) of section 15 of S’pore Act 2006 in W Y Steel Construction Pte. Ltd. v. Osko Pte. Ltd. (2013) 3 SLR 380 held that it was a jurisdictional provision entitling the adjudicator to disregard grounds not originally stated by the respondent in his payment response. The Singapore Court observed as follows: “In our judgement, section 15(3) is jurisdictional in the sense that it curtails the power of an adjudicator to allow a respondent to raise new grounds for withholding payment that were not included in his payment response and, for that matter, an adjudicator’s power even to consider such grounds at all. This is literally what the provision provides and we should, in our view, give proper effect to it.” 50. The Australian (NSW) provision similar to the Singapore provision is section 20(2B) of the New South Wales Building and Construction Industry Security of Payment Act 1999 which reads: 29 “The respondent cannot include in the adjudication response any reasons for withholding payment unless those reasons have already been included in the payment schedule provided to the claimant.” [Emphasis added]. In Multiplex Construction Pty. Ltd. v. Luikens & Anor. [2003] NSWSC 1140, the NSW Supreme Court read the provision as entitling the adjudicator to prevent the respondent from relying on reasons not stated in the initial response. The Court observed as follows: “If the respondent has any reason whatsoever for withholding payment of all or any part of the payment claim, section 14(3) requires that that reason be indicated in the payment schedule and section 20(2B) prevents the respondent from relying in its adjudication response upon any reason not indicated in the payment schedule. Correspondingly, section 22(d) requires the adjudicator to have regard only to those submissions which have been ‘duly made’ by the respondent in support of the payment schedule, that is, made in support of a reason for withholding payment which has been indicated in the payment schedule in accordance with s 14(3).” 30 51. In the present case, the right to disregard the so-called new grounds is not based on any express power vested in the Adjudicator as in Singapore or Australia but solely by a reliance on section 27(1) of CIPAA which says the jurisdiction “in relation to any dispute is limited to the matter referred to the adjudicator pursuant to sections 5 and 6”. There is therefore the need to determine the scope of the jurisdictional limitation under section 27(1) of CIPAA and whether it justifies the Adjudicator to exclude defences raised by a respondent. 52. In the context and application of section 27(1) of CIPAA, the distinction between “jurisdiction” and “powers” must be recognized. It is trite that they mean different things when both words appear in the same statute as it does in the present Act. On this point in Lee Lee Cheng v. Seow Peng Kwang [1960] 26 MLJ 1, Thomson CJ observed at page 3: “It is axiomatic that when different words are used in a statute they refer to different things and this is particularly so where the different words are, as here, used repeatedly. 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 31 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.” 53. The significance of the divide between “jurisdiction” and “powers” lies in the fact that “jurisdiction” relates to “the types of subject matter which the court may deal with” whereas its powers may be exercised only in relation to that jurisdiction. 54. The principle that jurisdiction is about subject-matter applies to every statute. Thus, CIPAA applies only to “construction contracts” as defined under the Act (see sections 2, 3 & 4) and that the “payment dispute” must arise under a construction contract. These are fundamental jurisdictional premises for CIPAA to apply. Sections 5 and 6 of CIPAA relate to this. Section 5 of CIPAA speaks of a “payment pursuant to a construction contract”. By section 4 of CIPAA, “payment” is defined as “payment for work done… under the express terms of a construction contract”. The response under 32 section 6 of CIPAA has to be in relation to the “payment” claim under sections 4 and 5 of CIPAA as to whether it is admitted or disputed. 55. By section 27(1) of CIPAA, the arbitrator’s jurisdiction “is limited to the matter referred to adjudication” pursuant to sections 5 and 6 of CIPAA. It refers to the “identification of the cause of action” in relation to the construction contract as required under section 5(2)(b) of CIPAA. In turn, the payment response under section 6 of CIPAA is defined and limited by the claim under section 5 of CIPAA. 56. In short, section 27(1) of CIPAA refers to the subject matter of the claim under section 5 of CIPAA, which is the “cause of action” identified by the claimant by reference to the applicable clause of the construction contract. Thus if the payment claim relates to Progress Claim No. 28 (as in the present case) the jurisdiction of the Adjudicator is limited to this progress claim and nothing else. The payment response is likewise limited to an answer to Progress Claim No. 28. 57. It can thus be said that the appellant’s case regarding the jurisdiction referred to in section 27(1) of CIPAA, is the subject matter of the claim and the cause of action as that identified under the 33 relevant provision of the construction contract. By section 27(2) of CIPAA, the parties may by consent extend the jurisdiction of the Adjudicator to cover other matters. A typical example will be that of other progress claims falling due before the adjudication commences. Section 27(1) of CIPAA has nothing to do with the grounds of the claim or the reasons for opposing the claim. 58. In contrast to jurisdiction, the “powers” of the adjudicator are listed in sections 25 and 26 of CIPAA under the specific heading of “Powers of the Adjudicator”. It follows that an Adjudicator may exercise all or any of the powers under sections 25 and 26 of CIPAA so long as he keeps within his jurisdiction in adjudicating only the subject-matter referred to him pursuant to sections 5 and 6 of CIPAA. 59. We are of the view that in the absence of a prohibitory clause similar to section 15(3) of the Singapore Act 2006 and a similar restriction as above mentioned the NSW legislation, there is no impediment for the Adjudicator to consider all the grounds of claim in an Adjudication Claim under section 9 of CIPAA, and all the grounds of defence in an Adjudication Response under section 10 of CIPAA. 34 60. The impact of section 6(4) of CIPAA should also be considered. The provision states that if a non-paying party fails to respond to the payment claim served on him he is “deemed to have disputed the entire payment claim”. The High Court in the present case treated section 6(4) of CIPAA as something equivalent to an anti-default judgment provision which merely gives “comfort” to the respondent (see para 67 of Judgment). With respect we are of the view that the approach of the High Court fails to give due regard to the section as a “deeming” provision in legislation. The word “deemed” used in a statutory provision is a legislative presumption of something having happened although it did not. It is a statutory fiction given reality by law. In St. Aubyn (L.M.) & Ors. v. Attorney General (No.2) [1951] 2 All ER 473, Lord Radcliffe observed at p. 53: “The word ‘deemed’ is used a great deal in modern legislation. Sometimes it is used to impose for the purposes of a statute an artificial construction of a word or phrase that would not otherwise prevail. Sometimes it is used to put beyond doubt a particular construction that might otherwise be uncertain. Sometimes it is used to give a comprehensive description that includes what is obvious, what is uncertain and what is, in the ordinary sense, impossible.” 35 In relation to something not done the word “deemed” would have the meaning given by James LJ in Exparte Walton [1881] 17 Ch. D. 746 which read as follows: “When a statute enacts that something should be ‘deemed’ to have been done which, in fact and truth, was not done, the Court is entitled and bound to ascertain for what purposes and between what persons the statutory fiction is to be resorted to.” 61. We are of the considered view that the High Court has wrongfully reduced the significance of the “deeming” effect in section 6(4) of CIPAA. Further the interpretation that section 6(4) of CIPAA would only entitle the respondent to dispute the claim as it stands, and not raise any positive defence, is to whittle down the effect of the deeming provision. 62. Useful reference can also be made to the observation of learned authors of Lam Wai Loon and Ivan Y.F. Loo in Construction Adjudication in Malaysia (KL CCH Asia 2013) wherein they observe at page 150 that the effect of section 6(4) of 36 CIPAA is that it does not prevent the respondent from submitting any defence available to him by way of an adjudication response. 63. It must also be noted that CIPAA does not require the participation of lawyers in the system devised. By section 8(3) of CIPAA parties may represent themselves or be represented by “any representative”. Thus, by sections 15 and 24 of CIPAA there is a safeguard which declares that the Adjudicator shall conduct himself with fairness, impartiality and due observance of the rules of natural justice. 64. It follows that the “duty and obligation of the adjudicator” as spelt out in section 24(c) of CIPAA that “he shall comply with the principles of natural justice” would oblige him to consider all the defences raised by the appellant in its adjudication response as a matter of fairness and impartiality. 65. We are of the view that an Adjudicator who wrongly rules out considering a defence presented to him would be in breach of natural justice. This point arose in Pilon Ltd. v. Breyer Group plc [2010] EWHC 837 (TCC) which like in our present case was concerned with 37 progress claims that were cumulative in nature. The decision by Justice Coulson bears close reading. At [24-28] the learned Judge observed: “24. It seems to me clear beyond doubt that the adjudicator erred in failing to take into account Breyer’s defence by reference to the over- payment on batches 1-25. Whilst he was quite correct to regard the notice of adjudication as setting out the boundaries of his jurisdiction, he failed to appreciate that what Pilon were seeking by that notice was not only an interim valuation of batches 26-62, but also an interim payment of any sum considered owing to them. Whilst the valuation required him to have regard to batches 26-62 only, the concomitant claim for payment meant that the adjudicator was obliged to consider whether Breyer were right to say that a much smaller net payment was due than that contended for by Pilon, because Pilon had already been overpaid on batches 1-25. In other words, the notice of adjudication gave the adjudicator the jurisdiction to consider what, if any, further sum should be paid by way of interim payment from Breyer to Pilon and that issue, of necessity, involved a consideration of Breyer’s defence based on the alleged over- payment on batches 1-25. 25. It is not uncommon for adjudicators to decide the scope of their jurisdiction solely by reference to the words used in the notice of adjudication, without having regard to the necessary implications of 38 the words: that was, for example, what went wrong in Broardwell. Adjudicators should be aware that the notice of adjudication will ordinarily be confined to the claim being advanced; it will rarely refer to the points that might be raised by way of a defence to that claim. But, subject to questions of withholding notices and the like, a responding party is entitled to defend himself against a claim for money due by reference to any legitimate available defence (including set-off), and thus such defences will ordinarily be encompassed within the notice of adjudication. 26. As a result, an adjudicator should think very carefully before ruling out a defence merely because there was no mention of it in the claiming party’s notice of adjudication. That is only common sense: it would be absurd if the claiming party could, through some devious bit of drafting, put beyond the scope of the adjudication the defending party’s otherwise legitimate defence to the claim. 27. I understand that it may be tempting for a claiming party in an adjudication to seek to limit the adjudicator’s jurisdiction in a way in which that party believes to be to its advantage. I am in no doubt that is what happened here: Pilon did not wish the adjudicator to have any regard to batches 1-25, and therefore deliberately limited the scope of the adjudication notice to batches 26-62. It was their case that the over-payment claim was outside the adjudicator’s jurisdiction, and that is what they (successfully) urged on the 39 adjudicator. Thus, this is a case where Pilon sought a tactical advantage by putting forward an erroneous statement of the adjudicator’s jurisdiction and, as the decision in Quartzelec shows that can be a dangerous tactic to adopt. 28. In the result therefore, I consider that the adjudicator deliberately placed an erroneous restriction on his own jurisdiction, which amounted to a breach of natural justice…..” 66. Based on the above decision of Pilon Ltd the Adjudicator had likewise in our case, wrongly construed the scope of his jurisdiction under section 27(1) of CIPAA in refusing to consider all the defences raised in the Adjudication Response. Therefore such a decision by the Adjudicator cannot stand. 67. On the applicability of Pilon Ltd’s case to the present case learned counsel for the respondent contended that the Adjudicator in England is not constrained by a section 27(1) of CIPAA like provision on his jurisdiction. Pilon Ltd was decided based on the English Housing Grants, Construction and Registration Act 1966 [“HGCR Act”]. The adjudication provisions of the HGCR Act are contained in the Scheme for Construction Contracts (England and Wales) 40 Regulations 1998 [“Scheme”]. Regulation 20 of the Scheme expressly allows the Adjudicator to take into account any other matter which the parties to the dispute agree should be within the scope of the adjudication or which are matters under the contract which he considers are necessarily connected with the dispute. 68. Learned counsel for the respondent also submitted that there is no requirement for the equivalent of a Payment Claim and Payment Response in England. The adjudication is commenced by a notice of Adjudication. [See Regulation 1 of the Scheme]. It is because the Adjudicator was obliged under Regulation 20 of the Scheme to consider matters “necessarily connected with the dispute” that the Court in Pilon Ltd found the Adjudicator to have wrongfully excluded for his consideration the overpayment on batches 1-25 in his valuation of batches 26-62. 69. It is the respondent’s contention that in any event in Pilon Ltd, the valuation of batches 26-62 is an accounting of the value of work done against sums paid. Previous payments, including that for batches 1-25, must be considered. The present case is quite different wherein the appellant is seeking to include cross-claims that 41 were not raised in its Payment Response under section 6 of the CIPAA. 70. With respect to the above arguments advanced for the respondent on the applicability of Pilon Ltd to the present case we are of the considered view that it is incorrect to suggest, as the respondent did, that because of Regulation 20 of the Scheme the Adjudicator has wider power under the HGCR Act, and that Pilon Ltd cannot apply. Regulation 20 in full states: “Adjudicator’s decision 20. The adjudicator shall decide the matters in dispute. He may take into account any other matters which the parties to the dispute agree should be within the scope of the adjudication or which are matters under the contract which he considers are necessarily connected with the dispute. In particular, he may – (a) open up, revise and review any decision taken or any certificate given by any person referred to in the contract unless the contract states that the decision or certificate is final and conclusive, (b) decide that any of the parties to the dispute is liable to make a payment under the contract (whether in sterling or some other 42 currency) and, subject to section 111(4) of the Act, when that payment is due and the final date for payment, (c) having regard to any term of the contract relating to the payment of interest decide the circumstances in which, and the rates at which, and the periods for which simple or compound rates of interest shall be paid.” [Emphasis added) 71. We are in agreement with the submission of learned counsel for the appellant that Regulation 20 of the Scheme is about the powers of the adjudicators in making their decision and not their jurisdiction. Under the HGCR Act, the adjudicators first have to determine their jurisdiction by reference to the scope of the “dispute” that is referred to them. That relevant part of the HGCR Act and the Scheme that was under consideration in Pilon Ltd. was Regulation 1 which provides: ‘ “Notice of Intention to seek Adjudication 1. (1) Any party to a construction contract (the “referring party”) may give written notice (the “notice of adjudication”) of his intention to refer any dispute arising under the contract, to adjudication. (2) The notice of adjudication shall be given to every other party to the contract. (3) The notice of adjudication shall set out briefly - 43 (a) the nature and a brief description of the dispute and of the parties involved, (b) details of where and when the dispute has arisen, (c) the nature of the redress which is sought, and (d) the names and addresses of the parties to the contract (including, where appropriate, the addresses which the parties have specified for the giving of notices)”. 72. This means that the adjudicator must look to the “notice of adjudication” to first determine the jurisdiction of the dispute that is referred to them. This is made clear in Pilon Ltd. itself as at paragraphs 24 and 25 of the judgment. It is also incorrect to say that the present case is different from Pilon Ltd. because Pilon Ltd. was dealing with an accounting of previous payments. In Pilon Ltd. the excluded defence was one of overpayment and an accounting of what was due. In the present case before the court, one of the appellant’s excluded defences was an overpayment of RM2,000,000.00 which was not accounted for. 73. It is noted that in the supporting judgment in the Court of Appeal of Prasad Sandosham Abraham JCA (as he then was) the 44 learned Judge held that section 26(2)(c) of CIPAA could have been invoked by the appellant to amend his case before the adjudicator. On this point we are of the view that this remedy was not necessary on the facts of the present case because the Adjudication Response was “a document produced in the adjudication proceedings” under the said section and it had carried all the defences sought to be relied on by the appellant. It did not call for any amendment. 74. For the reasons above stated it is our considered view that an Adjudicator is not excluded from considering all the defences raised by a respondent in the Adjudication Response whether found in the first response under section 6 of CIPAA or not. In the circumstances of this case, the Adjudicator had acted in breach of natural justice in excluding and refusing to consider certain defences raised by the appellant, and his decision cannot stand for that reason. 75. We shall now deal with Questions 7 and 8 relating to the setting aside and stay issues. Questions 7 and 8 relate to the interplay between sections 15 and 16 of CIPAA. Question 7 deals with the court’s powers under section 16 of CIPAA. Question 8 deals with the timing of an application under section 16 of CIPAA. 45 76. The High Court in the present case held that an application under section 16 of CIPAA can only be allowed in exceptional circumstances. These exceptional circumstances were then described as necessarily relating “to the financial aspects of payment or repayment; as it is the whole concept behind adjudication and payment disputes”. 77. The reasoning adopted by the High Court for such a stringent test was that it took into account the object and purpose of CIPAA to provide for quick payment through adjudication and that it was the approach favoured by the courts in England, Australia and Singapore. The Court placed much emphasis on the decision of the Singapore Court of Appeal in WY Steel Construction Pte. Ltd.. 78. The Court of Appeal in the present case adopted a similar approach. It said that unless there was “overwhelming evidence” that the contractor would be unable to meet its contractual obligations as well as meet its financial obligations to the employer, a stay ought not to be granted. 46 79. We are of the view that such a stringent test is not justified under CIPAA because section 16 of CIPAA itself contains no such limiting requirement or intent. Section 16 of CIPAA should be treated as one of the safeguards to a likely wrongful adjudication decision and which empowers the court to find a suitable middle ground in cases where there has been clear and unequivocal errors. 80. It is to be noted that after a review of the legislation in the other jurisdictions, the scheme in each jurisdiction is different. Other jurisdictions do review the adjudication awards, and where appropriate, deny enforcement in whole or in part. It can be seen as follows: (a) In England, statutory adjudication is governed by the HGCR Act and the Scheme and the Arbitration Act, 1996. Under Regulation 24 of the Scheme an order of the adjudicator may be enforced by reference to section 42 of the UK Arbitration Act. At the application for enforcement, the responding party may seek to resist the enforcement on the grounds of want of jurisdiction of the adjudicator or a breach of natural justice. 47 (b) In Australia, different states have different statutory adjudication schemes. In the state of Victoria in Australia where there is a failure to respond to a payment claim the claiming party must apply for leave to enter judgment at which point a court can review the claim. There is a provision for a court-based review of the adjudicator’s decision. Apart from that, judicial review or certiorari is available to challenge any adjudication decision. This includes challenging an adjudication decision by using Wednesbury unreasonableness. Importantly, Victoria, Australia, provides for an automatic stay after an adjudication decision, on the launching of arbitration to challenge the award subject to security being provided by the responding party. (c) In New Zealand the scheme is again different under the Construction Contracts Act 2002. Here the claiming party is entitled to seek statutory adjudication on progress payment. Those progress payments are statutorily defined under section 17 of the Act to include an accounting of defective works and liquidated ascertained damages. Once an 48 adjudication decision is delivered, section 73 of the Act sets out the steps for applying to court for judgment for enforcement of the award. This is apart from the right of the responding party to seek judicial review against the award. (d) In Singapore there is a specific provision under section 18 of the S’pore Act 2006 which allows for review of adjudication awards. It is after the review process concludes that the claiming party must then apply to court for an order of enforcement. 81. From observations made on the laws from the other jurisdictions, an adjudication award can be reviewed and challenged in a variety of ways. A stay application in other jurisdictions is made only when the other avenues for review and challenge to the award are exhausted. It therefore makes sense that applications for stay in other jurisdictions are rarely granted. We are of the view that it is however not right to rely on those decisions to justify restricting the statutory power of stay in Malaysia simply on the financial status of the other party. CIPAA contains no such restriction. 49 82. We are in agreement with the contention of the appellant that a more liberal reading of section 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 readily and caution must be exercised when doing so. However to restrict the application of section 16 of CIPAA in the manner proposed by the High Court, and the Court of Appeal, would be to strip it of any utility. 83. It is our considered view that on the facts of this case that the appellant was deprived of three of its defences. Of the three at least two defences relate directly to the amount that was being claimed by the respondent. Those are: a. the undisputed advance payment of RM2,000,000.00; and b. the cost of rectification of defective works in the amount of RM1,300,000.00. 84. The High Court and the Court of Appeal in the present case took the view that no stay was available unless the appellant could show that the respondent was unable to repay the adjudication sum. 50 With respect we are of the view that the correct approach for the High Court under section 16 of CIPAA would be to evaluate each case on its merits without the fetter of a pre-determined test not found in the section itself namely the financial capacity of the contractor to repay. It could be a factor but not the only factor. 85. As regards Question 8, the Court of Appeal held that an application under section 16 of CIPAA for stay could only be made after the filing of an application under section 15 of CIPAA. We are of the view that the Court of Appeal fell into error here when it failed to consider that the application for stay was made under section 16(1)(b) and not section 16(1)(a) of CIPAA. In any event, section 16(1)(a) specifically provides that the parties may apply for a stay once an application to set aside an award under section 15 of CIPAA has been made. It does not say that the application must be made separately. It is clear that the provision is there in aid of an application under section 15. 86. It is wholly appropriate that an application for stay under section 16 of CIPAA be filed together with an application to set aside an award under section 15 of CIPAA as a matter of practical utility for the 51 High Court to make the appropriate order in a joint consideration of both. 87. For these reasons it is our view that Questions 7 and 8 should both be answered in the affirmative. Conclusion 88. For all the above reasons the appeal of the appellant is allowed with costs. The orders made by the High Court and affirmed by the Court of Appeal are hereby set aside. The appellant’s application to challenge the jurisdiction of the Adjudicator under the provision of section 41 of CIPAA is allowed. The appellant’s application to set aside and/or stay the award pursuant to sections 15 and 16 of CIPAA is also allowed. The respondent’s application seeking the registration and enforcement of the adjudication decision as a judgment of the Court pursuant to section 28 of CIPAA is dismissed. Deposit is to be refunded to the appellant. (ZULKEFLI BIN AHMAD MAKINUDIN) President Court of Appeal Dated: 6th November 2017 52 Counsel for the Appellant Cyrus Das, Chetan Jethwani & Goh Hui Ring Solicitors for the Appellant Messrs. Kumar Partnership Counsel for the Respondent Vinayak Pradhan, Foo Joon Liang, Tan Min Lee, Kwan Will Sen & Lee Xin Div Solicitors for the Respondent Messrs. Gan Partnership

Tika 2.6.0

02(f)-10-2011(W)

PERAYU IFTIKAR AHMED KHAN … PERAYU (Sebagai wakil bagi harta pusaka Sardar Mohd Roshan Khan)(Simati) RESPONDEN PERWIRA AFFIN BANK BERHAD … RESPONDEN (Dahulunya dikenali sebagai Perwira Habib Bank Malaysia Berhad)

Banking — Appeal — Overdraft facility — Pleadings — Statement of claim adverting to cause of action in negligence — Whether wrongful withdrawal of monies against overdraft account — Whether respondent bank negligent in uplifting the sum pledged as a set-off against the overdraft account — Effect and repercussion — Whether cause of action in tort abandoned — Whether appellant’s pleaded cause of action was for the tort of negligence, which he had abandoned and not for breach of contract— Whether appeal to be dismissed

06/11/2017

YA TAN SRI DATO' SRI ABU SAMAH BIN NORDINKorumYAA TUN MD RAUS BIN SHARIFYA TAN SRI DATUK SURIYADI BIN HALIM OMARYA TAN SRI DATUK ZAINUN BINTI ALIYA TAN SRI DATO' SRI ABU SAMAH BIN NORDINYA TAN SRI DATUK RAMLY BIN HAJI ALI

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=47419a1e-ce9d-4add-9e3e-15bb33c5b62a&Inline=true

DALAM MAHKAMAH TINGGI MALAYA, KUALA LUMPUR DALAM MAHKAMAH PERSEKUTUAN MALAYSIA (BIDANG KUASA RAYUAN) RAYUAN SIVIL NO: 02(f)-10-2011(W) ________________________________________ 5 ANTARA IFTIKAR AHMED KHAN … PERAYU 10 (Sebagai wakil bagi harta pusaka Sardar Mohd Roshan Khan)(Simati) DAN 15 PERWIRA AFFIN BANK BERHAD … RESPONDEN (Dahulunya dikenali sebagai Perwira Habib Bank Malaysia Berhad) 20 (Dalam Perkara Mahkamah Rayuan Malaysia) Rayuan Sivil No. W-02-722-07) 25 ANTARA PERWIRA AFFIN BANK BERHAD … PERAYU 30 (Dahulunya dikenali sebagai Perwira Habib Bank Malaysia Berhad) DAN 35 SARDAR MOHD ROSHAN KHAN … RESPONDEN (Pemilik Tunggal yang berniaga di bawah nama dan gaya Omar Khayam Enterprise) 40 2 Coram: Raus Sharif, CJ Suriyadi bin Halim Omar, FCJ Zainun bin Ali, FCJ A.Samah Nordin, FCJ 5 Ramly bin Hj Ali, FCJ JUDGMENT OF THE COURT 10 [1] This is an appeal by the appellant, Sadar Mohd Roshan Khan (plaintiff in the High Court) against the decision of the Court of Appeal which had set aside the judgment of the Kuala Lumpur High Court given in his favour. He had since passed away. On 18.3.2013, his son Raja Iftikar Ahmad 15 Khan was substituted as a party to this appeal. [2] The High Court had allowed the appellant’s claims for a declaration that Perwira Affin Bank Berhad (the respondent) was not entitled to uplift his Fixed Deposit Receipt No. 20 049675 (‘FDR’) which was pledged to the respondent as security for an overdraft facility of RM300,000.00, without his consent and accordingly ordered the respondent to refund the FDR to him with interest at 8% per annum from 18.3.1993 until realisation. The High Court found that the respondent 25 was in breach of contract by uplifting the FDR without the 3 appellant’s consent. The Court of Appeal however allowed the respondent’s appeal and set aside the judgment of the High Court on the ground that the appellant’s cause of action was for the tort of negligence, which it had abandoned and not for breach of contract. 5 [3] On 27.1.2011 the appellant was granted leave to appeal to this Court against the decision of the Court of Appeal on the following questions of law: 10 (1) When evidence is led without objections at trial, can an Appellate Court reverse the decision of the High Court on the sole ground that the cause of action in negligence has been abandoned?; and 15 (2) Is a plaintiff entitled to declarations of rights as pleaded? Background facts 20 [4] The undisputed facts of the case are as follows: (a) Sadar Mohd Roshan Khan (PW1) was, prior to his death, the sole proprietor of a firm known as Omar Khayam Enterprise (“OKE”). 25 4 (b) On 18.3.2013 his son, Raja Iftikar Ahmad Khan (PW2) was substituted as a party to this appeal. (c) OKE was given various banking facilities by the 5 respondent amounting to about RM15 million as at August 1990. (d) On 13.4.1990 the appellant informed the respondent that he had authorized PW2 to sign all 10 cheques on behalf of OKE in respect of OKE’s account No. 1102052687 (“the Account”). (e) By another letter dated 16.4.1990 the appellant informed the respondent that he had authorised 15 PW2, to operate the Account and to do all things necessary to protect the respondent’s interest. The letter further states that the appellant; “agree to be responsible for due repayment of 20 money due to you on the account or otherwise and purported to have been incurred on my/our behalf or on behalf of my/our firm by the authorised person whether such liabilities have been or shall be incurred in usual course of 25 business or not and notwithstanding any default, omission, negligence or fraud on the part of the authorised person”. 5 (f) On 22.12.1990 the respondent granted OKE an additional overdraft of RM300,000 (“the OD”). (g) The OD was secured by the FDR of RM200,000.00 vide FDR No. 049675 dated 15.1.1991; and a 5 personal guarantee of PW2. (h) The terms and conditions of the FDR are contained in the Memorandum of Deposit dated 15.1.1991 which was executed by PW1 and PW2 in favour of 10 the respondent. Paragraph 6 of the Memorandum of Deposit states: “You are at liberty at any time to withdraw the deposit made under the said Deposit Receipt 15 No. 049675 or any Fixed Deposit from time to time substituted for or replacing the same and to apply the proceeds thereof in or towards the discharge of my/our accounts without reference to one/us. And a statement signed by anyone 20 of your officer as the amount for the time being owing on my/our account shall be final and conclusive evidence against me/us for all purposes”. 25 (i) On 31.1.1991 the appellant applied to the respondent to transfer the banking facilities enjoyed by OKE to Omar Khayam Enterprises Sdn Bhd 6 (“the company”), which the respondent agreed, subject to the conditions that – (a) A fresh joint and several guarantee for RM15,300,000.00, to be executed by Mr. 5 Sardar Mohd Roshan Khan and Mr. Raja Iftikar Ahmad Khan; and (b) All facilities together with liabilities will be transferred from Omar Khayam 10 Enterprise to Omar Khayam Enterprises Sdn Bhd. (j) A fresh joint and several guarantee for RM15,300,000.00 was duly executed by the 15 appellant and PW2. The parties to the Memorandum of Deposit dated 15.1.1991 however remain unchanged. The company, Omar Khayam Enterprises Sdn Bhd, was not substituted as a party to the Memorandum of Deposit in place of the 20 appellant and PW2. 7 [5] On 15.5.1991, the shareholders of the company, namely, PW2 and Rajah Sultan sold their shares to one Sallim bin Mohamed (‘Sallim’) and two others for RM550,000.00. PW2 was then the majority shareholder, holding 715,001 shares of the company. Rajah Sultan held 5 only 1 share in the company. A deposit of RM100,000.00 was paid upon execution of the Sale and Purchase Agreement. [6] The balance of RM450,000.00 was to be paid by 10 15.7.1991. Sallim paid the appellant another sum of RM300,000.00 by way of a cashiers order dated 26.7.1991. The cashiers order was not paid to PW2 as he was actually holding the shares in trust for the appellant. 15 [7] The balance of RM150,000.00 was not paid as Sallim was arrested in Singapore on fraud charges and imprisoned for 6 years. Sallim’s solicitors later told PW2 that nothing could be done as her fees and disbursement had not been paid by Sallim. 20 [8] The appellant later discovered that Sallim had, without his knowledge, used the company’s cheque to withdraw 8 RM300,000.00 from the company’s OD account to purchase a cashiers order in the name of the appellant. Sallim then gave the cashiers order to the appellant as part payment of the purchase price of the shares. As a result of Sallim’s action, the overdraft facilities of RM300,000.00 given to the 5 company was fully utilised for an unauthorised purpose, unknown to the appellant. The company’s cheque was signed by Sallim alone. This was in breach of the Directors Resolution dated 25.7.1991 which required that the company’s cheques must be signed by two signatories, 10 namely Sallim and PW2. [9] On 4.3.1999 the appellant filed a writ of action against the respondent for certain declarations and for the refund of the FDR, alleging that the respondent had negligently and 15 without his consent uplifted his FDR. The appellant named PW2 as the second defendant, alleging that PW2 had consented to the uplifting of the FDR without his authorisation. The appellant later withdrew the suit against PW2, leaving the respondent as the sole defendant. 20 9 [10] The appellant sought the following reliefs against the respondent: (a) An order and declaration that the respondent should have obtained the consent from the 5 appellant before uplifting the said FDR No. 049675; (b) An order and declaration that the respondent was negligent in honouring Perwira Habib Bank Malaysia Bhd cheque No. 531000 dated 26.7.1991 10 when the same had not been countersigned by his son and accordingly the respondent was not entitled to uplift the said Deposit Receipt No. 049675 against the said Overdraft Facility of RM300,000.00; 15 (c) An order and declaration that the respondent refund to the appellant the sum of RM231,155.60 with interest at 8% per annum from 18.3.1993 to date of judgement and realisation; and 20 (d) Costs. 10 [11] It is to be noted that in prayer (b), the appellant, quite surprisingly, is not asking the respondent to refund the sum of RM300,000.00 withdrawn from the Overdraft Account due to the respondent’s negligence in honouring the said cheque without being countersigned by PW2. Instead, the appellant 5 sought a declaration that the respondent was not entitled to uplift the FDR and for an order that the respondent refund the FDR. The High Court 10 [12] The High Court dismissed the appellant’s claim based on negligence, holding that the appellant has no cause of action in tort against the respondent as the overdraft was given to the company and not to the appellant. This is what 15 the learned trial judge said: “When the cash cheque of RM300,000.00 was negligently and wrongfully honoured by the 1st Defendant on 26.7.91 then only the company was entitled to sue the 1st 20 Defendant for negligence and for the recovery of the said sum of RM300,000.00. The plaintiff has no cause of action in tort against the 1st Defendant as the OD was given to the company and not to the plaintiff”. 25 [13] The High Court however found that the respondent was liable for breach of contract and accordingly granted the 11 declaration that the respondent was not entitled to uplift the FDR without the appellant’s consent and ordered the respondent to refund the FDR. The High Court held that the appellant has a cause of action for breach of contract and that the cause of action on contract arose when the respondent 5 uplifted his FDR without his consent and in breach of the terms of the Memorandum of Deposit. The High Court held that the Memorandum of Deposit was between the appellant and the respondent and not between the company and the respondent. The High Court pointed out that the respondent 10 failed to request the appellant to execute a fresh Memorandum of Deposit when the banking facilities were transferred to the company. This is how the learned trial judge justified his finding against the respondent for breach of contract: 15 “Although the plaintiff has pleaded negligence on the part of the 1st Defendant in honouring the cheque for RM300,000.00 the plaintiff’s cause of action is for breach of contract and the cause of action only arose when the 1st 20 Defendant uplifted the FD and set it off against the OD of RM300,000.00 given to the company. Since no monies had been utilized by the company the 1st Defendant was not entitled under the terms of the Memorandum of Deposit to uplift the FD. The act of uplifting the FD on 15.4.1993 25 was a breach of contract by the 1st Defendant”. 12 [14] At pages 41 and 42 of his judgment the learned trial judge further explained: At page 41 “The Memorandum of Deposit was a contract by which the 5 plaintiff agreed that if any monies were owing by OKE the 1st defendant was at liberty to withdraw the FD and apply it to settle sums owing by OKE. In breach of contract the 1st defendant uplifted the FD on 15.4.1993 and set of f same against the OD of the company”. 10 At page 42 “Since the FD belonged to PW1 the consent of PW1 should have been obtained and not that of PW2. The FD did not belong to PW2 or the company. Even if PW2 had agreed 15 to the upliftment of the FD it was not within his power to do so. The plaintiff’s consent was never obtained”. [15] The respondent, being aggrieved by the decision of the High Court, appealed to the Court of Appeal. The principal 20 ground of appeal was that the learned trial judge erred in law and in fact in holding that the appellant’s cause of action was for breach of contract (which was not pleaded) whereas the appellant’s pleaded cause of action was based on the tort of negligence. 25 13 The Court of Appeal [16] The Court of Appeal allowed the respondent’s appeal and set aside the judgment of the High Court on the sole ground that the appellant had abandoned his claim based on 5 the tort of negligence. The Court of Appeal held that the appellant’s cause of action was not based on a breach of contract but on the tort of negligence. The parties were bound by their pleadings. 10 [17] Learned counsel for the appellant however urged the Court of Appeal to enter a declaratory judgment for the appellant pursuant to Order 15 rule 16 of the Rules of the High Court 1980, based on a breach of contract, contending that the Court of Appeal could still make a declaratory order in 15 the absence of such pleading. Learned counsel for the respondent submitted that the appellant’s cause of action was for the tort of negligence and not for breach of contract. As the appellant’s counsel had conceded in his written submission before the High Court that the appellant has no 20 cause of action in the tort of negligence, which was the appellant’s pleaded case, the appeal by the respondent should therefore be allowed. The Court of Appeal agreed 14 with the respondent that the appellant’s cause of action was based on negligence as can be seen from paragraphs 11, 12, 16 and 18 of the appellant’s statement of claim and that the appellant had abandoned his claim based on negligence. At paragraph 23 of its judgment, the Court of Appeal said: 5 “The omnipotent words “negligently”, “negligence” and “negligent” appear in the aforesaid paragraphs of the plaintiff’s statement of claim. It is as clear as crystal that the plaintiff’s statement of claim is an illustration of a classic 10 case based on the tort of negligence, and not based on a breach of contract. The expression “breach of contract” had never appeared at all, to say the least, it is non- existent”. 15 The Federal Court [18] There are two questions of law for our determination, namely – (i) When evidence is led without objections at trial, can 20 an Appellate Court reverse of decision of the Court on the sole ground that the cause of action in negligence has been abandoned?; and (ii) Is a plaintiff entitled to declaration of rights as 25 pleaded? 15 [19] Learned counsel for the appellant submitted that the appellant’s pleaded case against the respondent was based on negligence as well as breach of contract. Negligence 5 (i) It was contended before us that the Court of Appeal erred in setting aside the judgment of the High Court on the sole ground that the appellant had abandoned his action based on the tort of negligence as this was not raised in the 10 Memorandum of Appeal nor submitted upon. The Court, in an adversarial system of justice should never decide a case on a point or issue not raised or submitted upon by counsel unless they have been given an opportunity to address that point first: 15 See Hock Hwa Bank (Sabah) Berhad v Yong Liuk Thin & Ors [1995] 2 CLJ 900, Hadmor Productions Ltd & Ors v Hamilbu & Anor [1982] 2 WLR 322, Albion Hotel (Freshwater) Ltd v Silva & Another [2002] 1 RLR 200, The County Council 20 of Hereford and Worcester v Neale [1986] ICR 471. 16 (ii) This is disputed by learned counsel for the respondent who pointed out to us that the respondent’s Memorandum of Appeal against the decision of the High Court stated clearly that the learned judge erred in law and in fact in allowing the 5 appellant’s claim based on a breach of contract (which was not pleaded) whereas his pleaded case was based on negligence. [20] We find that the contention by learned counsel for the 10 appellant is without merit for the following reasons. Firstly, the respondent’s Memorandum of Appeal against the decision of the High Court expressly stated that the learned trial judge erred in allowing the appellant’s claim based on a breach of contract when his pleaded case against the respondent was 15 based on negligence. Secondly, the claim that the appellant was denied the opportunity of being heard is unfounded as it was the appellant himself who abandoned his cause of action based on negligence. Thirdly, the appellant did not appeal against the trial judge’s ruling that the appellant has no cause 20 of action in negligence. 17 Breach of Contract [21] The next thing to consider is whether the appellant’s pleaded case is also based on a breach of contract. Order 18 rule 7(1) and (2) of the Rules of the High Court 1980 lays 5 down the basic rules of pleading: (1) Subject to the provisions of this rule and rules 10, 11 and 12 every pleading must contain, and contain only a statement in a summary form of the material 10 fact on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which these facts are to be proved, and the statement must be as brief as the nature of the case admits. 15 (2) Without prejudice to paragraph (1) the effect of any document or the purpose of any conversation referred to in the pleading must if material, be briefly stated, and the precise words of the 20 document or conversations shall not be stated, except in so far as those words are themselves material. 18 [22] The function of pleading is to give fair notice of the case which has to be met: Rosita bte Baharum (an infant) v Sabedin bin Salleh [1993] MLJ 393, Perniagaan Kinabalu (S) Sdn Bhd v Sua Ah Yoke & Ham Jon See [2002] MLJU 601. This is to prevent the opposing party from being taken 5 by surprise by evidence which departs from pleaded material facts, for such evidence if allowed, will prejudice and embarrass or mislead the opposing party: See Superintendent of Lands and Surveys, 4th Division & Anor v Hamit B. Matusin & 6 Ors [1994] 3 CLJ 567; Raja 10 Abdul Malik Muzaffar Shah v Setiausaha Suruhanjaya Pasukan Polis [1995] 1 MLJ 308. A good pleading should contain a statement of (1) facts, not law, (2) material facts only, (3) facts, not evidence, and (4) facts stated in a summary form: See Halsbury’s Laws of England, 4 th Edition, 15 Reissue, paragraph 13. [23] What are material facts? All facts which must be proved in order to establish the ground of claim or defence are material: Philip v Philips [1974] 4 QBB 127 at 133, 134. 20 Parties are bound by their pleadings. This is a rule which will be strictly enforced by the Court. Thus, where a party’s case 19 in based on a contract and the other party to the contract is in breach of it, these material facts must be pleaded. [24] Halsbury’s Law of England, supra at paragraph 26 illustrates how a case based on contract should be pleaded: 5 “In pleading a contract it must be stated whether it is express or implied. The pleading should state the date of the alleged agreement and the names of all the parties to it. If the contract is express, it must be shown whether the 10 contract is oral or in writing, and if the contract or any part of it is in writing, the document or documents must be identified. If the contract is not under seal, the consideration should be stated. If any contract or any relationship is to be implied from a series of letters or 15 conversations, or otherwise from a number of circumstances, the effect of the letters or conversations, or reference generally to the circumstances should be pleaded briefly, but not set out in detail. If the person pleading desire to rely in the alternative upon more 20 contracts or relationships than one, each contract or relationship which is to be implied may be stated in the alternative’. 25 [25] We agree with the Court of Appeal that the appellant’s cause of action was based on negligence and not on a breach of contract. We have looked at the averments in the appellant’s statement of claim. We are unable to find any clear averment that the appellant’s case was based on 30 contract and that the respondent had, in breach of the 20 contract, uplifted the FDR without the appellant’s consent. The appellant’s cause of action based on negligence is clearly stated in paragraphs 11 and 12 of the statement of claim: “11. Notwithstanding the above stated instructions, the 1st 5 Defendant negligently allowed the said Sallim Bin Mohamad to cash a cheque No. 53100 dated 26.7.1991 belonging to the said Limited Company for RM300,000 without the signature of the Second Defendant. As a consequence the said Overdraft 10 Facility was completely utilised. 12. Despite the 1st Defendant’s above negligence, the 1 s t Defendant then wrote to the 2nd Defendant stating that the 1st Defendant intended to uplift the said FDR 15 which at that point of time amounted to RM231,393.00 in order to reduce the said Overdraft Facility of RM300,000.00”. 20 [26] Not a single word of “contract”, let alone the breach of it, is stated in the pleading. The appellant blamed his son (2nd Defendant) and sued him for unlawfully authorising the respondent to uplift the FDR. He later withdrew the suit against the son, leaving the respondent as the sole defendant 25 in the suit. [27] It is settled law that parties are bound by their pleadings and are not allowed to adduce facts and issues which they 21 have not pleaded: Samuel Naik Siang Ting v Public Bank Bhd [2015] 6 MLJ 1, State Government of Perak v Muniandy [1986] 1 MLJ 490, Veronica Lee Ah Ling & Ors v Maxisegar Sdn Bhd [2009] 6 CLJ 232. In Lee Ah Chor v Southern Bank Bhd [1991] 1 CLJ Rep 239 it was held that 5 where a vital issue was not raised in the pleadings, it could not be allowed to be granted and to succeed on appeal. A decision based on an issue which was not raised by the parties in their pleadings is liable to be set aside: Yew Wan Leong v Lai Kok Kee [1990] 2 MLJ 152. In The Chartered 10 Bank v Yong Chan [1974] 1 MLJ 157 the Federal Court set aside the judgment of the trial judge as it was decided on an issue not raised on the pleadings. In that case the trial judge erred in concluding that the pleadings included a claim for breach of contract as well as a claim for libel. 15 [28] Learned counsel for the appellant could not pinpoint to us that breach of contract was also the appellant’s pleaded case against the respondent. He candidly admitted in his written submission that the appellant’s “plea of breach of 20 contract lacked elegance”. Thus the appeal before us is not directly based on the ground that the Court of Appeal erred in 22 disregarding the appellant’s pleaded case based on a breach of contract as that is bound to fail. [29] The appellant’s contention is that evidence of contract between the appellant and the respondent and the breach of 5 it by the latter had been led at trial without objections and as such the Court is duty bound to consider the said evidence. The opposing party is deemed to have waived the requirement that the material facts relating to the contract must be pleaded. In such circumstance there was no 10 element of surprise and prejudice. Learned counsel for the appellant relied on Boustead Trading [1985] Sdn Bhd v Arab Malaysian Bank Bhd [1995] 3 MLJ 331, Perniagaan Kinabalu (S) Sdn Bhd v Sua Ah Yoke & Ham Jon See [2002] MLJ 601, Pekan Nenas Industries Sdn Bhd v Chang 15 Ching Chuen & Ors [1998] 1 MLJ 465 in support of his contention . [30] In Boustead Trading [1985] Sdn Bhd’s case the Federal Court at page 342 ruled that; 20 “Thirdly, where there is no pleaded case of estoppel, but there is let in, without any objection, a body of evidence to support the plea, and argument is directed upon the point, it is the bounden duty of a court to consider the evidence 25 23 and the submissions and came to a decision on the issue. It is no answer, in such circumstances, to say that the point was not pleaded. [31] In Pekan Nenas Industries Sdn Bhd’s case the 5 plaintiffs i.e Chang Ching Chuen & Ors (respondents in the appeal before the Federal Court) brought an action in the High Court against the defendants, seeking inter alia a declaration that the sale of the lands to the purchaser, namely Pekan Nenas Industries Sdn Bhd was null and void. The 10 plaintiffs obtained an injunction to prohibit the sale. The purchaser was allowed to intervene merely for the purpose of setting aside the injunction. The purchaser was not made a party to the suit between the plaintiffs and the defendants. At the trial, the purchaser through its chairman gave evidence 15 without objection that the purchaser was a bona fide purchaser without notice. The High Court allowed the plaintiff’s claim and set aside the sale but it ruled against the purchaser holding that the purchaser/intervenor was not a bona fide purchaser. The Court of Appeal affirmed the 20 decision of the High Court. The defendants did not appeal. But the purchaser appealed to the Federal Court. The respondents contended that the purchaser/intervenor was never a party to the proceedings in the High Court and that 24 the evidence on behalf of the purchaser was not supported by the pleadings. The Federal Court, in response to the contention that the matter was not pleaded, at page 503 said: “No objection was taken to evidence being led on behalf of 5 the intervenor/purchaser and the case was argued both in the High Court and on appeal to the Court of Appeal, as though the intervenor/purchaser was a co-defendant which had filed a pleading and it was on this basis that the case was heard and determined”. 10 [32] Learned counsel for the appellant further stressed the point that evidence given at the trial could, in appropriate circumstance, overcome defects in the pleadings where the net result of such evidence is to prevent the other side from 15 being taken by surprise. One exception to the rule that evidence given at trial without objection could overcome defects of pleading is when such evidence represents a radical departure from the pleadings, and it is not just a variation, modification or development of what has been 20 alleged in the pleading in question: See Perniagaan Kinabalu Sdn Bhd’s case. [33] Learned counsel for the respondent submitted that the law on the question posed by the appellant is settled and had 25 25 been adequately answered by this Court in Superintendent of Lands and Surveys v Hamit B Matusin & Anor [1994] 3 CLJ 567. In that case the respondents (plaintiffs) claimed that they have acquired native customary rights over certain lands by virtue of Sarawak’s Land Code. They sought an 5 injunction to restrain the appellants (defendants) from building on their lands. The defendants in their defence denied that the appellants had acquired native customary rights over the said lands. This defence was just a mere denial without further particulars as to any reason for such mere denial. But 10 at the trial, evidence was given and admitted without objection as to why they denied the respondents claim that they had acquired native customary rights over the said land. One of the reasons was that the lands were within a river bank reserve on which no one can claim any title thereon by 15 virtue of Sarawak’s Land Code. The other reason was that the lands belonged to Sarawak Shell Oil Ltd. [34] It was only in the final submission after the conclusion of all evidence that an objection was raised by the respondents 20 for the first time that such defence were not pleaded. One of the issues which the Supreme Court in that case had to decide was this: 26 “Whether by allowing the appellants to adduce the evidence without any objection until such a late stage and not objecting to the evidence as and when the evidence emerged, the respondent were deemed to have waived the 5 impropriety of admitting such evidence”. [35] The Supreme Court, at page 567 said: “Generally in civil cases only, both parties can 10 validate any mode of adducing evidence by consent, express or inferred, even when such mode is irregular, for any irregularity is deemed to be waived by such consent. Technical rules of evidence can be to a limited extent, even dispensed with by a Court 15 without such consent also, please see Baerlein v Chartered Mercantile Bank [1895] Ch D 488; similarly with technical rules of procedure. Therefore when such evidence represents a departure from pleading, it should be objected to as when and where 20 it is adduced, and it will be too late when it only objected to later on, as in the final submission at the close of evidence as in the instant appeal. In these circumstances, the party facing such evidence at variance from pleading, by failing to object cannot be 25 said to be taken by surprise, prejudiced, misled or embarrassed. Otherwise, the other side of the coin would be, in the event of such objection raised at the stage of final submission being accepted by the Court, that the party adducing such evidence may 30 face the great risk of being denied leave to amend his pleading in question at that stage. Such evidence when given without any objection by the opposing party will further have the effect of 35 curing the absence of such plea in the relevant pleading, in other words, the effect of overcoming such defect in such pleading. As was stated by 27 Federal Court in Ang Koon Kau & Anor v Lau Piang Ngong [1984] 2 MLJ 277, FC at page 278: Evidence given at the trial can therefore in appropriate circumstance overcome defect in the 5 pleadings where the net result of such evidence is to prevent the other side from being taken by surprise. There is however, at least one important exception to such curing of defect of pleading by evidence 10 departing from such pleading without objection then and there to such evidence. The exception is when such evidence represents a radical departure from the pleading, and is not just a 15 variation, modification or development of what has been alleged in the pleading in question, please wee Waghorn v George Wimpey & Co. Ltd [1969] 1 WLR 1764, which was approved by Ang Koon Kau & Anor v Lau Piang Ngong, supra, and John Stein 20 & Co. Ltd v O’Hanlon [1965] AC 890”. [36] The cases cited by both counsel to us clearly show that the law on the first question posed by the appellant is settled. It is this. In a case where the matter or material facts are not 25 pleaded but evidence is led without objections at trial, the court is duty bound to consider such evidence although it may be a departure from the pleading. It has the effect of curing defect in the pleading. In such a case the opposite party is not taken by surprise, prejudiced, embarrassed or misled. 30 The exception is where the evidence represents a radical departure from the pleading and is not just a variation, 28 modification or development of what has been alleged in the pleading. Datuk Hamzah Abdul Majid v Omega Securities Sdn Bhd [2015] 9 CLJ 677 is an illustration of a case where there was a radical departure from the pleading. In that case, loan, which was not a pleaded defence but evidence of 5 it was adduced without objection was rejected as a defence as it was a radical departure from pleading, not just a variation, modification or development of what had been alleged in the pleading. 10 [37] The next question is whether there was evidence led without objections at trial, as contended by learned counsel for the appellant, that the respondent was in breach of contract by uplifting the FDR without the consent of the appellant. This is a question of fact which can only be 15 determined by looking at the evidence. [38] Learned counsel for the appellant did not pinpoint to us where, in the records of appeal that the appellant had led evidence, without objections that the respondent was in 20 breach of contract by uplifting the FDR without his consent. Learned counsel for the respondent contended that there was no such evidence. PW1 or PW2 did not in their evidence 29 allege that the respondent had acted in breach of the terms of the Memorandum of Deposit when it uplifted the FDR without the appellant’s consent. [39] The appellant’s case against the respondent was based 5 on his own evidence (PW1) and his son’s evidence (PW2). We have read PW1’s and PW2’s witnesses statements and their oral testimony before the High Court. We are unable to find any evidence from them alleging that the respondent had breached any term of the Memorandum of Deposit when it 10 uplifted the FDR without the appellant’s consent. The appellant’s claim against the respondent is for the refund of his FDR which was uplifted to settle the outstanding amount in the overdraft account. The monies in the overdraft account were fully untilized due to the respondent’s alleged 15 negligence in honouring the cheque presented by Sallim without it being countersigned by PW2. The appellant explained the nature of his claim in his witness statement as follows: 20 “Q40. So what is your claim today? A. I want the 1st Defendant to refund the monies uplifted on 15.4.1993 amounting to RM233,155.60 and repay the same with interest. Q41. Why? 25 30 A. Because what the 1st Defendant did was unlawful in that: a) They should not have allowed Sallim to draw on the Overdraft Account of the company; and 5 b) They were negligent”. It is patently clear that the claim is not based on a breach of contract. 10 [40] It was contended that no fresh Memorandum of Deposit was executed when the banking facilities were transferred from OKE to the company. Therefore the FDR was never pledged as a security for the overdraft facility of RM300,000 15 which was transferred to the company. But this is contrary to the appellant’s own testimony. He admitted, during cross examination that the Memorandum of Deposit was also transferred to Omar Khayam Enterprises Sdn Bhd. 20 [41] This is what the appellant said in cross examination: “Q: So this is the Memorandum of deposit which you gave for the overdraft facility of RM300,000 is this correct? 25 A: Yes Q: Was this Memorandum of Deposit also transferred to Omar Khayam Enterprise Sdn Bhd? A: Yes Q: Do you know that one of the terms of this 30 Memorandum of Deposit is that the bank is at liberty 31 to withdraw from the fixed deposit receipt without reference to you or Raja Iftikar or Omar Khayam Enterprise? A: No Q: But you sign this agreement? 5 A: Yes” [42] The appellant cannot plead ignorance and conveniently said that he did not know the terms of the agreement which he signed. Clause 6 of the Memorandum of Deposit 10 expressly states that the respondent is at liberty at any time to withdraw the deposit and to apply the proceeds thereof in or towards the discharge of the appellant’s account without reference to him. 15 [43] The finding of the learned trial judge that the respondent was in breach of the contract in uplifting the Fixed Deposit Receipt without the appellant’s consent was contrary to the clause 6 of the Memorandum of Deposit. It is also against the weight of evidence. The appellant himself admitted that the 20 Memorandum of Deposit was also transferred to the company. It must be noted that the Memorandum of Deposit was signed by the appellant together with his son. The respondent had, before uplifting the FDR, written to the son for approval to uplift the FDR and the son consented to it in 25 writing. The respondent’s letter to the appellant approving the 32 transfer of the banking facilities from OKE to the company was subject to the condition that, “All facilities together with liabilities will be transferred from Omar Khayam Enterprise to Omar Khayam Enterprises Sdn Bhd”. 5 [44] We agree with the contention of learned counsel for the respondent that the first question was framed on the supposition that “evidence is led without objections at trial”. In truth we find that there was no evidence adduced without objections to support the appellant’s contention that the 10 respondent was in breach of the contract, namely, the Memorandum of Deposit by uplifting the FDR without the appellant’s consent. The respondent is clearly at liberty to uplift the FDR without the consent of the appellant by virtue of Clause 6 of the Memorandum of Deposit. 15 [45] For the abovesaid reasons, we do not find it necessary to answer the first question posed to us. In view of our decision with respect to the first question we also do not find it necessary to answer the second question. In our judgment 20 the Court of Appeal did not err in reversing the decision of the High Court on the sole ground that the cause of action in negligence has been abandoned. 33 [46] In the result the appeal is dismissed with costs. Dated this 6th November 2017 5 (A SAMAH NORDIN) Judge of the Federal Court, Malaysia 10 Parties 1. Dato’ Bastian Pius Vendargon and Gene Anand 15 Vendargon for the Appellant Solicitors: Messrs Y.S Woo & Proctor 2. Datuk Ben Chan for the Respondent Solicitors: Messrs Mah-Kamariah & Philip Koh 20

Tika 2.6.0

02(f)-11-2011(W)

PEMOHON Peguam Negara PERAYU 1. Ooi Woon Chee 2. Ng Kim Tuck RESPONDEN Sew Teow Guan & 26 Lagi

Civil Procedure — Contempt of court — Order of committal — Administration of justice — Application granted for Attorney General’s Chambers to be substituted as the applicant in the contempt proceedings — Reasons advanced for non-appearance of contemnors in court — The request that the contemnors’ personal attendance in court be dispensed with and the matter against them be dealt with in absentia — Whether the Federal Court has the power to proceed with the trial of the contempt proceedings and to impose sentence against both the contemnors — Based on the mitigating factors and circumstances of the case, the appropriate sentence against both of them, was a fine of RM100,000.00 in default eight (8) months imprisonment each.

06/11/2017

YA TAN SRI DATUK RAMLY BIN HAJI ALIKorumYA TAN SRI DATUK SURIYADI BIN HALIM OMARYA TAN SRI DATO' SRI ABU SAMAH BIN NORDINYA TAN SRI DATUK RAMLY BIN HAJI ALIYAA TAN SRI AZAHAR BIN MOHAMEDYA DATO' BALIA YUSOF BIN HAJI WAHI

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=bdfae2f0-2166-479e-b067-37faa7d5d68a&Inline=true

DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR CA NO 02(f)-11-2011(W) Peguam Negara Malaysia V Dato’ See Teow Chuan & 27 lagi IN THE FEDERAL COURT OF MALAYSIA (APPELLATE JURISDICTION) CIVIL APPEAL NO. 02(f)-11-2011(W) _______________________________________________ BETWEEN ATTORNEY GENERAL OF MALAYSIA .. APPLICANT AND 1. DATO’ SEE TEOW CHUAN 2. SEE TEOW KOON 3. SEE TEOW GEOK 4. TEO GUAN HUR 5. SEOW LUAN ENG 6. KHOR GET KIM 7. SEE SIEW TIN 8. SEE SIEW KHIM 9. LIEW CHOON LUM 10. SEE CHIN LAM 11. SEE SIOK HONG 12. SEE SIOK KIM 13. SEE TEOW CHUAN HOLDINGS SDN BHD 14. ESTET OF SEAH AH KEOH @ SEAH YEO 15. SEE TEOW GUAN 16. SEE TIAU KEE 17. SEE SIEW CHOO 18. SEE TIAU KIONG 19. SEE TEOW LIEW 20. SEE TIEW WAH 21. SALLY SEE SIEW LIAN 22. DORIS SEE SIEW LIAN 23. SEE SIEW WAN 24. SEE SIEW HUA 25. LIM AH ENG 26. FOO KIM FONG 27. LIM YOKE CHOO .. RESPONDENTS (In the matter Civil Appeal No. W-02-2041-2009 in the Court of Appeal Malaysia _____________________________________________ Between 1. DATO’ SEE TEOW CHUAN 2. SEE TEOW KOON 3. SEE TEOW GEOK 4. TEO GUAN HUR 5. SEOW LUAN ENG 6. KHOR GET KIM 7. SEE SIEW TIN 8. SEE SIEW KHIM 9. LIEW CHOON LUM 10. SEE CHIN LAM 11. SEE SIOK HONG 12. SEE SIOK KIM 13. SEE TEOW CHUAN HOLDINGS SDN BHD 14. ESTET OF SEAH AH KEOH @ SEAH YEO .. Appellants And 1. OOI WOON CHEE 2. NG KIM TUCK 3. KIAN JOON HOLDINGS SDN BHD 4. SEE TEOW GUAN 5. SEE TIAW KEE 6. SEE TIAU KIONG 7. SEE TEOW LIEW 8. SEE TIEW WAH 9. LIM AH ENG 10. FOO KIM FONG 11. SALLY SEE SIEW LIAN 12. SEE SIEW CHOO 13. SEE SIEW WAN 14. LIM YOKE CHOO 15. CAN-ONE INTERNATIONAL SDN BHD (NO. SYARIKAT: 729929-K) 16. GOLD POMELO SDN BHD (NO. SYARIKAT: 838451-H) .. Respondents) CORUM SURIYADI HALIM OMAR, FCJ ABU SAMAH NORDIN, FCJ RAMLY ALI, FCJ AZAHAR MOHAMED, FCJ BALIA YUSOF HAJI WAHI, FCJ JUDGMENT OF THE COURT 1. On 30.1.1996, by consent, the High Court ordered that Kian Joo Holdings Sdn Bhd (the Company) be wound up pursuant to section 218(f) and (i) of the Companies Act 1965. 2. At the same time, one Abdul Jabbar bin Abdul Majid and Ng Kim Tuck from KPMG Peat Marwick were appointed as the joint and several liquidators of the Company. On 2.10.2007, one Ooi Woon Chee from the same firm was appointed as one of the liquidators to replace Abdul Jabbar bin Abdul Majid. 3. At the meeting of contributories on 10.7.2008, the majority contributories (representing 52% in value of the Company’s equity) were in favour of selling of the entire shares of the Company, while the remaining contributories (being minority contributories holding 48% in value of the equity) preferred distribution of the shares in specie. 4. On 23.2.2009, the liquidators entered into a conditional shares sale agreement for the sale of 146,131,500 shares in question to Can-One International Sdn Bhd. The contributories opposed the transaction and had rebuked the liquidators for their acts in breach of fiduciary duties, conflict of interest as well as fraud in regard to the tender process for the sale of the shares. 5. The majority contributories, represented by their solicitors, Messrs V.K. Lingam & Co., filed an application to the High Court, against the liquidators for leave to proceed with legal proceedings for alleged misconduct in the tender of the Company’s assets and eventual award to Can-One International Sdn Bhd for the sale of the shares. On 25.9.2009, the High Court dismissed their application. 6. Being dissatisfied with the dismissal of their application by the High Court, the majority contributories appealed to the Court of Appeal against the decision. On 26.4.2010, the appeal was allowed by the Court of Appeal, whereupon the High Court’s decision was set aside. 7. The liquidators then filed a motion for leave to appeal to the Federal Court against the decision of the Court of Appeal. Leave was granted on 21.2.2011. On 5.1.2012, the Federal Court allowed the liquidators appeal with costs. All orders made by the Court of Appeal were set aside and consequently all orders made by the High Court were restored. The Federal Court also awarded a sum of RM300,000.00 (as against the majority contributories) to the liquidators as costs. 8. Subsequently, all the contributories filed an application to the Federal Court to review its judgment dated 5.1.2012 claiming that the Federal Court’s grounds of judgment revealed plagiarism and substantially a reproduction, without any attribution to the liquidators’ written submission dated 4.7.2011. The solicitors for the majority contributories, Messrs. V.K. Lingam, filed the review application on the ground of plagiarism. On behalf of the minority contributories, Messrs. Nayagam & Partners also filed a similar application using a similar ground. 9. On 22.5.2013, the review application was dismissed by the Federal Court. The Federal Court was of the view that the adoption of the counsel’s submissions as the court’s grounds of judgment in itself did not constitute sufficient ground for the court to review and set aside its earlier decision. The Federal Court also held: “(iii) The court accepted that the respondents did not allege actual bias on the part of the panel of judges who decided the appeals concerned but merely one of apparent bias. (iv) However, having analysed the judgment in question the court did not find sufficient evidence proving apparent bias.” 10. Pursuant to the decision of the Federal Court in the review application, the liquidators initiated contempt proceedings against all the majority and minority contributories (inclusive of their two lawyers, V.K. Lingam and Thisinayagam a/l A. Somasundram) alleging, inter alia, that the relevant affidavits in support of the said review application affirmed by them on advice of the lawyers contained statements which were in contempt of the Federal Court which would scandalize the Federal Court and subvert the administration of justice. The contempt proceedings papers were filed at the Federal Court on 29.2.2012 and on 3.4.2012 leave was granted. 11. On 7.8.2014, the liquidators, who initially initiated the contempt proceedings against all the contributories, sought leave to withdraw from the proceedings. The application to withdraw was allowed. Later, the Attorney General’s Chambers applied and was allowed to be substituted as the applicant in the contempt proceedings. 12. On 21.11.2016, after being postponed for a number of times for various reasons, all the contributories (excluding 3 of the minority contributories who were not in court on that day) and the lawyer, Thisinayagam a/l A. Somasundram, conceded to the contempt charges against them. The lawyer V.K. Lingam was not present in court on that day. 13. With the concession made in their affidavits as well as by learned counsel in open court, the Federal Court proceeded to hear their pleas in mitigation. As for sentence, the court then ordered all the contributories who were present in court to pay fine of RM100,000.00 each (in default 8 months imprisonment). The lawyer, Thisinayagam a/l A. Somasundram, was ordered to pay a fine of RM150,000.00, in default one year imprisonment. As the three minority contributories and the lawyer V.K. Lingam, were not present in court on that day, the action against them were postponed thus giving them the opportunity to be present and be heard in court. The three other minority contributories were See Siew Hua (Siew Hua), Lim Ah Eng (Ah Eng) and Doris See Siew Lian (Doris). 14. The matter come up again in open court on 26.9.2017. Again, all the three minority contributories as well as V.K. Lingam were not present in court. However, learned counsel Dato’ David Gurupatham and Tan Shin Lam appeared on behalf of the minority contributories. They informed the court that, Siew Hua had unfortunately lost her battle with cancer and had passed away on 18.8.2017. A death certificate was tendered in court. Learned counsel them requested that the case against her be discontinued and struck out, which the court allowed. 15. As for Ah Eng, she was unable to attend court due to poor health, illness and incapacity. She is eighty eight (88) years old and is suffering from kidney failure. She has been on hemodialysis treatment for quite some time and is presently wheelchair bound. In her affidavit, she averred amongst others that she offered her unreserved, unconditional and unqualified apology to the court for being disrespectful. She also averred that she was advised by her solicitors in dealing with the matter and as a lay person, she had acted on that advice. 16. As regards Doris, she a pensioner and has been residing in England for years. In paragraph 18 of the affidavit, she averred that she is incapacitated by old age and unable to travel. She also averred that in dealing with the matter she was advised by her solicitors and as a lay person likewise, she had acted on that advice. 17. Learned counsel Dato’ David Gurupatham prayed, on behalf of both Ah Eng and Doris that their personal attendance in court be dispensed with and the matter against them be dealt with in absentia. He also prayed that both of them be discharged and/or let off with a warning. Learned counsel informed the court that both of them are not asserting their right; infact they have waived their right to be present in court and are prepared to be sentenced in absentia. 18. Learned counsel also submitted that the court has unlimited jurisdiction to deal with the matter which includes the power to impose sentence in absentia, and the court ought to take into consideration the very special facts and mitigating points (as stated in the affidavits as highlighted above) in imposing an appropriate sentence on them. 19. Learned Senior Federal Counsel supported the application, citing the case of JSC BTA Bank v. Solodchenka [2011] EWHC 2163 (Ch.) as an authority to support the exercise of discretion by the court on the matter. 20. The issue before us is whether this Court has the power to proceed with the trial of the contempt proceedings and to impose sentence against both the contemnors (Ah Eng and Doris) who, as affirmed in their affidavits and through their counsel in open court, had offered their unreserved, unconditional and unqualified apology and had waived their right to be present in court and were prepared to be sentenced in absentia. 21. We are reminded that contempt proceedings are quasi – criminal in nature. Thus, generally the court should avoid making a committal order without giving the contemnor a chance to be present in court to answer the charge against her and to raise any plea of mitigation before passing sentence on her. The House of Lords in Phonographic Performance Ltd. v. Inch [2002] All ER (D) 253 expressed the view that in criminal cases, where the defendant is absent, and the court has the discretion to proceed with the trial, but it is a discretion to be exercised with great caution and with close regard to the overall fairness of the proceedings. The trial conducted in the absence of the contemnor must be fair as circumstances permit and lead to a just outcome (see also: R v. Jones [2003] 1 AC 1). 22. By analogy, the above position can and should apply for contempt proceedings, as in the present case before us. The court can exercise its discretion to proceed with the contempt proceedings against both the contemnors in the present case in their absence especially when their own counsel had informed the court about their request that their presence in court be dispensed with and that he has full instruction to proceed with the matter as requested. 23. The decision of the English High Court in JSC BTA Bank v. Solodchenko and Others (No. 2) [2011] 1 WLR 906 supports the above proposition. In that case, the court had proceeded to hear committal proceedings in absentia on the basis that the defendant, in that case, has instructed his solicitors and leading counsel to represent him in court. 24. In Chung Onn v. Chan Ah Kaw & Anor [1996] MLJU 206 and Indira Gandhi v. Muthu Patmanathan a/l Krishnan (anyone having and control over Prasana Diksa) [2015] 7 MLJ 153, our High Courts proceeded with the contempt proceedings as the alleged contemnors had persistently failed to attend court on the dates fixed for trial though duly served with the contempt papers. 25. In Re Ellison (A Bankrupt); Hicken (as Trustee in Bankruptcy of Ellison) v. Ellison [2016] EWHC 2791 (Ch), Warren J. proceeded with the contempt proceedings against an alleged contemnor who was out of the country and was not present in court for the trial. In that case, the learned judge considered the following considerations, namely- (a) whether the alleged contemnor had been served with the relevant documents, including the notice of the trial; (b) whether the alleged contemnor had sufficient notice to enable him to prepare for his case; (c) reason advanced for his non-appearance in court; (d) whether the contemnor had waived his right to be present in court; and (e) the extent of disadvantage or prejudice suffered by the contemnor in not being able to be present in court during the trial. 26. In another case, Sanchez v. Oboz [2015] EWHC 611 (Fam), the trial to determine whether an act of contempt had been committed by an alleged contemnor, the court proceeded with the trial and sentenced him to 12 months imprisonment. In that case, the court found that the alleged contemnor, who had remained in Poland, had been properly served with the notice of the proceeding; had been afforded adequate notice of the application and had offered no explanation for his absence. The court concluded that it was fair and just to proceed with the trial in his absence. 27. Based on the above authorities, we agree with both learned counsel and learned Senior Federal Counsel, that this Court has the power to proceed with the trial to determine their guilt of contempt as charged and consequently to proceed sentencing them. Both the contemnors had in their affidavits and through their counsel in open court voluntarily requested for such course of action. They knew the nature and consequence of their request. Such course of action did not cause any prejudice to both of them. Based on the mitigating factors and circumstances of the case, as narrated above, we are satisfied that this is an appropriate case for this Court to accede to their request and to impose the appropriate sentence against them. 28. As for sentence, learned counsel for both the contemnors in their mitigation repeated the same facts as narrated above for our consideration. Learned counsel prayed that “this court to be magnanimous and compassionate and to discharge them and/or let them off with a warning.” Learned counsel also stressed that Ah Eng, now 88 years old, is suffering from kidney failure and is presently wheelchair bound and is on hemodialysis treatment thrice a week. In her affidavit, she affirmed that she has extreme anguish, anxiety and mental torture since the leave to issue contempt was made on 3.4.2012. 29. The other contemnors, Doris, is also in her 80’s. In her affidavit, she affirmed that she is incapacitated, of old age pensioner and has been residing in England for years. She also affirmed that she has extreme anguish, anxiety and mental torture since the leave to issue contempt was made on 3.4.2012. Both of them stated that they were advised by their solicitors and as lay persons, acted on the advice in preparing the legal documentations for the purpose of the review action. They had admitted guilt before this court and expressed remorse and put forward their unqualified and unreserved apology. Learned Senior Federal Counsel indicated that both the contemnors in the present case can be found guilty of the charge and should be sentenced to a fine of RM100,000.00 in default eight months imprisonment. 30. We took note that there were twenty (20) other contemnors in this contempt proceedings (comprising of the majority and minority contributories) who had earlier conceded to the contempt charges against them, admitted their guilt and expressed their unreserved apology and remorse to this Court without putting up a defence. Many of them were also of advanced age and unwell. With that concession which was accepted by this Court, they were sentenced to a fine of RM100,000.00 in default eight months imprisonment against each of them. The lawyer, Thisinayagam a/l A Somasundraman was fined RM150,000.00 in default one year imprisonment. 31. In passing the above sentence on them, this Court (in a judgment written by Suriyadi Halim Omar, FCJ) had expressed the following views- “The saving grace for the respondents was the concession made by the learned Senior Federal Counsel that she was not pressing for a custodial sentence though did suggest fining them. This was not unreasonable bearing in mind that many of the respondents were of advanced age and unwell. Regardless, despite the profuse apology, and the respondents’ medical condition, the gravity of the offence is not lessened.” “It is undeniable that the allegations made against the Federal Court is very serious and has besmirched the good name of the judiciary as a whole. They have subverted the course of the administration of justice and undermined the public confidence in the judiciary, ridicule, scandalized and offend the dignity, integrity and impartiality of the Judiciary. We hold the view that the above sentence is adequate and sufficiently reflects that seriousness of the offence committed by them against the court. As said earlier, as most of them are of advanced age and unwell, to imprison them might be too excessive a sentence.” 32. We adopt the same view and consideration in dealing with the two contemnors (Ah Eng and Doris) presently before us. We therefore, held that the appropriate sentence against both of them, was a fine of RM100,000.00 in default eight (8) months imprisonment each. We ordered accordingly. Dated this 26th September 2017. sgd RAMLY HJ ALI FEDERAL COURT JUDGE MALAYSIA For the Appellant Dato’ Amarjeet Singh - Senior Federal Counsel Alice Loke Yee Ching - Senior Federal Counsel Shaiful Nizam Shahrin - Federal Counsel (Attorney General’s Chambers) For the 2 Contempnors Dato’ David Gurupatham (with him, Tan Shin Lau). (Messrs. David Gurupatham & Koay) Cases Referred to: 1. JSC BTA Bank v. Solodchenka [2011] EWHC 2163 (Ch.) 2. Phonographic Performance Ltd. v. Inch [2002] All ER (D) 253 3. R v. Jones [2003] 1 AC 1) 4. Chung Onn v. Chan Ah Kaw & Anor [1996] MLJU 206 5. Indira Gandhi v. Muthu Patmanathan a/l Krishnan (anyone having and control over Prasana Diksa) [2015] 7 MLJ 153 6. Sanchez v. Oboz [2015] EWHC 611 (Fam) 17

Tika 2.6.0

02(f)-11-2011(W)

PEMOHON Peguam Negara PERAYU 1. Ooi Woon Chee 2. Ng Kim Tuck RESPONDEN Sew Teow Guan & 26 Lagi

Civil Procedure — Contempt of court — Order of committal — Administration of justice — Application granted for Attorney General’s Chambers to be substituted as the applicant in the contempt proceedings — Reasons advanced for non-appearance of contemnors in court — The request that the contemnors’ personal attendance in court be dispensed with and the matter against them be dealt with in absentia — Whether the Federal Court has the power to proceed with the trial of the contempt proceedings and to impose sentence against both the contemnors — Based on the mitigating factors and circumstances of the case, the appropriate sentence against both of them, was a fine of RM100,000.00 in default eight (8) months imprisonment each.

06/11/2017

YA TAN SRI DATUK RAMLY BIN HAJI ALIKorumYA TAN SRI DATUK SURIYADI BIN HALIM OMARYA TAN SRI DATO' SRI ABU SAMAH BIN NORDINYA TAN SRI DATUK RAMLY BIN HAJI ALIYAA TAN SRI AZAHAR BIN MOHAMEDYA DATO' BALIA YUSOF BIN HAJI WAHI

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DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR CA NO 02(f)-11-2011(W) Peguam Negara Malaysia V Dato’ See Teow Chuan & 27 lagi IN THE FEDERAL COURT OF MALAYSIA (APPELLATE JURISDICTION) CIVIL APPEAL NO. 02(f)-11-2011(W) _______________________________________________ BETWEEN ATTORNEY GENERAL OF MALAYSIA .. APPLICANT AND 1. DATO’ SEE TEOW CHUAN 2. SEE TEOW KOON 3. SEE TEOW GEOK 4. TEO GUAN HUR 5. SEOW LUAN ENG 6. KHOR GET KIM 7. SEE SIEW TIN 8. SEE SIEW KHIM 9. LIEW CHOON LUM 10. SEE CHIN LAM 11. SEE SIOK HONG 12. SEE SIOK KIM 13. SEE TEOW CHUAN HOLDINGS SDN BHD 14. ESTET OF SEAH AH KEOH @ SEAH YEO 15. SEE TEOW GUAN 16. SEE TIAU KEE 17. SEE SIEW CHOO 18. SEE TIAU KIONG 19. SEE TEOW LIEW 20. SEE TIEW WAH 21. SALLY SEE SIEW LIAN 22. DORIS SEE SIEW LIAN 23. SEE SIEW WAN 24. SEE SIEW HUA 25. LIM AH ENG 26. FOO KIM FONG 27. LIM YOKE CHOO .. RESPONDENTS (In the matter Civil Appeal No. W-02-2041-2009 in the Court of Appeal Malaysia _____________________________________________ Between 1. DATO’ SEE TEOW CHUAN 2. SEE TEOW KOON 3. SEE TEOW GEOK 4. TEO GUAN HUR 5. SEOW LUAN ENG 6. KHOR GET KIM 7. SEE SIEW TIN 8. SEE SIEW KHIM 9. LIEW CHOON LUM 10. SEE CHIN LAM 11. SEE SIOK HONG 12. SEE SIOK KIM 13. SEE TEOW CHUAN HOLDINGS SDN BHD 14. ESTET OF SEAH AH KEOH @ SEAH YEO .. Appellants And 1. OOI WOON CHEE 2. NG KIM TUCK 3. KIAN JOON HOLDINGS SDN BHD 4. SEE TEOW GUAN 5. SEE TIAW KEE 6. SEE TIAU KIONG 7. SEE TEOW LIEW 8. SEE TIEW WAH 9. LIM AH ENG 10. FOO KIM FONG 11. SALLY SEE SIEW LIAN 12. SEE SIEW CHOO 13. SEE SIEW WAN 14. LIM YOKE CHOO 15. CAN-ONE INTERNATIONAL SDN BHD (NO. SYARIKAT: 729929-K) 16. GOLD POMELO SDN BHD (NO. SYARIKAT: 838451-H) .. Respondents) CORUM SURIYADI HALIM OMAR, FCJ ABU SAMAH NORDIN, FCJ RAMLY ALI, FCJ AZAHAR MOHAMED, FCJ BALIA YUSOF HAJI WAHI, FCJ JUDGMENT OF THE COURT 1. On 30.1.1996, by consent, the High Court ordered that Kian Joo Holdings Sdn Bhd (the Company) be wound up pursuant to section 218(f) and (i) of the Companies Act 1965. 2. At the same time, one Abdul Jabbar bin Abdul Majid and Ng Kim Tuck from KPMG Peat Marwick were appointed as the joint and several liquidators of the Company. On 2.10.2007, one Ooi Woon Chee from the same firm was appointed as one of the liquidators to replace Abdul Jabbar bin Abdul Majid. 3. At the meeting of contributories on 10.7.2008, the majority contributories (representing 52% in value of the Company’s equity) were in favour of selling of the entire shares of the Company, while the remaining contributories (being minority contributories holding 48% in value of the equity) preferred distribution of the shares in specie. 4. On 23.2.2009, the liquidators entered into a conditional shares sale agreement for the sale of 146,131,500 shares in question to Can-One International Sdn Bhd. The contributories opposed the transaction and had rebuked the liquidators for their acts in breach of fiduciary duties, conflict of interest as well as fraud in regard to the tender process for the sale of the shares. 5. The majority contributories, represented by their solicitors, Messrs V.K. Lingam & Co., filed an application to the High Court, against the liquidators for leave to proceed with legal proceedings for alleged misconduct in the tender of the Company’s assets and eventual award to Can-One International Sdn Bhd for the sale of the shares. On 25.9.2009, the High Court dismissed their application. 6. Being dissatisfied with the dismissal of their application by the High Court, the majority contributories appealed to the Court of Appeal against the decision. On 26.4.2010, the appeal was allowed by the Court of Appeal, whereupon the High Court’s decision was set aside. 7. The liquidators then filed a motion for leave to appeal to the Federal Court against the decision of the Court of Appeal. Leave was granted on 21.2.2011. On 5.1.2012, the Federal Court allowed the liquidators appeal with costs. All orders made by the Court of Appeal were set aside and consequently all orders made by the High Court were restored. The Federal Court also awarded a sum of RM300,000.00 (as against the majority contributories) to the liquidators as costs. 8. Subsequently, all the contributories filed an application to the Federal Court to review its judgment dated 5.1.2012 claiming that the Federal Court’s grounds of judgment revealed plagiarism and substantially a reproduction, without any attribution to the liquidators’ written submission dated 4.7.2011. The solicitors for the majority contributories, Messrs. V.K. Lingam, filed the review application on the ground of plagiarism. On behalf of the minority contributories, Messrs. Nayagam & Partners also filed a similar application using a similar ground. 9. On 22.5.2013, the review application was dismissed by the Federal Court. The Federal Court was of the view that the adoption of the counsel’s submissions as the court’s grounds of judgment in itself did not constitute sufficient ground for the court to review and set aside its earlier decision. The Federal Court also held: “(iii) The court accepted that the respondents did not allege actual bias on the part of the panel of judges who decided the appeals concerned but merely one of apparent bias. (iv) However, having analysed the judgment in question the court did not find sufficient evidence proving apparent bias.” 10. Pursuant to the decision of the Federal Court in the review application, the liquidators initiated contempt proceedings against all the majority and minority contributories (inclusive of their two lawyers, V.K. Lingam and Thisinayagam a/l A. Somasundram) alleging, inter alia, that the relevant affidavits in support of the said review application affirmed by them on advice of the lawyers contained statements which were in contempt of the Federal Court which would scandalize the Federal Court and subvert the administration of justice. The contempt proceedings papers were filed at the Federal Court on 29.2.2012 and on 3.4.2012 leave was granted. 11. On 7.8.2014, the liquidators, who initially initiated the contempt proceedings against all the contributories, sought leave to withdraw from the proceedings. The application to withdraw was allowed. Later, the Attorney General’s Chambers applied and was allowed to be substituted as the applicant in the contempt proceedings. 12. On 21.11.2016, after being postponed for a number of times for various reasons, all the contributories (excluding 3 of the minority contributories who were not in court on that day) and the lawyer, Thisinayagam a/l A. Somasundram, conceded to the contempt charges against them. The lawyer V.K. Lingam was not present in court on that day. 13. With the concession made in their affidavits as well as by learned counsel in open court, the Federal Court proceeded to hear their pleas in mitigation. As for sentence, the court then ordered all the contributories who were present in court to pay fine of RM100,000.00 each (in default 8 months imprisonment). The lawyer, Thisinayagam a/l A. Somasundram, was ordered to pay a fine of RM150,000.00, in default one year imprisonment. As the three minority contributories and the lawyer V.K. Lingam, were not present in court on that day, the action against them were postponed thus giving them the opportunity to be present and be heard in court. The three other minority contributories were See Siew Hua (Siew Hua), Lim Ah Eng (Ah Eng) and Doris See Siew Lian (Doris). 14. The matter come up again in open court on 26.9.2017. Again, all the three minority contributories as well as V.K. Lingam were not present in court. However, learned counsel Dato’ David Gurupatham and Tan Shin Lam appeared on behalf of the minority contributories. They informed the court that, Siew Hua had unfortunately lost her battle with cancer and had passed away on 18.8.2017. A death certificate was tendered in court. Learned counsel them requested that the case against her be discontinued and struck out, which the court allowed. 15. As for Ah Eng, she was unable to attend court due to poor health, illness and incapacity. She is eighty eight (88) years old and is suffering from kidney failure. She has been on hemodialysis treatment for quite some time and is presently wheelchair bound. In her affidavit, she averred amongst others that she offered her unreserved, unconditional and unqualified apology to the court for being disrespectful. She also averred that she was advised by her solicitors in dealing with the matter and as a lay person, she had acted on that advice. 16. As regards Doris, she a pensioner and has been residing in England for years. In paragraph 18 of the affidavit, she averred that she is incapacitated by old age and unable to travel. She also averred that in dealing with the matter she was advised by her solicitors and as a lay person likewise, she had acted on that advice. 17. Learned counsel Dato’ David Gurupatham prayed, on behalf of both Ah Eng and Doris that their personal attendance in court be dispensed with and the matter against them be dealt with in absentia. He also prayed that both of them be discharged and/or let off with a warning. Learned counsel informed the court that both of them are not asserting their right; infact they have waived their right to be present in court and are prepared to be sentenced in absentia. 18. Learned counsel also submitted that the court has unlimited jurisdiction to deal with the matter which includes the power to impose sentence in absentia, and the court ought to take into consideration the very special facts and mitigating points (as stated in the affidavits as highlighted above) in imposing an appropriate sentence on them. 19. Learned Senior Federal Counsel supported the application, citing the case of JSC BTA Bank v. Solodchenka [2011] EWHC 2163 (Ch.) as an authority to support the exercise of discretion by the court on the matter. 20. The issue before us is whether this Court has the power to proceed with the trial of the contempt proceedings and to impose sentence against both the contemnors (Ah Eng and Doris) who, as affirmed in their affidavits and through their counsel in open court, had offered their unreserved, unconditional and unqualified apology and had waived their right to be present in court and were prepared to be sentenced in absentia. 21. We are reminded that contempt proceedings are quasi – criminal in nature. Thus, generally the court should avoid making a committal order without giving the contemnor a chance to be present in court to answer the charge against her and to raise any plea of mitigation before passing sentence on her. The House of Lords in Phonographic Performance Ltd. v. Inch [2002] All ER (D) 253 expressed the view that in criminal cases, where the defendant is absent, and the court has the discretion to proceed with the trial, but it is a discretion to be exercised with great caution and with close regard to the overall fairness of the proceedings. The trial conducted in the absence of the contemnor must be fair as circumstances permit and lead to a just outcome (see also: R v. Jones [2003] 1 AC 1). 22. By analogy, the above position can and should apply for contempt proceedings, as in the present case before us. The court can exercise its discretion to proceed with the contempt proceedings against both the contemnors in the present case in their absence especially when their own counsel had informed the court about their request that their presence in court be dispensed with and that he has full instruction to proceed with the matter as requested. 23. The decision of the English High Court in JSC BTA Bank v. Solodchenko and Others (No. 2) [2011] 1 WLR 906 supports the above proposition. In that case, the court had proceeded to hear committal proceedings in absentia on the basis that the defendant, in that case, has instructed his solicitors and leading counsel to represent him in court. 24. In Chung Onn v. Chan Ah Kaw & Anor [1996] MLJU 206 and Indira Gandhi v. Muthu Patmanathan a/l Krishnan (anyone having and control over Prasana Diksa) [2015] 7 MLJ 153, our High Courts proceeded with the contempt proceedings as the alleged contemnors had persistently failed to attend court on the dates fixed for trial though duly served with the contempt papers. 25. In Re Ellison (A Bankrupt); Hicken (as Trustee in Bankruptcy of Ellison) v. Ellison [2016] EWHC 2791 (Ch), Warren J. proceeded with the contempt proceedings against an alleged contemnor who was out of the country and was not present in court for the trial. In that case, the learned judge considered the following considerations, namely- (a) whether the alleged contemnor had been served with the relevant documents, including the notice of the trial; (b) whether the alleged contemnor had sufficient notice to enable him to prepare for his case; (c) reason advanced for his non-appearance in court; (d) whether the contemnor had waived his right to be present in court; and (e) the extent of disadvantage or prejudice suffered by the contemnor in not being able to be present in court during the trial. 26. In another case, Sanchez v. Oboz [2015] EWHC 611 (Fam), the trial to determine whether an act of contempt had been committed by an alleged contemnor, the court proceeded with the trial and sentenced him to 12 months imprisonment. In that case, the court found that the alleged contemnor, who had remained in Poland, had been properly served with the notice of the proceeding; had been afforded adequate notice of the application and had offered no explanation for his absence. The court concluded that it was fair and just to proceed with the trial in his absence. 27. Based on the above authorities, we agree with both learned counsel and learned Senior Federal Counsel, that this Court has the power to proceed with the trial to determine their guilt of contempt as charged and consequently to proceed sentencing them. Both the contemnors had in their affidavits and through their counsel in open court voluntarily requested for such course of action. They knew the nature and consequence of their request. Such course of action did not cause any prejudice to both of them. Based on the mitigating factors and circumstances of the case, as narrated above, we are satisfied that this is an appropriate case for this Court to accede to their request and to impose the appropriate sentence against them. 28. As for sentence, learned counsel for both the contemnors in their mitigation repeated the same facts as narrated above for our consideration. Learned counsel prayed that “this court to be magnanimous and compassionate and to discharge them and/or let them off with a warning.” Learned counsel also stressed that Ah Eng, now 88 years old, is suffering from kidney failure and is presently wheelchair bound and is on hemodialysis treatment thrice a week. In her affidavit, she affirmed that she has extreme anguish, anxiety and mental torture since the leave to issue contempt was made on 3.4.2012. 29. The other contemnors, Doris, is also in her 80’s. In her affidavit, she affirmed that she is incapacitated, of old age pensioner and has been residing in England for years. She also affirmed that she has extreme anguish, anxiety and mental torture since the leave to issue contempt was made on 3.4.2012. Both of them stated that they were advised by their solicitors and as lay persons, acted on the advice in preparing the legal documentations for the purpose of the review action. They had admitted guilt before this court and expressed remorse and put forward their unqualified and unreserved apology. Learned Senior Federal Counsel indicated that both the contemnors in the present case can be found guilty of the charge and should be sentenced to a fine of RM100,000.00 in default eight months imprisonment. 30. We took note that there were twenty (20) other contemnors in this contempt proceedings (comprising of the majority and minority contributories) who had earlier conceded to the contempt charges against them, admitted their guilt and expressed their unreserved apology and remorse to this Court without putting up a defence. Many of them were also of advanced age and unwell. With that concession which was accepted by this Court, they were sentenced to a fine of RM100,000.00 in default eight months imprisonment against each of them. The lawyer, Thisinayagam a/l A Somasundraman was fined RM150,000.00 in default one year imprisonment. 31. In passing the above sentence on them, this Court (in a judgment written by Suriyadi Halim Omar, FCJ) had expressed the following views- “The saving grace for the respondents was the concession made by the learned Senior Federal Counsel that she was not pressing for a custodial sentence though did suggest fining them. This was not unreasonable bearing in mind that many of the respondents were of advanced age and unwell. Regardless, despite the profuse apology, and the respondents’ medical condition, the gravity of the offence is not lessened.” “It is undeniable that the allegations made against the Federal Court is very serious and has besmirched the good name of the judiciary as a whole. They have subverted the course of the administration of justice and undermined the public confidence in the judiciary, ridicule, scandalized and offend the dignity, integrity and impartiality of the Judiciary. We hold the view that the above sentence is adequate and sufficiently reflects that seriousness of the offence committed by them against the court. As said earlier, as most of them are of advanced age and unwell, to imprison them might be too excessive a sentence.” 32. We adopt the same view and consideration in dealing with the two contemnors (Ah Eng and Doris) presently before us. We therefore, held that the appropriate sentence against both of them, was a fine of RM100,000.00 in default eight (8) months imprisonment each. We ordered accordingly. Dated this 26th September 2017. sgd RAMLY HJ ALI FEDERAL COURT JUDGE MALAYSIA For the Appellant Dato’ Amarjeet Singh - Senior Federal Counsel Alice Loke Yee Ching - Senior Federal Counsel Shaiful Nizam Shahrin - Federal Counsel (Attorney General’s Chambers) For the 2 Contempnors Dato’ David Gurupatham (with him, Tan Shin Lau). (Messrs. David Gurupatham & Koay) Cases Referred to: 1. JSC BTA Bank v. Solodchenka [2011] EWHC 2163 (Ch.) 2. Phonographic Performance Ltd. v. Inch [2002] All ER (D) 253 3. R v. Jones [2003] 1 AC 1) 4. Chung Onn v. Chan Ah Kaw & Anor [1996] MLJU 206 5. Indira Gandhi v. Muthu Patmanathan a/l Krishnan (anyone having and control over Prasana Diksa) [2015] 7 MLJ 153 6. Sanchez v. Oboz [2015] EWHC 611 (Fam) 17

Tika 2.6.0

01(f)-36-05/2015(W)

PERAYU KETUA POLIS NEGARA & 2 LAGI … PERAYU RESPONDEN NURASMIRA MAULAT BINTI JAAFAR & 2 LAGI … RESPONDEN

Damages — Appeal — Exemplary damages — Damages Award against police — Compensation to the family of a person for loss occasioned by his death — Tort — Misfeasance in public office — Effect of death on certain causes of action — Where claim is founded upon a breach of constitutional right to life — Civil Law Act 1956 (Act 67), section 7, section 8(2)

06/11/2017

YA TAN SRI DATUK ZAINUN BINTI ALIKorumYAA TAN SRI DATO' SRI AHMAD BIN HAJI MAAROPYA TAN SRI DATUK SURIYADI BIN HALIM OMARYA TAN SRI DATUK ZAINUN BINTI ALIYAA TAN SRI AZAHAR BIN MOHAMEDYAA TAN SRI ZAHARAH BINTI IBRAHIM

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DALAM MANKAMAH PERSEKUTUAN MALAVSIA (BIDANG KUASA RAVUAN) RAVUAN § VII. N o1 m &D5gDI5(V_V1 Auwu 1 KETUA POLIS MEGARA 2. KERAJAAM MALAYSIA J. Asv one sane KONG PERAYU-PERAW mu 1. NLIRASMIRA MAULAT 51 JAFFAR 2. srn Asm at ABDUL JAFFAR 3 sm FATIMAN at ABDUL JAFFAR RESFONDEN-RESPONDEN (KIn'ya—fiua Imuk-kznaku wnh umul yam memhawlomwlln’ i mmui ihxmyl yang uh/dun nhihal mm ABRA ET SANUL MIND) : RAVUAN slvIL N0 M5 .5: yzatsm ANTARA 1. DAWK SERI KMALID BIN AE|l EAKAR 2. WAKIL PERIEADI ESTET ZNNAL RASHID am ABU BAKAR, SI lam 3. KETUA PDLIS NEGARA A KERAJAAN MALAVSIA ., PERAVU-PERAVU DAN u. mom NP F NALLAYHAIIIEV .. RESPDMDEN {P-nudbtr am an «anggungzn Kuuan .2. RAVUAN SIVIL N0 o1m—53—1g1gg15Lv_v1 ANTARA 1. KEl'\lA SETIAUSANA KEMENTERIAN DALAM NEGERI 7. PENGARAH vsumu sumw B|lLOH (MEDICAL OFFICER IN CNARGE. NUSPIIAL PEMJARA SUNGAI E\ll0N 4. wAnAR MOKD RUSAIII 5. ‘runm AZNAR am MOHD 5. KERAJAAN MALAVSIA PERAVIA-PERAVU DAN GIIAUR crmunnm ML Il|IRUGES|l .. RESPONDEN mu. ma: 511uu.1uMnj (M-ndakwa mm pmalumfllli flan keumln erunq hnnunuan actual‘ max Penudbivsah mm mm Ulhayachlndnn an em cr..na.=m— Nn.K/P:Bm411»1la6511) KDRAM Ahmad hm Han Maamp, HEM Suriyadn hm HaHm Oman HMP Zamun him: Ah, HMF Azahar bln Mohamed, HMP Zaharah binlx Ibrahim, HMP uIU)Jo4N1WXWy A:VMHMJv1Nr;uMA2VA(\I >u4mwmvw w.M.,.«.,. W,..,.u.K, mu rz mwtxym um.mW.ny..m,.nA..k Wu» :».nW» ~.«.mm.y um: u muauym Yvvn/»4mMA'mwwrr-Iwnllul/r«4 «Ww.wuM.,umy,mmw,..“ .1‘. The learned lrlal Judge rrea else rrol consldered wrremer eeclran 24 al are Pollca Acl 1967 rellea upml by me Appellenls enllllea me Della! team (0 use excessive tome and kllIJaa1al [43] The Cmm ol Appeal awarded damages ln lrle sum el HM5l.oon on fur the Respondents‘ dependency claim. The com also awavded exemplary damages ln me sum 0! HM30D,DDO.D0. [441 In gvanling me clslrrr lor exemplary damages. me Com 0! Appeal held mat exemplary damages ale permisslhle when a complaint is relaled lo breach olrurruerrrenral gualanlee under the Federal Carlslimllon. The noun pl Appeal sald. (.7 me Name pl Lords as early as 1365 rrl Rnokel y sarrraru [wet] AC was re: hsld mm Errpllrrrr calms rleve mwgrllufl me ewemlrrp m exemplary damages. lrram rs, damages whose abwzl was In purllsh er eeler mm mm was msllm hum nggvavatea dnmagas Mflaleby me mam/es arm wndun of me aalemum agqramlng me lrrlllry to me plalrlllfl would be um lrlla acrmum lrr asusslrrg cernpermlpry damages], and mare were Iwo ullegnnes lrr wruerr in Male! or exemplary damage: could serve as e useiul purpose. vlz, ln we care ofapprassiver amrlmy W urrmrenmlllprral acllerr try me seryurls er me nlwemmsm, in me can were me dzferldanfs cmalla pan peerr eeleulalea by him In mm a prom lav rlrmren. mrerr rrlrgm wall exceed me compnrlsalkm payable to me plelrrlm [See Saksm Shamla w/o Rapsll Shanna and whats y Shiv pr Hlmaclval Pradesrl and others lzmzl llvdlalw HP lml The lrralarr wurls me neerr caullous lrl granting exemplary damages l\ avdlnury loll aalms lrl Cowman Cause vurllml l7Hm1l.a[19§§]6 sec 567 ix was slated rrlrmarpmlw.—r....rul.~,,...lmm ~...rr.r..rr.,..r.»rr,rmezrr.r am 51 lmwmwl M» ):rvKIlrrlIdllrrA!llllInnv.LjM;-1-N r..rr..r.r= ~ry.rr.W rryrssrrrermryr rmy..r.....xe...rrrprr».r»«~,.m;.r;.lc....m...m,.r.rmrr.... 4;. -m...,.m.,.m..».p..».....m..m..n..a.»...-‘ 1 ..,...,.».n.,.......,.¢.m.;...».....,..,...., \ .....,..",.,.,.n.,...m.n...,...m..q .........y.mu..4..r..¢..,..,m.,p,m..,, ..,....‘...,.m..,..:...».n.m-.mn._ .. ,.........,.,.,...n..m.a.,.1...v......m..m.s.u.s7 ..,,...,..m.....,...,....»..,.m..y...¢. mmnwwmmmammmn »._.,.m....,..,.- ; ‘I up Ths ruawn am nwammg exznnlaty damages war addlvued in Rookes -/Eamard a-mum 7h-urn-mm:uaQg.wnu1mnnvMkAhl/dvvvwlllfihry mgmmmwmnwmmnmuuuw ‘ wunsfiwntuzpuxxipfixvwvhmrntubnndbwn nrtnaa-vmmamtvmilytunmvvhmvrw-1' M x.. mm, Engush am mm Data hm Iemwuaa ma courts on exuumdmsryinds and wumumes m maluiu mu «cum and mi; 01 Vaw mum mm whine meme: Lwt»IIfihgdanIa¢sio1unhw1u\s.v.The zngusn mm. ma-mwmemmmyvmarcamuemsusmmm |a3US]2WLR§15HLnzvaguvIeIosayIhsl\mauplaly dlnugavnia\\seasn1kmryberra¢nmmnmAschAm|1yvIme m aw. uw am» Mbwiwnuxzs mums: Ac: as IRi4,:snuhrs1na|>1elI1vuunmIspvem\ssn<xuImnd\ol finflanaml uuznntmi mm m the Fwevm cmsmmm Thspanxfllheltmpndervumswelmplmsa auanvunwmadmusmayuv DaMWonuDd<Wah mm u§emDamkSerrKIraMbmAbuEaImrslov:vN Imtnsab. Nslhnanny|'I101(NCVC]Mfl«2S3v07r2011<fl3v\mevIedk1 mm-s use um Conn mm mums Cu 272) 11) The Vnman Suplsme Cmm wen man Asmeys can have mad: n clam max 3 hrawh :71 lmflamanlzl quumnlses may we canmuuon wiH vmmu sxamphly 014/; In nsyzumm—xmmr-mur4:¢4vu«I»q4v~uv.mrr-u»..mo¢«n Wm. M ummw, M‘.:.m.m,W.,....&.m... ~ m...~..- Nnlkrl by W44 1m7umwy— m..r.w..».x,...m.m4,.,~...».a.r ~.. M.-M..m.m...u ./m.v....w «II. damage: as at nghl, lnflspanflanl an tunwus cm. . [See K Emma and alhers v Secmary 01 slala vi ramll Nadu am Wlors |2nl3} lmilaw Man 1:25; my From ma laanmg ol Vndlnn Suplame Coufl dsaslorl as wall as me Menu :71 Lnlds lvcl flsclsum VII Ashley‘ K a (mo max owns a; uuildlnn Mme canamlm are bound to Men my low ol breach M mnaamamal guaramse: by pmmalng examalaay damages as a llwllav mllal wnlal has been exvaclsd and exlemsd um um fleclsmn la fiunkes v Barnard. la mnsoqnsncs. a he: lo claim exemplary aamwzss undal clvll Law Am la pmale law ramauy wlll um aunly In ma menu n( amllc law lallav as wall as remedy. (n) We would have new mlndad la awam me sum av am mlllml n Ihe DIEWM3 had lad evldence In lunlly ma Ouamml. ram; l-no mnsldemlmrl me allagallan at line mate, we lake ms vlew l: mu be male apwuglime In mm qnarllum Iol aamnlaly damages ac HM:u:u,omm as waa glm la ma me of Kuaan. gen N05: us] N me own at Appeal, the Appe|Inrlts' appeal la «ms appeal was only In relauon to ma damages lav lalse imprisonment and misleasance in public come and exsmplary damages. The Appellants contended as they did in «as High Court, mat male is nulhing In secnlon 7 or secllon 5 0! me CLA lhat suggests a clalm can be made luv damages vol me ion at sfeasance in punllc Dfllce As luv the clam lo! sxemplavy damages. the Appellants mm JMJX/Iv)l5(Wl—Km;-IwlxNv~ym:1.IIn;ll NHIIVJMMVMIWIIAMHII NV 1 Mg] am 31 IWMIUW) n.a..a.. mam AV-4 am. a 2 an .a mm M, ~.um....., my manual am... VrI¢>vvvrlmKmlnmww D-AfiImNq:n a 5 l.., Wm. l.»a....m.....a 4.. submillsd Ihal subsecliun a(2l ol Ins cm clearly dlsallcws such damages. [45] Only lhe 2"‘ Delendam appealed agalnsuha finding of liab by lhe Hlgh courl. [47] Mar having llaam me parlles, lhe Courl cl Appeal allowed me appeal by me Appellants ln pan and ordered lhal me awam lor lalse lmprisulvnent be set aalaa. The Coun ol Appeal however allirmsd me rest ohlle awam [an] A5 luv the 2" Delendanrs appeal, the com of Appeal allowed Iy 01 me 2"-1 Dalendam to 45% me appeal and reduced me [49] On me lssus ol misleasance in public miles, the Cour! m Appeal hala as lollpws: :5 mm wha| we have sum alum, we and Ihal Ins lnmed Judge’: flndlngs were based an eslabilirlad evlflenne um ale lav «om perverse Cummnn sense and Cowman aaaancy derrlarld lnal a MI publlc lnqulry pa mmalw vmla. would have served bum ma private and puhllc lnlelesls In a manna: durlunflefl m a cw soclsry ml said we run mil ma use ul mu pllvlu ‘cover up by Ina learned Judqa lo he mappmpuala as ll -mplm a cllmlrlul mam mm In «ms case we llmi narlsorl ma pan on me lsl am: an: Dslsndunls We lm hnwsval man the Judge‘: finding: do has la ma inampla mnnluslnn um ma Vsl and Zld am an! Dalendanls nan braadwd Ihell any of ma la m. assessed 5:. ln summary, we say um ms wllllnl dlsleqard in male lnal ma mm bahmd ma aaam av ma meme 5 made krluwrl toguvver mm mm! aapmau evldarws am am am mm/zvmlm Kmm ml.~.,m at My l‘MlmDWOWNlllM7 Lullljnfiuré 1 pa mm :1 lalmmw) mm Ym x..mM.. Alma J W. A la. Mp? N-lhwhmby mm H mumw; K/rlmS«)»<rl-4:54 x....m.. a.l...~¢m A 5 p.. mm puma". m...,(~ [so] On the xssue ul exemmary namnges, the cam av Appeal sand: -15. move am snough In sansvy a use 0! punnc mmeasanea u Vs also am wew max mere has been reckless mamsvence in ma maul 1:1 av me am Dslandanl W9 mm mm mm the svulalwa pmneuea 171 me msnaams ma non mlmlled Ina nuance sm aul above hy us mm mm ac me Iunmed judge m omen wards. the wvduu of me Dehxmlanis can Var slum m me sow wmm we say musl rsqulve mnve disclosure man man had happened ‘In Ihls case n. max ma. we see no vsasan why we mm mm mnpl Ihe appmam ov 1715 mm at Lnms m m. cmmsums at Ihxs use Ammmgwy we llnd man mane them .5 a b-mu cl . wnmuounaw Iighl M a pom»: mummy, ssamn am at me own Law Anl doe: not apply and III: Calms mnnm he bum: from awammg exzmplary damage: Our mew u ourmisa Ivy me lam mm n. 1956, me yaar m wmm me cm: Law Am was Vegwslaxad, Ihsve was no Fedevav Canlluzulmn 15 We may say than me pumic Ian no public mmeesamx um um been umxepea ye! m 1956 and :1 out he saw mm when we own Law ad was enamed, n was nmy m mspsm :11 prlvala Inrlims animus Hence we am 54 me waw Ina secflon a :11 I112 Cwll Lnw At! my anphs: m unvac. mm m so Vav as me pmrummn nv award: g emempllry flarnaaas we There \s another leasnn In! our decssvon m Mavayin, We do ml have an ombudsman ar an lnnecsndsnt Palm comm and Mlscorvdun conumssm nespile me mcummendawn M a Rays! Cmvmssmn vm Ponce ntmmamanma x.m..».~.w...zy.,m4w..".»..m4.‘.m,;.m:.,. M(vL!1lD(MH1m mm So1n»lMnm».nu ...,m,.w ...,...m- ~.u..w«y W. n mmmm Kmm.\‘aI»unMKmvIrevI-u um Nu<vm(Lwv(.‘|4uHvMo1rn<u N/UImV‘X'lv -1:. nasunn (zrms) In me am halwe us.II1e|menImn ol the nunm is dust and mat vs we held me Dafendnrvs mspansme and acmunvamo «av men umawiul awnn as mm: omaeas n I: not jusl a. use at merely being uamosnsalw‘ :1 Vs move nnu mat Is m msuve mm me puhhc main Mm ave suppom m be me guavdlans at me Carm\lu|\nn ave nmuum in task and ma! sum un\aw1u\ mans snmm nox happen agum. Remand pvismevs Hm lnnar:9n| unm can./men In a own at «an and we mhev cmzans my me enlmsd lu men use human fights dmmg their Iawvul dclenhen 11 As m vmamev exemplary damage: should be amuded. we so: nu clearer case as In nus cass where n mufl be given an men mo smemy 0! In: mm Any mwnnme mmnav m on! vmw wumd nnnnluna mm ms I: an appropriate mass «a ward anempmly damages Nm lo mm such exammary damagts would \n my mind he ‘run allznding lame mumallon wm. lhe npumurlala care‘ n A: can we quantum m In: exsmplmy damages‘ me Vs am no reason m dsmm the award gvanlsd by me Leambd Judge as n cammansulule wun me acluzns al me Delendanls [511 In dealing with me Issue oi misfeasanoe In pubhc mince, me Court on Appeal luund ma: me am Defendant could not have been vesponsuma luv the acts allsv Kugan‘s dealh The own at Appeal am noted Ihal the H\gh Court had lailed In cvnslder the irwmvemanl DI amev DDUCS efficers In the events Veading to Kugan‘s death and these afivcsrs had, as sdmmed by me Appellants‘ been assigned to desk dunes as a lovm M punishment. ulmuwmamwy 4.». ..nm..».nz. In. . Nnnmwm um.‘ nn,:.n..n 2 nn I/Hv!)IIW20l14W; lbw-A.n«nKI«nM M M. MM 4 n, vN W. /v’}VN1\HrI0flwDvy anw nmnw, KrII«\:Iu41nlI'lnl(4wrnImn«vIlnImI4 N([(NH1$Vu)¢V4vhMnr(hINdVA)Ml/Vlfwrwkdh 41. Agpal Mo $1 [52] Aggrieved by me decision oi me Hrgn com, me Appaiierns in this appeai aypealed In the cduri of Appeai in respeci 01 me awards our dependency ciaim (HMH-12.000 cm, generei damages 1RM10D.00D.uO) and exernpiary damages (RM1U0.0D0 cap [53] The com or Appeei reduced the arnounr awarded ior dependency claim and set aside me award idr exemplaly damages. These do not relale to me appeal belore da. [54] in relafiun to me awaid ror generai damages, me Aapeiienis submlllad hetdre the Court at Appeei mat one general damages awarded to me Piernrm (for pain and simering ansing lrum ins loss of his son, Uthsiyachandvanj were nut claimabie and not pmvldsd ror undev seeiren 1 di me CLA. Hence. we iearnad ]udge erred In law In cideving such general damages [0 be paid. [551 The Cnurl or Apeeer. rnrwever, aiirrrned Ihe award oi genera: damages. The com or Appeal neid as ienows: 1341 Mahh mkla yang mink dams! dipemkaiknn banawa dangan kormlian sirnan ieian lelpulus ndmrngan uasin seyang ‘bays-link‘ enrara eiarnni din simnll Iidak Iylk lagl aiarmn akin rruengnlnrnr ‘vain and unlecinu. idss evcdnsmium’ W aerenernem and ltauma' im ardalnn Imdak aaias emdsiorial in-asa dan fli|angkakan aidaei den kemmian nnaknya iersemn pend dramnii psmmlln imrewa qanlimqi yang dirdrrnn in. max memmnyal aeaapa keiian dengan Kemiangun ieedarr ynng seiarna rrn ieian dimmnnir oleh piainm lelapi adaian hukaivan dengan Isu unluk mendnnulkan earnpmn Inmudap psmsaan eedrrr, dnmna, sdgdi, Kehiiangan aan Ievpulusnya kaslh lirmJa<niMI1(M—KmuIMxNr,nm« 1r.,new.r».r..mrrn.rr./rm“rm umrszw«1u1J1wr—i>.mi.vn;mnMnirr4nnnmro «n.n~ r..d.r,e Mwlnvhmuby mm :4 lrmanilvi , m.m.n.rr Kwrrvdrvmii nm were. r rnr U a..r.u.m,.. rrrdmw -u. saynng mm flan mv-an... ovang uezsamg aamua mlngqul {as} Paul mm knmi, garmrugw am samnym RMmn,ow on yang duwudkan Meh nakwm mam. unaxsana aaanan am «mm walau bugmmnnawn, a lwdakkah mempahn saw amlnn ynng nanenman a(au melimplsu (mamfieslry exeessmp yang memanukan mmnunangnn ham Pengawardan gzmllmgw Idahh mempakun mm mcava hakum mama flan hshau adamh wok \enku kzpma medal: aiau pevamrun map xananm flan ksptmlsan dnlam keskes Vavn mya mempmun pnnduen somazamm [37] mm. mm mamberl velllmbangan mendalam lsthadap hmluun gam|mg\ In: nan pana windangan mm aarm keadflun Gan dawn menamnaxan um: man xenamman amuan wajal nanm mam buaksana mannawardkan gummql am ssbenyak fiMIuu,ouu an Iersehm. AT 1);]: EEEERAL count LEAVE QUESTIONS [55] The Appeuams applied to Ms Courl Yor leave to appeav against we de sums of me Conn no Appea\ m an 3 cases Leave was granted on ane quesuon m law lor Appeal No. as and one «or Appeal No 53. For Appeal No. 52 leave was gvanted lav three queslmns no law. Hvwever. at ma commancamem ol learned sanmr Federal Counse1‘s suhmwssxcna oeicue us dunng me neanng 01 me app9a\s, me mild queslmn was wilhdvawn. We mu ssl om me questions as we deal mm mam Lam. mm imrsmlmwy —Kzm1PMvxN»;(»ut.1InxwNumymmMnu»-rMrvlmi-rtlhga mm :2 M/mmwy um.” w.m.m...,a W. »« WW ~.um..., W u "mum x..»..;.».~..n.a..m,..W.a..~»,.n.m..a. mm (VunlmmuHl4Amq-an -Is. SUBMISSIONS APPEAL NQ §§ Luv. Quesnlon [51] The quesmn ol Vaw (which we wru ra¢sr to as Luv- aumlon (I) aflar this) «or wmch vaave was gvanted lov Appea\ No ass (1) Whethav oxumplury dnmlgu am be awarded In clalml Iaund-d on tecllon 7 of me Civ|l Llw Am,1ssc'.I §uhnrIasInna by mg 5923 [say Bslcre us, it was subrmlled car the Appellants man sscflan 7 al the CLA creates a smucory cause av acuun. Hams any ngh| to damages must unly be man when rs auewed under sectmn 7 Sermon 7 has no prrmsron allawmg sxsmmary damages to be awarded for armrrary, oppressive or unaonsmuniunav acts ol ma lonieasor. [so] The Appenams a\sc subrnined that «he Conn 01 Apnea! erred up holding |haI exemplary damages could be awarded lot breach of maaamancal guavanlees under me Federal coasrmmion by relying on lnman sulhormes Accordmg to me Appauame me Indian cases weve deemed based on pvovlslons m me Indian censmurion lur wmch mare are no cerraapendrng pmv Cunslihmun ns m the Fedeva\ nu/).maiamHvVv KrumH>luNrq-r-rkNu;-HNummwuMulnmmrunl/‘M\AIy1xv Hl(rHA—m41NlHm rm. e.rmeWrw..rd,a um N Iwumpl‘ Nnnemnuvrr may 1w1wKyv>y— Krvwv mm" r,m.erm rare. ,\,....4. r rm v lilmuvlhmmrwm my ~W.,., Sub lo menu [en] The nasponaems suhmmed that annougn exemphary damages ave precluded undev the cm, they can sun be awavdsd where me claun is «ounasa upon a breach 0! lundamenlm guarantee under me Federa\ Consmnman. n was me Appellams who caused the death al the deceased. and consequenfly breached his constitutional fights ands! Arllcle 5 of ms Federal Cnnsuumon. APPEAL Mg. 52 ggvg ggosllonl [51] The quesucms no law (wmch we wxll race: 4.; as Leave Questions 12) and (3) anar lmsj my vlnich leave was granted luv Appea\ No. 52 and are 7101 wimdvawn ave- (2) wnmner uctian 3(2) ol my cum Law Ad 1955 (Am 57) whlch bus the Iwnrding av exempmy uamagu in In eslalu claim I: lppllcnble when Ihe dlllll 0| III: deceased II II I rIsu|I of a hraanh 0| hll conslllullonnl right In Illa; (3) For me purpou cl an emu claim unuer seciion 3 :1! ma Clvil Law AM use (Am s7); whelhev Ihe me me: make up me (on of mlileasance in publlc nmce mus1 be me ms nu: occurred move me death 01 the dcculed. n7rm.ty.mm7W»; m..m..»e,mm«W~W....»...W;.W.;,,;mHya.‘ mm s. W21/WW) mm." »».m.m.‘..‘.n. am. .\ MW.» A.m.m., m.,, U In/yvww; M. \.Mmm.m,Wam. »«.,.a;a._ mm.».»...n mw.,,a .3. fl (Ahmad hm H2} Mnurap. cm siiriya I in Halim Omar. FC] Alahzr hln unnamed, rcl Zaharah hinli Ibrahllll, FCJ) nmgnygl Qfl [I] These iniee eppeels arose lmni llnae sepaiaia cases iieeid at Vllsl instance hetcie [Mae liiflerem Judges 0! the High Conn. [21 nilleieni panels al llie coun pl Appeal nesici llie iespecliiie appeals agaIns1 me decisions ollne High cum. [:1 Applicaliuns lei leave is sppeel ageinsl llie decisions pl lne Coun pl Appeal were neaid and allowed by three dilleienl panels 0! lnis com. Tlie dueslipns ol law lei wnieli leave was gienled relate Io seeiions 7 and 3 pl lne Civil Law Ac1l956['CLA‘] [4] In view cl lne siniilenlies pl lacls and issues in lne lriiee appeals, the lriiee appeals were heard legalliei peipie lne same panel ollnis Conn. IN: 1 0515 [5] Appeal No D1(+)r36rD5l2m5(\I\I) [“Appa:| No. 35-1 is an appeal by me Appellanls (wno weie me Delendanls in ilie High Conn) against me de en pl me Cvurl pl Appeal wliicn allowed me appeal bylhe nesppndenls (vino were lne Plainlflls in me High cpunl egeinsl me decision 0! lhe High caun dismissing wiili cosle iris Rssporldsnu‘ eleini lei damages lei lass pl dependency, and mi exemplaiy and aggravaled damages. I/VMJM/J/)1'H«lW'Knr-4Vl>(lrNr:lIm&/MklvflrlmxwllldMmlmllimlld/(Mk)VIM MN \1 ID/MIAIWJ lVrvm1(J:vIK)dlrl4v1bwll|huI!/vhtul min. Vndmn/pl‘ NAHMAINIM nllh H In/JDMIV0 Km.‘ e».m..x..e.n.,..ni I)4lnml\"rVlra an... lihnm fhmlnlm HHDVrVHV]’14l ml th ll ma [62] In relauon to Leave Duesllon lzl, me Appellanls ednrnmed oelore us mac me clear pmrvislmls of subsectlorl al2) el me cm can edrrnl cl only one meaning: lhsl exemplary damages are nel reoeveraele ln an eslale claim, wrln no exeepzrons. Hence, r: was not open (0 me doun to rewrite me wards ol e slalute or rgnore we express statulaly pnmsrons. [53] Leamed Federal caunsel submmed me: all common law e person’: dean. does not glve nse to a cause 91 eelrorr in la»/ow al dependants and does nm lecognise any clalm by rspresenralwes ol the eelule ol lne deceased whose deem was caused by me Ionleascl against me Iorlleasor. The common law poslllon was mlllqated by eralulory relornrs ln England and moss slaluldry pravlsmrls were lndorooreled lnlo se ' ns 7 and s ol lne CLA. Sectlan 3 allows a cause cf anion whlch weuld olhelwlse ‘dle” with me deceased In sumve Im lne benefit el ms eslale, [64] The Appellanis further sutlrrlllled that the Cowl of Appeal erred rn awavding exemplaly damages lav oreaen M cunsmulronel vlghl, despile the clear wards er subsecllon am cl me cm, by relyrng on three declslons lrorn elher runsdrclions, namely: (a) Allarrlcy cmrul u[ Trlnidnd lmd Tnbaga V Rlrmummp [zone] I AC 32)\(“Rr»ru1Iaap'): lo) Mernrn v zzrrrrrrgm urrd Armlhvl [zone] 3 LRC 2M ('M:rson', uun Jdomalwwr , r,r.mr,ne,m .r 1MfllNMV1rIulrvlMIvufiulN«MI/wuré Ilrw run I: mrzumwl rudls-.nrr.r.r..mrrl..a:r.e.n nrmrrr Vnlfiulllnurm no u Imzvmwr r .e.r.r.rr.re..or.rr.. n.r.d.~.,.mr Nu‘-rv(,(ln«v[‘Ilmlriunn:r!M»rru;ovl .22 La) Ashley V cm»; Cumlablr of sum; Palm: [zuux] 2 Wu? 975. (“A.\'hl:y'). [551 Loamea Senlur Federal Counsel suounmoo. for ma Appanams. met the Court 01 Appah rslwmoe an the M736 L126 was msplaoed as Romanaop and Mayor: deal Mm hreadw ov onnsuhmonm rignra coy Mid: he Consmmion o1 Tnmdad and Tobago and me Conslimmun of the Bahamas, Isspeclivety, gram wnsdiclmn to award vemedies om mmngernonx o1 cmminmonal ngnra. shnvsav pmmsluns do not sx1s1 \n ma Fsdeml Oonsmmon. In Avhlty, a mm was made for aamagaa fix several alleged mmous acts, mcludmg nagsgaw.-e and false Vmpnscnmsm The demsson xn |hal mse ms VI raspscl 07 an app1K:SII)n to side om verraming cauaesuf acrian upon an aumaanon onnaumy and agreement to have uamaoea assessed unly on neghgsnce ano fa\se unprisonmem The Hausa M Luvs dsmisasa ihe applimuch cu suikmg m1l.Hervne,secmding learned Seuov Fweral Coursel, w11aIvrassam by Lord seem in «ha: case on vinmcamry damagss bemg ma apprupnaua damages when mas have bean nraacheo was mersfy olulu. [as] As regards Laava ouasnon (3), it was auornmea by Ioamao Semar Fsde(a\ connaa, max ads occurring after the death ol ma deceased do not give nse lo causes ov action which vest m aha deceased and sun/we lor the benefit oc ma 251319 in a claim bmught under samon 312) 0! the cm. Hence‘ algued leamed Serum Ft-Mara! counsel, the amavd oldamagss M RM1Du,0D0.D0 «o« msieasance m publwc otfioa whuah had taken mm account ans cooumng post-tisavv must be raouoea lo RM50.000.D0, being a can and naaaoname amount var acts oonnnmoa againslme deceased name ms death. W Jo475.117z.v1w; «....nn;n,.n.n )Vu‘(VNHmM«vu »..nn..n.u.o.‘ Axum Mm :1 nnzwwn o.h.;...x.mn An~.....a 3 n.n A‘ M. ., n why...” am; no vmznmm 7 K...“ W...“ Kmnrwvz-«Mu am «m «J V... . n.n,n....,... n/Wumgr-v an. Suhml In n nl [67] Fol Leaue ouesllan (2), INS Respondent submiued lrral the calm ui‘ Appeal was correcl in is inlerpvelallon at section a of me OLA that me pmviscl does npl prolilpll me come iram awarding exemplary damages lor breach pi cdnslilimpnal rigrils by a public aulncrlly. [531 The Respondent supmilled that We courl or Appeal was correcr wlien ll rield mar sscnun 3 cl me CLA IS a prerMemeka law and merelorc should be lmerpreled in a mariner llial dues nnt prprilprl ilie cduns lrom awarding exemplary damages lur nreacrl of oonsllmtiorlal nghls. [991 The nesponderri also suhrnmed mat lne couri ol Appeal nan rlgnuy exercised its power pulsuarll In Ample 152 at lne Federal Cnnslllmlon In order on give a rrarrnpnlaus cunslmcllon bstws.-an semlpn 3 cl me on and me Federal cms1irulipn According in me Respondent, Ihe cauri or Appeal ccme<;1Iy held mar the resmcnan on exemplary damages in section a should he rasrrlcled In prluaia Iurl claims and ought rim ro apply to breaches 01 Lxmslil rial rrgms and public imenflmial Inns such as rnlsieasanee in public dime. ll would lead to absurd and unlusl oulcomes. argued me Respondent, ll ssmlnn 5 ol me cm were to he applied wrlrmi any rrrodiiicalipn. rm] Fer leave ouesliuri is)‘ me Resporlderll supnillled llial lrre runner acls and pmrssrdns of me Appelianls alier me dealli cl me deceased were simply a conilnuurn oi the mlsleasance pm)! In his M(/) in ullzrlmva rm... I'«llrNq>uru&)lu;lviV»4mymllA u.rl...mr./we rr.,. nur) q mlmsiwl r-mm Kl-tnlhurAHllHnAArA.1lnlvN r».r,.a,,l- Wye... mp rx prmyr Kmm?runu1aMK:lrwvIrwlu/ll)rvI/lmflqwvld ur,lllr.r.... O4rlm)mr«/llH4rim[uil death I! was submllled mac u would be wholly amficial lo lreal those acts and omwssmns post deam as a separate pu mmeasance Ion when they all slam vrom me deam m cusmdy ol me deceased Hence, amramg m ms Respondent, the avgumenl of the AppsHanls that some of the acts WSYB pu5I—dea|h and the awavd shuwd be rammed la RM50,DOD.00 is without bas'\s [71] Thevefluve. submlned the Respondent, the Com DI App9a\ was ngm lo award exemplavy damages and damages car me «on M nusceasance m pubhc mm APPEAL No 53 Lg! gg mm [12] The question at law (Much we will veiev In as Lewve aumlon (4) ans: nus; fovwhlch leave was granted lav Appeal No. 53 is- (4) Whether g:nlrI| damages for pull: me sullulng can be nwlrdud lo a Plninlilr in a flnpcndency clnlm blmlglll under Mellon 7 0! III! CIVII Llw MI1956? Suhmlulnnl by m; Agggllnm [73] The Appsflanls suhmnlsd that from the clear provisions DI seaion 1 on the cm a dependant can only exam |IIe !ol\owmg' (a) damage: lav ms: M suppovt; 1:» naasaname expenses mcmved resumng Item the damn; (c) vuneral expenses, and mm yrummwm .,,..,».,...~¢,.~m...v»m..W u.m..wm,,..;. W. nmuz Imamw; M. $01 Wm «M m.m.n,...~ ..m.M- m.~..»9 mm m mavuwwy Krvun3(v1nm4MKzmc-«r~umlMIm<xf<qmI«Slum ‘...m.m.»W;.«~.".m -25. (d) damages for nereuvemenz. 1741 There Is clearly na araneran In ename an award ro be made In «avour of a dependant lav pan and aunaring. Hence. In awavding rna sum 0! HM1u0.cuo.00 for pam and armenng (0 me Respcndenl rna Conn 01 Apnea! had Introduced an addilIona\ rrarn uf carnpensanon which a nu: wnhm «re oomsmplnmn dl ma Iagranarure In enaclmg secxmn 7 or me CLA Subml nib nd [75] The Respondent Sublmltefl Ihal the hot that daalh occurred as a result of lhe AppeHan(s' wrangm acre means that me Courl can award damages {or pain and sunanng [vs] The Respondent submined that suhseclmn 713) of me on slales wnan me genera! obrecrive of damages var dapandanrs Is. They are to cnmpensate ma dependants rar ‘any um nf mppml sulfcmd together with any musmmllle expensax Incurred as a msuh of Lhc wrongful acr, n=g|cc| ur dc{:|u||" [71] The Respomenl furlhev submlllad that the learned Judge had axavcissd reasonable iudicral drscrenan wnen arnving ar me dacrsiun anar having cansmevsd me lacl that rna Raaponaanra son's damn Wfi caused by the Appeflanli weakness and negligence [75] Hence. contended me Hespondem, ma Vesmed Judge had not erred in law when one Iaamsd Judge awarded genera! damages m xne sum av RMwn,ooo.on «or yarn and sufleving. W mm/mtwq m.n,rr,n,.n.a;n.n Numuuvmllmdurbmn WM rn... um I21/malsym D<mrlDrrKIru»rHrmAMrNM«r4h Um» V rww wnmmmm W n rnmnr K<uvrS<v!AnJ41h¢A:~wewr~v—u and W... Vlrvgx vlr‘h4»avAhmu1mmMU4mwg(In OUR ANALVSIS ‘Th; [79] As simniinea by learned Senior Feflaml couiisai, at common iaw, me deiim iii a germ is not cmisi eled an iniuiy and personai anions do rial surwve me aeam oi the iiiiuien pevson, no: can any claim he bmugm cmisequem io sumi again. This Dasition was niiiigaiea by suiiiiiiory provisions ln Engianu and siniiiai svaiumry provisions were inixiipmaied inio various smuies in ms ooiiiiiiy. [M The cm, which cunsulidates the provisions on Ihs various slannes, incavporaies muse sialuwvy provisions in Pain In on me An [an When cabling me civii Law Bill Var its second reading on 15/05/1955, the Anurney-General said. in ieiauon to Pain IH oi me am: Thu: Mewlm pulrfl Ix wiiv. vagard [0 Pill Ill n! (In: B!“ whlth deals Wflh lh: iiiw lllflllflg ii. «in: zumiiii aiiii ml: Sllrl/XVII 0' ciiises oi «CKIGIV I du IIUK lhlllk ii Lt Mflexnly |n say my much amiii iri.ii m Fngllsh uimiiiiiii Inw, iii Ihc days nf Us iigiiiii. iiiaae iin ]IYD ii ll 3" I0! |h: Mlrvlval iii 3 iiyii iii aklmfl when a pevinfl dim ydu could KID! gal ciiinpmsmi». viii lhe dam of aiiaim, Iml ii lolluwed |h:I| iv yflll iiiiiii knock Sollwolle dflwll iii um Mmuls, ll wniiid ha VlI||Ch Mlle! 2c|||nHy lu kin niiii mlIligh| llmcr iiiiii In infill!) h|ll|. my rim Bmefldfld the hw iii iziigiuia fll! mi pom! and we rim amended D||l IIW iiuiiy yeiiiiugu iii in: mieiiim Milly Smlas and iii |h: SI:|HDmcl\IS In Qrlflhlfi lC||fil\5 la in bmllghl iiii mini: 0' ii=p=iiii.iiis for {he loss may siinci IS E IGSMII ii: me min in a ,.mii mi wiioiii lhcy wcm (I1:p1:)\dLn|. Aml Min ILIKMS IIHW lifimrlnaiikmiivfl Kn-ma I‘4uA:;»4/vk 1'lVgVUNHrvVnvI4mfl4lVrM1 Mmlnflav ii 1 M. 0l(vrJ1m)UlY(w;—7~mDX:n mm /lbw: mm x i.., V ~ i..i,. W .‘lA!I/MAIN»; 0!:/)—a1IEimAA1Wy M. XIVHIMIX/vkvwinvlvrlm lJu)«mNrgm .( W. vlamnm i»........iii..m... .7”. ‘ l may be .......y.. by . pcnwmll .=,.....e.....m, whn .. .11: 1.. clnim .:..... damages winch .... dud pnnmn wnuld luv: 1»... lb}: ... alum 11... um ..... been dud. Amung .... umur msulls ... 1.... amzmlmem .. mm 1. .5 now cumman ... cm... .1.....g=s 1 1... lass ..r zxpeclaunn ... 1... and .... ludge: Iuvz mu. ,..;:..-...».1 wxlh lhc 1.3:. «vol ...: 1.5. 111.15 ycars, ... E..g1....1 . and MN, ... llymg ... mm haw ......» a MI: .1 wally worm. 11.. ..1.... 1.. each case mu... ... depend very much .... .... views ..1.... Dry Aheludgz .... .... valuz ... ......w.. 11.. [:2] This Caun in Sambu l'ermz: c.».........'.». 4. Army V Pilthnklvarun [1932] 1 ML] 269 (“s.....n.. Pzmat’) explamed Ihs legal pasnion wm. vegavd 1c secunns 7 and a otme OLA as fnI|vws' AI wmmm 1.». .... drain of: pexwn gwes .1... ... Iwo pnrnplm 11.. first .5 .1... the death .1 any Pelscn .. ml . cwil wmng m.=:.... .... mu... C... 1.1.......1..1 .... 1. .1.1.....,;. .1....... may Icsuh ... pecunury Imus ... damagzs ... nu duznvzdk .,......c ....1 :n.1.1.u.. mm a11=..m..x.g. c; ... linker V. n..:..». ruled ..... ~... . ‘ civd wnn ...: .1»..1. .11. human Icing umld ...). he mmpllinul of ‘ .5 ... ....-ms‘ '11.. wawui vnnmple was ...... whm .. pasuu .1...1 ...y ‘ unxanlaumn winch wa. v;.....¢..»... ... .... lavoururxgainsl ...... .. .... ...... Mdalh W... 11...... wall: ...... 1.. nun wank ...: mus: ..rm..... .1..1 ...». l'|AlViVCl’1£‘. um... um... .............. marimv mm permna" 11.. .1... ,,......-;,.1. Wm. mglnltxl .1“... .. ..... gm... .... in my c..... .. aumn m ..a.r...1 by m..... 1 of ...: mm mm... Am nun ... l959,)IvpI.1Ja(|ykn7wn .. bun! Cunpbe|l's Au whilx .... mud ,..a......1. which .1.-111...... lm: um-mrvml ... ... by 11.. 1.». Reform (Muncllznmus PmvI)ivlI.I)A4cl, 1-134.11.. pmvnsmm of mm Iwa ux ........s ..u nuw ....m.;....1e.1 ... semons 7 ....1 a .1 .1... ma hw Act, 195:. Inc an ..r .=.1.... wn .u .../. ».«s......m Km.‘ .».,...~«.~. . Mn ...._....m.. ....”/.5... 2.... mm .2 .m..4w» ...,...m.m............. . .... M. W ...«.......~ .../. 1. Iomurm) «... .n.........m.,........~.v.mm . ..... n....,...m... ......m.m 2:. mm..m.m.mn..auurmoy.::..wm.mcum Ilm um Iupunls:n| would ml have n. ugh! Io bring II»: mu, amt hzvmg mcd umkl um seclirvnx Mud ... p.m1.r swim: 7, his cmmmm amlfzll on mchuis ulmrscsoclxonv. [as] In mm words, as the right of me dependants or a deceased person and me estate a! a deceased person to claim lav damages Vs conlerred by statute‘ man claim must be determined smelly within the cenllnss (IV the s1aIule [u] Pan In :11 ms CLA is vepmducsd m1nHbelww. mu‘ nu FATAL ACC|DEN1S AND SURVWAL or causns or /xenon Compmuflun In mg llmily M n penal: my um wcuionui Iry his dull: 7. (1) Whmcvu nu: dam oi .. pawn .3 cnumd hy wrongful act, nzgleu m xlchull, and me nu. ncglccl or defzull .5 men as wma.usm.mn.nn¢..g.e.n..»ecm.n«|wzxnnynuu.eam mainum ... mm. and lwuvux dumngls ... xexpzcl thereof, me pullywhowouldmvehmnhzblc «mm nmcnmudsmll he ml: to an lC||0nffllflnIIug4:),lmIWi|II1klilId\nglhc «em. nf flvc pmm. mm and mung. me am rm been mm} undu xmih cucumslznwx :5 amount m my m an nflancz Amdtl um Pclul cm [M1574] (2; Every Inch xcluon shill be for me bunch! of me was, husband. mm. and duld, .I my. :71 me person whme mm nu bcen w mm: and mu be Manny“ by nml ... lhn mm nu! ma nmmm of Lhe mm. accused (3) up dam: -. winch um puny who mu hc Imhlc mm subsa n (I) u. pay In lln: puny fur whum and (or mm: mm In: mm a. mum‘ slmll, xubjru m was swuon, ha men. as wm utmjwxmmva m.p...r~...¢u..;y»._.~..m...m.yzu mm. mm :1.mmIJ4W1 , mm »m...m». amm W M W .4.» mum-»¢; an/;JJ1m2vrmm— xmW.,.». Kemwlrrmln n.m~...M W vlcfiurvr mm. b(U4nm[rI4\ mlmuenutt me pnny lo! whom and m. whns: benefit me ncllnn \x hmuglu run any loss at xrupvpnfl suliuad Ingulhzx wnn my xcxsombl: axpenses nnc-um: is n rcsult n: ma wmnghll an. neglonl m I1:h\II|n|‘|hc pnny |mb|¢ nnnm suhIu:1inn(I): Pmvudcd Ihll (n) m nssmslng me dxmagcs mm mu nm bu ukcn mm ($0 (m) nccaum— (a) any sum plml or puynbl: on the dulh uf nnn pelsnn «mm: undcv nny cmlncl oi Issumwc or annnnm, whA:Ih=‘r mid: Yzlrnc m liter mu wnnng nnn {mun ullhix Am: (a; any mm paylblb, Is a result of In: acnm.unn1u Iny wnltcn my reluing In unpxnyw pwvidcm Fund: (cl any pension nl gmuixy, whl nu ban in wan an maybe paid ..s n msnn nl Lb: alum, at (.4; nny mm which nnn been or will at nnny be purl undu nny wnklul IA»: lelaflng In III: payment nl‘ my bcnem or compenuflnn wlulsocvu, in r:xp:c|n1' mu dulh; annnngnn nnny ls: nwnlded In Iuspccl of an Ilulcul expenzx cf the person dwum nun exyuznszs have bun iw:um>d by um pnny rn. mm mm ||Iz aclmn n Immgm; nn danugfi mill in awaldad tn . pamn on an gmund nnly ol has lining hem depnvud of me sclvmcs of . d1llxl',xnd no dznugu xhlll ha winded Iu . husbvmd mu me gnmml only of Fm n mg been deprlvul ol |h: swans Ln wcmy n: Ins wlfc, nnn in nussnng um lam nf aumings in Ieipecl «K any pcnbd mar ll}: dun. n; n person when. ma. ennnngn n.w.nynnnnvn—x...np..«,~.y...nnn.,ny~n....n »n.nn.n...:.,1n..m.. mum Iatwwwy —Iurns«1KnnImm A»-4 lawn: In; M mm nIpI'NuVImMIII|1 ulmvfi mm/lJ4m Kmnv Vnmnnnmnlm/wmmm Dab-Nam A1 M;-lvl-Aannunnfrum Nfilrrmxn-A 4... min [or m mnlnhnt m Lhc dumnges .....s.. (In; zclimu an own man— (a) nut» inlo .wu..... man W»... Ih: pawn amga ms nlumed mg .3. cf fifly five yum .. the mm ..r In: mam. hix nm (1! mmmgs c... any p.-ma mm 1... mm slull ...x he mm. mm mnudelaunn, 2.... ... .... as: o¢....y ulltcrwlson «mm, his Inu .,:........g for any pelionl nun ms acnm «mu he Iaken ...m cmmflenlim .r .. .5 ma or adxmlled m.. III: puson «mm W]: ... 9»... mi... |.... n... m: .......y u... um: hu mun. ...a wm reamng ummg by r... 0»... lnbuurnrmheryainiulnclwutyptiormhisdnth; 0.; mm mm wwum unly the nmmml nlaling 1.-me mam as Ifmuard ....n the Crmn mall ..... mm ...m mu... my pmspocl of I11: .........g. as .rm..a hung munwd .. ....y peliud um um p¢.s.m~x.w:.: (c; mkz mm accuum any .1...........o.. ..r my such ....o..... as afmuam by mm mm as .5 proved or mmnmu us be m. living upelucs ..r m: pawn cums... at I11: hm: ..r ms sum; (4; ulm inln .m....... u... ... me um Ma pawn wha wav nf .n.. .5. of lhmy yum Ind bclw .. me hm: .« hix an... m: .......n.. n1'y\.1n' purchase slufl r. ns;....1... um use of any um pawn Mm wzx cf ma .3; {Inge .........a...., hclwezn .n.ny um: ynls ...n filly fiml ymns .. In: lime of r... sun. the munbu arms‘ nun... sun In nlanlnlcd By using mg mg...» 55, ...i..... {he mg: :2! me pawn .. -1.. .i.... L)! mu. ....1 aw ng m: .:........:e. by the figluu 2 (am »... min. under Ihw mi... may consist of my indmln . claim ca. (llnuge: [or henzvemem ....1, suluecl u. subsculmn alv/Nan:/zamw; ..... ......».,...k ...... ~.........u..m....;.p.. 2 W .2... :2 mmsm —»............... Ma A» ..m : ».. VN In»: M]! »..u........ an]; .;...m.s4-4 4.... v........ ....../M. mu». ~...... ; ..., M. m..»................ -4. Q2 lNo all lognlsm [5] Appeal No. 01 (l)—5Z—\DI2D15(W) [“AapoI| no. 52": VS an appeal by me Appellants (who were ms nslanpanls in me Hlgll Cour!) aga'lns1 lhe dedsion or me Cflufl pr Appeal vlmlan allowed me appeal by the Respunuenl in pan againsz me declslan al the Hlgh caun allowlng the claim py Ihe Respondent (whu was me l>lalnl.ll In me l-llgn Conn) cm, among annals‘ damages my lalse lmprisonmem and mlsfeasance m pulalla ompa am exemplary aamages [1] The Cow! at Appeal, ln allawlng me Appellants’ appeal In part. mdered that the award of damages lm lalse lmpnsanmerll be set aslda. The actual damages awarded by me High com wave amlmad [5] The com pl Appeal also alluwed Iha appeal lay me 2"-= uelenaanl (who IS am a peny lo the appeal before us) and reduced ms Mablllly lo 45%. ms [:1 Appeal No Dlmrfiarlfl/20I5(W) [“Appn| No‘ 53"] ls an appeal by me Appellants (who were me uelsnaanls H1 me High com) agalnsl me declsiun :3! me Calm of Appeal whlch allowed the appeal by the Appellanls in pan agalnsl lhe dsclsion pr ma Hlgh calm sllowlng the plalm by the Respondent twhu was the Plalmllr m we Hlgh calm) coy, among ulhevs. loss 01 suppcrl, general slamagaa and exemplary damages Dlwllafl/)l7l1!W7—XnMV4r(lvN1gnlmGIlqavflrvrvvwmuumvlm pn....,Mu.,l mm [H14/hiwr l>nr»IJrllKMlMNrlAlmluhAv.Q vim yr. l....m Wn...m aw. Wmm am l.».mw...,a,.,.,l I)ufiumNv;-n/.!5M;1vl?h¢w I'!v4ruIunuHMllrvvu>4l ‘ 3| . (am, an wurn Ia he nwndcd as damages undu lhu suhsecunn mu hc ten mnuund nnggu (am A .5...“ I... dimly: for hzuvunuul mu nnly he fur me \mr..— my M m. synusc or me puma dzccucd; ind m Wm .. pawn Ms... W.. . ........ .... E marncd, on... t (am Wham men: .5 . dmm nu damages mag. plrignph . any»; form: \mm of Ike pm... «me pm... dzuused, me > sum nwnldcd man be amen c4]u«hy lmwrzn Ihcm subwn vn my dednuiun likely ... bu: mu in unpack nf .1: Oasis ...a expensesuwlu g cum M! mmveml cm... “I: defendzm (an) 11.: Vzng mrrsrwzu Agong my from Kim: ... «me a, maid pu ad in the Gaunt vnly mg 9.... s-pzcifzd ... xurm.....(m may An alder mam um sulmsniun om mu bc wr.|.um In me (fauna Ind .5 soon .5 poxilblz lhereallcr, mu m 1...: before me Duwm mm; ma .r m. Dewxn Kakyat mm . msolunorn annulling the uldzr, i. man he ma hm wmvoul plajudwe nu mm vs (lily of xnyming plevmuxly nkme meleundcr m 10 me making ..rmw om m [mm ma am nlnuhficzuovn m In: sum uf mu pmuu of m: ..s.::......... (4) 11.: ..m.....,a.ha than Ihc mm... rwmdul ulukrpnlvim m whnvclwn (3) and mg ..m..... xeawcled Iunkr puugmm gum, m mmveved my dcduclmg .u coals Ind cxpcnuci. including lhc mm wt Iemvcnul (mm m ammnu, mu he divsdcd .m..g;- flu \»m..m.mm Wm. u. my u[ m... in ;.u.sn..cm-neomnh Isjudymnlmdeamdxmcu (5) mm mm: um. um: mllun mu hc nmugu (ur and in mm anh: 5....» subject mint: 0! mmphivu. and cvnry slwh ulmn slull be bwughl wnhm ||ur»= yclrv am. III: deuh of ma pmwn deauad a:.;;_M,mm , .W...«.~..,.. . z W .~....... ..m..m..g.... 2.... mm mm». M. :.m...4.......u....u...».~ ....».M w......... v7:m111a42u:54wy— m..:.......». x.........n...«...~..,..«.s.... . m...(.m.w ..mm,a.. .11. 15) In uny such . an Iheexealnsr uf Ill: damn may msnn 2 exam for and xeuwcl any peamiary luv. nu ma um; uf u. daoened oocusiuned by mg wrongful an, nefleuk, ar uurnun, which mm whnn ream/cred shall mu deemed pun 0! u. mm M nun.-an oilhuluceisad. mm plum! ox min or summons in any such acmn sln|l give full pal|icu|ars of mg nmnn nr puvwmx In! whom nr un whose behalf um auinn ts Ivmugjll. and n: ma rmulc o[ m: clnm in mm: olwmcll mmugunuumugmn he lmnvcmd. (s! It more is nu cmum of me pmun dncclzuul or Lhcrc hnmg un mcunu nu Iclion us in nus mnnn nu nun-nu hn, wimm xix ulendu monllu allu uh: exam of um puma M-.3-n, been bnmyu Ivy the ueanzul. um mun may he bnmghl by all ur any of mg puwnx, .e mum man um, nu Mm: benefit III: mu. would have hmn hmugm u u hm bun umugn by Ihc =x:wInr, and may aninn in Iu he hluuyul shill Ix. lsvr llm |u:nI:fi| nrmc mm: pznun nr Innunu and shall he mupa In me. um: procadule as nearly asmay beaxihwlubmnyulby Ihezxuxmvr (97 n shall be xuflrc\¢vI| fur any delendanl .n my man Ixmughl under Ilus seclinn In pay any mmlcy, nu is advised to pay Inw cann ax a mmpznelmn, in ml: sum In ul| pmm mulled undar mix Kuuvn in! his wmnynu .9. ncgkm or dciaull William xpecifylngllxnlmu inm which inslnhc dxvulcd. (10) um nldmln um! amupxuuumnnmue us liknnhylhg pmnm . u. m mfl'u:imx:y unu nu: Conn |h|nks I)»: um: suffiuun, um dxsiemlxnl snnn bu cnuneu Io 1udg;ucn| II|n1\ ma (:1) |n mu scclwn unless the conIex|n|h:|v/nu Icq\nms— mclndm sax. muym. gmdson. glunddluyxlzx. xmpnn W1 SWFMIQWH mcludcs rmm, mulha, gnndhltxu and gamma, alt/Mum/2u1v4var;<u.. u~.n.~w..u n, V Vamumm u..nuu.nu,;n.n 2 up an» :2 nnuum D«mAS<n Klmmnoumn uu..u 4 km W M. W mmmmy alum mumm u....u.......n.n.,.....mn AInlmuNq-«M. ; kglvtuhnnrknnrivnnmlbfnrwgruv .13. “va\s1o1|“ uwludcx . rmzm u| Lmmhnixm and my pymtm ol alumpsum in mpmnt.,nm'm.nwy.nnn- Pluvided mu m d:dm'.:l\g any relationship Iufcnenl to n. mu subszcliun any fllegihmale pawn n! my pennn who has ban uloptcd, or mm nkrplian has mn lcgmeved, .n nzwrdarwc wnn nny wliuzn my mu he (ruled .5 being In a hnvmg hzcn um Inplinule nlhpring n( rm mother nu Ieyluhzd mm m, u we Ln: my ne, nu hix xdngulels. Elteclnldulh nn zrnlln unsts nhcliun x. u) Subject in ms ieclmn, nn mm of my nmnn all auses cf Immn mhsiniug Igunn ur mm: .n nnn «nu fiuww: .gn.nu, or. .5 nn.- use may bc, Iur Lhr. bcmhl nr, nn mm- Pvrwided mm on. mhsdlun shall rm apply n. must‘: ofnulm fun Iklunalion nu mum. at [at Inducing mm mm In I»: m mmin Ipan {mm In: mm or In my clxim fur ulumngs nn Db: guuundofldnlmy. (2) Where a mm uf mmn wrvwzs xx nfmmnid «n. the nmrn of me csmlc uf . dwealed person, flu: dzmagcs xcczuvuabl: fur |hn bcmfil onnn avlzvz nhlut pc1sm)— 4n; mu um mcludc zny nxemphvy dmlaggs, any dumgu tn. huuvemsnx mzdz Imdcr suhsecnun 7(3/\),.my dlmxgq Km Ins! nlurpmnllon o[I1l‘c Ind any tinny: no: loss 01 urrung .n Iupea cl nny pamd xflu um penmfs drum: 4»; n. In cm of a mum ul pmnm In many mu bc Immed Io swh anmgn, .1 any, In Ihe enzlz ol that person :5 mm lmm flu: man of prmmnss In nuny; ma 1.; yynm Ihe mm mm: pawn nu been umnd by mg .4 at ommum mm. gvts me In me am of mun aiull he calwlafnd wilhoul mmmn tn any loin nn o.,n.,.mnnm Kmrl p.n.~....... 2 my vNmIum1mA4lufin! .n.;.,,..n 2 up mun; In/Mum nunnmkwm bin 4.. n...y.. 3 )u(1wNlndw/wpI'~n!lmMnM mmxt mmww; Km. s.....,.n.m.»...ny nnn..~.(.n.n 1 my bAmrllun.lruwu!lMuu4;rvI 4.. gum Io mmm tzlmscquclflon hix dulhmxpeyt mm 3 sum m mm a! [mutual upmu vnaybc mdudnd (3) No ptoceezdinpx man In mamuinzhln m lupacl an an: nl xchnn m Ian which Ivy vmuc of ma: wcuun has sun/1v¢d aymsl mz emu: uf : dwcasnl pcxwn, unless pm-.«1iny agpinnhlm \n inspect nllhzl mm ohc|inncxIher— (a) were ptndmg at (M am of his mun, m (o; are Iakcn mu lalzr In... snx mm mm ms peysunal lcpvltsenlnuvz um mu ncptsenulwn. 9) When dlnuge has um sunma Dy mamn cl ..., .a nr nmiwtvn in paper! 0|" wm . muse of lawn wmdd me xubmxlad .,;..m my p¢rwn1II.hx|pc|sm| ma nut um) bdrm or .. m. nnlz hm: as In: damlgc was suffued, mu: mu mg .a......:, for an purpnsesuilms socnon. us haw. um sum g againsl hum befmc mx dud: mu. uuzye 0|‘ Icflun ... laspem of that m m mmssmn as would um ;..mm if he um men after ma dlmagc wns suflemd (5) Th: nghls wnfemd by mam. [ov me hcncfil nf ma eslalc of amm pcmons man be m .a.mum m Ind no! in delvgakiun oi any nylu cnnlenzd on Ih: dcpzndanu oidwuu-A pcumu by scclxun 7 and m much of ms secuan m mum Iu causcx of mm... ngunn the mug of named persons shall nyply m Mxlmu m uuxu ul mm. under ms ma xenon ax u zpplie: in rclman In other cm; or action not cxplmly cxucpltd (mm VI: npemllrm nlsubsecuon (1) (5) In [Ive evenl uf Dr." msolvcncy at u. mat: ugaivulwhmh pmocedxngs an mmnmuuble by virtue ul lhxs semlun, my many 11: Iespem DI the cnnsae nracum. in mpec: or which n» pmmmngs are nmnlmnnblc man be dumzd m be a dam pmvable 1:: III: adm men n( m: csl:1e,m|w:\l|MmdIngI\ml u 15 a demand in Lhc mlum 0|‘ uldiquxdnted dnmnggx unsung omerwxse mm. by . n:unluc|, plnmixe m hreach cl mm. atmmazxuomwy m..n.M...,.,m ,~~....~.;4.m».n;.,.m.n,y am;:1mmI!4m »...u.m.m... m..;.m...~ m,..,.p ~.m...., W «J mmrmlvy x..m,.....m...~...‘um..»4.,...4.;.»..m...rn,.4~.w«»«m..u LA on nlgn; [as] We srrell deal wim Appeal No. as and Appeal No. 53 lrrsl as me questions ldr whlch leave was grarrled ln both appeals rrwowe the same eaelrorr, namely secllon 7, M me CLA. meumm (1) wllenm uxumplary damage: can no awlrdud lrr clalml loundud on socuerr 7 dl lhv Clv’ Law Act. 1356? [as] We rrolsd Ihal me Cowl at Appeal in awavdlng exemplary damages had lelisd, among others. on ArIlIzy's case crxrlrery lo war is eraled lrr the rddgerrrerr: 0! me corm at Appeal. me calm in Arhlny dld ndr say mar exemplary damages ave malnlalnable. Lord seen or Faecele In lhal case. In dlsmsslrlg me issue or whether funnel prosecuuorl er the assalrll and lmlery clalrrr should be barred, axplslned llral me damages he was dl me mew uugh| lo be awarded ldr breach ol dulles were 'vlrldI:aIory‘ damages. His Loldshlp eald; lrr rr Ialcr ere, Dmllrlz vA—l'r' lznml 3 NZLK |36,1'?wnl:sl draw a disllnclloll belweell damages whlch were Ia:«\+1cnlmd and dauugcs whlch wzrc rlghb-wnlwd. Dnlnwgn awarded (0: lb: prrrpusc uf vlllrdlcnllun mt cxscnllally nglllvurllrzd, xwanlnd in llnlcr to denwlwmz mm are rryrr m question rnerrlrl ml am weerr rrrlrrrrgerl ar all lrr Rrmlarmap > A4} of Trlllldad and 1'ulra;,-IA lmsl UKPC ls, lwosl LRC am, [2ull<.] l AC 325 llre l'vivy urrrrrcrl upheld arr rwrrrl uf vlnlllcalory duvlagzs rrr respcd at «erinuls rarrlaelravrrrrrr rw r pollc: olilnzr Inward: rm clalmuln. rrreee were ml exemplary damages, may wan. nul llwllvdell lar rrrry pulllllve prrrpase. my wen awarded. as .4 w». pm ln Mtrxorl v Farlwrlghl [2005] um‘ JR. lzmrrl 2 LRC 2.54, :lllo|Im use m whlnh me Pnvy marwrl rrrrlreld arr award of vlndicnluly dnmngcs, any marlzanllm r,...arr,,w,..,.a;a.rr Adrmldllrmrl./ll]/dvk um um Jzlurmlxlm rr.r.rr:mrrr.».ramlr.mr,.r umrv rmmrrrr Nmulhnulhr nu]; H rrrrrmrwr Krllmlzodlrulw r....wrmrrrr.a,w,,..... VMxlvlilmuvnlmmmulnllldnmlvdn -:u. ur order ‘to vuvdicalz me ngm nfmc wmplaulim |o carry urr ms or Iva me u: we nsurrarrru (mo [mm unyuslified Exaculwn: mleflelence. vm<Lr¢:lm:n| ux upplcssmn [:71 Secuun 7 onrre cm‘ wrricrr mcovpuvales pmvlslcns as in me Fatal Acmdenls AC\s of the Unwed Krngdam, enables an anion [D be urougm agamsla person whose wrorrgruu aor, negkactar detour: rrrrureo arremer and resuneu rrr me death or me rmured pevsun r such wrongful act‘ neglect or delaull Womd have enlmed the injured person to ruaimarrr such an ecuon and recover damages in respect of such mjury had me injured person no| area. [as] An neuron under seouon 1 can only be brought car the oenem or me wne. husband‘ pavem or emu: {“Ipac ed aepcnaumsq or me person whose death was caueea by man wrorrgrul ecr, rregrear or aeieun. such an acuen 'shn1lhe bmughl or ruu: m the name rrmre mu.-culur of me puwnn d:c24M:d' The executor may mean a claim hr and reoouer any pewniary loss to Ihs esrare or me deceased oocasrorreo by me wmngrul act‘ rreglecr or ueraun arm me recovered sum wm lunn pan 0! me asmls 01 the deceased my An a.c|wn under section 7 I5 brought by me specmea depenuanre and me es12I\e 0! me deceased person m merr own right. [en] Arr mun orougm undsv eecuorr 7 must he ureurrgursrrea rrarrr an acrran brought under eecuon a more CLA. secuon a deals with cenarrr causes or aouorr whrch were already vested in the deceased person prror re ms dean. and whrcn he womd have oeen awe tn puvsua. but our his aeaur Those causes of aclmn are nor Hrmled In causes of acrron arisrng from me wrongful acl. neglecl or detaml Imp xcurmsrw) rm P/-141M:-m a Ilm .~rW.nr Mwlm r..r.r.,m.r 1 r.r,r aurpz rrrmum D1rMS4HKI4MldD0vAb<rFlabuvd. r rm » mm rr, r- »r.r.rr.... Mm <3 mrzumwy K/ma \4mu:mAu)<rmrn4rrlm\ mm. Mgr" a A rm r cur. 1'h4Mr1umINMunvg(34r .37. Much vssuflsd tn ms deilh. While at common law meae causes at acilun wanna have died mm mm. undev secuan a (which mcorpovales provls ans as m me Law Reform lwscellaneous Provisions) Acl was av me unnea Kmgdum) muse causes at action survrve lnrlhe benefit oi the deceased person‘s esxaca [91] In Amity‘: case, Lmd Sam at Fascole explamed me purposs av a claim undsv the UK Fatal Accidents Act as Iuuows, . 'l1u:0n\y uegnnnaus p....,m fur which Fatal A;>c1uknIAc1d:mng:s can be dam: nml awnrdcd lo! «-1 mm a... n. my opmmn, m1npcns!Imy.'|'hc dumngeiancnwantzd {ma um ufnltpuulzncy [92] Suhssclmn 1(3) uf me cm cleany apecmea man damages which me person agamsl wnmn me acliun ws bmugrn ws hable In pay “skull. sumac. lo ans m n, h: such mi mu compensate |hc pally for whom an for M105: benefn lhe aamn K hmughl In! My loss 0! snyvpon suflcrcd mgclhcr wnn any Icusnmnblu uxpwuc: Incunusl as a mun nf me wmngfn\ ml, ncglcfl or defxull". The crmcav words are “cnmpcnsa|c" «or “loss u| supp0I1". [23] The ansence 0! a pnmsiun disaflnwmg me grant an exemmavy earnagea m section 1 must he xneweu In the comexx of ms compensnlnry naluve and its dmersnce tram secucm e. In Room V Barnum [wen] AC 1129‘ Lord Demin sand at page 1221 ‘Exemplary n|:Im:ges are estenunlly diflelun from unlinary dunngss. The nhjcu er anmage. in mm: usual (ens: of ms mm is |u uvmpcnsale. Tn: umm er exemplary nlnmagts is m punish ann aw.-r." [94] An awavd ol exemmary aamages under section 1 rs cleeny conlvary co the Ieg\s\aIure's Intention m snacnng that secnan 1-ne W..mn.nnw, n,...,.M,....,nW,4.~.n,. .n..n.nn,.,a;...n wwxemmmw; n.n. e...nnnn.»nan.,a:na m.4n.w-~.:nn...., W, H m‘zuI4w1 7 Krwv Yrvlnuum KrmuwrmmIlnVm:Nq-HVASI/vg)V014/mI(haru!rnmuHHmnuu\ .3. leglslalure onvmusly dld nol intlclpale ma: such an award would be made Hence, an express prwlslon dlsallewlng such an award 15 ml vequned m sectlan 1. [as] our answer to Leave oueellon (1) must meremre be In me negamve (4) Whether general danugu ler paln and suflerlng can in Ilwnrded la n Plnlmlll ln n dependency claim nmugm undlr secllon 7 al lhl CIvi| L-w Act 1956? [95] As secllon 7 0! me cm us a pmvlslurl enabling me Speclfled dependants ol n deosased person who came by me deem due In lhe wmngml am, neglect uv delalm or enamel In clalnl lo: damages in lnei: own ngnl lo comperlsale lnem lm loss ol suppan due lo such dealn, a clalm luv the Dam and sullenng at me specllled dependants (av even ol ms deceased person MVIISBW) ls cenalrlly beyond me purvlew all me secuon. [W] In one case :4 Dlzvle: vPnwel/ Du/fvyvx Axmcluted (‘nllicrmx Lm llml AC 001 quoted by lealned counsel let me Hespondem, Lord Wright axplalned me nature or me remedy pmvided lo: In lne UK Fatal Aaeldenls Act as follows‘ me glzncnl nulur: nf we remedy lmdcl Ihl: ram! Accldenls Ads tn. uflrrl been cxylalncd Thwe Acu “pmvlded n new cznw of mm me did nul n. u1lc."u: Lord Sumner nbxcwcd .n rm Arrwnkfl. nl p 52. The ly mgnlnz ul elllarg: In old clalm Is, In llle mu: m lh: Vcm cm, zl p 10], Kux nn..n.nnly Illfecllng the [al-luly nl me dcnzcnscd. N Is nnl n chum nmcn Ih: nllfl ‘cu:/zomwr m.nl..~.....u...ynn..nn~..W.,.l null u nmmm lnmn.x..l.«n.ln.....l,.;n‘.. n M...‘ (llm—iKM/2I7l«(W7 W. wmnnn.l..w.nn.»...~.,e..«W. vlwlvl/v—m1mwulIMuVVK'vn dwaxzd uunld luv: ymlsucd |lI his awn Meumc. mm. I|1$ for dzmxgu um suflcmd by hxmscll, but by hi: mrmy aim ms awn "mac 1) no qucmun hrm ofwlm may be cnllul mrrinrerrrss rlxmagu, benmvcmcnl or pmll and wffering n ix a and mum ul ylnunck, shlllmgx and pence, suhjacl m the clement of rusnnnhlc fulluc plohnbtlfllls. [931 Learned zx)unse\ var me Responnenr In Appeal No.53 also velened us to the cases of (Mg Ah Lang V Ur s Underwnod [1933] 2 MU 3?/3,Mowv1I.\u Mme: Ltd v Puaey [1970] no 541, and Rap: Maklmzr bm Rzua Yrmlwb V Fuhlic 'l'u4.\1¢'t Mnlnysm [mu] 2 MU 15) in supporl of his submission mar claims are new snowed for nemuus shock, lass al prwacy and puve financial loss. [99] (Mg M: Long and Rafa Maurrar bm ma Ynalwh are nu! cases brougm under secnan 7 M the CLA ‘muse cases wwnwe clawms brought by me mjuved persons marnsewes who survived the accxiem Tne Auslvahan case M Moum Im Minn‘ (which was referred in by the coun of Appeal] Involves a exam brought by a «urerrran at me Mmes wna became uepressed and developed menial Illness as a cnnsequence ol seerng and nelprng ms coueagues whn had been wuured by elecmcax anon-circun. Those wHeagues mad at me Iniunes. We do nor mink mese cases are relevam to a claim under secuon 7 at me OLA. [too] The pnwiso Io sunsecmn 71:) of me CLA noes nal auow damages to be awarded in a parent ior bemg aeprrved 0! me mm Jam/zvmwr rm. ma..,.. 4. 2."... Nrmuvmm MW amrw 1 W DANJ1IM/1Ul11WI—llm\r|SrVAKh¢VMI~«AMlnm«|.Hn;uK mm" ».~.m...., mm 27 Mrmmw; ~..n.a...mM x,m.m IMMmNcxm 4.11..-4 an... .n.,.»u..rrr.m..,. -lo. semces at a child or [D a husband Iur havlrlg been uepnvaa of the servlcas or suclely UV Ills wfle. [10l] Fol lass ulhev man pecurllaly laaa, ma only damages Ihal secllan 7 ol me CLA allaws to be alaanaa ale damages lot bavsavemsnl. Hlmevev. such damages can only be awarded lo we spnuse al a deceased persun uv, n he was a mm: and never ma :1‘ his paaams The sum max can be awarded as damages lo: heveavemenl ls RMIO,D0n.0D, subject |o me powev uf ma Vang or Penuan Agony lo vary such am. [102] Our answev to Leave Ouesllcn (4; VS mavetore in ma nsgauve d.nI.:lll.ALa.._51 [103] we shall new deal mm Appeal No 52. Leave was gvamed lcl Onsslluns (2) and (3) whlch ralale In sealon s ol the cm. Lcumnuasuanlll {2) Whelhcr ucllun 3(2) 01 CIVII Llw Act 1956 (Act 67) wmen bars me awaralng of oxlmplnry damages In an wane claim Is appllcahla when tho death of mu decelsed is as a mun at a breach ol ma consmuuanal rlgm to Inn [1041 The bar ralanaa to In Leave Question 12) is that plovlsiun no subsecllon 512) cl me CLA that prmlldes mat the damages man can be recovered luv ma henem of me eeuale ol a deceased parsun ‘(hall um include any cxunplnry damages" The High com and ma mm Joawalslwl Kr4lwf\mvNe;;nmAAln;l vva..,w».,.l.,»vm r.,.,“».,, mm 51 mrmnlwl ea.m:.., K!uMNuAI~vllnlm& «am. lmlmulpl‘ rmlmhmwy /um ‘vlmzvrmwl Kllvu\«mru/vimAaurlltrvunlhvbunhlgrvlWYVqu1vhnuv(A/mAM4llaw7MurIw\u [10] The Court ml Appeal, In aHowing We Appellants‘ appeal m Dim S91 asme me award luv exemplary damages, veduced lha quantum 04 damages lo: dependency claim. but ammled the ward var gsneraw damages luv pain and suffering. Aggul No‘ 36 [11] The Respondenls nu ma appeal are me three chlmrsn 01 Abdul Jaalar am And. Mulahb [“Jnl:r"] who men on 02/09/2003 [111 The 5"‘ Appellanl ms? ong Sang Keongj was we head 01 me miss learn much was cavrying out routine panel In Ssmmn 13. snan Nam, in lhe eany murrwlg 01 02/09/zcoe. He and ms team members saw Mo cars: one was a Flman wan and me olhev a Mack Proton Perdana. [13] Their suspucmn bemg aroused, the 3"’ Appeflam and ms team began tailing nmn cavs lrom the am Alam Sladvum Ihvuugh me Kayangan vuundalmul and onto the Faaenax Highway heading xownms K-ma Lumpuv. [M] Duving thew suwemance. me pokes lsam noticed lhal me two cars slowed down each me they neared a penal s1amnn. There wave was perm! slaucns m 3H mung me we mken bylhe two cars. [15] When me two cars cimed back |o the Shah Nam Stadium‘ the pence team slapped both vshmss, Wm)nU§mlIS!Wr—KrmrvI’!lul'4¢uruRAlog!‘Nuulsuvmfl/1u)u!Lva4nl/vfivdll/v5>( am; a rmzvrm ,...w.m.. ;mAMvNn&ur«4MgrvN7m1u¢)pl'Nnlwhnmhy W. :1 umwsy r— .mm.u.n ....m.,»nm.qm.‘\n,.rmcnm.«W,m,..m -11. Cam in Appeal look me posilmn vial we pay does not apply were mere '18! been i bveach u1une‘s fundamental Iibelly M light to IIFB under the Canstilmiun. [1051 As was explained by this Calm in Samba Fermu, causes pl aelion vesled in a person aumve his deaih solely one In secuon a at me CLA suen survival is euoiem lo lne oondlllons eel am in that seem", une 01 wine» is that damagss wnien can be awarded lo: we benelll oi me esiale ol euen deeeesed persun cenndl Include exemplary damages. As was also stalad H1 Samba I"errm.\. the claim of a person claiming on oeliall oi me estate 01 a deceased Devson under secunn 5 must “sand and fall" on me oaele onnal soeiion. [106] The High Com m we case lelied on me High coon decision awarding exemplary damages lei lelse implisunmenl in me case 01 Abdn!M1A:k bin Husxm v llarhzul hm H] {land 43: 013 [2005] 1 MU 3%. Upon being relened la me lodgemenl at me open on Appeal wnich vevelsed me High coon decision, me leamea High Cowl Judge said‘. Thcnzfunz, {rum lhc clam wading or me ullnclusiall or ill: Cuurl Appenl i.. Bnrhan ma :1; Daud 4 2 lugi v Abd Mam la. Hurrin (Civil Appeal No. W-Ill-122-Z1107), me mm of Appca| am not ngluc wllh the nusunlng ul lhz High Calm, with mm, m nnpecl of llzhillly pm naming was said on Ill: Kmdlllgs of ma awards pr damagcs whlm included txerllplnry damngcs or |M| me man Calm ms nu pnwnzr |n award zaremp/my damage! or Ilnmngcs luv fills: imprixmumznl. The eemeamaa ac lenmed Sailor Federal (‘mmxcl mm mm: Conn as Appeal has let me award M exemplary damages 0! damlgas 0! false Imprulnmcnl in ammlmoa wllh ms subnlisslnns mm mm lxmrl has run power An award Ixzmplary damage: canmsl he wsulned and ii a misleading 9! ma an];19OS/JGKM7rxawurw4xNrgMvAIla-«vh-lnmiruulmluhlnillulrinflNam mm a I»/wlmw p... eamiapMala.a..a «mu ,4 M. 1/pl’ »am.».m., ult/pumrwluwl Kim m.».a.x,m..emalman,.alasi vhhuw(humlm»4c(!)4rvmKvul ]lldg!lIBll\,37Il1}S Inisplaoed. mu m naming n. ma yuund: 1-I judgmcnl 0! III: Court of Appcal n. sum Aluuclly or Implledly ‘ um um own czunnl mm uemplary damlgca ur Ilnmlges For um xmpnsunmcnl m mnI¢:.wnu when mm )5 claim [ov tlependzncy [V\|lSl.1ll|H0 5.7 or a claim undzr LR M lht: mu An . mm. At my mg“ u may m sea: ax .1 um mm m .w,m...g ‘ lhc amxplnry dnmugcs am however on clusc m.«...g, wuh mm‘, 1: um um xpvpalr m be and xhnuld mu B: man in man 1 cunlcxl or ha ma mm m: pmgmem as imemlm by the learned Scum: mm: Counsel Thu: Wu nbsululcly no finding m mllo d(£n1¢milD| [he Judynem m We Cuurl 1-I Appeal u: say mu m» mm oi rxumplury tlzmagrs ix mu allnvwml m lnw. In Ah: civcumaollmks, ms cmm, mm Input, would mow um mammng nl lhc lhgh Cum on an xwanl u[ exemplary danusges (AM mm bin um» V EMMA blot ma pm .2 l)r.\ am; mu m .1 p.195-.196). mew wdgemenl qumed the above an rm:nea:mpa.sngss,nmnnesemnmnn»uvm Jndgehadawusdmeuuumuulnwtamslsclualnanuxlshs lmndnunarmssmflvmwhebmndw/mamonimxn smuanammmmngmnomyamganwmumue wrung Insay max meumeamgauwme nus». mum fltederxsnssdhadnmerIvuId;us1>mdl:uata<1Ir1a\anawa:fl avemwy mmaaas u requlran Yhe Iuamad Judge also rehsdunmspudguv\euImBov|un'susse¢uprm nos] Both ms mgn Court and one com of Appeal appeared to have uvenmked he lam that Bmharfs case was 993 a case deahng wm. a cum under secnon 7 m 5 ov me OLA n stands to reason lherslole mar me Goun no Appeal in a.;.m.»'s win an nol -mu: nliw:1ly or W 3“ mmzmw; xmm...W.z...H ..u,..m...,..,W.,.m1... mm H mmrmwy am Srvl kmmowm ...., L 1 M... ~ ;.,...«,r ».u....., rum n mmmm W. \....m.nx..«.m. .m.«».....¢ ; Mn um (-».m....u~m«... Implmdly um Hm cuun cnunol awnni exemplary dalmga: or Llamngw rnr Ialsz impnsnnnmn or mxsicnsanm when mm n claim Aur dcpcndelwy pursuant [U :7 or 1: claim undnr ml ul mu: Cwil An I956". The dam In Hm/nan‘: case was made by md Ma\ek nvrnsauy me very person who manner: 1:: have been ialsaw «npvisonea, not by ms execulm lor me benefit uf his estate WE do VIOI see how the decision H1 l:‘nrhan‘s case can be relevant .n a dam under sec1ion s oi me cm [um] After quoting me pmaga .n ma High cums nmgeunem delling wmh K<:vh4m's casa, the Court ul Appeal proceeded to refer lo Amclss 5 and 5 (IV the Fedeval Consmnion and ss ' M \n Inlsrpreflng any manna. n V: wr eonsmered vhaw mu me Courls mn51 always be man: to any lmemvetahon mum may auma ma vmpunanw at any oansnnmmad ngnu av auzens wn (ms mum-y ma s-gnmmnca at any mam al any new ngms pmyaaeu hr \n ma Fedsval cansunman mnnnt he vumtsd m we snme manner as a breach 0! say ‘Inmc um Vav ma swmma reasm mat was Is no urealar mam man lhal cl a much m n |>nrL=.mm\unal Hum Further \n ma cwmry we p-acnsa onnsmnuonnx supvamaw as opposed In pannmanmy suhvsmavy. Nance n n mcumbenl on ma caum men Vnlsvnrwng any statutes. men nmsx be made «a me Federal Cansmnmun vmln appmpnaua an no 5:71:14 5: Suviauvluadufun-udlarImAHnmstz5emA|NvyvU|le1 oonmuo at Sun): min [mac] : wux :15 m. vmsm me Home av was am mm pmnsmna mum ra mm m uwun Eullhe CMI mm Wnmnm—»<...am.~....m».,.yym..mu.y.n..m.p..un.. mm.nMam m.,.xWwnn.n..ammmy .mm..~..n Wsumnnm, n..W...nw..a.m.my.;mn..ma K w...y,m....nnm.,..n 12 Flomxhe qmumsallhsl mrdshys‘ n a rurreuealmalmey sawm )mne\1iusn\nAward\nq exemplary namages neeme ma emrsg pmmmmx. at awamhg sxunplaly darrwaai n m sea dalm man may mnsldel Ina: pmmmmn n me nyn m «ea man In: em M Ihs Ambys was In! eamagea saemmmgcmm a mm m anqmvuwlfledfol -me Human Rams M1995 mum A0115 me eonseauenee :71 me aumpeen (Iorwemxm cm ma Prmen1mn :11 Human new and Fundamental Fvseoams. ma Lemma swam man Iannoryrtqmmbeuummnnxxml ngmlryvwuearlm mnnemun or Hnk helwwn me Nmmn mama Am Ind Eurmeen Corwsmnn my me Prmsmm at numan mm: and Fundawmnlal neeaama Am sum em.-men was dune n-sane me hm man mete Vs m wmen cmmmmm .- Enghndwhxt\nrsa1se§Fsn\amelv1xrynApIsvr\Bcy 74 rr.a1aan,wesee»a.emeumw.eamamnaae.:xu-e awroemmme Nmsem mmammaweumuneeeaum case Nxxxmngiywefimlhalmteramsiewsabwumala eemnuuanan nm by a game aumemy, sennn em m m. cm: Law 114: eeea nu saw nu: ma cum cams)! be haired lmm awaiting smmwary damages Du v-aw .a «man by me incl mm m 1956‘ Ina yea: m mm me cw |awAmvm-sbmshtsd‘ 1hsrswasnoFsdera1 censmmou 75 We mnnev say Mal me Wblw mn ov whim memunoe had nnlbeamieveiavsdwln ussaamncennesmmmwnau 171: cm uw Au wls anamad, n was any m Iespem 01 Dvlunewrtmsamms Heneeweareoflhevawmal ssnnuEnlIhaCvvi\|zwAclmwIyapwnsInpmrmarcrls1n an la: a Ihe prahlzlion at nwammg exsrwlary damages. [1101 mare appeara m be some canfusmn as to me (me pusiuun of the statement by Lord Scoll ov Fnaaoce In Ashley. As we have mm In ommm Am». M.m~."a mu Numnmm am ...~.;m 1 M» mm :2 ta/Mum mm Sm Kmm-m AM awe J Mm wt.‘ rmm wl‘ ».m......»z WM :1 Imam. —x....a.».".... Knurmrrun I)u)umNE5rn a 3 awmaw <».w.»..u«ma. ..5. lnenllened ablwe, al no unle dld Lord Soon advocale lhe award 0! exemplary damages. Hls Lurdshlp was advacallng (nbun, we mual add) the awald ufvindlcalom damages for breach do ngm. [III] we House ol Lands in Away dld not decide lnal vindlcalory damages should he awalded Thelr Lmdshlps denamly made no dacislorl an exemplary damages. [112] Tne House el Lords ln male, was deallng wllh, ln me Wolds of Lord seen hlmsell‘ "an inlcrltlculury appeal n. whluh yum hmlahipi musl decide wlmlm. nmgmsx |n Inal". at uhesaull and muely xhunld ht: punlnlel la [n:] Hence, we ale el me \/law lhal me Com! el Appeal and me High calm ened In |rea|lng Lord Scotfs slalemenl as a decision ol me House of Laws pemllttlng lne gram of exemplary damages In a clalm made under me ux Law Relovm (Mlscellansous Pvovlslansj Act. [114] we need lo add mat a 9—nrlembeI bench ol me House at Lands in me case at Lumba lwu v Sccrmzry .;/snm far the new Dcparlmrrll [um] UKSC 12 dealt al gleal lengm wllh me Issue m dlnatory damagss. The nlalnnly In lnal eeae dm nal lnlnll lnal me concept on vlndlealery damages eneuld be llllloduced lnm lne law 0! lon. wnh Lord Dyson even equalmg such lmmduellen as lemng -an unruly horse luosc an ant law" 1115} we shall say no more as me appeals before us du not deal with vlndicalclry damages, and vlncllcalory damages allneugn elalmed ln Appeal No. 52 were not awarded by me Hlgh Court. M. Mummy, a..lwn.~.~..MWn ~m.maa.l...~.ll.n a,. mm 12 VWWIMM—I14lMdkMl1ANuMM«M>«flulmllhflvfl mm». .lmm W a "mam, x.lm.la...l..a Mm." ».mM.n . ml... ... /IMVKIVII/VI17vKl!Ul7/l"M7H‘(Il1 There was no appeal lmm (hat declsmn not to grant vm ' alnry damages. me] ‘me canlaxl ol the decisxons at me Pnvy councu In Rnmammp and IFI Me: can appears to have also been misunderstood. amh of Ihose cases avose worn apphcaxlans my redress made mrswy no me Hugh cmm under the pnwusmns :3! me Cnnsmutmn 01 Trinidad and Tubagn, and ms supvsme Cowl under Ina provisions of the oansmmmn at me aanamas, respeclwvely‘ Our Fedem consmmiun, unmmmaxely. does no! center upon the ocurls me same or slmllav juns alien and powers. [H1] Suhsecflons um and (2) M the Constiumon at Tn idad and Tobago read as follows: I». (1) Fur the mmovnl pr dmnbls u 13 hnmhy dcclaled mu any pemuv alleges um my uflhc pmvlsiuna oi Clupmr rm been, ix hmng, or is hkely m be cmumnu: m mluhun lu mm, lllcn wnhum plejud = In any mm xenon wnh {aspen up III: we mxllcr which is lnwfully nvnilnhlu, um pm». my apply In the High Cuun [or n.-dim: by wzy oforignxlmg mmmn. m Th:I'l|gIOo\ulsh:||hIv:org aljur U.) in um um nklcnmnt my .,,pua....... mndc by my pelscn m ,,..m...ca Hf suhmcunn (1), Ind (n) to «lemlmxnn: my qucsmm unsung m flu: am: of my .-um wmx. 1. mfcnul up 1| m pvunuxnuc of subseclmn 14), um my, mm up subsection: ‘:1, mm mm mdzri. Issue such wnls ma give such divecunnx M ii may conmier Ippmpnulc an m pmpaxe -sf enrmiug, or scouting me up 1.; mm/m Kuu VMU mm. 1 My vflnrnmm Mmunmnn/4n4»a 1 W am; maalmn ».».u.4 x».upm.. »....,a W. A Vmlm W ~.n»....», W 3: Imr/mm x.... Yumnvvrhv Kwmrvzn/ul mm... 4 5 kn .m,..w.-..w...4nmW.‘ .47. n:|\[uxLI:mcm or, my on nha plm/mum ul mla Chnplex no lhn: pmnzunnn or which the puxun mnnernbd a emmad [1 in] The Privy Council hi Ramamm/I made in ones: man the applncanioh in man case was brought balnre nha ' h Conn Wide! ma pinwnaions M annnaaonnoha um and (2) on nhe consmunoh. || mus1 be nmann man whsealnn um allmus such apoicauah no he manna “wnlmnlyrrujudme (0 any oiha aauoh wnlh n:-spwl no me same matter which IS lawfully a ' hie" Pvwisicns equwalsm no seonnoha 1 am a oi our cat g avanianie in Trinidad and Tobago umar nina companaannoh Inr Iruunss an and ssmoh zwoinha Supreme connn o1Jut.1ncalureAu o1Iha1nunsdin:1non1. [ins] The cansnnnnnnnon oi ma Bahamas contains‘ in panagiapn up oi Article 23 provisions similar no sacnnuh 14 oi nha Cunsfiunlon oi Tnninnann and Tobago in Mrlxtlrl, the issue man came banana nha Privy couhcin was whannai ma awam iov nhinngemehn or Mersun’s consninnnnohai rights main sland unnnai ma pmvnao no paragraph (2) on Article 25 as ha was already awamaa aahiagas lar nun. Pavagraphs (1) am: (2; cl Anicle as oi the conannxunnoh oi the Bahamas lead as inflows’ 2:: (1) in any pclsml lllcgcs man my or Inn: pmvnsnuns 0! Articles 15 no 27 (...:nn.sm) on ma Comlnlnnlmn has been. 1: Ming 0! .5 n. ly no he conlmvcned Ill IKLIIWH no him men. wnmoun plcynldml [0 My other lclmn winh icspca no |hc um: iimnei which is lawiull) inwnnlnbln, than pawn my apply In me Suplcmc coon fen rcdmss {2} The 5\l|’lV‘¢lIl¢ cmnin sniau hm nvlgmal jurmliclnnn (.1) ID hm and demmnn: any z|Vp||m|iuII mud: by an‘! umoii in Wrsuanc: nf nauguph (I) on ma Anlc I1V|fls1II47S/ZfilVW) Kuv>¢h>IlxNr:vImAIV/i:¢vNyn~v\»m4MAhDn:mntiJn4flw.(1Hg! DIN :2 imam. MmkVmKinn>ln(hmA»n in.“ A Hun vii Vndmfl/1rl'NnIMrlvInIh /HM sa tn/Mmwi x.m....mh.x.w..a.m..i.. hm’. 5‘flnvI7Mrvrl')¢nIVv|nmrv’VNrvHVgn4i (b) to deuvmlnc any qucshun xri ng m llxc me As! any yuclsun wh L“ D n:[uII:d to n m mlmlanzze m pnmyaph (3) u[ um. Arncln, and may mak: mu urden, mm such wrns ma gm xuch dneclmns as :1 may Bmmder unpmynllc In; the pa-,-he nl znfmclng or uwnng uh. anlnmemzm of my nl me plovmnnx nf uh: xzxd Amclu 1:. m 21 (mcl\|~|v:\ in mg pmlecnon M much the pcman cnncamed Isfirlfllled l'm\/Idbd max lb: Suprcnlc Oauxl slull nol exams: us pnwux under mu panglph .1 n .5 mm.-a mu ulcqunw means ml wdmn an a. haw: bccn mum m uh: pmon Lvnnemcul um. any mm I194 [120] The Privy Own‘ held that damages to! breach m cnnsmulmnal ngms nwld be awarded undsv Amcte 25. [121] As nuv Federm constmmoh does not have plawsscns swmilal tn muse Imfised ih mmmap and Merm. a dawmam has In Vnck e\se-where luv vedrem 1'he uhry law avananle ws me can wilh ns Vimnauom, uhcludmg me my in seclicn 3 In Ihe gram a1 exempiary damages. [122] As memionefl m Samba Pcmas, had it not been ver “seclionx 7 Ind 21 nf Lhe cm: law Act .1 clcu mu m: responder“ could hm hm lhc ngm |u hung the nut, and having aclul mm Ih:se secunm an ‘ puliculnr sechon 7, hm-an musl Hand and can on me busisoflhesc nxtkiuns" [121] cm answer In Leave ouesuuh (2) ts therslore m the amrmanwe. mm ;.msmm V Kmm P4NxNqnrud< 21...; m-....M.h« W...,;M ; M. nIms1m4zot:(wrru»mAm :<>mum«A1~ MM 4 k1HN 1.». .«.r ~.h,.~..... mm 5: "mum m».,.w,mx...‘,.‘..m m.m»,..h A 5 W 1-IrIm1‘¢olnlmmnHl4hHvgfiM Laa.vz.llu:mm11.fl (3) For me puvpnsn ea In mm clnlm undcr mnon a :7! HI! CIVII LIW Act 1956 (AC1 S7). wnulhur Rh lcll Il|lI mm up (ha Ion nl mnsouum In public afllcu mun! he "I: ICLI Ihll occurrld Mime Illa fl IIII al the decusud. [1241 n beats repealmg mm by sechon 5 0! me cm on we dean?! of a person an causes M acnun subsisting agaIns1 or vesnea in mm survive against ur cm ms uenem uv ms aslale, except co: csnain causes DI action. But for secflcn B, (hose causes of acuon would me wllh him. [125] C\aar\y lherzhre me causes 01 adion lhal are saved by sscnon 3 mus! be causes av man that existed unov death‘ Acts done or ammea |u be dune m remnan to a germ anew ms dealh cannot posslmy gws nae no any cause of acunn that cuuld vssx m mm War (0 ms dealh. [us] The (on tor mwsleasance m pubhc owns :3 exmamed m me case or ‘l'Ims' Riwn Dmricl Cuuncnl and mm V (iavruvol rmd Company 9; me Bank of England lzmu; 2 AC 1, [mu] 3 All ER 1, [zoom 2 wuz nzzn. Acmrdmg In me House am Lords, me (on can anss undev evthev 0v both L2! these cvcumslances: (1) where a pubhc once: exemses ms puwev in bad «aim mm me specmc Inlenlion In mjuve me claimant: ov (2) he exercises ms power wim vecmess mamerence abnul me consequences of such exermse Lord sveyn in mac case said: w(flJ¢4mM1X4wy K:runl‘u1mVrx<m.1.1mpvVmwp-umM/Mnv§»4ul/vIm.L1Iruw mm urxumm I-.u.s.nm»«mu..m..4. «Wu V»4!mayrV ~,»mr..uu, mm :1 Aww1J4wy—;<uun:muu.am xmm um W.“ W n.m..¢uM.w .Wm..m 1-... mi law lE\/Call Iwo .ii...=...ii ..i...i. i.. i... iy Io. mlsfllailruau iii publlc c...-ice. 5.... um .. i... an ('1' llrgelcd mllillll hy . i.ii...ic Alffiutf, I5 mlldufi specifically imelmkd |i) iiiiiiu . yermn .. pnrmni. 1.... |yp= of use ilh/DIVD ...i. riiiiii iii lh: 391159 ii. mi EJXCYCISL i.. ii.i....: pawc. iii. In iniiiiopii .ii .i.w.ii.i ..iii.iw 1... mi. mi... 15 when . public nflice. IC|§ knowing that he ha: ..i. iiim. i.i dd) ll}: ICK Ulnlplalrlfd ii. i.... in... H1: IEI will i.........., iqiflll i... .i.......... .. invnl‘/CS ii... ..i... illalmllch .. Lhz public olficcl docs l)(|l have Ml ..i..ie.i hlfizflhilhlsflcl IS ..w..i.. ....,........ mi... [121] What is also clear no... me rm. ..:i»e.. case is ma. mmaasance in public omce is not the same as nunriaasance in public attics. Lord Mine. expiainecr . . .i is IID mac... ..i.i i... [on ll ..i...w....i i.i puhI1€ oifiu, IIM llull-Ilflslflm ..i pii...ii~ iimm. 1..= Yailmz In ¢ii..u.x 1 pm. is ii... iii .. Wmlighll. .i min... he e..i...«. win. iciiiig ii. axes: of my 1... ....i )5 .x.iiz=..ia1 w.... pI€Vel'I||l’Ig p.....i.: om... ...i..i lflillg ..cy..iii. Dltll’ pwcrs In line ..iii.iy u! i... u.imi, m| WILh i..i..iii....ig use... .i. .-i.e.:..: mg iii»... (hay in. .im, pa Indy when they hnvc .. i.im..mi Whllhbl IAEXEICISAE u»... M nnl ..i umkmlllly W... ...i chlraciel .« Lb: I011, |he iii...‘ .9 mil lI\llS| b: dzlfnmu, Iw|\1:g\lg¢!|l DY ins... [mm . ...i.i.i.....i...i.i.ig .. ..i: leg. pm 0!) .. my Uplllwn, . ..i..... [0 in un ....i....i lo ii... ...- SIAChIlI$1II‘l€ ..iic..i.o.. whuhe. in IC\ .... ii... In BXl:lI2}Efl i.i...easii.i:e i. Hllly mm ii) L114 CYlCIllII§\fll!£K:§ i.. .i.i= wly so um. um .. £":l:1lV/Ely . mi... in nu: ii.) lhz u..ic.i.. zpvplbciflles “I13 blll iim....e.m mm. . cmmou. d¢C)5iLVl’I ml iii ac’. fll!fl( )... dfltii EU WI“) am... hi i.ii.i.e ...¢ pI‘Al7I|iW ii. ..i I)»: kllnwlcdgc mi. such ..i..i.y WLHIIII .1 Ih: Halfllil and .i..i......c imiis.-ii...-.io.» oihix nu...» la .e. .....iz.m....mw. x....m.~...i..ui..i.m...............i.. mi. 52lD001S!W)rD«I.msn.KMi..ibu.Ab- .........,.i. luv». mm SLIVAIIIIAXVWI —KnmS4.»ur.r.v.nKm4..»m-u i........,,., . H1‘ rm... ()rIlI1mmuUMA.VH[(.W us: Amev Ihe Iwo cars had sloaped, me am Appeflanl appmached me Proton wqa and Idenlrfied mean as a pohcs umcev Ne suddenly heard gunshols and atme same time he heavd sm Kama|HIsI1am hm Abdul Samad. a memberm NS team, scveam “'l11an, (ha lA:Inhn.k“. [11] The 3'“ Appsuant xmmsdxately divecled his team to open five Jaalar, who was seated m the Ivom passenger seat cl me Pvmon Waja, was shot s\x mes by me learn. Jaelav and me was others m that cav were kmed. gg Nos! [13] In [ms case, Kugan a/1 Anamhan (“Kug:n“) was arrested on 14/01/2005. The puhce amamed a remand older from me Mag\sIra(es'CouI1 ax Pslahng Jay: 10! a peviod of seven days ham 15/0|/200910 21/01/2009 He was delamed at me Taipsn Ponce Slalmn \ack—up, [191 On 20/01/2009, around HAO pm‘ the 2'“ Defendant‘ Navmdren s/I vuvekenandan Inhnmed one cl lha amcers on duly an that day that Kugan mad vamiled allev dunkmg mmsval wmev. [20] The 2"’ Deiendanl was asked to gel medical asswslance hum one Dr Ealdsv Smgh lvam Msdwvmn Clinic, Suhang days. when the uncmr armed mound 11.50 p.m.,he1oundIhatKugan was m a bad cunmlmn He was motiomsss. Kugan was pmncunced dead Mound n 50 p m. [21] Kugan‘s body was taken ta Serdang Hospital lor pas:-monem exammalmn. The ms: posI—manem exammalinn veuon by Dr. mam Kanm hm H; mu ham Sevdang Huspnal emed that me cause at mm mar/zawwy W. m.A.W.. 2y.,..m.~..;4W.m.m.,,...m,. mu; :1 :0 mm me". »..M.m.m....uyW~ rm./,» Mme mm 3- mrzomwy Kum mWmK,.W.,.M..m.«W..;rm vfi)wMU4Amlum4v/!\4rvm;t!4x .51. [128] rlrera must be a nexus between tne rnlenlional or reckless act and the rnyury sullered by lne person affected by me acl, such tnat lne rnyury ls a consequence 0! me rntennenal or reckless act. [1291 In tne eentexr at an aclion under section s at me CMI Law Am‘ me nralrereus nv reckless exevclse at power by me public rmreer must have adversely allecled the deceased person pnor rd hls dealh for omerwlse no cause 0| amlnn could have vested VI hlm such trrat tne cause at eelron would & nrs deatn. [130] Our answer to Leave Quesllcn (3) ls lhevefuve tn the alltrrnatrye. DECISION App IM: 3 [I11] A clnse scrutiny at me Amended slalenrenr M Clam: rn Appeal No as snaws lnal it ls a pure dependency clalm under semion 7 dune cl.A. Thls ls especially clear lrurn paragrapns 5 and 6. [132] Based on our analysts and our answer to Leave oueslren tt) above, we find man the coun el Appeal erred in erdering axemplaly damages to be pare by me Appsllanls Such an award would still be contrary to law even ll lne aerion nad been brought under semen is al the CLA, as can be seen lrpnr our analysts and answer lo Leave ouesltdn (2). [1 33] we tnerelere allow tnls appeal and set aslda rne erder ot tne court of Appeal wrlll respecl lo exemplary damages. mm iotlslzulxlul x..rryn.rrm.e;rr... x.rr..r,r.n.urur.. n,.r.. W urn X2 nxzmsm D4llulVrvKIMMMrtAhrthM¢vAHr1gHN ..rr.r.,r» r¢nr.nrnxy mu) n rmrrrrrr r.nrr..r..ur.x..mn.nrrrrru.x,..nerrwrrrmrrnn~urrrn.,..r.r [134] As shvwn by whal bes been dlswssed above, me award m exemplary damages by me Calm or Appeal ls clearly lxmlraly lo me Dal explessly sel om VI subseclion 3(2) dune cm. [135] wlm regard m damages tor mleleasance ln public ollloe, the Respondent relles on me vavlaus acts which loml lne hasls lerlbe clalm lo! aseaull and banery and lalse imprisonment as well es lo: slalumry breach ol dmy under me Police Act (957 and on me alleged curlllnuuus end repealed alterrlpls by me Appellanl Ia hlds lne cause dl deem cl the deceased and me persons responsible. and me Appellants‘ lallurs lo mlcnn me Reependenl dl the ldcelmn pl me deceeeed alter rue enee: HY lb pnwlde hev Wllh access to me deceased [1351 ln lnelr ludgemenl, me cdun of Appeal had lncluded lbe lullwng eels and omlsslcns as lnslances ol misleasance ln public clllce ln lms case: (I) the statements made by the 1“ Appellanl (sald to be based on movmellen glven by me 5"‘ Defendant) es to me cause dl ><ugan'e deem: (2) me lack ol departmental lnquiry av pubhc mquity. [1311 we ave cl me considered view‘ based on me rim Riuerv' case, lnel me acts and cmleelans relened to above do no: cenelnule mlsleaeance ln publlc dmce. mm madmlw, xa.ml,aa,lum,,n Nulltvwlvvfl/VIWVDIAW/M0104?IV1‘: mm :2 mm», Duluk \m ...uM. flnlurl I u... a M. an NANWMHOI an» n ummm Kmln ram». x.u.w,...aaa.a,a«~a 5 ma . clad, m.m.n.u Vunlknu .53. [1351 Learned semar Fsde(a\ Caunsm mncsded mat meveesenee m pubhc umce was committed In regard to ma various acts which wave done or omitted to be done by pence olficers helurs Kugarrs aeam ueamad Senior Fedem Counse\ submmed that me award av damages for mlsleasance m pubhc owes should be vedubed Io nmsdooo to veflecl omy mose ans ms] We Iherelore euuw me apnea! in pan. The order of me ceun dc Appeal an sxemphary damages is set aside. [no] In view ov me ems done or omllled lo he done to Kugsn which eenmnmed la me cause of ms deam, we do nol consxdev me amount ov Hmmnmo D0 awamed as damages my mlsleasancs m pubhc oflnce m be Inappropnate. we Ihevefwe aflirm me amount so awamed fl [m] The Respondent in this apnea! bmugm we mean undev semen 7 ov me cm as wen as under Amde 5 of me Federal consmunnn "main kapalflx um mam dzn sabegan mew unggungan dan/alau oagx pmak kesemua manq-mam tanggungalm man‘. [142] As we have sxplamad In answenng Leave Ouemlon 14), gensrax damages tor pan and suffermg ggnngt be awarded to a pvammv m a dependency clam brought under sermon 7 aflha cm. aw «>ar:vI3y1~y—xm. wwmm 2 1",. mm.mw.wm w.:.,1». a 2 um mm :2 ..m.,~m—.ms,..x..y.«.w.au..M vm-wk !m1mIV‘rVl' ~.m..m mm mw»mw;,x.w.s.w.a..w «....m.¢.w».y... /-Ivxrrm m..w.w.m.M..,,. um-. [143] We merelure allow this appeal and sel aslde me award al geneml damages or RMluo.auu.au. (ZAHARAH BINTI lBHAHIMl Judge, Federal courl, Malaysia Fulrajaya. 6 November 2017. Anne; 11;. fll(fl»35»fl5 z2o15(w)] F_n.I_th:_Al2|I.:l|3n.\5.: Puan Alice Lake Vee clung, Senior Federal Cnunsel Puan Hahibah hmli Haroll. Scmor Federal Caumzl Puan zureeu Elma hlnu Mohd Dnm, seruar Federal Counsel [Acwm-y»ceneral': cnamlrersj E4zLLl1LEs:sunnlltn£s. Emk V.Ra].1devan luesm Raladevnn &A:.m:l.zze:] Puan Allce Lake Vee Chung, Senior Federal Cuunsel Puzn Hahihzh hlnti llarlm. Senmr Federal Counsel Pnan Zurccn Elma blnu Mnhd Dnm. Semur Federal Cuunsnl lma 1. n1/1lImwr—xmmn.4ur4r;mo ml. Vrmmum. WW I 1 M,‘ mm rumslwmr»rm.nr..l.«.,m..r.... .ur..m Vnlmfl/171' ~.u..».m mm llIHQUIJIV0—Akll>u)4lrIlvmlmKzIMmtVAlrI(U¢)¢!lNt)£fVl&UMAH1-lmlvrlhummlM4lHlflvlVVIFl4l .55. [Attorney-General’: Chumberxl or (he Resgundunl lint R s Iraii Enclk sam Przlcaslu Enc1kSha|Ild Adll am Kmarudm [Edwin Lm: & sum] Fgu.h:_Ann.¢llnn:s; Puan Alict Luk: vee cninp. Senior Federal Counsel Puan Hahubah hint: Hamn, Seninr Federal Cuunwl Fuan Zureen Ellnz hum Mnhd Dom, Senior Federal Cmlmel [Amumey-Cenemlk Chambers] F_(zx_Lh£_K:sD.nn£|.:I1L Cxk Ennk [aswm Abraham an Kauv (Maw: Shanllllyapalarv. my Zul/ah & Pumrerxj ntlnuanmtsyw Kmu mmma 2 hv1hNwlvlMml4nAxl4rv humhflvnfi 1 Mm 014:; :2 mam M Vnv KA:Mba4AM n-no.1 3 mm vhf W W m.m..m mm :4 Awzonw —xm.sm_». x,....m. ...«.m.,,. .. m... m..m.»a..u..u‘vmm -7. death was 'pulImmzry CIlcll'In- related to ‘an abmunul build—np of mud in [he sacs of (he lungs, wnnn was In bholmess uf mam“. The repair! also ruemionad that 22 categnnes af extemai wounds were lound an Kugarrs body. [221 Kugan’s lamlly cummmsloned a second pus(~moI|em examination. wmch was conducted by Dr. Pmshanl N Sambsrkav from [he University 0* Malaya‘: Medical Centre Dr Prashanfs repdn stated ma! mere were 45 calagories M external rnuriss an Kugarfs body and a was range 01 Internal mjuvies. The cause or deam was stated as ‘mule renal Valium due In lh: rhabdumyolysis clue la blunt lraumn in xkclclnl musclcs' [23] An mvesngafiun was mined out The wuuries lo Kugan wave mum to have been cummmefl by me 2"‘ Devrendam. The 2"‘ Devendanl was charged under me Pena! code, vound gumy and convncted Hewas ssrnenosd m impriscnmenlinv aterrn ufmree years. &mLN2.5.a [24] In this case, Ulhayachandran a/I Gauv Channvam ["\.Ilhlyu:IIIndr:n"] was remanded imm 14/02/2007 .n Ihs Sungal Eulah Pusan pendmg mal lar a charge undev secnan 395(2) M ms Dangeruus Drugs Act 1952. [251 On 15/05/2003. a «ram make and amongst several prisoners durmg the diS1HbU|IOH of 7006. As 8 consequence of the fight, Umayachandran suslamed severe Injunes. [251 The warden on duly (oak Ulhayachandvan lo we prison chnlc adr ireatmem Hawever, due In his servers Injuries, Ulhsyschandvan ulwudosantwwr K:mnlHnN:¢mm4i2upvhymvmmunrvlunnrmln//urldHum! mm :2 rnmwr , ham! W rnmrn AMVNNNV .. ‘Mg’ V ~ M. W N-/MM-ausy atmdv mwmwr 7 K... kmmvum KmmmvM4vIVrvI1rm ~.n.d ; rm V Vifiumruwmnm rv/Udxmgnu was taken to Sungat Euloh Hospttat tut turmev treatment. Later at the rtospttat. he was pmnmmcsfl dead. [27] The prtsonevs who were trwnlvsd In the ttght wete chavgsd at the shah Atetn Htgh court and sentenced aocardtngly attet being touno guttty and convicted ot the charges agatrtst then. A1 THE HIGH coum’ A [25] on 20/04/2011, the nesponaente, through thetr mother, met: this actton tot damages for toss ct ttepsntteney Lmdel sectton 7 ot the cm. tn aeottten. the nesponttente eteo claimed aggravated damages and exernotary damages. :29] The Hsspondenls ctathtea that their tether (Jaatat) was nntamutty she! used by the police team. The evmence smmed thex Jaetar never shot at the palms team and thetetore the police team-s contention that they shot the persons in the Fvomn wsja tn sen, eetence was not suppuvted by svtdencs. [30] At the conclusion ot the lull heating, the High coun atsntissed the Hesponflerns‘ claim wtth costs The High coun held that the oottce team was aettng tn seflrdetsnce when they opened the aflsv the dscaased had shot at them. As such the pottce team was pmteetec by seclton 24 otthe Ponce Amt!-167. [31] The Responuents appeatett agatnst that declston lo the Court at Appeat. nun Jow2uNM e non n.nanm 1 n.tn.n...n.ne».t..oottt;.,;.,n 2 wt out; VIM/II/l«!W!—IJntttt \Vr1Kh4HtVbMNM'NrIl/vni W. n InAmn‘pr mtlnmmnoy mm iI—M/MIUM Kflmmrlmtmtfiwt K:vnrrt)1AWrvIMVnMN€[(7H‘ nh.,ct.nn,t».annotho..,.n H42 [:2] The Raapdndam, who Is Kugarfs mother and the admlnislralnx of ms estate and also his dependam, med chm Sui! N0 2\NCVC—7—D\/202 davmlng lnr damages agamst ma Appanama as wan as Navindmn [me am Defendant) lcr neghgence and/or bveach d1 s|a1utory dunes vasulling in Iha daam at me deceaaad when me daaeaaad was under puhoe delenlwon. (3:91 The nespdhdam maimed under SECHUII 7 (2! me cm «or less Of suppovl The Respundenfs claim was BVSO based on section E of me on lor the benelh on ma estate at me deceased. she clawed damages for misveasanea m pubhc aflice. assaun and hallery, and false umpnsanmam and for aggvavstsd damages, sxampkavy damages, vmdlcalcry damages and special damages. [34] AI me concmsion 0! me hearing, me Hugh cdun aflewed me Hespondenrs claim and awavded a iota! M RMBm,700.0D as damages Including the sum oi RM100,000,0l) lor m:a1easance m punuc omee and the sum o1 RMaoa,ooo.ou as exemplavy damages [:5] The Aapeuams appealed sgamsl mat dadsmn m the Ccurl on Appeal ggunl No 53 [:51 The Respvndent, who Is UIhayachandran‘s lalher, med chm sun Na S21-153«/2009 on 01/06/2009 undev secmon 7 do me CLA W Jotxrmlsyvvy e K... yd,,~,,,,. .. 1 ram , am,,.a.;.n.m...,,.n.1.,.¢ ,1 W V!lujSI1III7UI5!W!rDnmlArv1Kh4Mh»4Ahwln:nEUupvNlnflm¢,pI’ ..n.m., mm xv mmzmwr eaan.am,...~. m.a.... m.a,,,d..u W vfllmv mam, »dIMuru¢<»¢ -\n. [311 The essence al the nespandenrs alarm is mar Iha Appsllams had lalled ln than duw Ia ensule Ulhayachandralfs salely WhllS| lrl Ihell cuslody. The Respondent cunlended that he and hls Iamlly smfered anxlely, lnlury re oeellngs and beleavemanl due to the acts. defaults and nmlssluns ol the Awpellams [cw] The Respclndenl sought damages lor loss or suppon, as well as general damages lor paln and suflerlrlg allslrlg «rpm the loss of ms son, and exemplary damages [39] The High Cour| allwed the Respondent‘; clalrn and awarded damages ln me sum (ll RMVQZDOO Im the dependency Clalm, the sum 01 RM10fl,DDO as general damages («or palm and suflanng anelng lrom me Rsspnndenfs lass ol his son; and the sum 01 RMIDOJKIO as exemplary damages [to] The Appellants appealed agalnsl lnal declslon lo the coun ol Appeal. 57 ms COURT or Apwgg Anumfi [41] The com cl Appeal, auer nearmg me parllss, allowed the Rfipandsnls‘ appeal and ruled that me |udgmerlI ol me Hlgh Cclurl showed error 01 law oi a grave nature which Ysqulred me cdun pl Appeal to ml/ervene. [421 The Conn el Appeal neld mal mere was rrornlng In rne grounds ol ludgment ow lne Hlgn Conn mal staled mar me Appsllsnls had discharged rnerr burden of pmvlng sellrdelerlce. m/ydmxmmwl x.war.~...~..:d,l. ~...,m. l..mr.m,;.,.1r.rr nrmez lmzamwl o.r.ra..xrrMmns,.... rnrw Imimn/17‘ nmmra lm/1 u Iolzmlwl am ».r.m.l.Am.W rem M11714 3 run n..~.r.mmrwW..rr

Pytesseract-0.3.10

01(f)-36-05/2015(W)

PERAYU Ketua Polis Negara & 2 Lagi RESPONDEN Nurasmira Maulat binti Jaafar & 2 Lagi

Damages — Appeal — Exemplary damages — Damages Award against public authority — Compensation to the family of a person for loss occasioned by his death — Tort — Misfeasance in public office — Effect of death on certain causes of action — Where claim is founded upon a breach of constitutional right to life — Civil Law Act 1956 (Act 67), section 7, section 8(2)

06/11/2017

YAA TAN SRI ZAHARAH BINTI IBRAHIMKorumYAA TAN SRI DATO' SRI AHMAD BIN HAJI MAAROPYA TAN SRI DATUK SURIYADI BIN HALIM OMARYAA TAN SRI AZAHAR BIN MOHAMEDYAA TAN SRI ZAHARAH BINTI IBRAHIM

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=0d585a72-6cdc-4da0-82be-ea8397d2a9ea&Inline=true

DALAM MANKAMAH PERSEKUTUAN MALAVSIA (BIDANG KUASA RAVUAN) RAVUAN § VII. N o1 m &D5gDI5(V_V1 Auwu 1 KETUA POLIS MEGARA 2. KERAJAAM MALAYSIA J. Asv one sane KONG PERAYU-PERAW mu 1. NLIRASMIRA MAULAT 51 JAFFAR 2. srn Asm at ABDUL JAFFAR 3 sm FATIMAN at ABDUL JAFFAR RESFONDEN-RESPONDEN (KIn'ya—fiua Imuk-kznaku wnh umul yam memhawlomwlln’ i mmui ihxmyl yang uh/dun nhihal mm ABRA ET SANUL MIND) : RAVUAN slvIL N0 M5 .5: yzatsm ANTARA 1. DAWK SERI KMALID BIN AE|l EAKAR 2. WAKIL PERIEADI ESTET ZNNAL RASHID am ABU BAKAR, SI lam 3. KETUA PDLIS NEGARA A KERAJAAN MALAVSIA ., PERAVU-PERAVU DAN u. mom NP F NALLAYHAIIIEV .. RESPDMDEN {P-nudbtr am an «anggungzn Kuuan .2. RAVUAN SIVIL N0 o1m—53—1g1gg15Lv_v1 ANTARA 1. KEl'\lA SETIAUSANA KEMENTERIAN DALAM NEGERI 7. PENGARAH vsumu sumw B|lLOH (MEDICAL OFFICER IN CNARGE. NUSPIIAL PEMJARA SUNGAI E\ll0N 4. wAnAR MOKD RUSAIII 5. ‘runm AZNAR am MOHD 5. KERAJAAN MALAVSIA PERAVIA-PERAVU DAN GIIAUR crmunnm ML Il|IRUGES|l .. RESPONDEN mu. ma: 511uu.1uMnj (M-ndakwa mm pmalumfllli flan keumln erunq hnnunuan actual‘ max Penudbivsah mm mm Ulhayachlndnn an em cr..na.=m— Nn.K/P:Bm411»1la6511) KDRAM Ahmad hm Han Maamp, HEM Suriyadn hm HaHm Oman HMP Zamun him: Ah, HMF Azahar bln Mohamed, HMP Zaharah binlx Ibrahim, HMP uIU)Jo4N1WXWy A:VMHMJv1Nr;uMA2VA(\I >u4mwmvw w.M.,.«.,. W,..,.u.K, mu rz mwtxym um.mW.ny..m,.nA..k Wu» :».nW» ~.«.mm.y um: u muauym Yvvn/»4mMA'mwwrr-Iwnllul/r«4 «Ww.wuM.,umy,mmw,..“ .1‘. The learned lrlal Judge rrea else rrol consldered wrremer eeclran 24 al are Pollca Acl 1967 rellea upml by me Appellenls enllllea me Della! team (0 use excessive tome and kllIJaa1al [43] The Cmm ol Appeal awarded damages ln lrle sum el HM5l.oon on fur the Respondents‘ dependency claim. The com also awavded exemplary damages ln me sum 0! HM30D,DDO.D0. [441 In gvanling me clslrrr lor exemplary damages. me Com 0! Appeal held mat exemplary damages ale permisslhle when a complaint is relaled lo breach olrurruerrrenral gualanlee under the Federal Carlslimllon. The noun pl Appeal sald. (.7 me Name pl Lords as early as 1365 rrl Rnokel y sarrraru [wet] AC was re: hsld mm Errpllrrrr calms rleve mwgrllufl me ewemlrrp m exemplary damages. lrram rs, damages whose abwzl was In purllsh er eeler mm mm was msllm hum nggvavatea dnmagas Mflaleby me mam/es arm wndun of me aalemum agqramlng me lrrlllry to me plalrlllfl would be um lrlla acrmum lrr asusslrrg cernpermlpry damages], and mare were Iwo ullegnnes lrr wruerr in Male! or exemplary damage: could serve as e useiul purpose. vlz, ln we care ofapprassiver amrlmy W urrmrenmlllprral acllerr try me seryurls er me nlwemmsm, in me can were me dzferldanfs cmalla pan peerr eeleulalea by him In mm a prom lav rlrmren. mrerr rrlrgm wall exceed me compnrlsalkm payable to me plelrrlm [See Saksm Shamla w/o Rapsll Shanna and whats y Shiv pr Hlmaclval Pradesrl and others lzmzl llvdlalw HP lml The lrralarr wurls me neerr caullous lrl granting exemplary damages l\ avdlnury loll aalms lrl Cowman Cause vurllml l7Hm1l.a[19§§]6 sec 567 ix was slated rrlrmarpmlw.—r....rul.~,,...lmm ~...rr.r..rr.,..r.»rr,rmezrr.r am 51 lmwmwl M» ):rvKIlrrlIdllrrA!llllInnv.LjM;-1-N r..rr..r.r= ~ry.rr.W rryrssrrrermryr rmy..r.....xe...rrrprr».r»«~,.m;.r;.lc....m...m,.r.rmrr.... 4;. -m...,.m.,.m..».p..».....m..m..n..a.»...-‘ 1 ..,...,.».n.,.......,.¢.m.;...».....,..,...., \ .....,..",.,.,.n.,...m.n...,...m..q .........y.mu..4..r..¢..,..,m.,p,m..,, ..,....‘...,.m..,..:...».n.m-.mn._ .. ,.........,.,.,...n..m.a.,.1...v......m..m.s.u.s7 ..,,...,..m.....,...,....»..,.m..y...¢. mmnwwmmmammmn »._.,.m....,..,.- ; ‘I up Ths ruawn am nwammg exznnlaty damages war addlvued in Rookes -/Eamard a-mum 7h-urn-mm:uaQg.wnu1mnnvMkAhl/dvvvwlllfihry mgmmmwmnwmmnmuuuw ‘ wunsfiwntuzpuxxipfixvwvhmrntubnndbwn nrtnaa-vmmamtvmilytunmvvhmvrw-1' M x.. mm, Engush am mm Data hm Iemwuaa ma courts on exuumdmsryinds and wumumes m maluiu mu «cum and mi; 01 Vaw mum mm whine meme: Lwt»IIfihgdanIa¢sio1unhw1u\s.v.The zngusn mm. ma-mwmemmmyvmarcamuemsusmmm |a3US]2WLR§15HLnzvaguvIeIosayIhsl\mauplaly dlnugavnia\\seasn1kmryberra¢nmmnmAschAm|1yvIme m aw. uw am» Mbwiwnuxzs mums: Ac: as IRi4,:snuhrs1na|>1elI1vuunmIspvem\ssn<xuImnd\ol finflanaml uuznntmi mm m the Fwevm cmsmmm Thspanxfllheltmpndervumswelmplmsa auanvunwmadmusmayuv DaMWonuDd<Wah mm u§emDamkSerrKIraMbmAbuEaImrslov:vN Imtnsab. Nslhnanny|'I101(NCVC]Mfl«2S3v07r2011<fl3v\mevIedk1 mm-s use um Conn mm mums Cu 272) 11) The Vnman Suplsme Cmm wen man Asmeys can have mad: n clam max 3 hrawh :71 lmflamanlzl quumnlses may we canmuuon wiH vmmu sxamphly 014/; In nsyzumm—xmmr-mur4:¢4vu«I»q4v~uv.mrr-u»..mo¢«n Wm. M ummw, M‘.:.m.m,W.,....&.m... ~ m...~..- Nnlkrl by W44 1m7umwy— m..r.w..».x,...m.m4,.,~...».a.r ~.. M.-M..m.m...u ./m.v....w «II. damage: as at nghl, lnflspanflanl an tunwus cm. . [See K Emma and alhers v Secmary 01 slala vi ramll Nadu am Wlors |2nl3} lmilaw Man 1:25; my From ma laanmg ol Vndlnn Suplame Coufl dsaslorl as wall as me Menu :71 Lnlds lvcl flsclsum VII Ashley‘ K a (mo max owns a; uuildlnn Mme canamlm are bound to Men my low ol breach M mnaamamal guaramse: by pmmalng examalaay damages as a llwllav mllal wnlal has been exvaclsd and exlemsd um um fleclsmn la fiunkes v Barnard. la mnsoqnsncs. a he: lo claim exemplary aamwzss undal clvll Law Am la pmale law ramauy wlll um aunly In ma menu n( amllc law lallav as wall as remedy. (n) We would have new mlndad la awam me sum av am mlllml n Ihe DIEWM3 had lad evldence In lunlly ma Ouamml. ram; l-no mnsldemlmrl me allagallan at line mate, we lake ms vlew l: mu be male apwuglime In mm qnarllum Iol aamnlaly damages ac HM:u:u,omm as waa glm la ma me of Kuaan. gen N05: us] N me own at Appeal, the Appe|Inrlts' appeal la «ms appeal was only In relauon to ma damages lav lalse imprisonment and misleasance in public come and exsmplary damages. The Appellants contended as they did in «as High Court, mat male is nulhing In secnlon 7 or secllon 5 0! me CLA lhat suggests a clalm can be made luv damages vol me ion at sfeasance in punllc Dfllce As luv the clam lo! sxemplavy damages. the Appellants mm JMJX/Iv)l5(Wl—Km;-IwlxNv~ym:1.IIn;ll NHIIVJMMVMIWIIAMHII NV 1 Mg] am 31 IWMIUW) n.a..a.. mam AV-4 am. a 2 an .a mm M, ~.um....., my manual am... VrI¢>vvvrlmKmlnmww D-AfiImNq:n a 5 l.., Wm. l.»a....m.....a 4.. submillsd Ihal subsecliun a(2l ol Ins cm clearly dlsallcws such damages. [45] Only lhe 2"‘ Delendam appealed agalnsuha finding of liab by lhe Hlgh courl. [47] Mar having llaam me parlles, lhe Courl cl Appeal allowed me appeal by me Appellants ln pan and ordered lhal me awam lor lalse lmprisulvnent be set aalaa. The Coun ol Appeal however allirmsd me rest ohlle awam [an] A5 luv the 2" Delendanrs appeal, the com of Appeal allowed Iy 01 me 2"-1 Dalendam to 45% me appeal and reduced me [49] On me lssus ol misleasance in public miles, the Cour! m Appeal hala as lollpws: :5 mm wha| we have sum alum, we and Ihal Ins lnmed Judge’: flndlngs were based an eslabilirlad evlflenne um ale lav «om perverse Cummnn sense and Cowman aaaancy derrlarld lnal a MI publlc lnqulry pa mmalw vmla. would have served bum ma private and puhllc lnlelesls In a manna: durlunflefl m a cw soclsry ml said we run mil ma use ul mu pllvlu ‘cover up by Ina learned Judqa lo he mappmpuala as ll -mplm a cllmlrlul mam mm In «ms case we llmi narlsorl ma pan on me lsl am: an: Dslsndunls We lm hnwsval man the Judge‘: finding: do has la ma inampla mnnluslnn um ma Vsl and Zld am an! Dalendanls nan braadwd Ihell any of ma la m. assessed 5:. ln summary, we say um ms wllllnl dlsleqard in male lnal ma mm bahmd ma aaam av ma meme 5 made krluwrl toguvver mm mm! aapmau evldarws am am am mm/zvmlm Kmm ml.~.,m at My l‘MlmDWOWNlllM7 Lullljnfiuré 1 pa mm :1 lalmmw) mm Ym x..mM.. Alma J W. A la. Mp? N-lhwhmby mm H mumw; K/rlmS«)»<rl-4:54 x....m.. a.l...~¢m A 5 p.. mm puma". m...,(~ [so] On the xssue ul exemmary namnges, the cam av Appeal sand: -15. move am snough In sansvy a use 0! punnc mmeasanea u Vs also am wew max mere has been reckless mamsvence in ma maul 1:1 av me am Dslandanl W9 mm mm mm the svulalwa pmneuea 171 me msnaams ma non mlmlled Ina nuance sm aul above hy us mm mm ac me Iunmed judge m omen wards. the wvduu of me Dehxmlanis can Var slum m me sow wmm we say musl rsqulve mnve disclosure man man had happened ‘In Ihls case n. max ma. we see no vsasan why we mm mm mnpl Ihe appmam ov 1715 mm at Lnms m m. cmmsums at Ihxs use Ammmgwy we llnd man mane them .5 a b-mu cl . wnmuounaw Iighl M a pom»: mummy, ssamn am at me own Law Anl doe: not apply and III: Calms mnnm he bum: from awammg exzmplary damage: Our mew u ourmisa Ivy me lam mm n. 1956, me yaar m wmm me cm: Law Am was Vegwslaxad, Ihsve was no Fedevav Canlluzulmn 15 We may say than me pumic Ian no public mmeesamx um um been umxepea ye! m 1956 and :1 out he saw mm when we own Law ad was enamed, n was nmy m mspsm :11 prlvala Inrlims animus Hence we am 54 me waw Ina secflon a :11 I112 Cwll Lnw At! my anphs: m unvac. mm m so Vav as me pmrummn nv award: g emempllry flarnaaas we There \s another leasnn In! our decssvon m Mavayin, We do ml have an ombudsman ar an lnnecsndsnt Palm comm and Mlscorvdun conumssm nespile me mcummendawn M a Rays! Cmvmssmn vm Ponce ntmmamanma x.m..».~.w...zy.,m4w..".»..m4.‘.m,;.m:.,. M(vL!1lD(MH1m mm So1n»lMnm».nu ...,m,.w ...,...m- ~.u..w«y W. n mmmm Kmm.\‘aI»unMKmvIrevI-u um Nu<vm(Lwv(.‘|4uHvMo1rn<u N/UImV‘X'lv -1:. nasunn (zrms) In me am halwe us.II1e|menImn ol the nunm is dust and mat vs we held me Dafendnrvs mspansme and acmunvamo «av men umawiul awnn as mm: omaeas n I: not jusl a. use at merely being uamosnsalw‘ :1 Vs move nnu mat Is m msuve mm me puhhc main Mm ave suppom m be me guavdlans at me Carm\lu|\nn ave nmuum in task and ma! sum un\aw1u\ mans snmm nox happen agum. Remand pvismevs Hm lnnar:9n| unm can./men In a own at «an and we mhev cmzans my me enlmsd lu men use human fights dmmg their Iawvul dclenhen 11 As m vmamev exemplary damage: should be amuded. we so: nu clearer case as In nus cass where n mufl be given an men mo smemy 0! In: mm Any mwnnme mmnav m on! vmw wumd nnnnluna mm ms I: an appropriate mass «a ward anempmly damages Nm lo mm such exammary damagts would \n my mind he ‘run allznding lame mumallon wm. lhe npumurlala care‘ n A: can we quantum m In: exsmplmy damages‘ me Vs am no reason m dsmm the award gvanlsd by me Leambd Judge as n cammansulule wun me acluzns al me Delendanls [511 In dealing with me Issue oi misfeasanoe In pubhc mince, me Court on Appeal luund ma: me am Defendant could not have been vesponsuma luv the acts allsv Kugan‘s dealh The own at Appeal am noted Ihal the H\gh Court had lailed In cvnslder the irwmvemanl DI amev DDUCS efficers In the events Veading to Kugan‘s death and these afivcsrs had, as sdmmed by me Appellants‘ been assigned to desk dunes as a lovm M punishment. ulmuwmamwy 4.». ..nm..».nz. In. . Nnnmwm um.‘ nn,:.n..n 2 nn I/Hv!)IIW20l14W; lbw-A.n«nKI«nM M M. MM 4 n, vN W. /v’}VN1\HrI0flwDvy anw nmnw, KrII«\:Iu41nlI'lnl(4wrnImn«vIlnImI4 N([(NH1$Vu)¢V4vhMnr(hINdVA)Ml/Vlfwrwkdh 41. Agpal Mo $1 [52] Aggrieved by me decision oi me Hrgn com, me Appaiierns in this appeai aypealed In the cduri of Appeai in respeci 01 me awards our dependency ciaim (HMH-12.000 cm, generei damages 1RM10D.00D.uO) and exernpiary damages (RM1U0.0D0 cap [53] The com or Appeei reduced the arnounr awarded ior dependency claim and set aside me award idr exemplaly damages. These do not relale to me appeal belore da. [54] in relafiun to me awaid ror generai damages, me Aapeiienis submlllad hetdre the Court at Appeei mat one general damages awarded to me Piernrm (for pain and simering ansing lrum ins loss of his son, Uthsiyachandvanj were nut claimabie and not pmvldsd ror undev seeiren 1 di me CLA. Hence. we iearnad ]udge erred In law In cideving such general damages [0 be paid. [551 The Cnurl or Apeeer. rnrwever, aiirrrned Ihe award oi genera: damages. The com or Appeal neid as ienows: 1341 Mahh mkla yang mink dams! dipemkaiknn banawa dangan kormlian sirnan ieian lelpulus ndmrngan uasin seyang ‘bays-link‘ enrara eiarnni din simnll Iidak Iylk lagl aiarmn akin rruengnlnrnr ‘vain and unlecinu. idss evcdnsmium’ W aerenernem and ltauma' im ardalnn Imdak aaias emdsiorial in-asa dan fli|angkakan aidaei den kemmian nnaknya iersemn pend dramnii psmmlln imrewa qanlimqi yang dirdrrnn in. max memmnyal aeaapa keiian dengan Kemiangun ieedarr ynng seiarna rrn ieian dimmnnir oleh piainm lelapi adaian hukaivan dengan Isu unluk mendnnulkan earnpmn Inmudap psmsaan eedrrr, dnmna, sdgdi, Kehiiangan aan Ievpulusnya kaslh lirmJa<niMI1(M—KmuIMxNr,nm« 1r.,new.r».r..mrrn.rr./rm“rm umrszw«1u1J1wr—i>.mi.vn;mnMnirr4nnnmro «n.n~ r..d.r,e Mwlnvhmuby mm :4 lrmanilvi , m.m.n.rr Kwrrvdrvmii nm were. r rnr U a..r.u.m,.. rrrdmw -u. saynng mm flan mv-an... ovang uezsamg aamua mlngqul {as} Paul mm knmi, garmrugw am samnym RMmn,ow on yang duwudkan Meh nakwm mam. unaxsana aaanan am «mm walau bugmmnnawn, a lwdakkah mempahn saw amlnn ynng nanenman a(au melimplsu (mamfieslry exeessmp yang memanukan mmnunangnn ham Pengawardan gzmllmgw Idahh mempakun mm mcava hakum mama flan hshau adamh wok \enku kzpma medal: aiau pevamrun map xananm flan ksptmlsan dnlam keskes Vavn mya mempmun pnnduen somazamm [37] mm. mm mamberl velllmbangan mendalam lsthadap hmluun gam|mg\ In: nan pana windangan mm aarm keadflun Gan dawn menamnaxan um: man xenamman amuan wajal nanm mam buaksana mannawardkan gummql am ssbenyak fiMIuu,ouu an Iersehm. AT 1);]: EEEERAL count LEAVE QUESTIONS [55] The Appeuams applied to Ms Courl Yor leave to appeav against we de sums of me Conn no Appea\ m an 3 cases Leave was granted on ane quesuon m law lor Appeal No. as and one «or Appeal No 53. For Appeal No. 52 leave was gvanted lav three queslmns no law. Hvwever. at ma commancamem ol learned sanmr Federal Counse1‘s suhmwssxcna oeicue us dunng me neanng 01 me app9a\s, me mild queslmn was wilhdvawn. We mu ssl om me questions as we deal mm mam Lam. mm imrsmlmwy —Kzm1PMvxN»;(»ut.1InxwNumymmMnu»-rMrvlmi-rtlhga mm :2 M/mmwy um.” w.m.m...,a W. »« WW ~.um..., W u "mum x..»..;.».~..n.a..m,..W.a..~»,.n.m..a. mm (VunlmmuHl4Amq-an -Is. SUBMISSIONS APPEAL NQ §§ Luv. Quesnlon [51] The quesmn ol Vaw (which we wru ra¢sr to as Luv- aumlon (I) aflar this) «or wmch vaave was gvanted lov Appea\ No ass (1) Whethav oxumplury dnmlgu am be awarded In clalml Iaund-d on tecllon 7 of me Civ|l Llw Am,1ssc'.I §uhnrIasInna by mg 5923 [say Bslcre us, it was subrmlled car the Appellants man sscflan 7 al the CLA creates a smucory cause av acuun. Hams any ngh| to damages must unly be man when rs auewed under sectmn 7 Sermon 7 has no prrmsron allawmg sxsmmary damages to be awarded for armrrary, oppressive or unaonsmuniunav acts ol ma lonieasor. [so] The Appenams a\sc subrnined that «he Conn 01 Apnea! erred up holding |haI exemplary damages could be awarded lot breach of maaamancal guavanlees under me Federal coasrmmion by relying on lnman sulhormes Accordmg to me Appauame me Indian cases weve deemed based on pvovlslons m me Indian censmurion lur wmch mare are no cerraapendrng pmv Cunslihmun ns m the Fedeva\ nu/).maiamHvVv KrumH>luNrq-r-rkNu;-HNummwuMulnmmrunl/‘M\AIy1xv Hl(rHA—m41NlHm rm. e.rmeWrw..rd,a um N Iwumpl‘ Nnnemnuvrr may 1w1wKyv>y— Krvwv mm" r,m.erm rare. ,\,....4. r rm v lilmuvlhmmrwm my ~W.,., Sub lo menu [en] The nasponaems suhmmed that annougn exemphary damages ave precluded undev the cm, they can sun be awavdsd where me claun is «ounasa upon a breach 0! lundamenlm guarantee under me Federa\ Consmnman. n was me Appellams who caused the death al the deceased. and consequenfly breached his constitutional fights ands! Arllcle 5 of ms Federal Cnnsuumon. APPEAL Mg. 52 ggvg ggosllonl [51] The quesucms no law (wmch we wxll race: 4.; as Leave Questions 12) and (3) anar lmsj my vlnich leave was granted luv Appea\ No. 52 and are 7101 wimdvawn ave- (2) wnmner uctian 3(2) ol my cum Law Ad 1955 (Am 57) whlch bus the Iwnrding av exempmy uamagu in In eslalu claim I: lppllcnble when Ihe dlllll 0| III: deceased II II I rIsu|I of a hraanh 0| hll conslllullonnl right In Illa; (3) For me purpou cl an emu claim unuer seciion 3 :1! ma Clvil Law AM use (Am s7); whelhev Ihe me me: make up me (on of mlileasance in publlc nmce mus1 be me ms nu: occurred move me death 01 the dcculed. n7rm.ty.mm7W»; m..m..»e,mm«W~W....»...W;.W.;,,;mHya.‘ mm s. W21/WW) mm." »».m.m.‘..‘.n. am. .\ MW.» A.m.m., m.,, U In/yvww; M. \.Mmm.m,Wam. »«.,.a;a._ mm.».»...n mw.,,a .3. fl (Ahmad hm H2} Mnurap. cm siiriya I in Halim Omar. FC] Alahzr hln unnamed, rcl Zaharah hinli Ibrahllll, FCJ) nmgnygl Qfl [I] These iniee eppeels arose lmni llnae sepaiaia cases iieeid at Vllsl instance hetcie [Mae liiflerem Judges 0! the High Conn. [21 nilleieni panels al llie coun pl Appeal nesici llie iespecliiie appeals agaIns1 me decisions ollne High cum. [:1 Applicaliuns lei leave is sppeel ageinsl llie decisions pl lne Coun pl Appeal were neaid and allowed by three dilleienl panels 0! lnis com. Tlie dueslipns ol law lei wnieli leave was gienled relate Io seeiions 7 and 3 pl lne Civil Law Ac1l956['CLA‘] [4] In view cl lne siniilenlies pl lacls and issues in lne lriiee appeals, the lriiee appeals were heard legalliei peipie lne same panel ollnis Conn. IN: 1 0515 [5] Appeal No D1(+)r36rD5l2m5(\I\I) [“Appa:| No. 35-1 is an appeal by me Appellanls (wno weie me Delendanls in ilie High Conn) against me de en pl me Cvurl pl Appeal wliicn allowed me appeal bylhe nesppndenls (vino were lne Plainlflls in me High cpunl egeinsl me decision 0! lhe High caun dismissing wiili cosle iris Rssporldsnu‘ eleini lei damages lei lass pl dependency, and mi exemplaiy and aggravaled damages. I/VMJM/J/)1'H«lW'Knr-4Vl>(lrNr:lIm&/MklvflrlmxwllldMmlmllimlld/(Mk)VIM MN \1 ID/MIAIWJ lVrvm1(J:vIK)dlrl4v1bwll|huI!/vhtul min. Vndmn/pl‘ NAHMAINIM nllh H In/JDMIV0 Km.‘ e».m..x..e.n.,..ni I)4lnml\"rVlra an... lihnm fhmlnlm HHDVrVHV]’14l ml th ll ma [62] In relauon to Leave Duesllon lzl, me Appellanls ednrnmed oelore us mac me clear pmrvislmls of subsectlorl al2) el me cm can edrrnl cl only one meaning: lhsl exemplary damages are nel reoeveraele ln an eslale claim, wrln no exeepzrons. Hence, r: was not open (0 me doun to rewrite me wards ol e slalute or rgnore we express statulaly pnmsrons. [53] Leamed Federal caunsel submmed me: all common law e person’: dean. does not glve nse to a cause 91 eelrorr in la»/ow al dependants and does nm lecognise any clalm by rspresenralwes ol the eelule ol lne deceased whose deem was caused by me Ionleascl against me Iorlleasor. The common law poslllon was mlllqated by eralulory relornrs ln England and moss slaluldry pravlsmrls were lndorooreled lnlo se ' ns 7 and s ol lne CLA. Sectlan 3 allows a cause cf anion whlch weuld olhelwlse ‘dle” with me deceased In sumve Im lne benefit el ms eslale, [64] The Appellanis further sutlrrlllled that the Cowl of Appeal erred rn awavding exemplaly damages lav oreaen M cunsmulronel vlghl, despile the clear wards er subsecllon am cl me cm, by relyrng on three declslons lrorn elher runsdrclions, namely: (a) Allarrlcy cmrul u[ Trlnidnd lmd Tnbaga V Rlrmummp [zone] I AC 32)\(“Rr»ru1Iaap'): lo) Mernrn v zzrrrrrrgm urrd Armlhvl [zone] 3 LRC 2M ('M:rson', uun Jdomalwwr , r,r.mr,ne,m .r 1MfllNMV1rIulrvlMIvufiulN«MI/wuré Ilrw run I: mrzumwl rudls-.nrr.r.r..mrrl..a:r.e.n nrmrrr Vnlfiulllnurm no u Imzvmwr r .e.r.r.rr.re..or.rr.. n.r.d.~.,.mr Nu‘-rv(,(ln«v[‘Ilmlriunn:r!M»rru;ovl .22 La) Ashley V cm»; Cumlablr of sum; Palm: [zuux] 2 Wu? 975. (“A.\'hl:y'). [551 Loamea Senlur Federal Counsel suounmoo. for ma Appanams. met the Court 01 Appah rslwmoe an the M736 L126 was msplaoed as Romanaop and Mayor: deal Mm hreadw ov onnsuhmonm rignra coy Mid: he Consmmion o1 Tnmdad and Tobago and me Conslimmun of the Bahamas, Isspeclivety, gram wnsdiclmn to award vemedies om mmngernonx o1 cmminmonal ngnra. shnvsav pmmsluns do not sx1s1 \n ma Fsdeml Oonsmmon. In Avhlty, a mm was made for aamagaa fix several alleged mmous acts, mcludmg nagsgaw.-e and false Vmpnscnmsm The demsson xn |hal mse ms VI raspscl 07 an app1K:SII)n to side om verraming cauaesuf acrian upon an aumaanon onnaumy and agreement to have uamaoea assessed unly on neghgsnce ano fa\se unprisonmem The Hausa M Luvs dsmisasa ihe applimuch cu suikmg m1l.Hervne,secmding learned Seuov Fweral Coursel, w11aIvrassam by Lord seem in «ha: case on vinmcamry damagss bemg ma apprupnaua damages when mas have bean nraacheo was mersfy olulu. [as] As regards Laava ouasnon (3), it was auornmea by Ioamao Semar Fsde(a\ connaa, max ads occurring after the death ol ma deceased do not give nse lo causes ov action which vest m aha deceased and sun/we lor the benefit oc ma 251319 in a claim bmught under samon 312) 0! the cm. Hence‘ algued leamed Serum Ft-Mara! counsel, the amavd oldamagss M RM1Du,0D0.D0 «o« msieasance m publwc otfioa whuah had taken mm account ans cooumng post-tisavv must be raouoea lo RM50.000.D0, being a can and naaaoname amount var acts oonnnmoa againslme deceased name ms death. W Jo475.117z.v1w; «....nn;n,.n.n )Vu‘(VNHmM«vu »..nn..n.u.o.‘ Axum Mm :1 nnzwwn o.h.;...x.mn An~.....a 3 n.n A‘ M. ., n why...” am; no vmznmm 7 K...“ W...“ Kmnrwvz-«Mu am «m «J V... . n.n,n....,... n/Wumgr-v an. Suhml In n nl [67] Fol Leaue ouesllan (2), INS Respondent submiued lrral the calm ui‘ Appeal was correcl in is inlerpvelallon at section a of me OLA that me pmviscl does npl prolilpll me come iram awarding exemplary damages lor breach pi cdnslilimpnal rigrils by a public aulncrlly. [531 The Respondent supmilled that We courl or Appeal was correcr wlien ll rield mar sscnun 3 cl me CLA IS a prerMemeka law and merelorc should be lmerpreled in a mariner llial dues nnt prprilprl ilie cduns lrom awarding exemplary damages lur nreacrl of oonsllmtiorlal nghls. [991 The nesponderri also suhrnmed mat lne couri ol Appeal nan rlgnuy exercised its power pulsuarll In Ample 152 at lne Federal Cnnslllmlon In order on give a rrarrnpnlaus cunslmcllon bstws.-an semlpn 3 cl me on and me Federal cms1irulipn According in me Respondent, Ihe cauri or Appeal ccme<;1Iy held mar the resmcnan on exemplary damages in section a should he rasrrlcled In prluaia Iurl claims and ought rim ro apply to breaches 01 Lxmslil rial rrgms and public imenflmial Inns such as rnlsieasanee in public dime. ll would lead to absurd and unlusl oulcomes. argued me Respondent, ll ssmlnn 5 ol me cm were to he applied wrlrmi any rrrodiiicalipn. rm] Fer leave ouesliuri is)‘ me Resporlderll supnillled llial lrre runner acls and pmrssrdns of me Appelianls alier me dealli cl me deceased were simply a conilnuurn oi the mlsleasance pm)! In his M(/) in ullzrlmva rm... I'«llrNq>uru&)lu;lviV»4mymllA u.rl...mr./we rr.,. nur) q mlmsiwl r-mm Kl-tnlhurAHllHnAArA.1lnlvN r».r,.a,,l- Wye... mp rx prmyr Kmm?runu1aMK:lrwvIrwlu/ll)rvI/lmflqwvld ur,lllr.r.... O4rlm)mr«/llH4rim[uil death I! was submllled mac u would be wholly amficial lo lreal those acts and omwssmns post deam as a separate pu mmeasance Ion when they all slam vrom me deam m cusmdy ol me deceased Hence, amramg m ms Respondent, the avgumenl of the AppsHanls that some of the acts WSYB pu5I—dea|h and the awavd shuwd be rammed la RM50,DOD.00 is without bas'\s [71] Thevefluve. submlned the Respondent, the Com DI App9a\ was ngm lo award exemplavy damages and damages car me «on M nusceasance m pubhc mm APPEAL No 53 Lg! gg mm [12] The question at law (Much we will veiev In as Lewve aumlon (4) ans: nus; fovwhlch leave was granted lav Appeal No. 53 is- (4) Whether g:nlrI| damages for pull: me sullulng can be nwlrdud lo a Plninlilr in a flnpcndency clnlm blmlglll under Mellon 7 0! III! CIVII Llw MI1956? Suhmlulnnl by m; Agggllnm [73] The Appsflanls suhmnlsd that from the clear provisions DI seaion 1 on the cm a dependant can only exam |IIe !ol\owmg' (a) damage: lav ms: M suppovt; 1:» naasaname expenses mcmved resumng Item the damn; (c) vuneral expenses, and mm yrummwm .,,..,».,...~¢,.~m...v»m..W u.m..wm,,..;. W. nmuz Imamw; M. $01 Wm «M m.m.n,...~ ..m.M- m.~..»9 mm m mavuwwy Krvun3(v1nm4MKzmc-«r~umlMIm<xf<qmI«Slum ‘...m.m.»W;.«~.".m -25. (d) damages for nereuvemenz. 1741 There Is clearly na araneran In ename an award ro be made In «avour of a dependant lav pan and aunaring. Hence. In awavding rna sum 0! HM1u0.cuo.00 for pam and armenng (0 me Respcndenl rna Conn 01 Apnea! had Introduced an addilIona\ rrarn uf carnpensanon which a nu: wnhm «re oomsmplnmn dl ma Iagranarure In enaclmg secxmn 7 or me CLA Subml nib nd [75] The Respondent Sublmltefl Ihal the hot that daalh occurred as a result of lhe AppeHan(s' wrangm acre means that me Courl can award damages {or pain and sunanng [vs] The Respondent submined that suhseclmn 713) of me on slales wnan me genera! obrecrive of damages var dapandanrs Is. They are to cnmpensate ma dependants rar ‘any um nf mppml sulfcmd together with any musmmllle expensax Incurred as a msuh of Lhc wrongful acr, n=g|cc| ur dc{:|u||" [71] The Respomenl furlhev submlllad that the learned Judge had axavcissd reasonable iudicral drscrenan wnen arnving ar me dacrsiun anar having cansmevsd me lacl that rna Raaponaanra son's damn Wfi caused by the Appeflanli weakness and negligence [75] Hence. contended me Hespondem, ma Vesmed Judge had not erred in law when one Iaamsd Judge awarded genera! damages m xne sum av RMwn,ooo.on «or yarn and sufleving. W mm/mtwq m.n,rr,n,.n.a;n.n Numuuvmllmdurbmn WM rn... um I21/malsym D<mrlDrrKIru»rHrmAMrNM«r4h Um» V rww wnmmmm W n rnmnr K<uvrS<v!AnJ41h¢A:~wewr~v—u and W... Vlrvgx vlr‘h4»avAhmu1mmMU4mwg(In OUR ANALVSIS ‘Th; [79] As simniinea by learned Senior Feflaml couiisai, at common iaw, me deiim iii a germ is not cmisi eled an iniuiy and personai anions do rial surwve me aeam oi the iiiiuien pevson, no: can any claim he bmugm cmisequem io sumi again. This Dasition was niiiigaiea by suiiiiiiory provisions ln Engianu and siniiiai svaiumry provisions were inixiipmaied inio various smuies in ms ooiiiiiiy. [M The cm, which cunsulidates the provisions on Ihs various slannes, incavporaies muse sialuwvy provisions in Pain In on me An [an When cabling me civii Law Bill Var its second reading on 15/05/1955, the Anurney-General said. in ieiauon to Pain IH oi me am: Thu: Mewlm pulrfl Ix wiiv. vagard [0 Pill Ill n! (In: B!“ whlth deals Wflh lh: iiiw lllflllflg ii. «in: zumiiii aiiii ml: Sllrl/XVII 0' ciiises oi «CKIGIV I du IIUK lhlllk ii Lt Mflexnly |n say my much amiii iri.ii m Fngllsh uimiiiiiii Inw, iii Ihc days nf Us iigiiiii. iiiaae iin ]IYD ii ll 3" I0! |h: Mlrvlval iii 3 iiyii iii aklmfl when a pevinfl dim ydu could KID! gal ciiinpmsmi». viii lhe dam of aiiaim, Iml ii lolluwed |h:I| iv yflll iiiiiii knock Sollwolle dflwll iii um Mmuls, ll wniiid ha VlI||Ch Mlle! 2c|||nHy lu kin niiii mlIligh| llmcr iiiiii In infill!) h|ll|. my rim Bmefldfld the hw iii iziigiuia fll! mi pom! and we rim amended D||l IIW iiuiiy yeiiiiugu iii in: mieiiim Milly Smlas and iii |h: SI:|HDmcl\IS In Qrlflhlfi lC||fil\5 la in bmllghl iiii mini: 0' ii=p=iiii.iiis for {he loss may siinci IS E IGSMII ii: me min in a ,.mii mi wiioiii lhcy wcm (I1:p1:)\dLn|. Aml Min ILIKMS IIHW lifimrlnaiikmiivfl Kn-ma I‘4uA:;»4/vk 1'lVgVUNHrvVnvI4mfl4lVrM1 Mmlnflav ii 1 M. 0l(vrJ1m)UlY(w;—7~mDX:n mm /lbw: mm x i.., V ~ i..i,. W .‘lA!I/MAIN»; 0!:/)—a1IEimAA1Wy M. XIVHIMIX/vkvwinvlvrlm lJu)«mNrgm .( W. vlamnm i»........iii..m... .7”. ‘ l may be .......y.. by . pcnwmll .=,.....e.....m, whn .. .11: 1.. clnim .:..... damages winch .... dud pnnmn wnuld luv: 1»... lb}: ... alum 11... um ..... been dud. Amung .... umur msulls ... 1.... amzmlmem .. mm 1. .5 now cumman ... cm... .1.....g=s 1 1... lass ..r zxpeclaunn ... 1... and .... ludge: Iuvz mu. ,..;:..-...».1 wxlh lhc 1.3:. «vol ...: 1.5. 111.15 ycars, ... E..g1....1 . and MN, ... llymg ... mm haw ......» a MI: .1 wally worm. 11.. ..1.... 1.. each case mu... ... depend very much .... .... views ..1.... Dry Aheludgz .... .... valuz ... ......w.. 11.. [:2] This Caun in Sambu l'ermz: c.».........'.». 4. Army V Pilthnklvarun [1932] 1 ML] 269 (“s.....n.. Pzmat’) explamed Ihs legal pasnion wm. vegavd 1c secunns 7 and a otme OLA as fnI|vws' AI wmmm 1.». .... drain of: pexwn gwes .1... ... Iwo pnrnplm 11.. first .5 .1... the death .1 any Pelscn .. ml . cwil wmng m.=:.... .... mu... C... 1.1.......1..1 .... 1. .1.1.....,;. .1....... may Icsuh ... pecunury Imus ... damagzs ... nu duznvzdk .,......c ....1 :n.1.1.u.. mm a11=..m..x.g. c; ... linker V. n..:..». ruled ..... ~... . ‘ civd wnn ...: .1»..1. .11. human Icing umld ...). he mmpllinul of ‘ .5 ... ....-ms‘ '11.. wawui vnnmple was ...... whm .. pasuu .1...1 ...y ‘ unxanlaumn winch wa. v;.....¢..»... ... .... lavoururxgainsl ...... .. .... ...... Mdalh W... 11...... wall: ...... 1.. nun wank ...: mus: ..rm..... .1..1 ...». l'|AlViVCl’1£‘. um... um... .............. marimv mm permna" 11.. .1... ,,......-;,.1. Wm. mglnltxl .1“... .. ..... gm... .... in my c..... .. aumn m ..a.r...1 by m..... 1 of ...: mm mm... Am nun ... l959,)IvpI.1Ja(|ykn7wn .. bun! Cunpbe|l's Au whilx .... mud ,..a......1. which .1.-111...... lm: um-mrvml ... ... by 11.. 1.». Reform (Muncllznmus PmvI)ivlI.I)A4cl, 1-134.11.. pmvnsmm of mm Iwa ux ........s ..u nuw ....m.;....1e.1 ... semons 7 ....1 a .1 .1... ma hw Act, 195:. Inc an ..r .=.1.... wn .u .../. ».«s......m Km.‘ .».,...~«.~. . Mn ...._....m.. ....”/.5... 2.... mm .2 .m..4w» ...,...m.m............. . .... M. W ...«.......~ .../. 1. Iomurm) «... .n.........m.,........~.v.mm . ..... n....,...m... ......m.m 2:. mm..m.m.mn..auurmoy.::..wm.mcum Ilm um Iupunls:n| would ml have n. ugh! Io bring II»: mu, amt hzvmg mcd umkl um seclirvnx Mud ... p.m1.r swim: 7, his cmmmm amlfzll on mchuis ulmrscsoclxonv. [as] In mm words, as the right of me dependants or a deceased person and me estate a! a deceased person to claim lav damages Vs conlerred by statute‘ man claim must be determined smelly within the cenllnss (IV the s1aIule [u] Pan In :11 ms CLA is vepmducsd m1nHbelww. mu‘ nu FATAL ACC|DEN1S AND SURVWAL or causns or /xenon Compmuflun In mg llmily M n penal: my um wcuionui Iry his dull: 7. (1) Whmcvu nu: dam oi .. pawn .3 cnumd hy wrongful act, nzgleu m xlchull, and me nu. ncglccl or defzull .5 men as wma.usm.mn.nn¢..g.e.n..»ecm.n«|wzxnnynuu.eam mainum ... mm. and lwuvux dumngls ... xexpzcl thereof, me pullywhowouldmvehmnhzblc «mm nmcnmudsmll he ml: to an lC||0nffllflnIIug4:),lmIWi|II1klilId\nglhc «em. nf flvc pmm. mm and mung. me am rm been mm} undu xmih cucumslznwx :5 amount m my m an nflancz Amdtl um Pclul cm [M1574] (2; Every Inch xcluon shill be for me bunch! of me was, husband. mm. and duld, .I my. :71 me person whme mm nu bcen w mm: and mu be Manny“ by nml ... lhn mm nu! ma nmmm of Lhe mm. accused (3) up dam: -. winch um puny who mu hc Imhlc mm subsa n (I) u. pay In lln: puny fur whum and (or mm: mm In: mm a. mum‘ slmll, xubjru m was swuon, ha men. as wm utmjwxmmva m.p...r~...¢u..;y»._.~..m...m.yzu mm. mm :1.mmIJ4W1 , mm »m...m». amm W M W .4.» mum-»¢; an/;JJ1m2vrmm— xmW.,.». Kemwlrrmln n.m~...M W vlcfiurvr mm. b(U4nm[rI4\ mlmuenutt me pnny lo! whom and m. whns: benefit me ncllnn \x hmuglu run any loss at xrupvpnfl suliuad Ingulhzx wnn my xcxsombl: axpenses nnc-um: is n rcsult n: ma wmnghll an. neglonl m I1:h\II|n|‘|hc pnny |mb|¢ nnnm suhIu:1inn(I): Pmvudcd Ihll (n) m nssmslng me dxmagcs mm mu nm bu ukcn mm ($0 (m) nccaum— (a) any sum plml or puynbl: on the dulh uf nnn pelsnn «mm: undcv nny cmlncl oi Issumwc or annnnm, whA:Ih=‘r mid: Yzlrnc m liter mu wnnng nnn {mun ullhix Am: (a; any mm paylblb, Is a result of In: acnm.unn1u Iny wnltcn my reluing In unpxnyw pwvidcm Fund: (cl any pension nl gmuixy, whl nu ban in wan an maybe paid ..s n msnn nl Lb: alum, at (.4; nny mm which nnn been or will at nnny be purl undu nny wnklul IA»: lelaflng In III: payment nl‘ my bcnem or compenuflnn wlulsocvu, in r:xp:c|n1' mu dulh; annnngnn nnny ls: nwnlded In Iuspccl of an Ilulcul expenzx cf the person dwum nun exyuznszs have bun iw:um>d by um pnny rn. mm mm ||Iz aclmn n Immgm; nn danugfi mill in awaldad tn . pamn on an gmund nnly ol has lining hem depnvud of me sclvmcs of . d1llxl',xnd no dznugu xhlll ha winded Iu . husbvmd mu me gnmml only of Fm n mg been deprlvul ol |h: swans Ln wcmy n: Ins wlfc, nnn in nussnng um lam nf aumings in Ieipecl «K any pcnbd mar ll}: dun. n; n person when. ma. ennnngn n.w.nynnnnvn—x...np..«,~.y...nnn.,ny~n....n »n.nn.n...:.,1n..m.. mum Iatwwwy —Iurns«1KnnImm A»-4 lawn: In; M mm nIpI'NuVImMIII|1 ulmvfi mm/lJ4m Kmnv Vnmnnnmnlm/wmmm Dab-Nam A1 M;-lvl-Aannunnfrum Nfilrrmxn-A 4... min [or m mnlnhnt m Lhc dumnges .....s.. (In; zclimu an own man— (a) nut» inlo .wu..... man W»... Ih: pawn amga ms nlumed mg .3. cf fifly five yum .. the mm ..r In: mam. hix nm (1! mmmgs c... any p.-ma mm 1... mm slull ...x he mm. mm mnudelaunn, 2.... ... .... as: o¢....y ulltcrwlson «mm, his Inu .,:........g for any pelionl nun ms acnm «mu he Iaken ...m cmmflenlim .r .. .5 ma or adxmlled m.. III: puson «mm W]: ... 9»... mi... |.... n... m: .......y u... um: hu mun. ...a wm reamng ummg by r... 0»... lnbuurnrmheryainiulnclwutyptiormhisdnth; 0.; mm mm wwum unly the nmmml nlaling 1.-me mam as Ifmuard ....n the Crmn mall ..... mm ...m mu... my pmspocl of I11: .........g. as .rm..a hung munwd .. ....y peliud um um p¢.s.m~x.w:.: (c; mkz mm accuum any .1...........o.. ..r my such ....o..... as afmuam by mm mm as .5 proved or mmnmu us be m. living upelucs ..r m: pawn cums... at I11: hm: ..r ms sum; (4; ulm inln .m....... u... ... me um Ma pawn wha wav nf .n.. .5. of lhmy yum Ind bclw .. me hm: .« hix an... m: .......n.. n1'y\.1n' purchase slufl r. ns;....1... um use of any um pawn Mm wzx cf ma .3; {Inge .........a...., hclwezn .n.ny um: ynls ...n filly fiml ymns .. In: lime of r... sun. the munbu arms‘ nun... sun In nlanlnlcd By using mg mg...» 55, ...i..... {he mg: :2! me pawn .. -1.. .i.... L)! mu. ....1 aw ng m: .:........:e. by the figluu 2 (am »... min. under Ihw mi... may consist of my indmln . claim ca. (llnuge: [or henzvemem ....1, suluecl u. subsculmn alv/Nan:/zamw; ..... ......».,...k ...... ~.........u..m....;.p.. 2 W .2... :2 mmsm —»............... Ma A» ..m : ».. VN In»: M]! »..u........ an]; .;...m.s4-4 4.... v........ ....../M. mu». ~...... ; ..., M. m..»................ -4. Q2 lNo all lognlsm [5] Appeal No. 01 (l)—5Z—\DI2D15(W) [“AapoI| no. 52": VS an appeal by me Appellants (who were ms nslanpanls in me Hlgll Cour!) aga'lns1 lhe dedsion or me Cflufl pr Appeal vlmlan allowed me appeal by the Respunuenl in pan againsz me declslan al the Hlgh caun allowlng the claim py Ihe Respondent (whu was me l>lalnl.ll In me l-llgn Conn) cm, among annals‘ damages my lalse lmprisonmem and mlsfeasance m pulalla ompa am exemplary aamages [1] The Cow! at Appeal, ln allawlng me Appellants’ appeal In part. mdered that the award of damages lm lalse lmpnsanmerll be set aslda. The actual damages awarded by me High com wave amlmad [5] The com pl Appeal also alluwed Iha appeal lay me 2"-= uelenaanl (who IS am a peny lo the appeal before us) and reduced ms Mablllly lo 45%. ms [:1 Appeal No Dlmrfiarlfl/20I5(W) [“Appn| No‘ 53"] ls an appeal by me Appellants (who were me uelsnaanls H1 me High com) agalnsl me declsiun :3! me Calm of Appeal whlch allowed the appeal by the Appellanls in pan agalnsl lhe dsclsion pr ma Hlgh calm sllowlng the plalm by the Respondent twhu was the Plalmllr m we Hlgh calm) coy, among ulhevs. loss 01 suppcrl, general slamagaa and exemplary damages Dlwllafl/)l7l1!W7—XnMV4r(lvN1gnlmGIlqavflrvrvvwmuumvlm pn....,Mu.,l mm [H14/hiwr l>nr»IJrllKMlMNrlAlmluhAv.Q vim yr. l....m Wn...m aw. Wmm am l.».mw...,a,.,.,l I)ufiumNv;-n/.!5M;1vl?h¢w I'!v4ruIunuHMllrvvu>4l ‘ 3| . (am, an wurn Ia he nwndcd as damages undu lhu suhsecunn mu hc ten mnuund nnggu (am A .5...“ I... dimly: for hzuvunuul mu nnly he fur me \mr..— my M m. synusc or me puma dzccucd; ind m Wm .. pawn Ms... W.. . ........ .... E marncd, on... t (am Wham men: .5 . dmm nu damages mag. plrignph . any»; form: \mm of Ike pm... «me pm... dzuused, me > sum nwnldcd man be amen c4]u«hy lmwrzn Ihcm subwn vn my dednuiun likely ... bu: mu in unpack nf .1: Oasis ...a expensesuwlu g cum M! mmveml cm... “I: defendzm (an) 11.: Vzng mrrsrwzu Agong my from Kim: ... «me a, maid pu ad in the Gaunt vnly mg 9.... s-pzcifzd ... xurm.....(m may An alder mam um sulmsniun om mu bc wr.|.um In me (fauna Ind .5 soon .5 poxilblz lhereallcr, mu m 1...: before me Duwm mm; ma .r m. Dewxn Kakyat mm . msolunorn annulling the uldzr, i. man he ma hm wmvoul plajudwe nu mm vs (lily of xnyming plevmuxly nkme meleundcr m 10 me making ..rmw om m [mm ma am nlnuhficzuovn m In: sum uf mu pmuu of m: ..s.::......... (4) 11.: ..m.....,a.ha than Ihc mm... rwmdul ulukrpnlvim m whnvclwn (3) and mg ..m..... xeawcled Iunkr puugmm gum, m mmveved my dcduclmg .u coals Ind cxpcnuci. including lhc mm wt Iemvcnul (mm m ammnu, mu he divsdcd .m..g;- flu \»m..m.mm Wm. u. my u[ m... in ;.u.sn..cm-neomnh Isjudymnlmdeamdxmcu (5) mm mm: um. um: mllun mu hc nmugu (ur and in mm anh: 5....» subject mint: 0! mmphivu. and cvnry slwh ulmn slull be bwughl wnhm ||ur»= yclrv am. III: deuh of ma pmwn deauad a:.;;_M,mm , .W...«.~..,.. . z W .~....... ..m..m..g.... 2.... mm mm». M. :.m...4.......u....u...».~ ....».M w......... v7:m111a42u:54wy— m..:.......». x.........n...«...~..,..«.s.... . m...(.m.w ..mm,a.. .11. 15) In uny such . an Iheexealnsr uf Ill: damn may msnn 2 exam for and xeuwcl any peamiary luv. nu ma um; uf u. daoened oocusiuned by mg wrongful an, nefleuk, ar uurnun, which mm whnn ream/cred shall mu deemed pun 0! u. mm M nun.-an oilhuluceisad. mm plum! ox min or summons in any such acmn sln|l give full pal|icu|ars of mg nmnn nr puvwmx In! whom nr un whose behalf um auinn ts Ivmugjll. and n: ma rmulc o[ m: clnm in mm: olwmcll mmugunuumugmn he lmnvcmd. (s! It more is nu cmum of me pmun dncclzuul or Lhcrc hnmg un mcunu nu Iclion us in nus mnnn nu nun-nu hn, wimm xix ulendu monllu allu uh: exam of um puma M-.3-n, been bnmyu Ivy the ueanzul. um mun may he bnmghl by all ur any of mg puwnx, .e mum man um, nu Mm: benefit III: mu. would have hmn hmugm u u hm bun umugn by Ihc =x:wInr, and may aninn in Iu he hluuyul shill Ix. lsvr llm |u:nI:fi| nrmc mm: pznun nr Innunu and shall he mupa In me. um: procadule as nearly asmay beaxihwlubmnyulby Ihezxuxmvr (97 n shall be xuflrc\¢vI| fur any delendanl .n my man Ixmughl under Ilus seclinn In pay any mmlcy, nu is advised to pay Inw cann ax a mmpznelmn, in ml: sum In ul| pmm mulled undar mix Kuuvn in! his wmnynu .9. ncgkm or dciaull William xpecifylngllxnlmu inm which inslnhc dxvulcd. (10) um nldmln um! amupxuuumnnmue us liknnhylhg pmnm . u. m mfl'u:imx:y unu nu: Conn |h|nks I)»: um: suffiuun, um dxsiemlxnl snnn bu cnuneu Io 1udg;ucn| II|n1\ ma (:1) |n mu scclwn unless the conIex|n|h:|v/nu Icq\nms— mclndm sax. muym. gmdson. glunddluyxlzx. xmpnn W1 SWFMIQWH mcludcs rmm, mulha, gnndhltxu and gamma, alt/Mum/2u1v4var;<u.. u~.n.~w..u n, V Vamumm u..nuu.nu,;n.n 2 up an» :2 nnuum D«mAS<n Klmmnoumn uu..u 4 km W M. W mmmmy alum mumm u....u.......n.n.,.....mn AInlmuNq-«M. ; kglvtuhnnrknnrivnnmlbfnrwgruv .13. “va\s1o1|“ uwludcx . rmzm u| Lmmhnixm and my pymtm ol alumpsum in mpmnt.,nm'm.nwy.nnn- Pluvided mu m d:dm'.:l\g any relationship Iufcnenl to n. mu subszcliun any fllegihmale pawn n! my pennn who has ban uloptcd, or mm nkrplian has mn lcgmeved, .n nzwrdarwc wnn nny wliuzn my mu he (ruled .5 being In a hnvmg hzcn um Inplinule nlhpring n( rm mother nu Ieyluhzd mm m, u we Ln: my ne, nu hix xdngulels. Elteclnldulh nn zrnlln unsts nhcliun x. u) Subject in ms ieclmn, nn mm of my nmnn all auses cf Immn mhsiniug Igunn ur mm: .n nnn «nu fiuww: .gn.nu, or. .5 nn.- use may bc, Iur Lhr. bcmhl nr, nn mm- Pvrwided mm on. mhsdlun shall rm apply n. must‘: ofnulm fun Iklunalion nu mum. at [at Inducing mm mm In I»: m mmin Ipan {mm In: mm or In my clxim fur ulumngs nn Db: guuundofldnlmy. (2) Where a mm uf mmn wrvwzs xx nfmmnid «n. the nmrn of me csmlc uf . dwealed person, flu: dzmagcs xcczuvuabl: fur |hn bcmfil onnn avlzvz nhlut pc1sm)— 4n; mu um mcludc zny nxemphvy dmlaggs, any dumgu tn. huuvemsnx mzdz Imdcr suhsecnun 7(3/\),.my dlmxgq Km Ins! nlurpmnllon o[I1l‘c Ind any tinny: no: loss 01 urrung .n Iupea cl nny pamd xflu um penmfs drum: 4»; n. In cm of a mum ul pmnm In many mu bc Immed Io swh anmgn, .1 any, In Ihe enzlz ol that person :5 mm lmm flu: man of prmmnss In nuny; ma 1.; yynm Ihe mm mm: pawn nu been umnd by mg .4 at ommum mm. gvts me In me am of mun aiull he calwlafnd wilhoul mmmn tn any loin nn o.,n.,.mnnm Kmrl p.n.~....... 2 my vNmIum1mA4lufin! .n.;.,,..n 2 up mun; In/Mum nunnmkwm bin 4.. n...y.. 3 )u(1wNlndw/wpI'~n!lmMnM mmxt mmww; Km. s.....,.n.m.»...ny nnn..~.(.n.n 1 my bAmrllun.lruwu!lMuu4;rvI 4.. gum Io mmm tzlmscquclflon hix dulhmxpeyt mm 3 sum m mm a! [mutual upmu vnaybc mdudnd (3) No ptoceezdinpx man In mamuinzhln m lupacl an an: nl xchnn m Ian which Ivy vmuc of ma: wcuun has sun/1v¢d aymsl mz emu: uf : dwcasnl pcxwn, unless pm-.«1iny agpinnhlm \n inspect nllhzl mm ohc|inncxIher— (a) were ptndmg at (M am of his mun, m (o; are Iakcn mu lalzr In... snx mm mm ms peysunal lcpvltsenlnuvz um mu ncptsenulwn. 9) When dlnuge has um sunma Dy mamn cl ..., .a nr nmiwtvn in paper! 0|" wm . muse of lawn wmdd me xubmxlad .,;..m my p¢rwn1II.hx|pc|sm| ma nut um) bdrm or .. m. nnlz hm: as In: damlgc was suffued, mu: mu mg .a......:, for an purpnsesuilms socnon. us haw. um sum g againsl hum befmc mx dud: mu. uuzye 0|‘ Icflun ... laspem of that m m mmssmn as would um ;..mm if he um men after ma dlmagc wns suflemd (5) Th: nghls wnfemd by mam. [ov me hcncfil nf ma eslalc of amm pcmons man be m .a.mum m Ind no! in delvgakiun oi any nylu cnnlenzd on Ih: dcpzndanu oidwuu-A pcumu by scclxun 7 and m much of ms secuan m mum Iu causcx of mm... ngunn the mug of named persons shall nyply m Mxlmu m uuxu ul mm. under ms ma xenon ax u zpplie: in rclman In other cm; or action not cxplmly cxucpltd (mm VI: npemllrm nlsubsecuon (1) (5) In [Ive evenl uf Dr." msolvcncy at u. mat: ugaivulwhmh pmocedxngs an mmnmuuble by virtue ul lhxs semlun, my many 11: Iespem DI the cnnsae nracum. in mpec: or which n» pmmmngs are nmnlmnnblc man be dumzd m be a dam pmvable 1:: III: adm men n( m: csl:1e,m|w:\l|MmdIngI\ml u 15 a demand in Lhc mlum 0|‘ uldiquxdnted dnmnggx unsung omerwxse mm. by . n:unluc|, plnmixe m hreach cl mm. atmmazxuomwy m..n.M...,.,m ,~~....~.;4.m».n;.,.m.n,y am;:1mmI!4m »...u.m.m... m..;.m...~ m,..,.p ~.m...., W «J mmrmlvy x..m,.....m...~...‘um..»4.,...4.;.»..m...rn,.4~.w«»«m..u LA on nlgn; [as] We srrell deal wim Appeal No. as and Appeal No. 53 lrrsl as me questions ldr whlch leave was grarrled ln both appeals rrwowe the same eaelrorr, namely secllon 7, M me CLA. meumm (1) wllenm uxumplary damage: can no awlrdud lrr clalml loundud on socuerr 7 dl lhv Clv’ Law Act. 1356? [as] We rrolsd Ihal me Cowl at Appeal in awavdlng exemplary damages had lelisd, among others. on ArIlIzy's case crxrlrery lo war is eraled lrr the rddgerrrerr: 0! me corm at Appeal. me calm in Arhlny dld ndr say mar exemplary damages ave malnlalnable. Lord seen or Faecele In lhal case. In dlsmsslrlg me issue or whether funnel prosecuuorl er the assalrll and lmlery clalrrr should be barred, axplslned llral me damages he was dl me mew uugh| lo be awarded ldr breach ol dulles were 'vlrldI:aIory‘ damages. His Loldshlp eald; lrr rr Ialcr ere, Dmllrlz vA—l'r' lznml 3 NZLK |36,1'?wnl:sl draw a disllnclloll belweell damages whlch were Ia:«\+1cnlmd and dauugcs whlch wzrc rlghb-wnlwd. Dnlnwgn awarded (0: lb: prrrpusc uf vlllrdlcnllun mt cxscnllally nglllvurllrzd, xwanlnd in llnlcr to denwlwmz mm are rryrr m question rnerrlrl ml am weerr rrrlrrrrgerl ar all lrr Rrmlarmap > A4} of Trlllldad and 1'ulra;,-IA lmsl UKPC ls, lwosl LRC am, [2ull<.] l AC 325 llre l'vivy urrrrrcrl upheld arr rwrrrl uf vlnlllcalory duvlagzs rrr respcd at «erinuls rarrlaelravrrrrrr rw r pollc: olilnzr Inward: rm clalmuln. rrreee were ml exemplary damages, may wan. nul llwllvdell lar rrrry pulllllve prrrpase. my wen awarded. as .4 w». pm ln Mtrxorl v Farlwrlghl [2005] um‘ JR. lzmrrl 2 LRC 2.54, :lllo|Im use m whlnh me Pnvy marwrl rrrrlreld arr award of vlndicnluly dnmngcs, any marlzanllm r,...arr,,w,..,.a;a.rr Adrmldllrmrl./ll]/dvk um um Jzlurmlxlm rr.r.rr:mrrr.».ramlr.mr,.r umrv rmmrrrr Nmulhnulhr nu]; H rrrrrmrwr Krllmlzodlrulw r....wrmrrrr.a,w,,..... VMxlvlilmuvnlmmmulnllldnmlvdn -:u. ur order ‘to vuvdicalz me ngm nfmc wmplaulim |o carry urr ms or Iva me u: we nsurrarrru (mo [mm unyuslified Exaculwn: mleflelence. vm<Lr¢:lm:n| ux upplcssmn [:71 Secuun 7 onrre cm‘ wrricrr mcovpuvales pmvlslcns as in me Fatal Acmdenls AC\s of the Unwed Krngdam, enables an anion [D be urougm agamsla person whose wrorrgruu aor, negkactar detour: rrrrureo arremer and resuneu rrr me death or me rmured pevsun r such wrongful act‘ neglect or delaull Womd have enlmed the injured person to ruaimarrr such an ecuon and recover damages in respect of such mjury had me injured person no| area. [as] An neuron under seouon 1 can only be brought car the oenem or me wne. husband‘ pavem or emu: {“Ipac ed aepcnaumsq or me person whose death was caueea by man wrorrgrul ecr, rregrear or aeieun. such an acuen 'shn1lhe bmughl or ruu: m the name rrmre mu.-culur of me puwnn d:c24M:d' The executor may mean a claim hr and reoouer any pewniary loss to Ihs esrare or me deceased oocasrorreo by me wmngrul act‘ rreglecr or ueraun arm me recovered sum wm lunn pan 0! me asmls 01 the deceased my An a.c|wn under section 7 I5 brought by me specmea depenuanre and me es12I\e 0! me deceased person m merr own right. [en] Arr mun orougm undsv eecuorr 7 must he ureurrgursrrea rrarrr an acrran brought under eecuon a more CLA. secuon a deals with cenarrr causes or aouorr whrch were already vested in the deceased person prror re ms dean. and whrcn he womd have oeen awe tn puvsua. but our his aeaur Those causes of aclmn are nor Hrmled In causes of acrron arisrng from me wrongful acl. neglecl or detaml Imp xcurmsrw) rm P/-141M:-m a Ilm .~rW.nr Mwlm r..r.r.,m.r 1 r.r,r aurpz rrrmum D1rMS4HKI4MldD0vAb<rFlabuvd. r rm » mm rr, r- »r.r.rr.... Mm <3 mrzumwy K/ma \4mu:mAu)<rmrn4rrlm\ mm. Mgr" a A rm r cur. 1'h4Mr1umINMunvg(34r .37. Much vssuflsd tn ms deilh. While at common law meae causes at acilun wanna have died mm mm. undev secuan a (which mcorpovales provls ans as m me Law Reform lwscellaneous Provisions) Acl was av me unnea Kmgdum) muse causes at action survrve lnrlhe benefit oi the deceased person‘s esxaca [91] In Amity‘: case, Lmd Sam at Fascole explamed me purposs av a claim undsv the UK Fatal Accidents Act as Iuuows, . 'l1u:0n\y uegnnnaus p....,m fur which Fatal A;>c1uknIAc1d:mng:s can be dam: nml awnrdcd lo! «-1 mm a... n. my opmmn, m1npcns!Imy.'|'hc dumngeiancnwantzd {ma um ufnltpuulzncy [92] Suhssclmn 1(3) uf me cm cleany apecmea man damages which me person agamsl wnmn me acliun ws bmugrn ws hable In pay “skull. sumac. lo ans m n, h: such mi mu compensate |hc pally for whom an for M105: benefn lhe aamn K hmughl In! My loss 0! snyvpon suflcrcd mgclhcr wnn any Icusnmnblu uxpwuc: Incunusl as a mun nf me wmngfn\ ml, ncglcfl or defxull". The crmcav words are “cnmpcnsa|c" «or “loss u| supp0I1". [23] The ansence 0! a pnmsiun disaflnwmg me grant an exemmavy earnagea m section 1 must he xneweu In the comexx of ms compensnlnry naluve and its dmersnce tram secucm e. In Room V Barnum [wen] AC 1129‘ Lord Demin sand at page 1221 ‘Exemplary n|:Im:ges are estenunlly diflelun from unlinary dunngss. The nhjcu er anmage. in mm: usual (ens: of ms mm is |u uvmpcnsale. Tn: umm er exemplary nlnmagts is m punish ann aw.-r." [94] An awavd ol exemmary aamages under section 1 rs cleeny conlvary co the Ieg\s\aIure's Intention m snacnng that secnan 1-ne W..mn.nnw, n,...,.M,....,nW,4.~.n,. .n..n.nn,.,a;...n wwxemmmw; n.n. e...nnnn.»nan.,a:na m.4n.w-~.:nn...., W, H m‘zuI4w1 7 Krwv Yrvlnuum KrmuwrmmIlnVm:Nq-HVASI/vg)V014/mI(haru!rnmuHHmnuu\ .3. leglslalure onvmusly dld nol intlclpale ma: such an award would be made Hence, an express prwlslon dlsallewlng such an award 15 ml vequned m sectlan 1. [as] our answer to Leave oueellon (1) must meremre be In me negamve (4) Whether general danugu ler paln and suflerlng can in Ilwnrded la n Plnlmlll ln n dependency claim nmugm undlr secllon 7 al lhl CIvi| L-w Act 1956? [95] As secllon 7 0! me cm us a pmvlslurl enabling me Speclfled dependants ol n deosased person who came by me deem due In lhe wmngml am, neglect uv delalm or enamel In clalnl lo: damages in lnei: own ngnl lo comperlsale lnem lm loss ol suppan due lo such dealn, a clalm luv the Dam and sullenng at me specllled dependants (av even ol ms deceased person MVIISBW) ls cenalrlly beyond me purvlew all me secuon. [W] In one case :4 Dlzvle: vPnwel/ Du/fvyvx Axmcluted (‘nllicrmx Lm llml AC 001 quoted by lealned counsel let me Hespondem, Lord Wright axplalned me nature or me remedy pmvided lo: In lne UK Fatal Aaeldenls Act as follows‘ me glzncnl nulur: nf we remedy lmdcl Ihl: ram! Accldenls Ads tn. uflrrl been cxylalncd Thwe Acu “pmvlded n new cznw of mm me did nul n. u1lc."u: Lord Sumner nbxcwcd .n rm Arrwnkfl. nl p 52. The ly mgnlnz ul elllarg: In old clalm Is, In llle mu: m lh: Vcm cm, zl p 10], Kux nn..n.nnly Illfecllng the [al-luly nl me dcnzcnscd. N Is nnl n chum nmcn Ih: nllfl ‘cu:/zomwr m.nl..~.....u...ynn..nn~..W.,.l null u nmmm lnmn.x..l.«n.ln.....l,.;n‘.. n M...‘ (llm—iKM/2I7l«(W7 W. wmnnn.l..w.nn.»...~.,e..«W. vlwlvl/v—m1mwulIMuVVK'vn dwaxzd uunld luv: ymlsucd |lI his awn Meumc. mm. I|1$ for dzmxgu um suflcmd by hxmscll, but by hi: mrmy aim ms awn "mac 1) no qucmun hrm ofwlm may be cnllul mrrinrerrrss rlxmagu, benmvcmcnl or pmll and wffering n ix a and mum ul ylnunck, shlllmgx and pence, suhjacl m the clement of rusnnnhlc fulluc plohnbtlfllls. [931 Learned zx)unse\ var me Responnenr In Appeal No.53 also velened us to the cases of (Mg Ah Lang V Ur s Underwnod [1933] 2 MU 3?/3,Mowv1I.\u Mme: Ltd v Puaey [1970] no 541, and Rap: Maklmzr bm Rzua Yrmlwb V Fuhlic 'l'u4.\1¢'t Mnlnysm [mu] 2 MU 15) in supporl of his submission mar claims are new snowed for nemuus shock, lass al prwacy and puve financial loss. [99] (Mg M: Long and Rafa Maurrar bm ma Ynalwh are nu! cases brougm under secnan 7 M the CLA ‘muse cases wwnwe clawms brought by me mjuved persons marnsewes who survived the accxiem Tne Auslvahan case M Moum Im Minn‘ (which was referred in by the coun of Appeal] Involves a exam brought by a «urerrran at me Mmes wna became uepressed and developed menial Illness as a cnnsequence ol seerng and nelprng ms coueagues whn had been wuured by elecmcax anon-circun. Those wHeagues mad at me Iniunes. We do nor mink mese cases are relevam to a claim under secuon 7 at me OLA. [too] The pnwiso Io sunsecmn 71:) of me CLA noes nal auow damages to be awarded in a parent ior bemg aeprrved 0! me mm Jam/zvmwr rm. ma..,.. 4. 2."... Nrmuvmm MW amrw 1 W DANJ1IM/1Ul11WI—llm\r|SrVAKh¢VMI~«AMlnm«|.Hn;uK mm" ».~.m...., mm 27 Mrmmw; ~..n.a...mM x,m.m IMMmNcxm 4.11..-4 an... .n.,.»u..rrr.m..,. -lo. semces at a child or [D a husband Iur havlrlg been uepnvaa of the servlcas or suclely UV Ills wfle. [10l] Fol lass ulhev man pecurllaly laaa, ma only damages Ihal secllan 7 ol me CLA allaws to be alaanaa ale damages lot bavsavemsnl. Hlmevev. such damages can only be awarded lo we spnuse al a deceased persun uv, n he was a mm: and never ma :1‘ his paaams The sum max can be awarded as damages lo: heveavemenl ls RMIO,D0n.0D, subject |o me powev uf ma Vang or Penuan Agony lo vary such am. [102] Our answev to Leave Ouesllcn (4; VS mavetore in ma nsgauve d.nI.:lll.ALa.._51 [103] we shall new deal mm Appeal No 52. Leave was gvamed lcl Onsslluns (2) and (3) whlch ralale In sealon s ol the cm. Lcumnuasuanlll {2) Whelhcr ucllun 3(2) 01 CIVII Llw Act 1956 (Act 67) wmen bars me awaralng of oxlmplnry damages In an wane claim Is appllcahla when tho death of mu decelsed is as a mun at a breach ol ma consmuuanal rlgm to Inn [1041 The bar ralanaa to In Leave Question 12) is that plovlsiun no subsecllon 512) cl me CLA that prmlldes mat the damages man can be recovered luv ma henem of me eeuale ol a deceased parsun ‘(hall um include any cxunplnry damages" The High com and ma mm Joawalslwl Kr4lwf\mvNe;;nmAAln;l vva..,w».,.l.,»vm r.,.,“».,, mm 51 mrmnlwl ea.m:.., K!uMNuAI~vllnlm& «am. lmlmulpl‘ rmlmhmwy /um ‘vlmzvrmwl Kllvu\«mru/vimAaurlltrvunlhvbunhlgrvlWYVqu1vhnuv(A/mAM4llaw7MurIw\u [10] The Court ml Appeal, In aHowing We Appellants‘ appeal m Dim S91 asme me award luv exemplary damages, veduced lha quantum 04 damages lo: dependency claim. but ammled the ward var gsneraw damages luv pain and suffering. Aggul No‘ 36 [11] The Respondenls nu ma appeal are me three chlmrsn 01 Abdul Jaalar am And. Mulahb [“Jnl:r"] who men on 02/09/2003 [111 The 5"‘ Appellanl ms? ong Sang Keongj was we head 01 me miss learn much was cavrying out routine panel In Ssmmn 13. snan Nam, in lhe eany murrwlg 01 02/09/zcoe. He and ms team members saw Mo cars: one was a Flman wan and me olhev a Mack Proton Perdana. [13] Their suspucmn bemg aroused, the 3"’ Appeflam and ms team began tailing nmn cavs lrom the am Alam Sladvum Ihvuugh me Kayangan vuundalmul and onto the Faaenax Highway heading xownms K-ma Lumpuv. [M] Duving thew suwemance. me pokes lsam noticed lhal me two cars slowed down each me they neared a penal s1amnn. There wave was perm! slaucns m 3H mung me we mken bylhe two cars. [15] When me two cars cimed back |o the Shah Nam Stadium‘ the pence team slapped both vshmss, Wm)nU§mlIS!Wr—KrmrvI’!lul'4¢uruRAlog!‘Nuulsuvmfl/1u)u!Lva4nl/vfivdll/v5>( am; a rmzvrm ,...w.m.. ;mAMvNn&ur«4MgrvN7m1u¢)pl'Nnlwhnmhy W. :1 umwsy r— .mm.u.n ....m.,»nm.qm.‘\n,.rmcnm.«W,m,..m -11. Cam in Appeal look me posilmn vial we pay does not apply were mere '18! been i bveach u1une‘s fundamental Iibelly M light to IIFB under the Canstilmiun. [1051 As was explained by this Calm in Samba Fermu, causes pl aelion vesled in a person aumve his deaih solely one In secuon a at me CLA suen survival is euoiem lo lne oondlllons eel am in that seem", une 01 wine» is that damagss wnien can be awarded lo: we benelll oi me esiale ol euen deeeesed persun cenndl Include exemplary damages. As was also stalad H1 Samba I"errm.\. the claim of a person claiming on oeliall oi me estate 01 a deceased Devson under secunn 5 must “sand and fall" on me oaele onnal soeiion. [106] The High Com m we case lelied on me High coon decision awarding exemplary damages lei lelse implisunmenl in me case 01 Abdn!M1A:k bin Husxm v llarhzul hm H] {land 43: 013 [2005] 1 MU 3%. Upon being relened la me lodgemenl at me open on Appeal wnich vevelsed me High coon decision, me leamea High Cowl Judge said‘. Thcnzfunz, {rum lhc clam wading or me ullnclusiall or ill: Cuurl Appenl i.. Bnrhan ma :1; Daud 4 2 lugi v Abd Mam la. Hurrin (Civil Appeal No. W-Ill-122-Z1107), me mm of Appca| am not ngluc wllh the nusunlng ul lhz High Calm, with mm, m nnpecl of llzhillly pm naming was said on Ill: Kmdlllgs of ma awards pr damagcs whlm included txerllplnry damngcs or |M| me man Calm ms nu pnwnzr |n award zaremp/my damage! or Ilnmngcs luv fills: imprixmumznl. The eemeamaa ac lenmed Sailor Federal (‘mmxcl mm mm: Conn as Appeal has let me award M exemplary damages 0! damlgas 0! false Imprulnmcnl in ammlmoa wllh ms subnlisslnns mm mm lxmrl has run power An award Ixzmplary damage: canmsl he wsulned and ii a misleading 9! ma an];19OS/JGKM7rxawurw4xNrgMvAIla-«vh-lnmiruulmluhlnillulrinflNam mm a I»/wlmw p... eamiapMala.a..a «mu ,4 M. 1/pl’ »am.».m., ult/pumrwluwl Kim m.».a.x,m..emalman,.alasi vhhuw(humlm»4c(!)4rvmKvul ]lldg!lIBll\,37Il1}S Inisplaoed. mu m naming n. ma yuund: 1-I judgmcnl 0! III: Court of Appcal n. sum Aluuclly or Implledly ‘ um um own czunnl mm uemplary damlgca ur Ilnmlges For um xmpnsunmcnl m mnI¢:.wnu when mm )5 claim [ov tlependzncy [V\|lSl.1ll|H0 5.7 or a claim undzr LR M lht: mu An . mm. At my mg“ u may m sea: ax .1 um mm m .w,m...g ‘ lhc amxplnry dnmugcs am however on clusc m.«...g, wuh mm‘, 1: um um xpvpalr m be and xhnuld mu B: man in man 1 cunlcxl or ha ma mm m: pmgmem as imemlm by the learned Scum: mm: Counsel Thu: Wu nbsululcly no finding m mllo d(£n1¢milD| [he Judynem m We Cuurl 1-I Appeal u: say mu m» mm oi rxumplury tlzmagrs ix mu allnvwml m lnw. In Ah: civcumaollmks, ms cmm, mm Input, would mow um mammng nl lhc lhgh Cum on an xwanl u[ exemplary danusges (AM mm bin um» V EMMA blot ma pm .2 l)r.\ am; mu m .1 p.195-.196). mew wdgemenl qumed the above an rm:nea:mpa.sngss,nmnnesemnmnn»uvm Jndgehadawusdmeuuumuulnwtamslsclualnanuxlshs lmndnunarmssmflvmwhebmndw/mamonimxn smuanammmmngmnomyamganwmumue wrung Insay max meumeamgauwme nus». mum fltederxsnssdhadnmerIvuId;us1>mdl:uata<1Ir1a\anawa:fl avemwy mmaaas u requlran Yhe Iuamad Judge also rehsdunmspudguv\euImBov|un'susse¢uprm nos] Both ms mgn Court and one com of Appeal appeared to have uvenmked he lam that Bmharfs case was 993 a case deahng wm. a cum under secnon 7 m 5 ov me OLA n stands to reason lherslole mar me Goun no Appeal in a.;.m.»'s win an nol -mu: nliw:1ly or W 3“ mmzmw; xmm...W.z...H ..u,..m...,..,W.,.m1... mm H mmrmwy am Srvl kmmowm ...., L 1 M... ~ ;.,...«,r ».u....., rum n mmmm W. \....m.nx..«.m. .m.«».....¢ ; Mn um (-».m....u~m«... Implmdly um Hm cuun cnunol awnni exemplary dalmga: or Llamngw rnr Ialsz impnsnnnmn or mxsicnsanm when mm n claim Aur dcpcndelwy pursuant [U :7 or 1: claim undnr ml ul mu: Cwil An I956". The dam In Hm/nan‘: case was made by md Ma\ek nvrnsauy me very person who manner: 1:: have been ialsaw «npvisonea, not by ms execulm lor me benefit uf his estate WE do VIOI see how the decision H1 l:‘nrhan‘s case can be relevant .n a dam under sec1ion s oi me cm [um] After quoting me pmaga .n ma High cums nmgeunem delling wmh K<:vh4m's casa, the Court ul Appeal proceeded to refer lo Amclss 5 and 5 (IV the Fedeval Consmnion and ss ' M \n Inlsrpreflng any manna. n V: wr eonsmered vhaw mu me Courls mn51 always be man: to any lmemvetahon mum may auma ma vmpunanw at any oansnnmmad ngnu av auzens wn (ms mum-y ma s-gnmmnca at any mam al any new ngms pmyaaeu hr \n ma Fedsval cansunman mnnnt he vumtsd m we snme manner as a breach 0! say ‘Inmc um Vav ma swmma reasm mat was Is no urealar mam man lhal cl a much m n |>nrL=.mm\unal Hum Further \n ma cwmry we p-acnsa onnsmnuonnx supvamaw as opposed In pannmanmy suhvsmavy. Nance n n mcumbenl on ma caum men Vnlsvnrwng any statutes. men nmsx be made «a me Federal Cansmnmun vmln appmpnaua an no 5:71:14 5: Suviauvluadufun-udlarImAHnmstz5emA|NvyvU|le1 oonmuo at Sun): min [mac] : wux :15 m. vmsm me Home av was am mm pmnsmna mum ra mm m uwun Eullhe CMI mm Wnmnm—»<...am.~....m».,.yym..mu.y.n..m.p..un.. mm.nMam m.,.xWwnn.n..ammmy .mm..~..n Wsumnnm, n..W...nw..a.m.my.;mn..ma K w...y,m....nnm.,..n 12 Flomxhe qmumsallhsl mrdshys‘ n a rurreuealmalmey sawm )mne\1iusn\nAward\nq exemplary namages neeme ma emrsg pmmmmx. at awamhg sxunplaly darrwaai n m sea dalm man may mnsldel Ina: pmmmmn n me nyn m «ea man In: em M Ihs Ambys was In! eamagea saemmmgcmm a mm m anqmvuwlfledfol -me Human Rams M1995 mum A0115 me eonseauenee :71 me aumpeen (Iorwemxm cm ma Prmen1mn :11 Human new and Fundamental Fvseoams. ma Lemma swam man Iannoryrtqmmbeuummnnxxml ngmlryvwuearlm mnnemun or Hnk helwwn me Nmmn mama Am Ind Eurmeen Corwsmnn my me Prmsmm at numan mm: and Fundawmnlal neeaama Am sum em.-men was dune n-sane me hm man mete Vs m wmen cmmmmm .- Enghndwhxt\nrsa1se§Fsn\amelv1xrynApIsvr\Bcy 74 rr.a1aan,wesee»a.emeumw.eamamnaae.:xu-e awroemmme Nmsem mmammaweumuneeeaum case Nxxxmngiywefimlhalmteramsiewsabwumala eemnuuanan nm by a game aumemy, sennn em m m. cm: Law 114: eeea nu saw nu: ma cum cams)! be haired lmm awaiting smmwary damages Du v-aw .a «man by me incl mm m 1956‘ Ina yea: m mm me cw |awAmvm-sbmshtsd‘ 1hsrswasnoFsdera1 censmmou 75 We mnnev say Mal me Wblw mn ov whim memunoe had nnlbeamieveiavsdwln ussaamncennesmmmwnau 171: cm uw Au wls anamad, n was any m Iespem 01 Dvlunewrtmsamms Heneeweareoflhevawmal ssnnuEnlIhaCvvi\|zwAclmwIyapwnsInpmrmarcrls1n an la: a Ihe prahlzlion at nwammg exsrwlary damages. [1101 mare appeara m be some canfusmn as to me (me pusiuun of the statement by Lord Scoll ov Fnaaoce In Ashley. As we have mm In ommm Am». M.m~."a mu Numnmm am ...~.;m 1 M» mm :2 ta/Mum mm Sm Kmm-m AM awe J Mm wt.‘ rmm wl‘ ».m......»z WM :1 Imam. —x....a.».".... Knurmrrun I)u)umNE5rn a 3 awmaw <».w.»..u«ma. ..5. lnenllened ablwe, al no unle dld Lord Soon advocale lhe award 0! exemplary damages. Hls Lurdshlp was advacallng (nbun, we mual add) the awald ufvindlcalom damages for breach do ngm. [III] we House ol Lands in Away dld not decide lnal vindlcalory damages should he awalded Thelr Lmdshlps denamly made no dacislorl an exemplary damages. [112] Tne House el Lords ln male, was deallng wllh, ln me Wolds of Lord seen hlmsell‘ "an inlcrltlculury appeal n. whluh yum hmlahipi musl decide wlmlm. nmgmsx |n Inal". at uhesaull and muely xhunld ht: punlnlel la [n:] Hence, we ale el me \/law lhal me Com! el Appeal and me High calm ened In |rea|lng Lord Scotfs slalemenl as a decision ol me House of Laws pemllttlng lne gram of exemplary damages In a clalm made under me ux Law Relovm (Mlscellansous Pvovlslansj Act. [114] we need lo add mat a 9—nrlembeI bench ol me House at Lands in me case at Lumba lwu v Sccrmzry .;/snm far the new Dcparlmrrll [um] UKSC 12 dealt al gleal lengm wllh me Issue m dlnatory damagss. The nlalnnly In lnal eeae dm nal lnlnll lnal me concept on vlndlealery damages eneuld be llllloduced lnm lne law 0! lon. wnh Lord Dyson even equalmg such lmmduellen as lemng -an unruly horse luosc an ant law" 1115} we shall say no more as me appeals before us du not deal with vlndicalclry damages, and vlncllcalory damages allneugn elalmed ln Appeal No. 52 were not awarded by me Hlgh Court. M. Mummy, a..lwn.~.~..MWn ~m.maa.l...~.ll.n a,. mm 12 VWWIMM—I14lMdkMl1ANuMM«M>«flulmllhflvfl mm». .lmm W a "mam, x.lm.la...l..a Mm." ».mM.n . ml... ... /IMVKIVII/VI17vKl!Ul7/l"M7H‘(Il1 There was no appeal lmm (hat declsmn not to grant vm ' alnry damages. me] ‘me canlaxl ol the decisxons at me Pnvy councu In Rnmammp and IFI Me: can appears to have also been misunderstood. amh of Ihose cases avose worn apphcaxlans my redress made mrswy no me Hugh cmm under the pnwusmns :3! me Cnnsmutmn 01 Trinidad and Tubagn, and ms supvsme Cowl under Ina provisions of the oansmmmn at me aanamas, respeclwvely‘ Our Fedem consmmiun, unmmmaxely. does no! center upon the ocurls me same or slmllav juns alien and powers. [H1] Suhsecflons um and (2) M the Constiumon at Tn idad and Tobago read as follows: I». (1) Fur the mmovnl pr dmnbls u 13 hnmhy dcclaled mu any pemuv alleges um my uflhc pmvlsiuna oi Clupmr rm been, ix hmng, or is hkely m be cmumnu: m mluhun lu mm, lllcn wnhum plejud = In any mm xenon wnh {aspen up III: we mxllcr which is lnwfully nvnilnhlu, um pm». my apply In the High Cuun [or n.-dim: by wzy oforignxlmg mmmn. m Th:I'l|gIOo\ulsh:||hIv:org aljur U.) in um um nklcnmnt my .,,pua....... mndc by my pelscn m ,,..m...ca Hf suhmcunn (1), Ind (n) to «lemlmxnn: my qucsmm unsung m flu: am: of my .-um wmx. 1. mfcnul up 1| m pvunuxnuc of subseclmn 14), um my, mm up subsection: ‘:1, mm mm mdzri. Issue such wnls ma give such divecunnx M ii may conmier Ippmpnulc an m pmpaxe -sf enrmiug, or scouting me up 1.; mm/m Kuu VMU mm. 1 My vflnrnmm Mmunmnn/4n4»a 1 W am; maalmn ».».u.4 x».upm.. »....,a W. A Vmlm W ~.n»....», W 3: Imr/mm x.... Yumnvvrhv Kwmrvzn/ul mm... 4 5 kn .m,..w.-..w...4nmW.‘ .47. n:|\[uxLI:mcm or, my on nha plm/mum ul mla Chnplex no lhn: pmnzunnn or which the puxun mnnernbd a emmad [1 in] The Privy Council hi Ramamm/I made in ones: man the applncanioh in man case was brought balnre nha ' h Conn Wide! ma pinwnaions M annnaaonnoha um and (2) on nhe consmunoh. || mus1 be nmann man whsealnn um allmus such apoicauah no he manna “wnlmnlyrrujudme (0 any oiha aauoh wnlh n:-spwl no me same matter which IS lawfully a ' hie" Pvwisicns equwalsm no seonnoha 1 am a oi our cat g avanianie in Trinidad and Tobago umar nina companaannoh Inr Iruunss an and ssmoh zwoinha Supreme connn o1Jut.1ncalureAu o1Iha1nunsdin:1non1. [ins] The cansnnnnnnnon oi ma Bahamas contains‘ in panagiapn up oi Article 23 provisions similar no sacnnuh 14 oi nha Cunsfiunlon oi Tnninnann and Tobago in Mrlxtlrl, the issue man came banana nha Privy couhcin was whannai ma awam iov nhinngemehn or Mersun’s consninnnnohai rights main sland unnnai ma pmvnao no paragraph (2) on Article 25 as ha was already awamaa aahiagas lar nun. Pavagraphs (1) am: (2; cl Anicle as oi the conannxunnoh oi the Bahamas lead as inflows’ 2:: (1) in any pclsml lllcgcs man my or Inn: pmvnsnuns 0! Articles 15 no 27 (...:nn.sm) on ma Comlnlnnlmn has been. 1: Ming 0! .5 n. ly no he conlmvcned Ill IKLIIWH no him men. wnmoun plcynldml [0 My other lclmn winh icspca no |hc um: iimnei which is lawiull) inwnnlnbln, than pawn my apply In me Suplcmc coon fen rcdmss {2} The 5\l|’lV‘¢lIl¢ cmnin sniau hm nvlgmal jurmliclnnn (.1) ID hm and demmnn: any z|Vp||m|iuII mud: by an‘! umoii in Wrsuanc: nf nauguph (I) on ma Anlc I1V|fls1II47S/ZfilVW) Kuv>¢h>IlxNr:vImAIV/i:¢vNyn~v\»m4MAhDn:mntiJn4flw.(1Hg! DIN :2 imam. MmkVmKinn>ln(hmA»n in.“ A Hun vii Vndmfl/1rl'NnIMrlvInIh /HM sa tn/Mmwi x.m....mh.x.w..a.m..i.. hm’. 5‘flnvI7Mrvrl')¢nIVv|nmrv’VNrvHVgn4i (b) to deuvmlnc any qucshun xri ng m llxc me As! any yuclsun wh L“ D n:[uII:d to n m mlmlanzze m pnmyaph (3) u[ um. Arncln, and may mak: mu urden, mm such wrns ma gm xuch dneclmns as :1 may Bmmder unpmynllc In; the pa-,-he nl znfmclng or uwnng uh. anlnmemzm of my nl me plovmnnx nf uh: xzxd Amclu 1:. m 21 (mcl\|~|v:\ in mg pmlecnon M much the pcman cnncamed Isfirlfllled l'm\/Idbd max lb: Suprcnlc Oauxl slull nol exams: us pnwux under mu panglph .1 n .5 mm.-a mu ulcqunw means ml wdmn an a. haw: bccn mum m uh: pmon Lvnnemcul um. any mm I194 [120] The Privy Own‘ held that damages to! breach m cnnsmulmnal ngms nwld be awarded undsv Amcte 25. [121] As nuv Federm constmmoh does not have plawsscns swmilal tn muse Imfised ih mmmap and Merm. a dawmam has In Vnck e\se-where luv vedrem 1'he uhry law avananle ws me can wilh ns Vimnauom, uhcludmg me my in seclicn 3 In Ihe gram a1 exempiary damages. [122] As memionefl m Samba Pcmas, had it not been ver “seclionx 7 Ind 21 nf Lhe cm: law Act .1 clcu mu m: responder“ could hm hm lhc ngm |u hung the nut, and having aclul mm Ih:se secunm an ‘ puliculnr sechon 7, hm-an musl Hand and can on me busisoflhesc nxtkiuns" [121] cm answer In Leave ouesuuh (2) ts therslore m the amrmanwe. mm ;.msmm V Kmm P4NxNqnrud< 21...; m-....M.h« W...,;M ; M. nIms1m4zot:(wrru»mAm :<>mum«A1~ MM 4 k1HN 1.». .«.r ~.h,.~..... mm 5: "mum m».,.w,mx...‘,.‘..m m.m»,..h A 5 W 1-IrIm1‘¢olnlmmnHl4hHvgfiM Laa.vz.llu:mm11.fl (3) For me puvpnsn ea In mm clnlm undcr mnon a :7! HI! CIVII LIW Act 1956 (AC1 S7). wnulhur Rh lcll Il|lI mm up (ha Ion nl mnsouum In public afllcu mun! he "I: ICLI Ihll occurrld Mime Illa fl IIII al the decusud. [1241 n beats repealmg mm by sechon 5 0! me cm on we dean?! of a person an causes M acnun subsisting agaIns1 or vesnea in mm survive against ur cm ms uenem uv ms aslale, except co: csnain causes DI action. But for secflcn B, (hose causes of acuon would me wllh him. [125] C\aar\y lherzhre me causes 01 adion lhal are saved by sscnon 3 mus! be causes av man that existed unov death‘ Acts done or ammea |u be dune m remnan to a germ anew ms dealh cannot posslmy gws nae no any cause of acunn that cuuld vssx m mm War (0 ms dealh. [us] The (on tor mwsleasance m pubhc owns :3 exmamed m me case or ‘l'Ims' Riwn Dmricl Cuuncnl and mm V (iavruvol rmd Company 9; me Bank of England lzmu; 2 AC 1, [mu] 3 All ER 1, [zoom 2 wuz nzzn. Acmrdmg In me House am Lords, me (on can anss undev evthev 0v both L2! these cvcumslances: (1) where a pubhc once: exemses ms puwev in bad «aim mm me specmc Inlenlion In mjuve me claimant: ov (2) he exercises ms power wim vecmess mamerence abnul me consequences of such exermse Lord sveyn in mac case said: w(flJ¢4mM1X4wy K:runl‘u1mVrx<m.1.1mpvVmwp-umM/Mnv§»4ul/vIm.L1Iruw mm urxumm I-.u.s.nm»«mu..m..4. «Wu V»4!mayrV ~,»mr..uu, mm :1 Aww1J4wy—;<uun:muu.am xmm um W.“ W n.m..¢uM.w .Wm..m 1-... mi law lE\/Call Iwo .ii...=...ii ..i...i. i.. i... iy Io. mlsfllailruau iii publlc c...-ice. 5.... um .. i... an ('1' llrgelcd mllillll hy . i.ii...ic Alffiutf, I5 mlldufi specifically imelmkd |i) iiiiiiu . yermn .. pnrmni. 1.... |yp= of use ilh/DIVD ...i. riiiiii iii lh: 391159 ii. mi EJXCYCISL i.. ii.i....: pawc. iii. In iniiiiopii .ii .i.w.ii.i ..iii.iw 1... mi. mi... 15 when . public nflice. IC|§ knowing that he ha: ..i. iiim. i.i dd) ll}: ICK Ulnlplalrlfd ii. i.... in... H1: IEI will i.........., iqiflll i... .i.......... .. invnl‘/CS ii... ..i... illalmllch .. Lhz public olficcl docs l)(|l have Ml ..i..ie.i hlfizflhilhlsflcl IS ..w..i.. ....,........ mi... [121] What is also clear no... me rm. ..:i»e.. case is ma. mmaasance in public omce is not the same as nunriaasance in public attics. Lord Mine. expiainecr . . .i is IID mac... ..i.i i... [on ll ..i...w....i i.i puhI1€ oifiu, IIM llull-Ilflslflm ..i pii...ii~ iimm. 1..= Yailmz In ¢ii..u.x 1 pm. is ii... iii .. Wmlighll. .i min... he e..i...«. win. iciiiig ii. axes: of my 1... ....i )5 .x.iiz=..ia1 w.... pI€Vel'I||l’Ig p.....i.: om... ...i..i lflillg ..cy..iii. Dltll’ pwcrs In line ..iii.iy u! i... u.imi, m| WILh i..i..iii....ig use... .i. .-i.e.:..: mg iii»... (hay in. .im, pa Indy when they hnvc .. i.im..mi Whllhbl IAEXEICISAE u»... M nnl ..i umkmlllly W... ...i chlraciel .« Lb: I011, |he iii...‘ .9 mil lI\llS| b: dzlfnmu, Iw|\1:g\lg¢!|l DY ins... [mm . ...i.i.i.....i...i.i.ig .. ..i: leg. pm 0!) .. my Uplllwn, . ..i..... [0 in un ....i....i lo ii... ...- SIAChIlI$1II‘l€ ..iic..i.o.. whuhe. in IC\ .... ii... In BXl:lI2}Efl i.i...easii.i:e i. Hllly mm ii) L114 CYlCIllII§\fll!£K:§ i.. .i.i= wly so um. um .. £":l:1lV/Ely . mi... in nu: ii.) lhz u..ic.i.. zpvplbciflles “I13 blll iim....e.m mm. . cmmou. d¢C)5iLVl’I ml iii ac’. fll!fl( )... dfltii EU WI“) am... hi i.ii.i.e ...¢ pI‘Al7I|iW ii. ..i I)»: kllnwlcdgc mi. such ..i..i.y WLHIIII .1 Ih: Halfllil and .i..i......c imiis.-ii...-.io.» oihix nu...» la .e. .....iz.m....mw. x....m.~...i..ui..i.m...............i.. mi. 52lD001S!W)rD«I.msn.KMi..ibu.Ab- .........,.i. luv». mm SLIVAIIIIAXVWI —KnmS4.»ur.r.v.nKm4..»m-u i........,,., . H1‘ rm... ()rIlI1mmuUMA.VH[(.W us: Amev Ihe Iwo cars had sloaped, me am Appeflanl appmached me Proton wqa and Idenlrfied mean as a pohcs umcev Ne suddenly heard gunshols and atme same time he heavd sm Kama|HIsI1am hm Abdul Samad. a memberm NS team, scveam “'l11an, (ha lA:Inhn.k“. [11] The 3'“ Appsuant xmmsdxately divecled his team to open five Jaalar, who was seated m the Ivom passenger seat cl me Pvmon Waja, was shot s\x mes by me learn. Jaelav and me was others m that cav were kmed. gg Nos! [13] In [ms case, Kugan a/1 Anamhan (“Kug:n“) was arrested on 14/01/2005. The puhce amamed a remand older from me Mag\sIra(es'CouI1 ax Pslahng Jay: 10! a peviod of seven days ham 15/0|/200910 21/01/2009 He was delamed at me Taipsn Ponce Slalmn \ack—up, [191 On 20/01/2009, around HAO pm‘ the 2'“ Defendant‘ Navmdren s/I vuvekenandan Inhnmed one cl lha amcers on duly an that day that Kugan mad vamiled allev dunkmg mmsval wmev. [20] The 2"’ Deiendanl was asked to gel medical asswslance hum one Dr Ealdsv Smgh lvam Msdwvmn Clinic, Suhang days. when the uncmr armed mound 11.50 p.m.,he1oundIhatKugan was m a bad cunmlmn He was motiomsss. Kugan was pmncunced dead Mound n 50 p m. [21] Kugan‘s body was taken ta Serdang Hospital lor pas:-monem exammalmn. The ms: posI—manem exammalinn veuon by Dr. mam Kanm hm H; mu ham Sevdang Huspnal emed that me cause at mm mar/zawwy W. m.A.W.. 2y.,..m.~..;4W.m.m.,,...m,. mu; :1 :0 mm me". »..M.m.m....uyW~ rm./,» Mme mm 3- mrzomwy Kum mWmK,.W.,.M..m.«W..;rm vfi)wMU4Amlum4v/!\4rvm;t!4x .51. [128] rlrera must be a nexus between tne rnlenlional or reckless act and the rnyury sullered by lne person affected by me acl, such tnat lne rnyury ls a consequence 0! me rntennenal or reckless act. [1291 In tne eentexr at an aclion under section s at me CMI Law Am‘ me nralrereus nv reckless exevclse at power by me public rmreer must have adversely allecled the deceased person pnor rd hls dealh for omerwlse no cause 0| amlnn could have vested VI hlm such trrat tne cause at eelron would & nrs deatn. [130] Our answer to Leave Quesllcn (3) ls lhevefuve tn the alltrrnatrye. DECISION App IM: 3 [I11] A clnse scrutiny at me Amended slalenrenr M Clam: rn Appeal No as snaws lnal it ls a pure dependency clalm under semion 7 dune cl.A. Thls ls especially clear lrurn paragrapns 5 and 6. [132] Based on our analysts and our answer to Leave oueslren tt) above, we find man the coun el Appeal erred in erdering axemplaly damages to be pare by me Appsllanls Such an award would still be contrary to law even ll lne aerion nad been brought under semen is al the CLA, as can be seen lrpnr our analysts and answer lo Leave ouesltdn (2). [1 33] we tnerelere allow tnls appeal and set aslda rne erder ot tne court of Appeal wrlll respecl lo exemplary damages. mm iotlslzulxlul x..rryn.rrm.e;rr... x.rr..r,r.n.urur.. n,.r.. W urn X2 nxzmsm D4llulVrvKIMMMrtAhrthM¢vAHr1gHN ..rr.r.,r» r¢nr.nrnxy mu) n rmrrrrrr r.nrr..r..ur.x..mn.nrrrrru.x,..nerrwrrrmrrnn~urrrn.,..r.r [134] As shvwn by whal bes been dlswssed above, me award m exemplary damages by me Calm or Appeal ls clearly lxmlraly lo me Dal explessly sel om VI subseclion 3(2) dune cm. [135] wlm regard m damages tor mleleasance ln public ollloe, the Respondent relles on me vavlaus acts which loml lne hasls lerlbe clalm lo! aseaull and banery and lalse imprisonment as well es lo: slalumry breach ol dmy under me Police Act (957 and on me alleged curlllnuuus end repealed alterrlpls by me Appellanl Ia hlds lne cause dl deem cl the deceased and me persons responsible. and me Appellants‘ lallurs lo mlcnn me Reependenl dl the ldcelmn pl me deceeeed alter rue enee: HY lb pnwlde hev Wllh access to me deceased [1351 ln lnelr ludgemenl, me cdun of Appeal had lncluded lbe lullwng eels and omlsslcns as lnslances ol misleasance ln public clllce ln lms case: (I) the statements made by the 1“ Appellanl (sald to be based on movmellen glven by me 5"‘ Defendant) es to me cause dl ><ugan'e deem: (2) me lack ol departmental lnquiry av pubhc mquity. [1311 we ave cl me considered view‘ based on me rim Riuerv' case, lnel me acts and cmleelans relened to above do no: cenelnule mlsleaeance ln publlc dmce. mm madmlw, xa.ml,aa,lum,,n Nulltvwlvvfl/VIWVDIAW/M0104?IV1‘: mm :2 mm», Duluk \m ...uM. flnlurl I u... a M. an NANWMHOI an» n ummm Kmln ram». x.u.w,...aaa.a,a«~a 5 ma . clad, m.m.n.u Vunlknu .53. [1351 Learned semar Fsde(a\ Caunsm mncsded mat meveesenee m pubhc umce was committed In regard to ma various acts which wave done or omitted to be done by pence olficers helurs Kugarrs aeam ueamad Senior Fedem Counse\ submmed that me award av damages for mlsleasance m pubhc owes should be vedubed Io nmsdooo to veflecl omy mose ans ms] We Iherelore euuw me apnea! in pan. The order of me ceun dc Appeal an sxemphary damages is set aside. [no] In view ov me ems done or omllled lo he done to Kugsn which eenmnmed la me cause of ms deam, we do nol consxdev me amount ov Hmmnmo D0 awamed as damages my mlsleasancs m pubhc oflnce m be Inappropnate. we Ihevefwe aflirm me amount so awamed fl [m] The Respondent in this apnea! bmugm we mean undev semen 7 ov me cm as wen as under Amde 5 of me Federal consmunnn "main kapalflx um mam dzn sabegan mew unggungan dan/alau oagx pmak kesemua manq-mam tanggungalm man‘. [142] As we have sxplamad In answenng Leave Ouemlon 14), gensrax damages tor pan and suffermg ggnngt be awarded to a pvammv m a dependency clam brought under sermon 7 aflha cm. aw «>ar:vI3y1~y—xm. wwmm 2 1",. mm.mw.wm w.:.,1». a 2 um mm :2 ..m.,~m—.ms,..x..y.«.w.au..M vm-wk !m1mIV‘rVl' ~.m..m mm mw»mw;,x.w.s.w.a..w «....m.¢.w».y... /-Ivxrrm m..w.w.m.M..,,. um-. [143] We merelure allow this appeal and sel aslde me award al geneml damages or RMluo.auu.au. (ZAHARAH BINTI lBHAHIMl Judge, Federal courl, Malaysia Fulrajaya. 6 November 2017. Anne; 11;. fll(fl»35»fl5 z2o15(w)] F_n.I_th:_Al2|I.:l|3n.\5.: Puan Alice Lake Vee clung, Senior Federal Cnunsel Puan Hahibah hmli Haroll. Scmor Federal Caumzl Puan zureeu Elma hlnu Mohd Dnm, seruar Federal Counsel [Acwm-y»ceneral': cnamlrersj E4zLLl1LEs:sunnlltn£s. Emk V.Ra].1devan luesm Raladevnn &A:.m:l.zze:] Puan Allce Lake Vee Chung, Senior Federal Cuunsel Puzn Hahihzh hlnti llarlm. Senmr Federal Counsel Pnan Zurccn Elma blnu Mnhd Dnm. Semur Federal Cuunsnl lma 1. n1/1lImwr—xmmn.4ur4r;mo ml. Vrmmum. WW I 1 M,‘ mm rumslwmr»rm.nr..l.«.,m..r.... .ur..m Vnlmfl/171' ~.u..».m mm llIHQUIJIV0—Akll>u)4lrIlvmlmKzIMmtVAlrI(U¢)¢!lNt)£fVl&UMAH1-lmlvrlhummlM4lHlflvlVVIFl4l .55. [Attorney-General’: Chumberxl or (he Resgundunl lint R s Iraii Enclk sam Przlcaslu Enc1kSha|Ild Adll am Kmarudm [Edwin Lm: & sum] Fgu.h:_Ann.¢llnn:s; Puan Alict Luk: vee cninp. Senior Federal Counsel Puan Hahubah hint: Hamn, Seninr Federal Cuunwl Fuan Zureen Ellnz hum Mnhd Dom, Senior Federal Cmlmel [Amumey-Cenemlk Chambers] F_(zx_Lh£_K:sD.nn£|.:I1L Cxk Ennk [aswm Abraham an Kauv (Maw: Shanllllyapalarv. my Zul/ah & Pumrerxj ntlnuanmtsyw Kmu mmma 2 hv1hNwlvlMml4nAxl4rv humhflvnfi 1 Mm 014:; :2 mam M Vnv KA:Mba4AM n-no.1 3 mm vhf W W m.m..m mm :4 Awzonw —xm.sm_». x,....m. ...«.m.,,. .. m... m..m.»a..u..u‘vmm -7. death was 'pulImmzry CIlcll'In- related to ‘an abmunul build—np of mud in [he sacs of (he lungs, wnnn was In bholmess uf mam“. The repair! also ruemionad that 22 categnnes af extemai wounds were lound an Kugarrs body. [221 Kugan’s lamlly cummmsloned a second pus(~moI|em examination. wmch was conducted by Dr. Pmshanl N Sambsrkav from [he University 0* Malaya‘: Medical Centre Dr Prashanfs repdn stated ma! mere were 45 calagories M external rnuriss an Kugarfs body and a was range 01 Internal mjuvies. The cause or deam was stated as ‘mule renal Valium due In lh: rhabdumyolysis clue la blunt lraumn in xkclclnl musclcs' [23] An mvesngafiun was mined out The wuuries lo Kugan wave mum to have been cummmefl by me 2"‘ Devrendam. The 2"‘ Devendanl was charged under me Pena! code, vound gumy and convncted Hewas ssrnenosd m impriscnmenlinv aterrn ufmree years. &mLN2.5.a [24] In this case, Ulhayachandran a/I Gauv Channvam ["\.Ilhlyu:IIIndr:n"] was remanded imm 14/02/2007 .n Ihs Sungal Eulah Pusan pendmg mal lar a charge undev secnan 395(2) M ms Dangeruus Drugs Act 1952. [251 On 15/05/2003. a «ram make and amongst several prisoners durmg the diS1HbU|IOH of 7006. As 8 consequence of the fight, Umayachandran suslamed severe Injunes. [251 The warden on duly (oak Ulhayachandvan lo we prison chnlc adr ireatmem Hawever, due In his servers Injuries, Ulhsyschandvan ulwudosantwwr K:mnlHnN:¢mm4i2upvhymvmmunrvlunnrmln//urldHum! mm :2 rnmwr , ham! W rnmrn AMVNNNV .. ‘Mg’ V ~ M. W N-/MM-ausy atmdv mwmwr 7 K... kmmvum KmmmvM4vIVrvI1rm ~.n.d ; rm V Vifiumruwmnm rv/Udxmgnu was taken to Sungat Euloh Hospttat tut turmev treatment. Later at the rtospttat. he was pmnmmcsfl dead. [27] The prtsonevs who were trwnlvsd In the ttght wete chavgsd at the shah Atetn Htgh court and sentenced aocardtngly attet being touno guttty and convicted ot the charges agatrtst then. A1 THE HIGH coum’ A [25] on 20/04/2011, the nesponaente, through thetr mother, met: this actton tot damages for toss ct ttepsntteney Lmdel sectton 7 ot the cm. tn aeottten. the nesponttente eteo claimed aggravated damages and exernotary damages. :29] The Hsspondenls ctathtea that their tether (Jaatat) was nntamutty she! used by the police team. The evmence smmed thex Jaetar never shot at the palms team and thetetore the police team-s contention that they shot the persons in the Fvomn wsja tn sen, eetence was not suppuvted by svtdencs. [30] At the conclusion ot the lull heating, the High coun atsntissed the Hesponflerns‘ claim wtth costs The High coun held that the oottce team was aettng tn seflrdetsnce when they opened the aflsv the dscaased had shot at them. As such the pottce team was pmteetec by seclton 24 otthe Ponce Amt!-167. [31] The Responuents appeatett agatnst that declston lo the Court at Appeat. nun Jow2uNM e non n.nanm 1 n.tn.n...n.ne».t..oottt;.,;.,n 2 wt out; VIM/II/l«!W!—IJntttt \Vr1Kh4HtVbMNM'NrIl/vni W. n InAmn‘pr mtlnmmnoy mm iI—M/MIUM Kflmmrlmtmtfiwt K:vnrrt)1AWrvIMVnMN€[(7H‘ nh.,ct.nn,t».annotho..,.n H42 [:2] The Raapdndam, who Is Kugarfs mother and the admlnislralnx of ms estate and also his dependam, med chm Sui! N0 2\NCVC—7—D\/202 davmlng lnr damages agamst ma Appanama as wan as Navindmn [me am Defendant) lcr neghgence and/or bveach d1 s|a1utory dunes vasulling in Iha daam at me deceaaad when me daaeaaad was under puhoe delenlwon. (3:91 The nespdhdam maimed under SECHUII 7 (2! me cm «or less Of suppovl The Respundenfs claim was BVSO based on section E of me on lor the benelh on ma estate at me deceased. she clawed damages for misveasanea m pubhc aflice. assaun and hallery, and false umpnsanmam and for aggvavstsd damages, sxampkavy damages, vmdlcalcry damages and special damages. [34] AI me concmsion 0! me hearing, me Hugh cdun aflewed me Hespondenrs claim and awavded a iota! M RMBm,700.0D as damages Including the sum oi RM100,000,0l) lor m:a1easance m punuc omee and the sum o1 RMaoa,ooo.ou as exemplavy damages [:5] The Aapeuams appealed sgamsl mat dadsmn m the Ccurl on Appeal ggunl No 53 [:51 The Respvndent, who Is UIhayachandran‘s lalher, med chm sun Na S21-153«/2009 on 01/06/2009 undev secmon 7 do me CLA W Jotxrmlsyvvy e K... yd,,~,,,,. .. 1 ram , am,,.a.;.n.m...,,.n.1.,.¢ ,1 W V!lujSI1III7UI5!W!rDnmlArv1Kh4Mh»4Ahwln:nEUupvNlnflm¢,pI’ ..n.m., mm xv mmzmwr eaan.am,...~. m.a.... m.a,,,d..u W vfllmv mam, »dIMuru¢<»¢ -\n. [311 The essence al the nespandenrs alarm is mar Iha Appsllams had lalled ln than duw Ia ensule Ulhayachandralfs salely WhllS| lrl Ihell cuslody. The Respondent cunlended that he and hls Iamlly smfered anxlely, lnlury re oeellngs and beleavemanl due to the acts. defaults and nmlssluns ol the Awpellams [cw] The Respclndenl sought damages lor loss or suppon, as well as general damages lor paln and suflerlrlg allslrlg «rpm the loss of ms son, and exemplary damages [39] The High Cour| allwed the Respondent‘; clalrn and awarded damages ln me sum (ll RMVQZDOO Im the dependency Clalm, the sum 01 RM10fl,DDO as general damages («or palm and suflanng anelng lrom me Rsspnndenfs lass ol his son; and the sum 01 RMIDOJKIO as exemplary damages [to] The Appellants appealed agalnsl lnal declslon lo the coun ol Appeal. 57 ms COURT or Apwgg Anumfi [41] The com cl Appeal, auer nearmg me parllss, allowed the Rfipandsnls‘ appeal and ruled that me |udgmerlI ol me Hlgh Cclurl showed error 01 law oi a grave nature which Ysqulred me cdun pl Appeal to ml/ervene. [421 The Conn el Appeal neld mal mere was rrornlng In rne grounds ol ludgment ow lne Hlgn Conn mal staled mar me Appsllsnls had discharged rnerr burden of pmvlng sellrdelerlce. m/ydmxmmwl x.war.~...~..:d,l. ~...,m. l..mr.m,;.,.1r.rr nrmez lmzamwl o.r.ra..xrrMmns,.... rnrw Imimn/17‘ nmmra lm/1 u Iolzmlwl am ».r.m.l.Am.W rem M11714 3 run n..~.r.mmrwW..rr

Pytesseract-0.3.10

W-02(IM)(NCVC)-1094-06/2016

PERAYU 1. DATO’ SRI MOHD NAJIB BIN TUN HAJI ABDUL RAZAK (NO. K/P: 530723-06-5165) 2. DATIN PADUKA SERI ROSMAH MANSOR (NO. K/P.: 511210-05-5558) … PERAYU - PERAYU RESPONDEN MOHD RAFIZI RAMLI … RESPONDEN

Tort : Defamation - Defence of fair comment - Application to strike out said defence - Whether impugned statement a comment or an opinion or mere allegation of facts - Whether impugned statement qualified for a defence of fair comment

03/11/2017

YAA TAN SRI ROHANA BINTI YUSUFKorumYAA TAN SRI ROHANA BINTI YUSUFYA TAN SRI IDRUS BIN HARUNYA DATO' MARY LIM THIAM SUAN

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=acdb4194-3134-432e-8e76-0f09a84dfb67&Inline=true

Microsoft Word - DATO' SRI MOHD NAJIB VS RAFIZI 1 DALAM MAHKAMAH RAYUAN MALAYSIA (BIDANG KUASA RAYUAN) RAYUAN SIVIL NO: W-02(IM)(NCVC)-1094-06/2016 ANTARA 1. DATO’ SRI MOHD NAJIB BIN TUN HAJI ABDUL RAZAK (NO. K/P: 530723-06-5165) 2. DATIN PADUKA SERI ROSMAH MANSOR (NO. K/P.: 511210-05-5558) … PERAYU-PERAYU DAN MOHD RAFIZI RAMLI …RESPONDEN (Dalam Perkara Mengenai Mahkamah Tinggi Malaya di Kuala Lumpur Dalam Wilayah Persekutuan, Kuala Lumpur (Bahagian Sivil) Guaman No: 23NCVC-28-04/2015 Antara 1. Dato’ Sri Mohd Najib bin Tun Haji Abdul Razak (No. K/P: 530723-06-5165) 2. Datin Paduka Seri Rosmah Mansor (No. K/P: 511210-05-5558) …Plaintif-Plaintif Dan 1. Mohd Rafizi Ramli 2. Chan Chee Kong (No. K/P: 630326-08-5291) (Berniaga di bawah nama dan gaya “MR MULTIMEDIA”) (No. Syarikat: 001875478) …Defendan-Defendan) 2 DALAM MAHKAMAH RAYUAN MALAYSIA (BIDANG KUASA RAYUAN) RAYUAN SIVIL NO: W-02(IM)(NCVC)-1095-06/2016 ANTARA 1. DATO’ SRI MOHD NAJIB BIN TUN HAJI ABDUL RAZAK (NO. K/P.: 530723-06-5165) 2. DATIN PADUKA SERI ROSMAH MANSOR (NO. K/P.: 511210-05-5558) … PERAYU-PERAYU DAN 1. MOHD RAFIZI RAMLI 2. CHAN CHEE KONG (I/C NO.: 630326-08-5291) (BERNIAGA DI BAWAH NAMA DAN GAYA “MR MULTIMEDIA”) (NO. SYARIKAT: 001875478) …RESPONDEN-RESPONDEN (Dalam Perkara Mahkamah Tinggi Malaya di Kuala Lumpur Dalam Wilayah Persekutuan, Malaysia (Bahagian Sivil) Guaman No: 23NCVC-28-04/2015 Antara 1. Dato’ Sri Mohd Najib bin Tun Haji Abdul Razak (No. K/P: 530723-06-5165) 2. Datin Paduka Seri Rosmah Mansor (No. K/P.: 511210-05-5558) …Plaintif-Plaintif Dan 1. Mohd Rafizi Ramli 2. Chan Chee Kong (No. K/P: 630326-08-5291) (Berniaga di bawah nama dan gaya “MR MULTIMEDIA”) (No. Syarikat: 001875478) …Defendan-Defendan) 3 (An appeal against the decision of YA Dato’ Noraini binti Abdul Rahman, Judge, High Court at Kuala Lumpur made on 15.04.2016) CORAM ROHANA YUSUF, JCA IDRUS HARUN, JCA MARY LIM THIAM SUAN, JCA JUDGMENT OF THE COURT [1] The First Plaintiff is the Prime Minister of Malaysia and the Second Plaintiff is the wife of the First Plaintiff. They filed this suit against the Defendants for defamation. [2] The alleged defamatory remarks were made during a forum in Bandar Tun Razak, Kuala Lumpur on 03.11.2014. At that forum the First Defendant delivered a speech on issues relating to “Oil Subsidies and the Subsequent Effects”. That speech was said to have been uploaded by the Second Defendant himself or by his servants or agents onto Media Rakyat’s Youtube channel at https://www.youtube.com/ watch?v=pgVM9qbnmUA and Media Rakyat’s web page at www. mediarakyat.net which entitled “Rafizi Ramli: Kenapa Kita pertahankan subsidi Minyak” . This was later shared by the Second Defendant or his servants or agents on Media Rakyat’s Facebook page at https://www. https://www.youtube.com/ watch?v=pgVM9qbnmUA https://www.youtube.com/ watch?v=pgVM9qbnmUA http://www.mediarakyat.net/ http://www.mediarakyat.net/ 4 facebook.com/mediarakyatnet?fref=ts (to be collectively referred to as “the Recording”). [3] The Recording contains inter alia the following words which are alleged to be defamatory of the Plaintiffs: “…saya tanya berkali-kali bila nak turun harga minyak takkan bila harga pasaran naik, cepat-cepat kamu naikkan bila turun, duit untung itu kamu simpan dalam poket bagi Rosmah belanja. Mana aci!” “…tiap-tiap bulan kerajaan UMNO Barisan Nasional jimat satu ribu juta, satu ribu juta tahu tak banyak mana satu ribu juta boleh beli dua puluh cincin mahal Rosmah. Satu cincin dia dua puluh juta lebih. Satu ribu juta saya kata pulangkan balik kepada rakyat. Sebab itu duit rakyat, bukan duit bapak kamu punya.” “…masalahnya kalau duit minyak tu sampai dalam poket dia dulu, kalau sampai seratus pakcik, yang sampai kepada rakyat lima ringgit. Sembilan puluh lima ringgit masuk kocek dia dengan masuk beg tangan Rosmah. Sebab itu kita kata dalam Negara Malaysia untuk kita pastikan harta kekayaan minyak itu sampai terus kepada rakyat mesti ada subsidi minyak kerana hanya dengan subsidi minyak dia tak masuk poket Najib dulu dia pergi kepada rakyat…” 5 [4] The Defendants filed two separate defences and in both of which, they raised the defence of Fair Comment and Qualified Privilege. The Defendants also counterclaimed for damages in tort on abuse of process and victimisation. [5] At the High Court, the Plaintiffs filed two separate applications to strike out part of the Defence and Counterclaim of the Defendants. Enclosure 16 is an application by both Plaintiffs to strike out the pleaded defence of Fair Comment in paragraphs 24, 25, 26 and 26A of the First Defendant’s Amended Defence and Counterclaim. Enclosure 21 is an application to strike out the Defence of Fair Comment pleaded in paragraphs 25, 26 and 27 of the Second Defendant’s Defence and Counterclaim. The main ground of the Plaintiffs’ applications are premised on the legal issue that the statements made by the Defendants in the Recording, are not comments but pure allegations of facts, which do not qualify to sustain a defence of Fair Comment. Therefore, learned Plaintiffs’ counsel submitted, the pleaded defence of Fair Comment by the Defendants are obviously unsustainable and liable to be struck out. [6] Since the issues involved in both applications are essentially similar and grounded on the same material facts, parties agreed for 6 Enclosure 16 to be heard by the learned Judge first, the outcome of which, would bind the other application in Enclosure 21. [7] On 15.04.2016, the High Court dismissed Enclosure 16 which consequently led to the dismissal of Enclosure 21. In dismissing the application, the learned trial Judge found that the impugned paragraphs were not clearly unsustainable and were not plainly obvious to merit striking out. Her Ladyship opined that the Court would not be able to make its finding as to whether the impugned statements were not comments purely by looking at the pleadings. According to the learned Judge, in order to determine so, the Court would have to have evidence adduced and heard before the Court. [8] On this decision the Plaintiffs are appealing before us. We have heard the appeals and had unanimously allowed the same. We now set out our reasons for our decision. [9] As we have alluded to earlier, the main thrust of the striking out application in both enclosures is premised on the legal issue that a defence of Fair Comment must be grounded on comments and not statement of facts. Comments must inevitably be based on certain facts. It was further submitted by learned Plaintiffs’ counsel that the statements 7 made by the First Defendant are not comments in nature, but instead they are pure allegation of facts. Learned counsel cited the following paragraph as an example to contend that the statements made by the First Defendant in the Recording, are not grounded on any fact to constitute comments. It was further submitted that the statement as produced below are clearly statements of facts and do not contain any comment or opinion by the maker, the First Defendant: “tahu tak banyak mana satu ribu juta boleh beli dua puluh cincin mahal Rosmah. Satu cincin dia dua puluh Juta lebih. Satu ribu juta saya kata pulangkan balik kepada rakyat. Sebab itu duit rakyat, bukan duit bapak kamu punya.” “…masalahnya kalau duit minyak tu sampai dalam poket dia dulu, kalau sampai seratus pakcik, yang sampai kepada rakyat lima ringgit. Sembilan puluh lima ringgit masuk kocek dia dengan masuk beg tangan Rosmah.” [10] It is a settled law that the defence of Fair Comment is applicable only when the statements made are comments based on certain facts. A statement purportedly based on “facts” alone, or even if it is a case where there is a mixed of facts and comments, until a reader cannot distinguish which are the facts, and which are comments, cannot be shielded under a defence of Fair Comment. 8 [11] The scope of the defence of Fair Comment is well illustrated by the following observation of Fletcher Moulton LJ in Hunt v Star Newspaper Co. Ltd. [1908] 2 KB 319 where it was held that: “In the first place, comment in order to be justifiable as fair comment must appear as comment and must not be so mixed up with the facts that the reader cannot distinguish between what is report and what is comment” [12] The Court of Appeal in Chong Swee Huat & Anor v Lim Shian Ghee [2009] 4 CLJ 113 held that, Fair Comment does not cover assertion of facts but only comments or opinion. In order to succeed on a defence of Fair Comment the words complained of must constitute a comment or an expression of opinion. It was found in that case that, the words complained of were clearly an assertion of facts for which the defence of justification would be more appropriate. [13] The High Court case of Datuk Seri Mohammad Nizar Jamaluddin v Utusan Melayu (M) Bhd [2014[ 2 CLJ 605 held that the statement “Kelmarin, Mohammad Nizar menerusi akaun Twitter miliknya mengeluarkan komen Sultan Johor menyalahguna wang rakyat dalam pembelian nombor plat WWW 1 yang dibida pada harga RM520,000” is not a comment but a statement of fact. In Lee Kuan Yew v Derek Gwyn Davies & Ors [1990] 1 MLJ 390, it was held that in deciding whether the words are 9 facts or comments the applicable test “is whether an ordinary reasonable reader on reading the whole article would understand the words as a comment or a statement of fact.” The Court in that case had further observed that if the facts and comments were so mixed up that one cannot be distinguished from the other, then the defence of Fair Comment would not be available to the defendant. [14] In another Singapore case of Meeran Lebbaik Maullin v J Mohamed Ismail Marican & The Straits Printing Works (1926) 2 MC 85, (at page 96, paragraph 2) in determining whether the impugned document was a comment the Court held that:- “Now in my opinion there is very little in this document which can claim to be comment at all. If it is examined it will be seen that hardly anywhere is there an expression of the writer’s opinion, on the contrary, there are a number of allegations of fact which of course cannot be comment. Had the writers after setting forth the true facts drawn from the deduction that the plaintiffs were Quadianis or Kafirs such an opinion in view of the facts that have been established in this case viz that the plaintiffs belonged to an association the Anjuman-i-Islam which was a branch of the Woking Mission founded by Khwaja Kamal-ud-din an Ahmadiya, would I think have been comment which provided it was honest and without malice would have been entitled to immunity. In this document however the writers are most careful to express no opinion of their own”. 10 [15] Guided by the decided authorities above, we found it clear that in determining whether or not a particular statement before the Court is a comment or otherwise, the Court will have to examine the statement, applying the test of a reasonable person. And it is to be determined on whether or not that statement is an opinion, or a comment which is based on certain facts. There are plethora of authorities which propounded this axiomatic legal principle (see for instance S Ashok Kandiah & Anor v Dato Yalumallai Muthusamy [2011] 1 MLJ 460, Kemsly v Foot [1952] 1 AER 501, Broadway Approvals v Odhams Press (1965) 2 All ER 523). [16] We have scrutinised the Privy Council decision from Singapore in Joshua Benjamin Jeyaratnam v Goh Chok Tong [1989] 3 MLJ 1 cited to us by learned counsel for the Defendants. Learned counsel contended that it would be difficult to differentiate between comments and assertion of facts, hence it would be crucial to identify whether the words complained of are purely assertion of facts, because anything which are not facts are comments. Thus, it would be important and necessary to hear evidence, before such a determination is made. Learned counsel also reminded us that since the Plaintiffs are public figures, they are inevitably opened to comments. 11 [17] Upon our assessment of the decision by the Privy Council in Joshua Benjamin Jeyaratnam v Goh Chok Tong (supra), in our view the decision does not detract from the basic law on Fair Comment. In fact the decision is quite consonant with the trite position that such a defence applies firstly to a statement which is a comment and not a statement of fact. Lord Ackner when delivering the decision of the Privy Council in that case had examined the four elements below, which constitute a defence of Fair Comment: i. the word complained of are comments, although they may consist or include inferences of facts; ii. the comment is a matter of public interest; iii. the comment is based on facts; and iv. the comment is one which a fair minded person can honestly make on the facts proved. Because item ii above was not contested in that case, Lord Ackner proceeded to deliberate on the other three elements. Of relevance to the point of contention before us, is the first item, that is whether the statement in the Recording is a comment or an opinion or a mere allegation of facts as contended by the Plaintiffs. In deliberating on the issue of what amounts to a comment, His Lordship referred to the 12 following paragraph in the 8th edition of Gatley on Libel and Slander which states: Comment is a statement of opinion on facts. It is comment to say that a certain act which a man has done is disgraceful or dishonourable; it is an allegation of fact to say he did the act so criticised… while a comment is usually a statement of opinion as to merits or demerits of conduct, an inference of fact may also be a comment. There are, in the cases, no clear definitions of what is comment. If a statement appears to be one of opinion or conclusion, it is capable of being comment. [18] The difference between what is a comment and what is a statement of fact was demonstrated clearly in that case in relation to the impugned statement therein. It was in relation to a statement made by the respondent against the appellant who spoke at an inaugural meeting of the Singapore Democratic Party. At press conference, after stating that the appellant had spoken at the inaugural meeting, the respondent remarked that the appellant ‘left the hall, and when he left the hall 200 participants left with him’. This part of the statement was found to be clear statement of fact by the Court. The following part of the statement made by the respondent, however, was found to be a comment: I believe the exodus was engineered. I don’t think it was a spontaneous exodus. If it was, it did not speak well for the SDP. It shows that the crowd, the limited crowd still looks toward Mr Jeyaretnam, for the time being as a 13 leader of the opposition. But I am inclined to believe that the exodus was contrived by the leader of the Worker’s Party to show who is boss at this state. And surely Mr Chiam cannot take that trick lightly. In their Lordship’s judgment, it would be opened to the Judge to take a view that an observation made following a statement of facts is either an expression of opinion or a conclusion or inference drawn from those facts, and therefore capable of being a comment. From this observation we can easily deduce that the Court is fully entitled to decide that a particular statement is a comment and not a bare or naked statement of facts when it contains a person’s belief for his conclusion which is based on, or drawn from certain facts. Having given our consideration to it, we found the case of Joshua Benjamin Jeyaratnam v Goh Chok Tong is clearly in support of the Plaintiffs’ proposition that the Court has to firstly determine whether a statement is a comment or not, before determining whether a defence of Fair Comment becomes an available defence to a defendant. [19] The striking out of a defence of Fair Comment is not new, as it was allowed by the Federal Court in Henry Wong Jan Fook v John Lee & Anor [1975] 1 MLJ 231, on the ground that it was not pleaded as a defence of Fair Comment on a matter of public interest. It is therefore 14 not always necessary, in our view for the Court to decide whether a particular statement is a comment or otherwise by adducing evidence from witnesses. By just looking at the pleadings and the pleaded impugned statement in this case, it becomes plain and clear that the statement made by the First Defendant is not an opinion or what the First Defendant believe, or his comment on any particular fact. [20] Learned counsel for the Defendants further contended that the impugned speech must be taken in the context it was made. According to learned counsel when those statements were spoken, they were intended to be humorous, rhetorical or hyperbolic which allow the court to characterise them as comments and not facts. Learned counsel referred us to the 6th edition of Carter –Ruck on Libel and Privacy on the part which discusses the application of a defence of Fair Comment to a matter of public interest. We have no doubt the defence applies only to matters of public interest. We are not determining whether or not the statement in the Recording is a matter of public interest, here. As propounded in Joshua Benjamin Jeyaratnam v Goh Chok Tong, the first thing to look at in the application of the defence of Fair Comment is that the words spoken of must first of all constitute a comment. It is incumbent upon the Defendants firstly to establish that the impugned statement is a comment, an opinion or what the Defendants believe, to 15 qualify for the statement to be characterised as a comment. Thus even before considering the other elements, which constitute Fair Comment as elucidated by Lord Ackner, it is vital that the first element be first established. Besides, it is opened to the Defendants at trial to prove to the Court that the statement was made in jest and cannot be defamatory of the Plaintiffs. That is quite another issue altogether, of which we are not called upon to determine in this appeal. [21] Of course when a comment is based upon facts, it cannot be on the facts invented by the maker himself. It must rest upon facts which are presumed to be true. If the fact never exists then the defence must fail. In line with this requirement, Order 78 rule 3(2) provides for the procedural requisite for particularisation of the facts relied upon in support of any comment or opinion. The Defendants here are duty bound to particularise what are the facts relied upon in order to support that the allegations made are their true beliefs or opinions, and not to leave to the Plaintiffs and finally the Court to speculate, pick and choose for them. [22] It was also an argument of learned counsel for the Defendants that the speech on 22.11.2014 was made at the time when the Government’s excessive spending and wastage and the Plaintiffs’ luxurious lifestyle 16 had become known to the Malaysian public. If that is the intention of the Defendants, the Defendants could have pleaded that the statement made was based on such facts before a defence of Fair Comment could be invoked and relied upon. What is obvious to us is that, the pleaded defence of the Defendants did not set out the facts relied upon and which form the basis of the purported comment as submitted. [23] Our examination of the impugned statement in the present case shows clearly and plainly that it is not a comment but a mere allegation or statement of facts saying that the Plaintiffs have stolen and pocketed people’s monies from the removal of Oil Subsidies for their personal gains. If we were to look at the Speech as a whole and the First Defendant’s defence in paragraphs 24, 25, 26 and 26A, none of the facts pleaded therein support the allegation that the Plaintiffs have stolen and pocketed people’s monies from the removal of the Oil Subsidies for their personal gains to enable a characterisation that the statement is a comment or an opinion premised upon some facts. Without the underlying facts which could form the basis of a comment, the impugned statement cannot be said to be a comment that can qualify for a defence of Fair Comment. 17 [24] In our view the learned High Court Judge had erred in law in deciding that this is not a plain and obvious case for striking out pursuant to Order 18 rule 19 of the Rules of Court 2012. On the facts of the present appeal and guided by the test propounded by the various authorities, we do not find any necessity for further enquiries to decide whether or not the spoken words in this case are comments or otherwise. [25] We have reproduced Paragraph 24 of the First Defendant’s Amended Statement of Defence and Counterclaim below, where the First Defendant merely pleaded that:- “Further and/or in the alternative if and so far as the Words complained of refer to the 1st and 2nd Plaintiffs, they are fair comment made by the 1st Defendant, as a Member of Parliament, in good faith and without malice upon a matter of public interest, which any fair-minded person could have arrived at. The 1st Defendant was in fact questioning the dubious fiscal and economic decisions of the Federal government, headed by the 1st Plaintiff as Prime Minister of Malaysia” The above pleading as an example, undeniably fails to distinguish and detail out which part of the impugned statement is a fact and which part is an opinion or a comment. The Defendant has thereby failed to adhere to the requirements of Order 78 rule 3 (2) of the Rules of Court 2012. 18 [26] For all the reasons above stated we allowed both of the appeals by the Plaintiffs. We allowed the application of the Plaintiffs in Enclosure 16 to strike out paragraphs 24, 25, 26 and 26A of the First Defendant’s Amended Statement of Defence and Counterclaim which relate to the defence of Fair Comment. The decision of which would also apply to Enclosure 21 where paragraphs 25, 26 and 27 of the Defence and Counterclaim of the Second Defendant would stand struck out. The appeals of both Plaintiffs were allowed with costs in the cause. Signed by: ROHANA YUSUF Judge Court of Appeal Malaysia Dated: 3rd November 2017 No. W-02(IM)(NCVC)-1094-06/2016: Counsel for the Appellants: Datuk Mohd Hafarizam Harun Nik Nuraisha Alia Hanafi with him. Tetuan Hafarizam Wan & Aisha Mubarak Suite 13A, Aras 13, Menara Dato’ Onn Jalan Tun Ismail 50480 Kuala Lumpur Counsel for the Respondent: Ranjit Singh Tetuan Sun & Michele J-2-3, Block J, Solaris Mont Kiara No. 2, Jalan Solaris 50480 Kuala Lumpur 19 No. W-02(IM)(NCVC)-1095-06/2016: Counsel for the Appellants: Datuk Mohd Hafarizam Harun and Nik Nuraisha Alia Hanafi with him Tetuan Hafarizam Wan & Aisha Mubarak Suite 13A, Aras 13 Menara Dato’ Onn Jalan Tun Ismail 50480 Kuala Lumpur Counsel for the Respondents: Ng Wai Yen Tetuan Yeoh & Joanne H2-11, Plaza Damas 60 Jalan Sri Hartamas 1 Sri Hartamas 50480 Kuala Lumpur

Tika 2.6.0

J-05(LB)-54-01/2016

PERAYU TAN CHOW CHEANG … PERAYU RESPONDEN PENDAKWA RAYA … RESPONDEN

Criminal Procedure — Appeal — Drug trafficking — Discharge of appellant not amounting to acquittal at the prosecution stage — Prosecution's case — CCTV recording — Defence case that drug was planted at scene of incident — Application of the DPP to continue with the investigation on the issue of CCTV — Whether discharge not amounting to an acquittal valid — Whether the learned High Court Judge was correct when Her Ladyship made the order of DNAA instead of an order for acquittal and discharge — Criminal Procedure Code , Section 254(3), Section 254A; Dangerous Drugs Act 1952 [Act 234], Section 39B(1)(a) Evidence — CCTV recording in pendrive — Witness disputed the time shown on the footage of the impugned CCTV recording — Whether the learned High Court Judge was correct when disallowing to mark the pendrive as evidence — Evidence Act 1950, Section 90A

03/11/2017

YA PUAN SRI DATO' ZALEHA BINTI YUSOFKorumYA DATO' AHMADI BIN HAJI ASNAWIYA PUAN SRI DATO' ZALEHA BINTI YUSOFYA DATUK KAMARDIN BIN HASHIM

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=ecaa1572-ec97-4e1a-9c63-ee03c2eee0ce&Inline=true

DALAM MAHKAMAH RAYUAN MALAYSIA DI PUTRAJAYA BIDANGKUASA RAYUAN RAYUAN JENAYAH NO: J-05(LB)-54-01/2016 ANTARA TAN CHOW CHEANG … PERAYU DAN PENDAKWA RAYA … RESPONDEN (Dalam Perkara Mahkamah Tinggi Malaya di Muar, Johor Perbicaraan Jenayah No. 45A-05-03/2014 Antara Pendakwa Raya Dengan Tan Chow Cheang) KORAM: AHMADI BIN HAJI ASNAWI, HMR ZALEHA BINTI YUSOF, HMR KAMARDIN BIN HASHIM, HMR JUDGMENT [1] The appellant was charged in the High Court at Muar for drug trafficking under Section 39B(1)(a) of the Dangerous Drugs Act 1952. The full trial by the High Court started on 1.9.2015. 3 witnesses gave evidence on that day and the case was then adjourned to 17.9.2015 for continued hearing. [2] On 17.9.2015, during the cross-examination of PW5, Konstabel L/K Amer bin Ilyas, one of the raiding officers involved in the raid, the defence suddenly produced a CCTV recording and applied for it to be viewed by the court as it was their case that the drug was planted. The prosecution was caught by surprise and the case was therefore adjourned to 15.11.2015. [3] On 13.10.2015, the defence handed over the pendrive of the CCTV recording to the prosecution. As the recording was only received on 13.10.2015, the hearing on 15.11.2015 was adjourned to 6.1.2016 pending instruction from the prosecution’s headquarters in Putrajaya. What transpired on 6.1.2016 was not recorded in the notes of proceeding except that it was called up at 2.30p.m and fixed for continued hearing on “12.1.2016, (final)”. [4] On 12.1.2016, PW5 completed his evidence, the CCTV recording was viewed through the pendrive and the pendrive was marked as IDD27 despite the prosecution’s objection. Two certificates under Section 90A of the Evidence Act 1950 were produced and marked as IDD26A and IDD26B. [5] Upon completion of PW5’s evidence, the prosecution made an application under Section 254(3) of the Criminal Procedure Code (‘the CPC’) to discharge the appellant not amounting to an acquittal (DNAA) pending the forensic report of the CCTV recording. The defence on the other hand strongly objected to the DNAA and submitted that the appellant was entitled to be acquitted and discharged as upon the production of the CCTV recording, the sole or main prop in the prosecution case collapsed prematurely. [6] The learned High Court Judge agreed with the prosecution’s request and ordered the appellant to be DNAA. Dissatisfied, the appellant filed the present appeal. The Appeal [7] The issue was whether the learned High Court Judge was correct when Her Ladyship made the order of DNAA instead of an acquittal and discharge (DAA). [8] The appellant relied heavily on the CCTV recording. It was submitted that there was no denial by PW5 that his image was seen on the CCTV. It was also submitted that with the production of exhibits IDD26A and IDD26B, the certificates purportedly issued under subsection 90A(2), the pendrive containing the CCTV recording, IDD27, ought to have been admitted in evidence and consequently marked as D27. IDD26A and IDD26B also ought to have been marked as D26A and D26B respectively as they had already fulfilled the requirements of sub-section 90A(2). [9] The learned High Court Judge in rejecting the appellant’s application to mark IDD27, IDD26A and IDD26B as evidence had, inter alia, stated the following as her reasons: (i) The images shown were not clear or blurred; (ii) Although SP5 admitted that he was there, but he denied the time shown on the footage; (iii) It had not been shown that it was the daily task of the individual who issued IDD26A to operate the said CCTV computer; (iv) IDD26B was not issued by a person from the CCTV computer company. [10] It was the appellant’s contention that the learned High Court Judge erred in refusing to mark IDD26A, IDD26B and IDD27 as D26A, D26B and D27 respectively. Learned counsel for the appellant submitted that the maker of IDD26A was in court during the trial and she could be called to give oral evidence on IDD27 and IDD26A. Learned counsel further submitted that with the marking of the ‘IDDs’ to ‘Ds’, the sole or main prop in the prosecution’s case would have collapsed prematurely and the appellant should be DAA. Our Decision [11] With due respect to learned counsel for the appellant we could not agree with his argument even though IDD26A was certified by a director responsible for the management of the operation of the computer. The learned High Court Judge had averred in her judgment that the image in the video was blurry and PW5 himself had refuted the time shown on it. Subsection 90A(2) provides as follows: “(2) For the purposes of this section it may be proved that a document was produced by a computer in the course of its ordinary use by tendering to the court a certificate signed by a person who either before or after the production of the document by the computer is responsible for the management of the operation of that computer, or for the conduct of the activities for which the computer was used ”. [12] The word used in the subsection is “may”. Hence the production of the certificate in our view is not the conclusive way to prove the pendrive’s admissibility. Especially so when the content was being disputed. To allow it to be admitted in such circumstances in, our view, would be open to abuse. It is not impossible during this era of modern technology for images to be superimposed or tempered with. Therefore it is only safe for witnesses to be called either to confirm or to rebut it. [13] It must also be born in mind that when the application for DNAA was made it was still at the prosecution stage. The burden of proof at this stage was on the prosecution. Therefore it was our view that it was up to the prosecution to prove its case. For that matter, it was up to the prosecution to call whoever and whatever number of witnesses it thought material to prove its case. On the discretion of prosecution to call witnesses, this court in Public Prosecutor v Jufri bin Nanti [2016] MLJU 823 had stated the following: “The learned trial Judge was of the view that the learned deputy was correct in not calling the psychiatrist who did the psychiatric evaluation on the Appellant. The learned trial Judge in doing so had referred to the English case of R v Russell-Jones [1995] 3 All ER 239 (“Russell-Jones case”). In that case, learned Lord Justice Kennedy had occasion to put in perspective the proper role of the prosecutor in deciding who to call to testify in order to forward the prosecution’s case against an accused person. It is a judgement call which the prosecutor will have to decide in line with the general principle that he has the discretion in calling as a Crown witness whom he thinks is appropriate and material in advancing the prosecution’s case. But one thing is clear when a prosecutor decides who to call as his witness for the Crown’s case. It is this: The prosecutor is not obliged to proffer a witness whose only utility would be to enable and to arm the defence to attack and undermine the prosecution’s other witnesses on whose evidence the prosecution relies on to prove its case against the accused person. To impose that duty or obligation on the prosecution would be tantamount to an affront to the essence of what criminal justice jurisprudence is all about. We reproduce that part of his Lordship’s speech on behalf of the English Court of Appeal, like so: “A prosecutor properly exercising his discretion will not therefore be obliged to proffer a witness merely in order to give the defence material with which to attack the credit of other witnesses on whom the Crown relies. To hold otherwise would in truth, be to assert that the prosecution are obliged to call a witness for no purpose other than to assist the defence in its endeavour to destroy the Crown’s own case. No sensible rule of justice could require such a stance to be taken.” We can only record our agreement with the acute observation made by Kennedy LJ in the Russel-Jones case [supra] as really, it has aptly described the proper exercise of prosecutorial discretion in our country when it comes to deciding who to be called and also who not to call, in the overall execution of that important discretion which the law places on the office of the public prosecutor and thus its agents, such as his deputies. That discretion whom to call and whom not to call by the prosecution will ultimately be tested at the end of the prosecution’s case in that it should not leave a material gap in its case against the accused person, for if it does, then it would mean that it has not succeeded in proving a prima facie case against him. In such an instance, then the accused person must be acquitted and discharged from the charge proffered against him, at the end of the prosecution’s case.”. [14] Learned counsel for the appellant had insisted that the prosecution should have called the maker of IDD26A who was then in court, to give evidence so that IDD26A could be marked as D26A. This in our view was not a good proposition. To requote Lord Justice Kennedy in Russell-Jones case, supra, as quoted by this Court in Jufri’s case, supra, “to hold otherwise would in truth, be to assent that the prosecution are obliged to call a witness for no purpose other than to assist the defence in its endeavour to destroy the Crown’s own case”. See also Court of Appeal decision in Kunalan a/l Kandasamy lwn Pendakwa Raya [2014] 3 MLJ 266 and Chong Boon Sim v Public Prosecutor [2015] 3 MLJ 567. [15] The discretionary powers of the Public Prosecutor to institute, conduct or discontinue any criminal proceedings is based on Article 145 of the Federal Constitution as well as section 376 of the CPC. Further, section 254 of the CPC provides as follows: “(1) At any stage of any trial, before the delivery of judgment, the Public Prosecutor may, if he thinks fit, inform the Court that he will not further prosecute the accused upon the charge and thereupon all proceedings on the charge against the accused shall be stayed and the accused shall be discharged of and from the same. (2) At any stage of any trial before a Sessions Court or a Magistrate’s Court before the delivery of judgment, the officer conducting the prosecution may, if he thinks fit, inform the Court that he does not propose further to prosecute the accused upon the charge, and thereupon all proceedings on the charge against the accused may be stayed by leave of the Court and, if so stayed, the accused shall be discharged of and from the same. (3) Such discharge shall not amount to an acquittal unless the Court so directs”. [16] The provision above allows the court to stay the proceeding on the charge and to discharge the accused if the Public Prosecutor declines to prosecute further at any stage. The issue here is whether the discharge should be DNAA or DAA because of the words “unless the court so directs”. [17] It was the appellant’s argument that the order in this instant appeal should be DAA as the prosecution had failed to obtain forensic report even after a few postponements. Learned counsel for the appellant relied on two High Court decisions in Koh Teck Chai v Public Prosecutor [1968] 1 MLJ 166 and Public Prosecutor v Syed Abdul Bahari Shahabuddin [1976] 1 MLJ 87. In Koh Teck Chai case, supra, it was held: “Held: the power enabling the discharge of the accused person without acquitting him is a power which should be exercised sparingly and grudgingly and only where the court is satisfied for good cause shown that the public interest insistently demands that it be used. Our courts have consistently adopted the line that unless some very good ground is shown it would not be right to leave an individual for an indefinite period with a charge hanging over him. In the circumstances of this case the order of the learned magistrate should be varied so that the discharge should amount to an acquittal”. [18] Learned counsel for the appellant also quoted Syed Abdul Bahari, supra, wherein it was inter alia held: “Held: (1) unless there are good grounds to the contrary a discharge under section 254 of the Criminal Procedure Code should amount to an acquittal. Good grounds would arise where the prosecution is unable to proceed for the time being but can satisfy the court that the temporary impediment is not insurmountable and that it will proceed within a reasonable time”. [19] Learned DPP however quoted another High Court decision in Public Prosecutor v Au Seh Chun [1998] 3 CLJ Supp 56 wherein Suriyadi J (as His Lordship then was) in deciding on section 254 of the CPC concluded as follows: “To conclude on the matter at hand, there was no justification for the learned Magistrate to issue the order of discharge not amounting to an acquittal, in the circumstances of the case when: 1. there was nothing to show that the charge was groundless (s.173(g)) ; 2. it is absurd to think that he could nonchalantly brush aside the constitutional powers of the Attorney General conferred under art. 145(3) of the Federal Constitution; 3. no inherent powers similar to that of subordinate courts in England; 4. the basis of the non-adherence of the orders for the prosecution to supply the documents were never complied with in accordance with s.51 of the Criminal Procedure Code. Even if the provision of s.51 of the Code had been complied with by the learned Magistrate that non-cooperation by the prosecution did not empower or entitle him to pronounce that relevant order; 5. there was no indication that the Public Prosecutor agreed to his act; and 6. there was absolutely no valid reason recorded in the notes of proceeding as to the basis of his order. In the circumstances of the case, the learned Magistrate should have postponed the case as he was rich in the grounds towards that direction and short in valid grounds for the discharge order. By virtue of the above reasons I had no hesitation in setting aside the court’s order below and reinstate the case before him”. [20] We noted that all the cases quoted were pre 2010 cases. In 2010 the CPC was amended to include the following provision:- “Section 254A. Reinstatement of trial after discharge. (1) Subject to subsection (2), where an accused has been given a discharge by the Court and he is recharged for the same offence, his trial shall be reinstated and be continued as if there had been no such order given. (2) Subsection (1) shall only apply where witnesses have been called to give evidence at the trial before the order for a discharge has been given by the Court”. [21] With the new provision of Section 254A, if an accused is DNAA, he can be recharged and the case is to continue from where it stopped. This in our opinion only shows that the decision to DNAA by the learned High Court Judge as in this instant is not a final decision. It was made on the application of the DPP to continue with the investigation on the issue of CCTV. Even the investigation officer has yet to be called. Therefore we opined, it was premature at this stage for the order made be appealed against. [22] Let us reiterate here that the power to prosecute a case is upon the Public Prosecutor. Salleh Abas L.P in Public Prosecutor v Zainuddin & Anor [1986] 2 MLJ 100 at page 102 had stated as follows: “Section 376 empowers the Attorney-General who is also the Public Prosecutor to control and give direction over and in respect of all criminal prosecutions and proceedings, whilst Article 145 (3) declares that “the Attorney-General shall have power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for an offence,…” Since the Attorney-General has this power exercisable at his discretion, it is not for the Court to say when the prosecution has to close its case or has to come to an end merely because it is unable to obtain a postponement in order to produce evidence which will prove the offence against the accused, and thus acquit him on the basis of no evidence or on the basis of the evidence thus far produced without waiting for the evidence for which postponement is sought, citing as an authority a burden of proof principle that it is for the prosecution to prove the guilt of the accused. Of course, the prosecution has the duty to do so, but the Court has no power to stop the prosecution from performing its duty by acquitting without hearing evidence. Moreover this burden of proof principle will be applicable only when the prosecution has called all the evidence which it wishes to produce in support of its case, including the evidence which is not capable of being produced at the trial without the necessity of a postponement.”. [23] In conclusion, we found no merit in this appeal. We affirmed the decision of the learned High Court Judge to DNAA the appellant and this appeal was therefore dismissed. t.t Dated: 3 November 2017 (ZALEHA BINTI YUSOF) Judge Court of Appeal Malaysia For the Appellant: LEE HAN YEN FIRUS BINTI SAID Tetuan Lee Han Yen & Co Peguambela & Peguamcara No. 114A, Tingkat 1 Jalan Pengkai 83000 Batu Pahat JOHOR DARUL TAKZIM. For the Respondent: ISWA BINTI TONIE Timbalan Pendakwa Raya Bahagian Perbicaraan Dan Rayuan Jabatan Peguam Negara, PUTRAJAYA. 15

Tika 2.6.0

J-05(LB)-54-01/2016

PERAYU TAN CHOW CHEANG … PERAYU RESPONDEN PENDAKWA RAYA … RESPONDEN

Criminal Procedure — Appeal — Drug trafficking — Discharge of appellant not amounting to acquittal at the prosecution stage — Prosecution's case — CCTV recording — Defence case that drug was planted at scene of incident — Application of the DPP to continue with the investigation on the issue of CCTV — Whether discharge not amounting to an acquittal valid — Whether the learned High Court Judge was correct when Her Ladyship made the order of DNAA instead of an order for acquittal and discharge — Criminal Procedure Code , Section 254(3), Section 254A; Dangerous Drugs Act 1952 [Act 234], Section 39B(1)(a) Evidence — CCTV recording in pendrive — Witness disputed the time shown on the footage of the impugned CCTV recording — Whether the learned High Court Judge was correct when disallowing to mark the pendrive as evidence — Evidence Act 1950, Section 90A

03/11/2017

YA PUAN SRI DATO' ZALEHA BINTI YUSOFKorumYA DATO' AHMADI BIN HAJI ASNAWIYA PUAN SRI DATO' ZALEHA BINTI YUSOFYA DATUK KAMARDIN BIN HASHIM

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=ecaa1572-ec97-4e1a-9c63-ee03c2eee0ce&Inline=true

DALAM MAHKAMAH RAYUAN MALAYSIA DI PUTRAJAYA BIDANGKUASA RAYUAN RAYUAN JENAYAH NO: J-05(LB)-54-01/2016 ANTARA TAN CHOW CHEANG … PERAYU DAN PENDAKWA RAYA … RESPONDEN (Dalam Perkara Mahkamah Tinggi Malaya di Muar, Johor Perbicaraan Jenayah No. 45A-05-03/2014 Antara Pendakwa Raya Dengan Tan Chow Cheang) KORAM: AHMADI BIN HAJI ASNAWI, HMR ZALEHA BINTI YUSOF, HMR KAMARDIN BIN HASHIM, HMR JUDGMENT [1] The appellant was charged in the High Court at Muar for drug trafficking under Section 39B(1)(a) of the Dangerous Drugs Act 1952. The full trial by the High Court started on 1.9.2015. 3 witnesses gave evidence on that day and the case was then adjourned to 17.9.2015 for continued hearing. [2] On 17.9.2015, during the cross-examination of PW5, Konstabel L/K Amer bin Ilyas, one of the raiding officers involved in the raid, the defence suddenly produced a CCTV recording and applied for it to be viewed by the court as it was their case that the drug was planted. The prosecution was caught by surprise and the case was therefore adjourned to 15.11.2015. [3] On 13.10.2015, the defence handed over the pendrive of the CCTV recording to the prosecution. As the recording was only received on 13.10.2015, the hearing on 15.11.2015 was adjourned to 6.1.2016 pending instruction from the prosecution’s headquarters in Putrajaya. What transpired on 6.1.2016 was not recorded in the notes of proceeding except that it was called up at 2.30p.m and fixed for continued hearing on “12.1.2016, (final)”. [4] On 12.1.2016, PW5 completed his evidence, the CCTV recording was viewed through the pendrive and the pendrive was marked as IDD27 despite the prosecution’s objection. Two certificates under Section 90A of the Evidence Act 1950 were produced and marked as IDD26A and IDD26B. [5] Upon completion of PW5’s evidence, the prosecution made an application under Section 254(3) of the Criminal Procedure Code (‘the CPC’) to discharge the appellant not amounting to an acquittal (DNAA) pending the forensic report of the CCTV recording. The defence on the other hand strongly objected to the DNAA and submitted that the appellant was entitled to be acquitted and discharged as upon the production of the CCTV recording, the sole or main prop in the prosecution case collapsed prematurely. [6] The learned High Court Judge agreed with the prosecution’s request and ordered the appellant to be DNAA. Dissatisfied, the appellant filed the present appeal. The Appeal [7] The issue was whether the learned High Court Judge was correct when Her Ladyship made the order of DNAA instead of an acquittal and discharge (DAA). [8] The appellant relied heavily on the CCTV recording. It was submitted that there was no denial by PW5 that his image was seen on the CCTV. It was also submitted that with the production of exhibits IDD26A and IDD26B, the certificates purportedly issued under subsection 90A(2), the pendrive containing the CCTV recording, IDD27, ought to have been admitted in evidence and consequently marked as D27. IDD26A and IDD26B also ought to have been marked as D26A and D26B respectively as they had already fulfilled the requirements of sub-section 90A(2). [9] The learned High Court Judge in rejecting the appellant’s application to mark IDD27, IDD26A and IDD26B as evidence had, inter alia, stated the following as her reasons: (i) The images shown were not clear or blurred; (ii) Although SP5 admitted that he was there, but he denied the time shown on the footage; (iii) It had not been shown that it was the daily task of the individual who issued IDD26A to operate the said CCTV computer; (iv) IDD26B was not issued by a person from the CCTV computer company. [10] It was the appellant’s contention that the learned High Court Judge erred in refusing to mark IDD26A, IDD26B and IDD27 as D26A, D26B and D27 respectively. Learned counsel for the appellant submitted that the maker of IDD26A was in court during the trial and she could be called to give oral evidence on IDD27 and IDD26A. Learned counsel further submitted that with the marking of the ‘IDDs’ to ‘Ds’, the sole or main prop in the prosecution’s case would have collapsed prematurely and the appellant should be DAA. Our Decision [11] With due respect to learned counsel for the appellant we could not agree with his argument even though IDD26A was certified by a director responsible for the management of the operation of the computer. The learned High Court Judge had averred in her judgment that the image in the video was blurry and PW5 himself had refuted the time shown on it. Subsection 90A(2) provides as follows: “(2) For the purposes of this section it may be proved that a document was produced by a computer in the course of its ordinary use by tendering to the court a certificate signed by a person who either before or after the production of the document by the computer is responsible for the management of the operation of that computer, or for the conduct of the activities for which the computer was used ”. [12] The word used in the subsection is “may”. Hence the production of the certificate in our view is not the conclusive way to prove the pendrive’s admissibility. Especially so when the content was being disputed. To allow it to be admitted in such circumstances in, our view, would be open to abuse. It is not impossible during this era of modern technology for images to be superimposed or tempered with. Therefore it is only safe for witnesses to be called either to confirm or to rebut it. [13] It must also be born in mind that when the application for DNAA was made it was still at the prosecution stage. The burden of proof at this stage was on the prosecution. Therefore it was our view that it was up to the prosecution to prove its case. For that matter, it was up to the prosecution to call whoever and whatever number of witnesses it thought material to prove its case. On the discretion of prosecution to call witnesses, this court in Public Prosecutor v Jufri bin Nanti [2016] MLJU 823 had stated the following: “The learned trial Judge was of the view that the learned deputy was correct in not calling the psychiatrist who did the psychiatric evaluation on the Appellant. The learned trial Judge in doing so had referred to the English case of R v Russell-Jones [1995] 3 All ER 239 (“Russell-Jones case”). In that case, learned Lord Justice Kennedy had occasion to put in perspective the proper role of the prosecutor in deciding who to call to testify in order to forward the prosecution’s case against an accused person. It is a judgement call which the prosecutor will have to decide in line with the general principle that he has the discretion in calling as a Crown witness whom he thinks is appropriate and material in advancing the prosecution’s case. But one thing is clear when a prosecutor decides who to call as his witness for the Crown’s case. It is this: The prosecutor is not obliged to proffer a witness whose only utility would be to enable and to arm the defence to attack and undermine the prosecution’s other witnesses on whose evidence the prosecution relies on to prove its case against the accused person. To impose that duty or obligation on the prosecution would be tantamount to an affront to the essence of what criminal justice jurisprudence is all about. We reproduce that part of his Lordship’s speech on behalf of the English Court of Appeal, like so: “A prosecutor properly exercising his discretion will not therefore be obliged to proffer a witness merely in order to give the defence material with which to attack the credit of other witnesses on whom the Crown relies. To hold otherwise would in truth, be to assert that the prosecution are obliged to call a witness for no purpose other than to assist the defence in its endeavour to destroy the Crown’s own case. No sensible rule of justice could require such a stance to be taken.” We can only record our agreement with the acute observation made by Kennedy LJ in the Russel-Jones case [supra] as really, it has aptly described the proper exercise of prosecutorial discretion in our country when it comes to deciding who to be called and also who not to call, in the overall execution of that important discretion which the law places on the office of the public prosecutor and thus its agents, such as his deputies. That discretion whom to call and whom not to call by the prosecution will ultimately be tested at the end of the prosecution’s case in that it should not leave a material gap in its case against the accused person, for if it does, then it would mean that it has not succeeded in proving a prima facie case against him. In such an instance, then the accused person must be acquitted and discharged from the charge proffered against him, at the end of the prosecution’s case.”. [14] Learned counsel for the appellant had insisted that the prosecution should have called the maker of IDD26A who was then in court, to give evidence so that IDD26A could be marked as D26A. This in our view was not a good proposition. To requote Lord Justice Kennedy in Russell-Jones case, supra, as quoted by this Court in Jufri’s case, supra, “to hold otherwise would in truth, be to assent that the prosecution are obliged to call a witness for no purpose other than to assist the defence in its endeavour to destroy the Crown’s own case”. See also Court of Appeal decision in Kunalan a/l Kandasamy lwn Pendakwa Raya [2014] 3 MLJ 266 and Chong Boon Sim v Public Prosecutor [2015] 3 MLJ 567. [15] The discretionary powers of the Public Prosecutor to institute, conduct or discontinue any criminal proceedings is based on Article 145 of the Federal Constitution as well as section 376 of the CPC. Further, section 254 of the CPC provides as follows: “(1) At any stage of any trial, before the delivery of judgment, the Public Prosecutor may, if he thinks fit, inform the Court that he will not further prosecute the accused upon the charge and thereupon all proceedings on the charge against the accused shall be stayed and the accused shall be discharged of and from the same. (2) At any stage of any trial before a Sessions Court or a Magistrate’s Court before the delivery of judgment, the officer conducting the prosecution may, if he thinks fit, inform the Court that he does not propose further to prosecute the accused upon the charge, and thereupon all proceedings on the charge against the accused may be stayed by leave of the Court and, if so stayed, the accused shall be discharged of and from the same. (3) Such discharge shall not amount to an acquittal unless the Court so directs”. [16] The provision above allows the court to stay the proceeding on the charge and to discharge the accused if the Public Prosecutor declines to prosecute further at any stage. The issue here is whether the discharge should be DNAA or DAA because of the words “unless the court so directs”. [17] It was the appellant’s argument that the order in this instant appeal should be DAA as the prosecution had failed to obtain forensic report even after a few postponements. Learned counsel for the appellant relied on two High Court decisions in Koh Teck Chai v Public Prosecutor [1968] 1 MLJ 166 and Public Prosecutor v Syed Abdul Bahari Shahabuddin [1976] 1 MLJ 87. In Koh Teck Chai case, supra, it was held: “Held: the power enabling the discharge of the accused person without acquitting him is a power which should be exercised sparingly and grudgingly and only where the court is satisfied for good cause shown that the public interest insistently demands that it be used. Our courts have consistently adopted the line that unless some very good ground is shown it would not be right to leave an individual for an indefinite period with a charge hanging over him. In the circumstances of this case the order of the learned magistrate should be varied so that the discharge should amount to an acquittal”. [18] Learned counsel for the appellant also quoted Syed Abdul Bahari, supra, wherein it was inter alia held: “Held: (1) unless there are good grounds to the contrary a discharge under section 254 of the Criminal Procedure Code should amount to an acquittal. Good grounds would arise where the prosecution is unable to proceed for the time being but can satisfy the court that the temporary impediment is not insurmountable and that it will proceed within a reasonable time”. [19] Learned DPP however quoted another High Court decision in Public Prosecutor v Au Seh Chun [1998] 3 CLJ Supp 56 wherein Suriyadi J (as His Lordship then was) in deciding on section 254 of the CPC concluded as follows: “To conclude on the matter at hand, there was no justification for the learned Magistrate to issue the order of discharge not amounting to an acquittal, in the circumstances of the case when: 1. there was nothing to show that the charge was groundless (s.173(g)) ; 2. it is absurd to think that he could nonchalantly brush aside the constitutional powers of the Attorney General conferred under art. 145(3) of the Federal Constitution; 3. no inherent powers similar to that of subordinate courts in England; 4. the basis of the non-adherence of the orders for the prosecution to supply the documents were never complied with in accordance with s.51 of the Criminal Procedure Code. Even if the provision of s.51 of the Code had been complied with by the learned Magistrate that non-cooperation by the prosecution did not empower or entitle him to pronounce that relevant order; 5. there was no indication that the Public Prosecutor agreed to his act; and 6. there was absolutely no valid reason recorded in the notes of proceeding as to the basis of his order. In the circumstances of the case, the learned Magistrate should have postponed the case as he was rich in the grounds towards that direction and short in valid grounds for the discharge order. By virtue of the above reasons I had no hesitation in setting aside the court’s order below and reinstate the case before him”. [20] We noted that all the cases quoted were pre 2010 cases. In 2010 the CPC was amended to include the following provision:- “Section 254A. Reinstatement of trial after discharge. (1) Subject to subsection (2), where an accused has been given a discharge by the Court and he is recharged for the same offence, his trial shall be reinstated and be continued as if there had been no such order given. (2) Subsection (1) shall only apply where witnesses have been called to give evidence at the trial before the order for a discharge has been given by the Court”. [21] With the new provision of Section 254A, if an accused is DNAA, he can be recharged and the case is to continue from where it stopped. This in our opinion only shows that the decision to DNAA by the learned High Court Judge as in this instant is not a final decision. It was made on the application of the DPP to continue with the investigation on the issue of CCTV. Even the investigation officer has yet to be called. Therefore we opined, it was premature at this stage for the order made be appealed against. [22] Let us reiterate here that the power to prosecute a case is upon the Public Prosecutor. Salleh Abas L.P in Public Prosecutor v Zainuddin & Anor [1986] 2 MLJ 100 at page 102 had stated as follows: “Section 376 empowers the Attorney-General who is also the Public Prosecutor to control and give direction over and in respect of all criminal prosecutions and proceedings, whilst Article 145 (3) declares that “the Attorney-General shall have power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for an offence,…” Since the Attorney-General has this power exercisable at his discretion, it is not for the Court to say when the prosecution has to close its case or has to come to an end merely because it is unable to obtain a postponement in order to produce evidence which will prove the offence against the accused, and thus acquit him on the basis of no evidence or on the basis of the evidence thus far produced without waiting for the evidence for which postponement is sought, citing as an authority a burden of proof principle that it is for the prosecution to prove the guilt of the accused. Of course, the prosecution has the duty to do so, but the Court has no power to stop the prosecution from performing its duty by acquitting without hearing evidence. Moreover this burden of proof principle will be applicable only when the prosecution has called all the evidence which it wishes to produce in support of its case, including the evidence which is not capable of being produced at the trial without the necessity of a postponement.”. [23] In conclusion, we found no merit in this appeal. We affirmed the decision of the learned High Court Judge to DNAA the appellant and this appeal was therefore dismissed. t.t Dated: 3 November 2017 (ZALEHA BINTI YUSOF) Judge Court of Appeal Malaysia For the Appellant: LEE HAN YEN FIRUS BINTI SAID Tetuan Lee Han Yen & Co Peguambela & Peguamcara No. 114A, Tingkat 1 Jalan Pengkai 83000 Batu Pahat JOHOR DARUL TAKZIM. For the Respondent: ISWA BINTI TONIE Timbalan Pendakwa Raya Bahagian Perbicaraan Dan Rayuan Jabatan Peguam Negara, PUTRAJAYA. 15

Tika 2.6.0

WA-22NCC-59-02/2017

PLAINTIF BUKIT BARU VILLA DEFENDAN AMBER SPECTRA SDN BHD (D4)

02/11/2017

YA TUAN MOHD NAZLAN BIN MOHD GHAZALI

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=a40bc30c-df27-4a86-8d68-18994346b473&Inline=true

DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR DALAM WILAYAH PERSEKUTUAN, MALAYSIA (BAHAGIAN DAGANG) GUAMAN NO: WA-22NCC-59-02/2017 ANTARA BUKIT BARU VILLAS SDN BHD (NO.SYARIKAT:8000208-D) ...PLAINTIF DAN 1. YEOH TEEN EAM (NO.K/P: 590405-07-6023) 2. WONG SHAN MAY (NO.K/P: 670516-10-6184) 3. ZAIHAZRI BIN ZAINI (NO.K/P: 781008-10-5523 4. AMBER SPECTRA SDN BHD (NO.SYARIKAT: 1083602-P) 5. YONG CHEN LIM (rakan kongsi dan beramal di Tetuan Yong Chen Lin Saridah) ...DEFENDAN-DEFENDAN DI HADAPAN YANG ARIF TUAN MOHD NAZLAN BIN MOHD GHAZALI HAKIM JUDGMENT Introduction [1] This case concerns two applications, filed by the fourth and fifth defendants in enclosures 21 and 23, respectively, to strike out the statement of claim of the plaintiff. At the conclusion of the hearing of both applications which were heard together, I allowed the same and highlighted the key reasons for my decision. This judgment contains the full grounds for my decision. Key Background Facts The Parties [2] The plaintiff, a private limited company, was at all material times, the registered and beneficial owner of two pieces of land held under Geran GRN 11210, Lot 122, Bandar Bukit Baru, Seksyen III and Geran GM 3191, Lot 9200, Mukim Bukit Baru; both in Daerah Melaka Tengah (‘the Lands”). [3] The first defendant and the second defendant were, respectively, a director and the company secretary of the plaintiff company at the material time. The third defendant is also a director of the plaintiff. The fourth defendant is a private limited company and the purchaser of the Lands from the plaintiff. The fifth defendant is an advocate and solicitor handling the purchase transaction for the fourth defendant. The Sale of the Lands [4] In pursuance of an option to purchase, the plaintiff had granted an option to one Aw Boon Huan (“ABH”) and/or his buyer to purchase the Lands at the purchase price of RM6,209,400.00, and subject to the terms and conditions stipulated therein. [5] ABH then on 30 December 2015 managed to secure the fourth defendant to purchase the Lands. The law firm of the fifth defendant, where he is a partner, Messrs Yong Chen Lim & Saridah (“Messrs YCLS”) were retained by the fourth defendant to act on behalf of the fourth defendant, as the purchaser in the transaction. [6] In its letter dated 11 January 2016, the fifth defendant informed the plaintiff that a sum of RM500,000.00, being the earnest deposit for the purchase price of the Lands had been paid by the fourth defendant to the plaintiff’s account. It was also stated in the letter that a draft sale and purchase agreement had been emailed to the plaintiff’s solicitors, Messrs Kamil Hashim Raj & Lim (“Messrs KHRL”) and also that the fourth defendant had additionally deposited the balance 20% of the purchase price in the sum of RM741,880.00 with the fifth defendant. [7] In response, in its letter of undertaking and confirmation dated 14 January 2016 to the fourth defendant, the plaintiff acknowledged receipt of the said sum of the balance 20% of the purchase price and gave an undertaking to forward to the solicitors for the fourth defendant, Messrs YCLS the documents stated as follows:- (1) Two sets of the duly certified true copies of the plaintiff’s Memorandum and Articles of Association, forms 24, 44, and 49 of the Companies Act 1965; (2) Duly certified true copies of the plaintiff’s members’ resolution and directors’ resolutions sanctioning the sale of the Lands; (3) The Memorandum of Transfer in respect of the Lands; (4) Duly paid quit rent and assessment receipt for the year 2016 in respect of the Lands; and (5) Any other relevant documents for registration. [8] A letter of similar effect, albeit undated was also sent by the plaintiff to Messrs YCLS, acknowledging receipt of the balance of the 20% deposit of the purchase price. [9] This then resulted in the execution of the sale and purchase agreement dated 20 January 2016 by the plaintiff as vendor and the fourth defendant as purchaser, wherein the plaintiff agreed to sell and the fourth defendant agreed to purchase the Lands for a consideration sum of RM6,209,400 as the purchase price (“the SPA”). [10] In line with the requirements of the terms of the SPA, the following documents had been executed by the plaintiff, as delivered by Messrs KHRL, the solicitors for the plaintiff, to Messrs YCLS, as the solicitors for the purchaser (fourth defendant), for purposes of transferring the Lands to the fourth defendant:- (1) the Memorandum of Transfer (“MOT”); (2) the directors’ circular resolution and members’ circular resolution, both dated 20th January 2016 (“Resolution”); (3) the certified true copies of the plaintiff’s forms 24, 44 and 49 of the Companies Act 1965; (4) the certified true copy of the memorandum and articles of association of the plaintiff (“M&A”); (5) the original redemption letter cum undertaking by the plaintiff’s financier; (6) the certified true copies of the identity card of the plaintiff’s directors; (7) the statutory declaration in relation to the plaintiff’s solvency (“the SD”); and (8) the plaintiff’s letter of undertaking in favour of the fourth defendant’s financier. [11] As part of the standard conveyancing process, on or around 20 April 2016, the Inland Revenue Board of Malaysia (“LHDN”) issued two (2) notices of assessment/adjudication for the proposed transfer of each of the Lands, for the amounts of RM132,234.00 and RM42,051.00, respectively (“the Stamp Duties”). The Stamp Duties were paid by the fourth defendant on 26 April 2016. Significantly, on the basis of the assessment by LHDN, the Lands were valued as the same purchase consideration agreed in the SPA. [12] It is common ground that the fourth defendant had subsequently fully paid the purchase price for the Lands in accordance with the terms of the SPA. [13] The Lands were then duly registered in the name of the fourth defendant, on or around 27 April 2016. Public Islamic Bank Berhad was registered as the chargee of the Lands. [14] However, in February 2017, the plaintiff commenced the underlying writ action against the defendants. The Writ Action [15] In its statement of claim, the key allegation raised by the plaintiff levelled against all the defendants is that the sale transaction of the Lands to the fourth defendant was tainted with fraud, misappropriation, deceit, breach of trust, as well as forgery of documents and signatures and/or mala fide by the defendants. Thus in respect of the first, second and third defendants who were company officials at the material time, the plaintiff asserted that neither the plaintiff nor its directors or shareholders had knowledge of the sale, and that none of the transaction documents were signed by the plaintiff or authorized by company resolution. [16] The plaintiff further denied and disputed the various key sale transaction documents on the sale of the Lands to the fourth defendant, including the option signed by the first defendant and ABH, the SPA, the directors’ and members’ circular resolutions on the SPA, both dated 20 January 2016, and the From 14A. The plaintiff’s claim against the fifth defendant revolved around the allegation that the latter had failed to perform the requisite due diligence in the discharge of his duties as the solicitor handling the sale transaction. [17] A specific complaint of the plaintiff against the fifth defendant is that the latter had failed to undertake a proper company search of the plaintiff at the Companies Commission of Malaysia (CCM) to confirm the directors of the plaintiff. The plaintiff contended that despite the search results as contained in exhibit “YCL-15” accompanying the affidavit showing that the third defendant was not the new director as alleged by the fifth defendant, the fifth defendant regardless proceeded with the sale, causing the fraudulent transfer of the Lands from the plaintiff to the fourth defendant. [18] It is important to note that the applications herein are only filed by the fourth and fifth defendants, for the plaintiff has as a matter of fact, managed to obtain judgments in default against both the first and third defendants on 3 May 2017 who were at all material times directors of the plaintiff company, with damages to be assessed. Essence Of Arguments Of Parties In These Striking Out Applications [19] These applications are instituted by the fourth and fifth defendants. The crux of the former’s case which formed the basis of its striking out application in enclosure 21 is that the fourth defendant had acted in good faith without notice of any alleged irregularities in any of the documents concerning the transaction. The fourth defendant argued that the plaintiff’s affidavit in reply to the fourth defendant’s affidavit in support of this application failed to disclose evidence to substantiate its many allegations and averments. The shortcoming in the lack of particularisation of the circumstances of fraud levelled against the fourth defendant is not only impairing the statement of claim but also further worsened by the bare affidavit averments of the plaintiff in resisting this application, all of which, according to the fourth defendant, justifiably render the claim to be one that is obviously unsustainable and ought to be struck out. [20] The fifth defendant similarly argued that the plaintiff had simply denied knowledge on its part and made bare denial and allegations of fraud and conspiracy but was unable to contradict the fifth defendant’s averment or to adequately substantiate its claim with credible evidence, to the extent that the fifth defendant’s averments must be taken to be true pursuant to the leading authority of Ng Hee Thoong & Anor v Public Bank Bhd [1995] 1 MLJ 28. The thrust of the fifth defendant’s contention is that the plaintiff’s case must fail since the sale of the Lands (and all documents relating thereto, none of which was created by the fifth defendant) was valid and regular, particularly since the plaintiff was represented by Messrs KHRL in the sale, and that the fourth defendant had paid the purchase price as stipulated under the SPA, which has even been duly acknowledged by the plaintiff. [21] The plaintiff, in its opposition to these applications, on the other hand argued that based on affidavits filed by parties, it was apparent that there are numerous arguable points which are serious in nature and warranting a full trial. It is important to call witnesses to establish the truth and at the same time facilitate the disposal of the case. The plaintiff submitted that case-law authorities would favour the instant case to be fully ventilated at trial, and referred to two cases which I shall only refer briefly herein. The first is Sivarasa Rasiah & Ors v Che Hamzah Che Ismail & Ors [2012] 1 MLJ 473 where the Court ruled:- “A striking out order should not be made summarily by the court if there is issue of law that requires lengthy argument and mature consideration. It should also not be made if there is issue of fact that is capable of resolution only after taking viva once evidence during trial”. [22] The second is the case of Zakaria Bin Mohamad Esa v Dato’ Abdul Aziz Bin Ahmad & ors [1985] 2 MLJ 222 which held that:- “It is settled rule in this type of application that the pleading must be read as a whole, each paragraph must be viewed in relation to others and cannot be viewed in isolation.” [23] The plaintiff emphasised that there are many issues concerning the purported sale transaction which were tainted with fraud, misappropriation, deceit, breach of trust, forgery and/or mala fide on the part of the defendants, and in respect of which a police report had also been lodged, which should therefore be resolved in a trial proper. The case should thus not be summarily struck out without the examination of witnesses in full trial. In short, the plaintiff submitted that its claim is far from being obviously unsustainable to justify a striking out at this stage. Evaluation & Findings of this Court The Law on Striking Out - Summary [24] This is a striking out application. So I should only briefly refer to the already trite law on striking out, apart from which authority is also part of the inherent jurisdiction of the Court, is primarily contained in Order 18 r 19 (1) which states: “19. Striking out pleadings and endorsements (O 18 r 19) (1) The Court may at any stage of the proceedings order to be struck out or amended any pleading or the endorsement, of any writ in the action, or anything in any pleading or in the endorsement, on the ground that- (a) it discloses no reasonable cause of action or defence, as the case may be; (b) it is scandalous, frivolous or vexatious: (c) it may prejudice, embarrass or delay the fair trial of the action; or (d) it is otherwise an abuse of the process of the Court, and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be.” [25] The defendants in the instant case relied on limbs (b) and (d). Thus it was submitted that the claim of the plaintiff is vexatious and frivolous and that it otherwise tantamount to an abuse of court process. [26] The leading authority on Order 18 r 19(1) of the RC 2012 is the Supreme Court decision in Bandar Builder Sdn Bhd v United Malayan Banking Corporation Bhd [1993] 3 MLJ 36, and in particular the following part of the judgment of Mohamed Dzaiddin SCJ (later Chief Justice):- “The principles upon which the Court acts in exercising its power under any of the four limbs of O. 18 r. 19(1) Rules of the High Court are well settled. It is only in plain and obvious cases that recourse should be had to the summary process under this rule (per Lindley M.R. in Hubbuck v. Wilkinson [1899] 1 QB 86, p. 91), and this summary procedure can only be adopted when it can be clearly seen that a claim or answer is on the face of it "obviously unsustainable" (Attorney-General of Duchy of Lancaster v. L. & N.W. Ry. Co. [1892] 3 Ch. 274, CA). It cannot be exercised by a minute examination of the documents and facts of the case, in order to see whether the party has a cause of action or a defence (Wenlock v. Moloney [1965] 1 WLR 1238; [1965] 2 All ER 871, CA.). The authorities further show that if there is a point of law which requires serious discussion, an objection should be taken on the pleadings and the point set down for argument under O. 33 r. 3 which is in pari materia with our O. 33 r. 2 Rules of the High Court) (Hubbuck v. Wilkinson) (supra).  The Court must be satisfied that there is no reasonable cause of action or that the claims are frivolous or vexatious or that the defences raised are not arguable”. [27] It is well established that the power of the Court to strike out under the four grounds of Order 18 r 19(1) is to be exercised when it can clearly be determined that a claim or answer is prime facie obviously unsustainable. It is also only to be invoked sparingly (see Affin Bank Bhd v. Eye Bee Sdn Bhd [2005] 7 MLJ 1). [28] It could also be said that as for limb (b), the test is the same consideration on the claim being obviously unsustainable and that for limb (d), it arises when the process of the Court is not used in a bona fide manner and has been abused (see the Court of Appeal decision in Harapan Permai Sdn Bhd v Sabah Forest Industries Sdn Bhd [2011] 2 MLJ 192) and the said claim must also be proven to be obviously unsustainable (see another Court of Appeal decision of Zainal Abidin bin Hamid @ S. Maniam v Kerajaan Malaysia [2009] 6 MLJ 863). [29] It is equally clear as it is practical that the situations that could fall within the categories under limb (d) are never closed given the variety of circumstances arising from the facts of each particular case. The categories of cases where the process of the Court could be abused are varied as they are numerous. They are also non-exhaustive (see Jasa Keramat Sdn Bhd & Anor v Monatech (M) Sdn Bhd [1999] 4 MLJ 637). [30] And, as established by the Supreme Court in Raja Zainal Abidin bin Raja Haji Tachik v British-American Life & General Insurance Bhd [1993] 3 MLJ 16, the Courts have the inherent jurisdiction to prevent an abuse of its process. [31] The Court is permitted, in an application other than under limb (a) (on the ground of no reasonable cause of action) to examine the affidavit evidence instead of merely the pleadings in the statement of claim of the plaintiff (see Pengiran Othman Shah Bin Pengiran Mohd Yusoff & Anor v Karambunai Resorts Sdn Bhd & Ors [1996] 1 MLJ 309), and where necessary, scrutinise them with a fine tooth comb (see Tractors Malaysia Bhd v Tio Chee Hing [1957] 2 MLJ 1). The pleadings of the plaintiff [32] It is useful for the pleadings which make reference to the fourth and fifth defendants be stated. They group the fourth and fifth defendants together in the various allegations, as follows:- 10. Plaintif juga memplidkan bahawa Defendan Kedua, Defendan Ketiga, Defendan Ke-empat dan/atau Defendan Kelima telah secara langsung dan/atau tidak langsung bersubahat dan/atau turut sama dengan Defendan Pertama melakukan penipuan, penyelewengan dan/atau frod mengakibatkan kepentingan Plaintif terjejas teruk dan mengalami kerugian yang besar”. [33] The statement of claim then sought to particularise the allegations of fraud, abuse of power, breach of trust and violation of fiduciary duties, most of which are levelled against the first defendant. The paragraphs which concerned the fourth and fifth defendants are as follows:- 12. Plaintif selanjutnya memplidkan bahawa Defendan Pertama bersama-sama dengan Defendan Keempat dan/atau Defendan Kelima telah secara langsung dan/atau tidak langsung bersubahat dan/atau turut sama dengan Defendant Pertama telah menyalahgunakan kuasa dan/atau melakukan penipuan dan/atau frod dalam urusan atau transaksi jual beli hartanah milik Plaintif…….. d) Plaintif memplidkan bahawa wujud penyelewengan, penipuan dan/atau frod di antara Defendant Pertama, Defendant Keempat dan Defendan Kelima dalam urusan, transaksi dan/atau Perjanjian Jual Beli yang dikatakan tersebut apabila hartanah-hartanah tersebut telah dijual ... dibawah harga pasaran... e) Plaintif memplidkan bahawa mana-mana transaksi yang melibatkan hartanah-hartanah tersebut dan/atau pemalsuan dokumen bagi membolehkan Defendan Pertama, Kedua, Ketiga, Keempat dan/atau Kelima meneruskan….transaksi yang melibatkan hartanah-hartanah tersebut adalah terbatal….. g) Defendan Pertama telah bertindak secara salah dan/atau menipu dan/atau frod dan Defendan Keempat dan/atau Defendan Kelima telah secara langsung dan/atau tidak langsung bersubahat dan/atau turut sama dengan Defendan Pertama untuk kepentingan diri sendiri, meraih keuntungan hasil dari transaksi jual beli... h) ...Defendan Kelima adalah peguam yang mengendalikan urusan transaksi jualbeli tersebut termasuk...menyediakan Perjanjian Jual Beli bertarikh 20 Januari 2016... Defendan Kelima telah gagal dan/atau cuai dalam menjalankan tanggungjawab sebagai peguam bagi memastikan segala langkah-langkah munasabah yang sepatutnya dilakukan dalam sesuatu transaksi jual beli, termasuk semakan atau carian bagi dokumen-dokumen yang diperlukan telah sempurna dijalankan. Kegagalan dan/atau kecuaian berbuat demikian, Defendan kelima telah secara cuai dan frod memindahkan hartanah tersebut daripada Plaintif kepada Defendan Keempat. i) Plaintif juga memplidkan bahawa Defendan Pertama, Keempat dan/atau Kelima telah secara salah mewujudkan dokumen Borang 14A Pindahmilik Tanah bertarikh 08.04.2016 dan/atau dokumen-dokumen lain bagi tujuan Pindahmilik Tanah tersebut, dan Plaintif tidak pernah memberi resolusi atau kelulusan bagi tujuan yang dikata tersebut.... 14. Plaintif memplidkan bahawa Plaintif mengalami kerugian besar dan prejudis yang teruk akibat perbuatan-perbuatan Defendan Pertama di atas dan Defendan Kedua, Defendan Ketiga, Defendan Keempat dan/atau Defendan Kelima telah secara langsung dan/atau tidak langsung bersubahat….dengan Defendan Pertama.” Insufficient Particularisation [34] It is trite that under Order 18 r 7, material facts must be pleaded, for these are the material factors which are necessary for the purpose of formulating a complete cause of action. In 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”. [35] A party is entitled to have from the opposing party, particulars of facts, as opposed to evidence, relevant to the issues at stake in order to prevent surprise, and to enable the other party to know the exact case he has to meet, especially since parties cannot at trial adduce evidence in support of facts which were not pleaded facts (see the Supreme Court decision in Superintendant of Lands and Surveys (4th Div) v Hamit bin Matusin [1994] 3 MLJ 185). [36] A careful review of the pleadings concerning the fourth and fifth defendants as reproduced above however merely contain accusations against them of primarily conspiracy to commit fraud and forgery without stating the manner how these were committed. The most direct allegation against the fourth defendant in the alleged fraud and conspiracy is that it was involved in the creation of Form 14A and other key documents without the knowledge of the plaintiff, but without even suggesting what exactly was the fourth defendant’s role and the specific acts done by the fourth defendant for such purpose. And as for the fifth defendant, the allegation is on its failure to undertake the necessary searches to verify the relevant transaction documents. [37] Such pleadings in my view do not satisfy the requirements of Order 18 r 7. It cannot be safely said that the fourth and fifth defendants are able to appreciate from such averments by the plaintiff in the statement of claim the exact case against them that they have to answer, more so since the process and documents concerning the sale of the Lands in pursuance of the SPA, which included the SPA itself, the Form 14A and the Stamp Duties all appeared to be in order, as stated earlier. [38] More crucially, the pleadings in the instant case as against the fourth and fifth defendants are flawed because they infringe another important rule of pleadings especially relevant to the instant applications. This is encapsulated in Order 18 r 12. [39] Order 18 r 12(1) (a) of the Rules of Court 2012 (“the RC 2012”) provides that:- Particulars of pleading (O18 r 12) 12. –(1) Subject to paragraph (2), every pleading shall contain the necessary particulars of any claim, defence or other matter pleaded including, without prejudice to the generality of the foregoing words- (a) Particulars of any misrepresentation, fraud, breach of trust, wilful default or undue influence on which the pleading party relies; and …. [40] It is an important civil procedure rule that when pleading fraud, a plaintiff must plead by stating with particularity the circumstances constituting fraud. There must be enough facts to state a claim to relief that is plausible on the face of the statement of claim in order to prevent dismissal of a complaint. [41] The leading text of Bullen & Leake & Jacob’s Precedents of Pleading (13th Edition at page 428) states thus:- “… Any charge of fraud or misrepresentation must be pleaded with the utmost particularity. The statement of claim must show the nature and extent of each alleged misrepresentation and contain particulars showing by whom and to whom it was made, and whether orally or in writing, and if in writing, identifying the relevant documents …” [42] Yet, the averments in the pleadings against the fourth and fifth defendants as shown earlier, are conspicuous for the absence of the requisite particulars of the alleged fraud and other improprieties levelled against them. [43] It cannot be emphasised enough that whenever an allegation like fraud is raised, the facts proffered in support of the complaint ought to be specified with the requisite particularity, because general statements are simply not sufficient to ensure that litigation between the parties is conducted firmly, openly and without surprises (see Astrolavnis Compania Naviera SA v Linard [1972] 2 QB 611). [44] In the case of Lee Kim Luang v Lee Shiah Yee [1988] 1 MLJ 193, Vohrah J held:- “Order 18 rule 12, R.H.C., governs the pleadings in this case although the pleadings were filed under the old R.S.C. 1957 (see Order 1, rule 2(1)) and the rule is that particulars have to be given of the fraud pleaded. In this case, however, there is merely a general allegation of fraud and the pleadings stand mute as to the circumstances relied upon as constituting the alleged fraud. A general allegation of fraud is insufficient even to amount to an averment of fraud of which any Court ought to take notice: Wallinford v Mutual Society (1880) 5 App Cas 685”. [45] The other key allegation raised in the statement of claim is one of conspiracy. In Gasing Heights Sdn Bhd v. Aloyah Bte Abd Rahman & Ors [2000] 2 CLJ 664, Mahadev Shankar J (as he then was) said: "Just as fraud must be pleaded with great particularity, so also all the constituent ingredients going to make up the conspiracy, must be pleaded. On this ground alone, the claim for conspiracy fails". [46] Thus conspiracy must similarly be pleaded with great particularity, failing which, the claim is liable to be struck out under O 18 r 19(1) (a) of the RC. [47] In dealing with the element of the tort of conspiracy, I can do no better than reproduce the pertinent passages from the judgment of Mohd Zawawi Salleh JCA in a recent Court of Appeal decision in Cubic Electronic Sdn Bhd v. MKC Corporate & Business Advisory Sdn Bhd and another appeal [2016] 3 CLJ 676, as follows:- “[10] To appreciate the submissions advanced by learned counsel for the defendants, we think it is relevant to deal with the law of conspiracy which is part of what are known as the "economic torts". There are four elements to a conspiracy claim: (i) a combination or agreement between two or more individuals; (ii) an intent to injure; (iii) pursuant to which combination or agreement, and with that intention, certain acts were carried out; and (iv) resulting loss and damage to the claimant. (See Khoo Teng Chye v. Cekal Berjasa Sdn Bhd & Anor, Civil Appeal No: P-02-542-03-2015 (CA) [2015] 6 CLJ 449 (CA)). [11] There are two kinds of conspiracy, the elements of which are distinct: (i) unlawful means conspiracy: a conspiracy in which the participants combine to perform acts which are themselves unlawful (under either criminal or civil law); and (ii) lawful means conspiracy: a combination to perform acts which, although not themselves per se unlawful, are done with the sole predominant purpose of injuring the claimant - it is in the fact of the conspiracy that the unlawfulness resides. (See Milicent Rosalind Danker & Anor v. Malaysia-Europe Forum Bhd & Ors [2012] 2 CLJ 1076 (HC); SCK Group Bhd & Anor v. Sunny Liew Siew Pang & Anor [2010] 9 CLJ 389; [2011] 4 MLJ 393 (CA)). [12] The distinction between the two was succinctly elucidated by Lord Bridge in Lonrho Plc v. Fayed & Others [1991] 3 All ER 303 as follows: “Where conspirators act with the predominant purpose of injuring the plaintiff and in fact inflict damage on him, but do nothing which would have been actionable if done by an individual acting alone, it is in the fact of their concerted action for that illegitimate purpose that the law, however anomalous it may now seem, finds a sufficient ground to condemn their action as illegal and tortious. But when conspirators intentionally injure the plaintiff and use unlawful means to do so, it is no defence for them to show that their primary purpose was to further or protect their own interests; it is sufficient to make their action tortious that the means used were unlawful”. [48] A conspiracy essentially consists in the agreement of two or more to do an unlawful act, or to do a lawful act by unlawful means (see Mulcahy v R (1868) LR 3 HL 306). The tort of lawful means conspiracy and unlawful means conspiracy both require evidence of the element of an agreement between two or more parties who take concerted action that causes injury to the claimant. [49] But again, the plaintiff, from the pleadings as reproduced earlier, has clearly failed to plead either of the circumstances of any alleged agreement between the defendants, the objective and intention of the said agreement, the purported overt acts of the defendants in pursuance of the agreement or in what manner the acts of the fourth and fifth defendants had resulted in injury to the plaintiff. [50] In the instant case, the particulars of fraud, conspiracy and other accusations are absent. There are simply insufficient facts to support any of them. Not against the fourth defendant, not against the fifth defendant. For the latter, it was virtually no particularisation at all. And as against the fifth defendant, the accusation which is accompanied by some particularisation at most is the averment that the fifth defendant, did not, as the lawyer involved in the transaction undertake the necessary steps which somehow fraudulently led to the transfer of the Lands to the fourth defendant. But I reiterate that an allegation that the fifth defendant had committed fraud without condescending into the details of fraud is bad pleading. [51] I further cannot but agree with the fifth defendant that to the extent that the allegation concerned negligence on the part of fifth defendant, it is incumbent upon the plaintiff to ensure and state that the particulars of fraud demonstrate that the fifth defendant is dishonest and not merely negligent. Certainly, material facts showing more than a mere omission, particularly the element of intention to deceive, would be necessary in order to support the allegation revolving around fraud and dishonesty against the fifth defendant (see CIMB Bank Bhd v Veeran Ayasamy [2015] 7 CLJ 289). [52] The attack on Form 14A is similarly unsubstantiated. The averments in the pleadings do not express in what manner either of the fourth or the fifth defendants was involved in its creation, in the absence of particulars of such as who created it, how it was done, where it occurred, and date of event. Reference to “lain-lain dokumen” in the pleadings as stated earlier is especially inconsequential for not adding to anything. [53] After all, in all proceedings, the Court will only consider matters which are pleaded. The Court cannot help improve the case of the litigants which must stand or fall based squarely on what have been pleaded. Hamid Sultan JCA in delivering the decision of the Court of Appeal in Heritage Grand Vacation Club Bhd v Pacific Fantasy Vacation Sdn Bhd [2016] 4 MLJ 389 held that: “[4] It is well established that it is not the function of the court to build a case for the plaintiff/defendant inconsistent with the pleaded case. In Yew Wan Leong v Lai Kok Chye [1990] 2 MLJ 152, the Supreme Court had in strong terms held, and which 27 still stands as a ‘gold standard’ in pleading rules and evidence, as follows: It is not the duty of the court to make out a case for one of the parties when the party concerned does not raise or wish to raise the point. In disposing of a suit or matter involving a disputed question of fact, it is not proper for the court to displace the case made by a party in its pleadings and give effect to an entirely new case which the party had not made out in its own pleadings. The trial of a suit should be confined to the pleas on which the parties are at variance. (Emphasis added) …” [54] The plaintiff must furnish the requisite particularity by pleading the circumstances of material facts as to the questions of “who, what, where, when and how” of the alleged fraud and conspiracy in order to enable the defendants to provide a meaningful response. It cannot be emphasised enough that general statements which are vague and containing conclusory allegations do not satisfy the requirements of Order 18 r 7 and r 12. The statement of claim too cannot hide behind purported averments which in truth are nothing but merely a set of formulaic recitation of the ingredients of a cause of action. [55] Pleadings sans particularisation is bad pleading because matters such as fraud and conspiracy cannot be expected to be inferred from statements which are vague and general in nature, more so as the concept of fraud itself is not immutable. Similarly, when alleging fraud and conspiracy against more than one defendants, like presently, the plaintiff must specify, with particularity, each of the fourth and fifth defendant’s offending conduct. The defendants cannot be grouped together without identifying which defendant has committed which wrong. [56] An example of a striking out where the pleading was found not to have shown the existence of a reasonable cause of action is the case of Renault SA v Inokom Corp Sdn Bhd [2010] 5 MLJ 394 where the statement of claim containing the allegation of conspiracy did not set out with clarity and precision the overt acts alleged to have been done by each of the alleged conspirators in furtherance of the conspiracy. The Court of Appeal in that case concluded thus:- "[48] We are unanimous that there is no cause of action in the tort of conspiracy as against TC Euro. The statement of claim is vexatious and frivolous. Just as fraud must be pleaded with great particularity, so must the constituent ingredients of the alleged conspiracy by TC. Euro be pleaded. In the circumstances, for reasons already stated, the appeal is allowed and the statement of claim against TC Euro is struck off".​ In other words, the failure of the plaintiff in the instant case to plead the constituent ingredients of its claim of conspiracy against the defendants ought similarly to be met with the rejection of its Statement of Claim. The affidavit of the plaintiff too failed to depose the necessary to deny averments of the defendants [57] The case of the plaintiff is particularly difficult to sustain because not only is its statement of claim seriously lacking in particulars, the affidavits affirmed for the plaintiff to resist the instant applications too do not provide the requisite clarification and particularity of the alleged fraud and conspiracy. Not that an affidavit can validly improve and repair on what should have rightfully be in the statement of claim. [58] Yet the documents relevant to the transaction on the sale of the Lands, being contemporaneous to the process do not suggest any irregularity that render any of documents flawed or invalid. Crucially, relevant transfer documents had been generated and forwarded by Messrs KHRL, the plaintiff’s solicitors to Messrs YCLS, the fourth defendant’s solicitors. The MOT was also prepared and sent by Messrs KHRL and appeared to have been validly executed by the plaintiff under its common seal. [59] The fifth defendant had never singly created any documents. Not to mention the fourth defendant. The SPA was drafted by the fifth defendant, as the solicitor for the fourth defendant, the purchaser of the Lands, in line with industry practice for the buyer to prepare the draft agreement. The SPA was sent to both the plaintiff and Messrs KHRL for their comments and endorsement before the execution of the SPA. [60] Further, statutory company documents such as the Forms 24, 44, 49 of the Companies Act 1965 and the M&A had been compiled, sent and thus represented by Messrs KHRL to be properly and validly certified by the second defendant as the company secretary of the plaintiff. And again, the Lands were successfully registered in the name of the fourth defendant. [61] That Messrs YCLS, as the solicitors for the fourth defendant, had conducted the requisite land searches on the Lands and company searches on the plaintiff cannot be disputed. Nor can it be denied that, I repeat, the draft SPA had been sent to both the plaintiff, as the vendor, and its solicitors, Messrs KHRL for their comments and endorsement prior to the execution of the SPA. [62] But from the affidavit evidence, and in light of standard conveyancing practice, a number of factual observations cannot be emphasised enough. First, copies of the identity cards of the plaintiff’s directors had been certified by a lawyer practising at Messrs KHRL, the law firm acting for the plaintiff. Secondly, the plaintiff’s Forms 24, 44, and 49, as well as the M&A, and the directors’ circular resolution and members’ circular resolution had been certified by the second defendant as the company secretary of the plaintiff company. [63] Thirdly, the Forms 14A MOT had been duly executed by the first and third defendants for the plaintiff company, and the plaintiff’s common seal affixed thereon. Therefore the said Forms 14A are valid, binding and enforceable as against the Plaintiff. Fourthly, as stated earlier, LHDN’s assessment valued the Lands at the same purchase consideration as contained in the SPA, and the Stamp Duties thereon duly paid. And fifthly, the Lands were on or about 27 April 2016 registered in the name of the fourth defendant as the proprietor. [64] As stated earlier, the shortcomings in the case of the plaintiff are not merely in respect of the serious lack of particularisation of the allegation of fraud, and conspiracy in the statement of claim. That, as found earlier, already considerably weakens the position of the plaintiff. And it is trite law that omissions of material facts in the statement of claim cannot be made good by affidavit evidence (see the Court of Appeal decision in Sivakumar a/l Varatharaju Naidu v Ganesan a/l Retanam [2011] 6 MLJ 70). [65] But crucially, even in the affidavits of the plaintiff filed to oppose the striking out applications the plaintiff fell significantly short in terms of not providing any relevant evidence and averments to credibly rebut those of the defendants. Instead, the plaintiff is contented to aver only bare denials and disclaimed knowledge, inconsistent with the existence and contents of documents. This failure to contradict should be treated as an admission in line with the established principle stated in Ng Hee Thoong & Anor v Public Bank Berhad [1995] 1 MLJ 281. [66] Most of the transaction documents such as Form 14A were prepared by and originated from Messrs KHRL. Messrs CSL, being the fifth defendant, had thus in that context only proceeded on the basis of the implied representation from Messrs KHRL, who have not been sued by the plaintiff nor made a party to the underlying writ action. [67] Among others, as highlighted in the affidavits, the plaintiff’s claim that the SPA was below market price is devoid of merit. Based on the assessment by LHDN, as stated earlier, the Lands were valued at the same price as the SPA. Notwithstanding the bare allegations of the plaintiff, based on affidavit evidence, it cannot be doubted that the fifth defendant had indeed conducted the necessary land and company searches in the discharge of the duty of the fifth defendant as the solicitor for the fourth defendant’s solicitors. [68] Nor can the plaintiff’s allegation that the fifth defendant is negligent and had therefore committed a fraud be construed other than being untenable. For plainly, the fifth defendant, as the solicitor for the purchaser (the fourth defendant) does not owe any professional duty of care to the plaintiff as the seller of the Lands. This duty should and could only be owed by Messrs KHRL, being the plaintiff’s own solicitors for the transaction in question. The assertion by the plaintiff that Messrs KHRL were not its solicitors flies in the face of the various correspondences accompanying, and documents integral to the conveyancing process of the Lands including the several letters from Messrs KHRL themselves, which point overwhelmingly to the contrary. Thus the affidavits contesting these applications fall short of mounting a successful challenge to the striking out. [69] It is manifest from the contents of the statement of claim that the principal case of the plaintiff of conspiracy, forgery and fraud is for all intents and purposes directed against the first to the third defendants, all, at the relevant time, being company insiders. [70] The fourth and fifth defendants are outsiders to the plaintiff company. Indoor management rule strengthens case of the defendants [71] In such event, the fourth and fifth defendants were entitled to assume that the internal proceedings of the plaintiff company were undertaken in good order, on the basis of the indoor management rule as established in the English case of Royal British Bank v Turquand [1856] 119 ER 474. [72] This concept of presumption of regularity in the internal management of a company, subject to exceptions such as where one is put on enquiry when circumstances require the same (and which in my assessment is not applicable to this instant case) is also well established in this country (see the Federal Court decision in Pekan Nenas Industries Sdn Bhd v Chang Ching Chuen [1998] 1 AMR 169). [73] This is further supported by the plaintiff’s own affidavit, for after all, the plaintiff had even averred that the first defendant, as its director, had custody of the plaintiff’s documents, including the land title and company seal. The first defendant had complete control over matters in relation to the plaintiff’s administration and operation. This is borne out of the plaintiff’s own admission that “kebiasaan dia [the first defendant] yang membuat urusan Syarikat” in a police report lodged by the plaintiff’s representative, as exhibited. [74] Thus I cannot but agree with the contention that alleging knowledge and fraud concerning the sale of the Lands on the part of the fourth and fifth defendants instead when the plaintiff himself clearly admitted that the plaintiff company was run by the first defendant means that the plaintiff is blowing hot and cold on the matter. [75] The plaintiff cannot blow hot and cold. It cannot approbate and reprobate. In the case of  Bakti Dinamik Sdn Bhd v. Bauer (Malaysia) Sdn Bhd [2016] 10 CLJ 247, I stated thus:- “[43] The position taken by the plaintiffs currently may be characterised as one which violated the principle against ‘approbating and reprobating’. In the Court of Appeal case of Visage Continental Sdn Bhd v Smooth Track Sdn Bhd [2007] 6 CLJ 570, Richard Malanjum JCA (as his Lordship then was) referred to various authorities and enunciated clearly the rule that a party should not be allowed to approbate and reprobate as it is a practice that is both plainly unconscionable and unfair”. [76] In examining the pleadings, the Court is looking at the plaintiff who has pleaded his best case (see Godrej Sara Lee Ltd v Siah Teong Teck & Anor (No. 1) [2007] 10 CLJ 255). But, in the instant case, the allegations in the statement of claim that the fourth defendant together with the fifth defendants have directly and/or indirectly abetted and/or participated with the first defendant in the abuse of power and/or cheating and/or misappropriating and/or fraud in the sale and purchase transaction of the Lands, causing the plaintiff to suffer heavy losses, are simply untenable when pleaded generally without particularisation, and when the affidavits of the defendants are not credibly challenged, let alone denied. [77] On the basis of the pleadings, and more so when the affidavit evidence of the defendants are not controverted, it is difficult to deny the contentions of the fourth and fifth defendants that the sale and transfer of the Lands by the plaintiff to the fourth defendant are valid, binding and effective, that the fourth defendant appears to be a bona fide purchaser for value without notice, whose title as registered owner of the Lands is indefeasible pursuant to Section 340 of the National Land Code 1965, and that the fourth and fifth defendants had acted in good faith and without knowledge of the internal workings or management of the plaintiff. [78] That is not all. For the sale and purchase transaction also appears to be an ordinary transaction of property with terms in the SPA which are generally expected to be found in other sale of property agreements. So too would the manner in which the transaction was carried out not have alerted the suspicions of a reasonable man similarly circumstanced as the fourth defendant, being the purchaser who acted upon the advice of the fifth defendant solicitor. I cannot emphasise enough that both seller and buyer had their own solicitors advising them on the sale of the Lands, and I reiterate that the affidavit of the plaintiff did not contain any averments that could credible challenge the propriety of the attendant process and the accompanying documents. [79] Whilst it is trite that a statement of claim should not plead evidence, in a striking out application based on affidavit evidence, the failure of the plaintiff to rebut averments of the defendant which are substantiated by documents must surely be detrimental to the plaintiff’s case. [80] In the instant case, the plaintiff’s affidavit in reply is, for all intent and purposes, devoid of any evidence of abuse of power, cheating, misappropriation, forgery or fraud (despite being pleaded in the statement of claim) on the part of the first defendant and neither is there any evidence of abetment of the same on the part of the fourth defendant or fifth defendant. [81] Thus, as examples, despite the pleading in paragraph 11.4 of the amended statement of claim that the CCM had rejected Form 48A and Form 49 dated 13 January 2016, the plaintiff’s affidavit in reply is devoid of any evidence of the alleged rejection when faced with the fifth defendant’s affidavit which exhibited the relevant Form 49 which stated that the third defendant is a director of the plaintiff company at the material time. Notwithstanding the pleading in paragraph 12(d) of the amended statement of claim, the plaintiff’s affidavit in reply is similarly bereft of any evidence of the alleged market value of the Lands being RM12 million. [82] Further, the Federal Court of Doshi v Yeoh Tiong Lay [1975] 1 MLJ 85, as cited by the defendants is most instructive. It was held thus:- “In regard to the purchase price, the learned judge took the view that it was insufficient for the defendant to make a bare allegation without the support of some sort of valuation or assessment to show the market value of the land at the date of sale. In the circumstances, he was unable to say that there was fraud to which the Plaintiff or his servant or agent was a party or privy. [83] The plaintiff’s affidavit in reply is also conspicuously silent of any evidence of its interest which was claimed to have been adversely affected, not to mention the absence of any semblance of quantification or evidence of such alleged losses suffered by the plaintiff. [84] The plaintiff’s affidavit in reply too engaged in averments which are unsupported, chief amongst which is the brazen denial of the legal representation by Messrs KHRL for the plaintiff in respect of the SPA. This assertion is so directly in conflict with various documentary evidence exhibited in the defendants’ affidavits in support, such as including the SPA, and all written communication concerning thereto, as mentioned earlier. [85] Yet, at the same time, as correctly highlighted by the defendants, the plaintiff has refrained from making similar allegations of abuse of power or cheating or misappropriation or fraud vis-à-vis the payments of the redemption sums by the fourth defendant of the redemption sums of the Lands which effectively extinguished the plaintiff’s debt of RM2,484,301.11 to Malaysia Building Society Berhad. [86] In this regard the plaintiff quietly accepts certain parts of the transaction but conveniently challenges other parts of the same sale transaction of the Lands. I repeat that the plaintiff cannot approbate and reprobate. [87] It is as clear as day that viewed in totality, the averments and arguments raised by the plaintiff are considerably inflicted by various shortcomings that do little, if at all, to advance its resistance to these striking out applications. Above all, the case of the plaintiff is also riddled with averments which are not substantiated. These are largely bare averments without any real or true support thus, seriously impairing the case of the plaintiff. [88] No documents of any real substantive worth were produced by the plaintiff to corroborate its stance on virtually all of its assertions. It is of course trite that mere bare denials or assertions do not constitute evidence and they cannot give rise to triable issues (see the Court of Appeal decision in Chen Heng Ping & Ors v Intradagang Merchant Bankers (M) Bhd [1995] 2 MLJ 363). [89] The following observation of the Supreme Court in Raja Zainal Abidin Raja Tachik & Ors v British-American Life & General Insurance Bhd [1993] 1 MLRA 372 is especially relevant to describe the case of the plaintiff:- “In conclusion, with great respect, the learned Judge could have avoided the pitfall as described by the Privy Council in the Tractors (supra). The lower Court should have also scrutinized the evidence in order to decide whether the action was bound to fail. If so, it would have been found otiose to send the case back to its starting point to start its long and expensive course albeit such a conclusion was reached on an application filed under O.18 r.19 We must emphasize that for any Court to reach such a similar decision on an application under O.18 r.19, there must, in all probability, have been an absence of conflict of material evidence or of conflict of affidavits on material points so that seemingly triable issues, seemingly difficult ones, could be readily decided in such a way as to lead to the conclusion that the action was bound to fail.” [90] I agree that there are no triable issues raised by the claim of the plaintiff. No serious discussion is warranted, nor is a full trial justified. Instead it is plainly frivolous, vexatious and an abuse of the process of the Court. The claim is so obviously unsustainable. [91] Nor do the various cases referred to by the plaintiff advance its position. Cases such as Dato’ Ahmad Zahid Bin Hamidi v Amir Bazli bin Abdullah [2012] 6 MLJ 564, Sivarasa Rasiah & Ors v Che Hamzah Che Ismail & Ors [2012 1 MLJ 473, Sheikh Khaled Bin Jassem Bin Mohammad Jassem Al-Thani (t/a Petroserv General Trading Establishment) v Merbok Hilir Bhd (No.2) [2013] 7 MLJ 879 involve significant conflicts of affidavit evidence which could only be resolved during trial unlike the instant case, which as I have shown exhibited nothing but a patent absence of any such conflict. [92] Denials of knowledge and bare averments without any supporting evidence and failure to specify the alleged arguable points of law or fact requiring full trial translate quite plainly into the inescapable conclusion that there are simply no triable issues. [93] For completeness, I should state that the fourth defendant had also raised a preliminary objection against the admission of the plaintiff’s affidavit in reply for allegedly not having stated the date of affirmation. I dismissed this objection and heard the parties on the merits of the striking out applications. Conclusion [94] In view of the myriad of reasons as discussed above, it is my judgment that the fourth and fifth defendants have clearly succeeded in establishing their case to have the statement of claim of the plaintiff struck out for being frivolous and vexatious under Order 18 r 19 (1) (b) as well as an abuse of process under Order 18 r 19 (1) (d), rendering the claim to be obviously unsustainable, justifying its striking out. [95] Accordingly, I allow enclosures 21 and 23 with costs. Dated: 2 November 2017 (MOHD NAZLAN BIN MOHD GHAZALI) Judge High Court NCC1 Kuala Lumpur Counsel Counsel for Plaintiff George Varughese with Azhana Mohd Khairudin and Johan Mohan Messrs George Varughese Petaling Jaya, Selangor Counsel for the Second Defendant CJ Ooi Messrs Chih - Jen & Associates Kuala Lumpur Counsel for the Fourth Defendant Sheena Sinnapah with Valerie Fernando Messrs Sheena Valerie & Partners Melaka Counsel for the Fifth Defendant Robert Low with Helen Lim and Ryan Ng Messrs Ranjit Ooi & Robert Kuala Lumpur Page 18 of 25

Tika 2.6.0

WA-22NCC-59-02/2017

PLAINTIF BUKIT BARU VILLA DEFENDAN AMBER SPECTRA SDN BHD (D4)

02/11/2017

YA TUAN MOHD NAZLAN BIN MOHD GHAZALI

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=a40bc30c-df27-4a86-8d68-18994346b473&Inline=true

DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR DALAM WILAYAH PERSEKUTUAN, MALAYSIA (BAHAGIAN DAGANG) GUAMAN NO: WA-22NCC-59-02/2017 ANTARA BUKIT BARU VILLAS SDN BHD (NO.SYARIKAT:8000208-D) ...PLAINTIF DAN 1. YEOH TEEN EAM (NO.K/P: 590405-07-6023) 2. WONG SHAN MAY (NO.K/P: 670516-10-6184) 3. ZAIHAZRI BIN ZAINI (NO.K/P: 781008-10-5523 4. AMBER SPECTRA SDN BHD (NO.SYARIKAT: 1083602-P) 5. YONG CHEN LIM (rakan kongsi dan beramal di Tetuan Yong Chen Lin Saridah) ...DEFENDAN-DEFENDAN DI HADAPAN YANG ARIF TUAN MOHD NAZLAN BIN MOHD GHAZALI HAKIM JUDGMENT Introduction [1] This case concerns two applications, filed by the fourth and fifth defendants in enclosures 21 and 23, respectively, to strike out the statement of claim of the plaintiff. At the conclusion of the hearing of both applications which were heard together, I allowed the same and highlighted the key reasons for my decision. This judgment contains the full grounds for my decision. Key Background Facts The Parties [2] The plaintiff, a private limited company, was at all material times, the registered and beneficial owner of two pieces of land held under Geran GRN 11210, Lot 122, Bandar Bukit Baru, Seksyen III and Geran GM 3191, Lot 9200, Mukim Bukit Baru; both in Daerah Melaka Tengah (‘the Lands”). [3] The first defendant and the second defendant were, respectively, a director and the company secretary of the plaintiff company at the material time. The third defendant is also a director of the plaintiff. The fourth defendant is a private limited company and the purchaser of the Lands from the plaintiff. The fifth defendant is an advocate and solicitor handling the purchase transaction for the fourth defendant. The Sale of the Lands [4] In pursuance of an option to purchase, the plaintiff had granted an option to one Aw Boon Huan (“ABH”) and/or his buyer to purchase the Lands at the purchase price of RM6,209,400.00, and subject to the terms and conditions stipulated therein. [5] ABH then on 30 December 2015 managed to secure the fourth defendant to purchase the Lands. The law firm of the fifth defendant, where he is a partner, Messrs Yong Chen Lim & Saridah (“Messrs YCLS”) were retained by the fourth defendant to act on behalf of the fourth defendant, as the purchaser in the transaction. [6] In its letter dated 11 January 2016, the fifth defendant informed the plaintiff that a sum of RM500,000.00, being the earnest deposit for the purchase price of the Lands had been paid by the fourth defendant to the plaintiff’s account. It was also stated in the letter that a draft sale and purchase agreement had been emailed to the plaintiff’s solicitors, Messrs Kamil Hashim Raj & Lim (“Messrs KHRL”) and also that the fourth defendant had additionally deposited the balance 20% of the purchase price in the sum of RM741,880.00 with the fifth defendant. [7] In response, in its letter of undertaking and confirmation dated 14 January 2016 to the fourth defendant, the plaintiff acknowledged receipt of the said sum of the balance 20% of the purchase price and gave an undertaking to forward to the solicitors for the fourth defendant, Messrs YCLS the documents stated as follows:- (1) Two sets of the duly certified true copies of the plaintiff’s Memorandum and Articles of Association, forms 24, 44, and 49 of the Companies Act 1965; (2) Duly certified true copies of the plaintiff’s members’ resolution and directors’ resolutions sanctioning the sale of the Lands; (3) The Memorandum of Transfer in respect of the Lands; (4) Duly paid quit rent and assessment receipt for the year 2016 in respect of the Lands; and (5) Any other relevant documents for registration. [8] A letter of similar effect, albeit undated was also sent by the plaintiff to Messrs YCLS, acknowledging receipt of the balance of the 20% deposit of the purchase price. [9] This then resulted in the execution of the sale and purchase agreement dated 20 January 2016 by the plaintiff as vendor and the fourth defendant as purchaser, wherein the plaintiff agreed to sell and the fourth defendant agreed to purchase the Lands for a consideration sum of RM6,209,400 as the purchase price (“the SPA”). [10] In line with the requirements of the terms of the SPA, the following documents had been executed by the plaintiff, as delivered by Messrs KHRL, the solicitors for the plaintiff, to Messrs YCLS, as the solicitors for the purchaser (fourth defendant), for purposes of transferring the Lands to the fourth defendant:- (1) the Memorandum of Transfer (“MOT”); (2) the directors’ circular resolution and members’ circular resolution, both dated 20th January 2016 (“Resolution”); (3) the certified true copies of the plaintiff’s forms 24, 44 and 49 of the Companies Act 1965; (4) the certified true copy of the memorandum and articles of association of the plaintiff (“M&A”); (5) the original redemption letter cum undertaking by the plaintiff’s financier; (6) the certified true copies of the identity card of the plaintiff’s directors; (7) the statutory declaration in relation to the plaintiff’s solvency (“the SD”); and (8) the plaintiff’s letter of undertaking in favour of the fourth defendant’s financier. [11] As part of the standard conveyancing process, on or around 20 April 2016, the Inland Revenue Board of Malaysia (“LHDN”) issued two (2) notices of assessment/adjudication for the proposed transfer of each of the Lands, for the amounts of RM132,234.00 and RM42,051.00, respectively (“the Stamp Duties”). The Stamp Duties were paid by the fourth defendant on 26 April 2016. Significantly, on the basis of the assessment by LHDN, the Lands were valued as the same purchase consideration agreed in the SPA. [12] It is common ground that the fourth defendant had subsequently fully paid the purchase price for the Lands in accordance with the terms of the SPA. [13] The Lands were then duly registered in the name of the fourth defendant, on or around 27 April 2016. Public Islamic Bank Berhad was registered as the chargee of the Lands. [14] However, in February 2017, the plaintiff commenced the underlying writ action against the defendants. The Writ Action [15] In its statement of claim, the key allegation raised by the plaintiff levelled against all the defendants is that the sale transaction of the Lands to the fourth defendant was tainted with fraud, misappropriation, deceit, breach of trust, as well as forgery of documents and signatures and/or mala fide by the defendants. Thus in respect of the first, second and third defendants who were company officials at the material time, the plaintiff asserted that neither the plaintiff nor its directors or shareholders had knowledge of the sale, and that none of the transaction documents were signed by the plaintiff or authorized by company resolution. [16] The plaintiff further denied and disputed the various key sale transaction documents on the sale of the Lands to the fourth defendant, including the option signed by the first defendant and ABH, the SPA, the directors’ and members’ circular resolutions on the SPA, both dated 20 January 2016, and the From 14A. The plaintiff’s claim against the fifth defendant revolved around the allegation that the latter had failed to perform the requisite due diligence in the discharge of his duties as the solicitor handling the sale transaction. [17] A specific complaint of the plaintiff against the fifth defendant is that the latter had failed to undertake a proper company search of the plaintiff at the Companies Commission of Malaysia (CCM) to confirm the directors of the plaintiff. The plaintiff contended that despite the search results as contained in exhibit “YCL-15” accompanying the affidavit showing that the third defendant was not the new director as alleged by the fifth defendant, the fifth defendant regardless proceeded with the sale, causing the fraudulent transfer of the Lands from the plaintiff to the fourth defendant. [18] It is important to note that the applications herein are only filed by the fourth and fifth defendants, for the plaintiff has as a matter of fact, managed to obtain judgments in default against both the first and third defendants on 3 May 2017 who were at all material times directors of the plaintiff company, with damages to be assessed. Essence Of Arguments Of Parties In These Striking Out Applications [19] These applications are instituted by the fourth and fifth defendants. The crux of the former’s case which formed the basis of its striking out application in enclosure 21 is that the fourth defendant had acted in good faith without notice of any alleged irregularities in any of the documents concerning the transaction. The fourth defendant argued that the plaintiff’s affidavit in reply to the fourth defendant’s affidavit in support of this application failed to disclose evidence to substantiate its many allegations and averments. The shortcoming in the lack of particularisation of the circumstances of fraud levelled against the fourth defendant is not only impairing the statement of claim but also further worsened by the bare affidavit averments of the plaintiff in resisting this application, all of which, according to the fourth defendant, justifiably render the claim to be one that is obviously unsustainable and ought to be struck out. [20] The fifth defendant similarly argued that the plaintiff had simply denied knowledge on its part and made bare denial and allegations of fraud and conspiracy but was unable to contradict the fifth defendant’s averment or to adequately substantiate its claim with credible evidence, to the extent that the fifth defendant’s averments must be taken to be true pursuant to the leading authority of Ng Hee Thoong & Anor v Public Bank Bhd [1995] 1 MLJ 28. The thrust of the fifth defendant’s contention is that the plaintiff’s case must fail since the sale of the Lands (and all documents relating thereto, none of which was created by the fifth defendant) was valid and regular, particularly since the plaintiff was represented by Messrs KHRL in the sale, and that the fourth defendant had paid the purchase price as stipulated under the SPA, which has even been duly acknowledged by the plaintiff. [21] The plaintiff, in its opposition to these applications, on the other hand argued that based on affidavits filed by parties, it was apparent that there are numerous arguable points which are serious in nature and warranting a full trial. It is important to call witnesses to establish the truth and at the same time facilitate the disposal of the case. The plaintiff submitted that case-law authorities would favour the instant case to be fully ventilated at trial, and referred to two cases which I shall only refer briefly herein. The first is Sivarasa Rasiah & Ors v Che Hamzah Che Ismail & Ors [2012] 1 MLJ 473 where the Court ruled:- “A striking out order should not be made summarily by the court if there is issue of law that requires lengthy argument and mature consideration. It should also not be made if there is issue of fact that is capable of resolution only after taking viva once evidence during trial”. [22] The second is the case of Zakaria Bin Mohamad Esa v Dato’ Abdul Aziz Bin Ahmad & ors [1985] 2 MLJ 222 which held that:- “It is settled rule in this type of application that the pleading must be read as a whole, each paragraph must be viewed in relation to others and cannot be viewed in isolation.” [23] The plaintiff emphasised that there are many issues concerning the purported sale transaction which were tainted with fraud, misappropriation, deceit, breach of trust, forgery and/or mala fide on the part of the defendants, and in respect of which a police report had also been lodged, which should therefore be resolved in a trial proper. The case should thus not be summarily struck out without the examination of witnesses in full trial. In short, the plaintiff submitted that its claim is far from being obviously unsustainable to justify a striking out at this stage. Evaluation & Findings of this Court The Law on Striking Out - Summary [24] This is a striking out application. So I should only briefly refer to the already trite law on striking out, apart from which authority is also part of the inherent jurisdiction of the Court, is primarily contained in Order 18 r 19 (1) which states: “19. Striking out pleadings and endorsements (O 18 r 19) (1) The Court may at any stage of the proceedings order to be struck out or amended any pleading or the endorsement, of any writ in the action, or anything in any pleading or in the endorsement, on the ground that- (a) it discloses no reasonable cause of action or defence, as the case may be; (b) it is scandalous, frivolous or vexatious: (c) it may prejudice, embarrass or delay the fair trial of the action; or (d) it is otherwise an abuse of the process of the Court, and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be.” [25] The defendants in the instant case relied on limbs (b) and (d). Thus it was submitted that the claim of the plaintiff is vexatious and frivolous and that it otherwise tantamount to an abuse of court process. [26] The leading authority on Order 18 r 19(1) of the RC 2012 is the Supreme Court decision in Bandar Builder Sdn Bhd v United Malayan Banking Corporation Bhd [1993] 3 MLJ 36, and in particular the following part of the judgment of Mohamed Dzaiddin SCJ (later Chief Justice):- “The principles upon which the Court acts in exercising its power under any of the four limbs of O. 18 r. 19(1) Rules of the High Court are well settled. It is only in plain and obvious cases that recourse should be had to the summary process under this rule (per Lindley M.R. in Hubbuck v. Wilkinson [1899] 1 QB 86, p. 91), and this summary procedure can only be adopted when it can be clearly seen that a claim or answer is on the face of it "obviously unsustainable" (Attorney-General of Duchy of Lancaster v. L. & N.W. Ry. Co. [1892] 3 Ch. 274, CA). It cannot be exercised by a minute examination of the documents and facts of the case, in order to see whether the party has a cause of action or a defence (Wenlock v. Moloney [1965] 1 WLR 1238; [1965] 2 All ER 871, CA.). The authorities further show that if there is a point of law which requires serious discussion, an objection should be taken on the pleadings and the point set down for argument under O. 33 r. 3 which is in pari materia with our O. 33 r. 2 Rules of the High Court) (Hubbuck v. Wilkinson) (supra).  The Court must be satisfied that there is no reasonable cause of action or that the claims are frivolous or vexatious or that the defences raised are not arguable”. [27] It is well established that the power of the Court to strike out under the four grounds of Order 18 r 19(1) is to be exercised when it can clearly be determined that a claim or answer is prime facie obviously unsustainable. It is also only to be invoked sparingly (see Affin Bank Bhd v. Eye Bee Sdn Bhd [2005] 7 MLJ 1). [28] It could also be said that as for limb (b), the test is the same consideration on the claim being obviously unsustainable and that for limb (d), it arises when the process of the Court is not used in a bona fide manner and has been abused (see the Court of Appeal decision in Harapan Permai Sdn Bhd v Sabah Forest Industries Sdn Bhd [2011] 2 MLJ 192) and the said claim must also be proven to be obviously unsustainable (see another Court of Appeal decision of Zainal Abidin bin Hamid @ S. Maniam v Kerajaan Malaysia [2009] 6 MLJ 863). [29] It is equally clear as it is practical that the situations that could fall within the categories under limb (d) are never closed given the variety of circumstances arising from the facts of each particular case. The categories of cases where the process of the Court could be abused are varied as they are numerous. They are also non-exhaustive (see Jasa Keramat Sdn Bhd & Anor v Monatech (M) Sdn Bhd [1999] 4 MLJ 637). [30] And, as established by the Supreme Court in Raja Zainal Abidin bin Raja Haji Tachik v British-American Life & General Insurance Bhd [1993] 3 MLJ 16, the Courts have the inherent jurisdiction to prevent an abuse of its process. [31] The Court is permitted, in an application other than under limb (a) (on the ground of no reasonable cause of action) to examine the affidavit evidence instead of merely the pleadings in the statement of claim of the plaintiff (see Pengiran Othman Shah Bin Pengiran Mohd Yusoff & Anor v Karambunai Resorts Sdn Bhd & Ors [1996] 1 MLJ 309), and where necessary, scrutinise them with a fine tooth comb (see Tractors Malaysia Bhd v Tio Chee Hing [1957] 2 MLJ 1). The pleadings of the plaintiff [32] It is useful for the pleadings which make reference to the fourth and fifth defendants be stated. They group the fourth and fifth defendants together in the various allegations, as follows:- 10. Plaintif juga memplidkan bahawa Defendan Kedua, Defendan Ketiga, Defendan Ke-empat dan/atau Defendan Kelima telah secara langsung dan/atau tidak langsung bersubahat dan/atau turut sama dengan Defendan Pertama melakukan penipuan, penyelewengan dan/atau frod mengakibatkan kepentingan Plaintif terjejas teruk dan mengalami kerugian yang besar”. [33] The statement of claim then sought to particularise the allegations of fraud, abuse of power, breach of trust and violation of fiduciary duties, most of which are levelled against the first defendant. The paragraphs which concerned the fourth and fifth defendants are as follows:- 12. Plaintif selanjutnya memplidkan bahawa Defendan Pertama bersama-sama dengan Defendan Keempat dan/atau Defendan Kelima telah secara langsung dan/atau tidak langsung bersubahat dan/atau turut sama dengan Defendant Pertama telah menyalahgunakan kuasa dan/atau melakukan penipuan dan/atau frod dalam urusan atau transaksi jual beli hartanah milik Plaintif…….. d) Plaintif memplidkan bahawa wujud penyelewengan, penipuan dan/atau frod di antara Defendant Pertama, Defendant Keempat dan Defendan Kelima dalam urusan, transaksi dan/atau Perjanjian Jual Beli yang dikatakan tersebut apabila hartanah-hartanah tersebut telah dijual ... dibawah harga pasaran... e) Plaintif memplidkan bahawa mana-mana transaksi yang melibatkan hartanah-hartanah tersebut dan/atau pemalsuan dokumen bagi membolehkan Defendan Pertama, Kedua, Ketiga, Keempat dan/atau Kelima meneruskan….transaksi yang melibatkan hartanah-hartanah tersebut adalah terbatal….. g) Defendan Pertama telah bertindak secara salah dan/atau menipu dan/atau frod dan Defendan Keempat dan/atau Defendan Kelima telah secara langsung dan/atau tidak langsung bersubahat dan/atau turut sama dengan Defendan Pertama untuk kepentingan diri sendiri, meraih keuntungan hasil dari transaksi jual beli... h) ...Defendan Kelima adalah peguam yang mengendalikan urusan transaksi jualbeli tersebut termasuk...menyediakan Perjanjian Jual Beli bertarikh 20 Januari 2016... Defendan Kelima telah gagal dan/atau cuai dalam menjalankan tanggungjawab sebagai peguam bagi memastikan segala langkah-langkah munasabah yang sepatutnya dilakukan dalam sesuatu transaksi jual beli, termasuk semakan atau carian bagi dokumen-dokumen yang diperlukan telah sempurna dijalankan. Kegagalan dan/atau kecuaian berbuat demikian, Defendan kelima telah secara cuai dan frod memindahkan hartanah tersebut daripada Plaintif kepada Defendan Keempat. i) Plaintif juga memplidkan bahawa Defendan Pertama, Keempat dan/atau Kelima telah secara salah mewujudkan dokumen Borang 14A Pindahmilik Tanah bertarikh 08.04.2016 dan/atau dokumen-dokumen lain bagi tujuan Pindahmilik Tanah tersebut, dan Plaintif tidak pernah memberi resolusi atau kelulusan bagi tujuan yang dikata tersebut.... 14. Plaintif memplidkan bahawa Plaintif mengalami kerugian besar dan prejudis yang teruk akibat perbuatan-perbuatan Defendan Pertama di atas dan Defendan Kedua, Defendan Ketiga, Defendan Keempat dan/atau Defendan Kelima telah secara langsung dan/atau tidak langsung bersubahat….dengan Defendan Pertama.” Insufficient Particularisation [34] It is trite that under Order 18 r 7, material facts must be pleaded, for these are the material factors which are necessary for the purpose of formulating a complete cause of action. In 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”. [35] A party is entitled to have from the opposing party, particulars of facts, as opposed to evidence, relevant to the issues at stake in order to prevent surprise, and to enable the other party to know the exact case he has to meet, especially since parties cannot at trial adduce evidence in support of facts which were not pleaded facts (see the Supreme Court decision in Superintendant of Lands and Surveys (4th Div) v Hamit bin Matusin [1994] 3 MLJ 185). [36] A careful review of the pleadings concerning the fourth and fifth defendants as reproduced above however merely contain accusations against them of primarily conspiracy to commit fraud and forgery without stating the manner how these were committed. The most direct allegation against the fourth defendant in the alleged fraud and conspiracy is that it was involved in the creation of Form 14A and other key documents without the knowledge of the plaintiff, but without even suggesting what exactly was the fourth defendant’s role and the specific acts done by the fourth defendant for such purpose. And as for the fifth defendant, the allegation is on its failure to undertake the necessary searches to verify the relevant transaction documents. [37] Such pleadings in my view do not satisfy the requirements of Order 18 r 7. It cannot be safely said that the fourth and fifth defendants are able to appreciate from such averments by the plaintiff in the statement of claim the exact case against them that they have to answer, more so since the process and documents concerning the sale of the Lands in pursuance of the SPA, which included the SPA itself, the Form 14A and the Stamp Duties all appeared to be in order, as stated earlier. [38] More crucially, the pleadings in the instant case as against the fourth and fifth defendants are flawed because they infringe another important rule of pleadings especially relevant to the instant applications. This is encapsulated in Order 18 r 12. [39] Order 18 r 12(1) (a) of the Rules of Court 2012 (“the RC 2012”) provides that:- Particulars of pleading (O18 r 12) 12. –(1) Subject to paragraph (2), every pleading shall contain the necessary particulars of any claim, defence or other matter pleaded including, without prejudice to the generality of the foregoing words- (a) Particulars of any misrepresentation, fraud, breach of trust, wilful default or undue influence on which the pleading party relies; and …. [40] It is an important civil procedure rule that when pleading fraud, a plaintiff must plead by stating with particularity the circumstances constituting fraud. There must be enough facts to state a claim to relief that is plausible on the face of the statement of claim in order to prevent dismissal of a complaint. [41] The leading text of Bullen & Leake & Jacob’s Precedents of Pleading (13th Edition at page 428) states thus:- “… Any charge of fraud or misrepresentation must be pleaded with the utmost particularity. The statement of claim must show the nature and extent of each alleged misrepresentation and contain particulars showing by whom and to whom it was made, and whether orally or in writing, and if in writing, identifying the relevant documents …” [42] Yet, the averments in the pleadings against the fourth and fifth defendants as shown earlier, are conspicuous for the absence of the requisite particulars of the alleged fraud and other improprieties levelled against them. [43] It cannot be emphasised enough that whenever an allegation like fraud is raised, the facts proffered in support of the complaint ought to be specified with the requisite particularity, because general statements are simply not sufficient to ensure that litigation between the parties is conducted firmly, openly and without surprises (see Astrolavnis Compania Naviera SA v Linard [1972] 2 QB 611). [44] In the case of Lee Kim Luang v Lee Shiah Yee [1988] 1 MLJ 193, Vohrah J held:- “Order 18 rule 12, R.H.C., governs the pleadings in this case although the pleadings were filed under the old R.S.C. 1957 (see Order 1, rule 2(1)) and the rule is that particulars have to be given of the fraud pleaded. In this case, however, there is merely a general allegation of fraud and the pleadings stand mute as to the circumstances relied upon as constituting the alleged fraud. A general allegation of fraud is insufficient even to amount to an averment of fraud of which any Court ought to take notice: Wallinford v Mutual Society (1880) 5 App Cas 685”. [45] The other key allegation raised in the statement of claim is one of conspiracy. In Gasing Heights Sdn Bhd v. Aloyah Bte Abd Rahman & Ors [2000] 2 CLJ 664, Mahadev Shankar J (as he then was) said: "Just as fraud must be pleaded with great particularity, so also all the constituent ingredients going to make up the conspiracy, must be pleaded. On this ground alone, the claim for conspiracy fails". [46] Thus conspiracy must similarly be pleaded with great particularity, failing which, the claim is liable to be struck out under O 18 r 19(1) (a) of the RC. [47] In dealing with the element of the tort of conspiracy, I can do no better than reproduce the pertinent passages from the judgment of Mohd Zawawi Salleh JCA in a recent Court of Appeal decision in Cubic Electronic Sdn Bhd v. MKC Corporate & Business Advisory Sdn Bhd and another appeal [2016] 3 CLJ 676, as follows:- “[10] To appreciate the submissions advanced by learned counsel for the defendants, we think it is relevant to deal with the law of conspiracy which is part of what are known as the "economic torts". There are four elements to a conspiracy claim: (i) a combination or agreement between two or more individuals; (ii) an intent to injure; (iii) pursuant to which combination or agreement, and with that intention, certain acts were carried out; and (iv) resulting loss and damage to the claimant. (See Khoo Teng Chye v. Cekal Berjasa Sdn Bhd & Anor, Civil Appeal No: P-02-542-03-2015 (CA) [2015] 6 CLJ 449 (CA)). [11] There are two kinds of conspiracy, the elements of which are distinct: (i) unlawful means conspiracy: a conspiracy in which the participants combine to perform acts which are themselves unlawful (under either criminal or civil law); and (ii) lawful means conspiracy: a combination to perform acts which, although not themselves per se unlawful, are done with the sole predominant purpose of injuring the claimant - it is in the fact of the conspiracy that the unlawfulness resides. (See Milicent Rosalind Danker & Anor v. Malaysia-Europe Forum Bhd & Ors [2012] 2 CLJ 1076 (HC); SCK Group Bhd & Anor v. Sunny Liew Siew Pang & Anor [2010] 9 CLJ 389; [2011] 4 MLJ 393 (CA)). [12] The distinction between the two was succinctly elucidated by Lord Bridge in Lonrho Plc v. Fayed & Others [1991] 3 All ER 303 as follows: “Where conspirators act with the predominant purpose of injuring the plaintiff and in fact inflict damage on him, but do nothing which would have been actionable if done by an individual acting alone, it is in the fact of their concerted action for that illegitimate purpose that the law, however anomalous it may now seem, finds a sufficient ground to condemn their action as illegal and tortious. But when conspirators intentionally injure the plaintiff and use unlawful means to do so, it is no defence for them to show that their primary purpose was to further or protect their own interests; it is sufficient to make their action tortious that the means used were unlawful”. [48] A conspiracy essentially consists in the agreement of two or more to do an unlawful act, or to do a lawful act by unlawful means (see Mulcahy v R (1868) LR 3 HL 306). The tort of lawful means conspiracy and unlawful means conspiracy both require evidence of the element of an agreement between two or more parties who take concerted action that causes injury to the claimant. [49] But again, the plaintiff, from the pleadings as reproduced earlier, has clearly failed to plead either of the circumstances of any alleged agreement between the defendants, the objective and intention of the said agreement, the purported overt acts of the defendants in pursuance of the agreement or in what manner the acts of the fourth and fifth defendants had resulted in injury to the plaintiff. [50] In the instant case, the particulars of fraud, conspiracy and other accusations are absent. There are simply insufficient facts to support any of them. Not against the fourth defendant, not against the fifth defendant. For the latter, it was virtually no particularisation at all. And as against the fifth defendant, the accusation which is accompanied by some particularisation at most is the averment that the fifth defendant, did not, as the lawyer involved in the transaction undertake the necessary steps which somehow fraudulently led to the transfer of the Lands to the fourth defendant. But I reiterate that an allegation that the fifth defendant had committed fraud without condescending into the details of fraud is bad pleading. [51] I further cannot but agree with the fifth defendant that to the extent that the allegation concerned negligence on the part of fifth defendant, it is incumbent upon the plaintiff to ensure and state that the particulars of fraud demonstrate that the fifth defendant is dishonest and not merely negligent. Certainly, material facts showing more than a mere omission, particularly the element of intention to deceive, would be necessary in order to support the allegation revolving around fraud and dishonesty against the fifth defendant (see CIMB Bank Bhd v Veeran Ayasamy [2015] 7 CLJ 289). [52] The attack on Form 14A is similarly unsubstantiated. The averments in the pleadings do not express in what manner either of the fourth or the fifth defendants was involved in its creation, in the absence of particulars of such as who created it, how it was done, where it occurred, and date of event. Reference to “lain-lain dokumen” in the pleadings as stated earlier is especially inconsequential for not adding to anything. [53] After all, in all proceedings, the Court will only consider matters which are pleaded. The Court cannot help improve the case of the litigants which must stand or fall based squarely on what have been pleaded. Hamid Sultan JCA in delivering the decision of the Court of Appeal in Heritage Grand Vacation Club Bhd v Pacific Fantasy Vacation Sdn Bhd [2016] 4 MLJ 389 held that: “[4] It is well established that it is not the function of the court to build a case for the plaintiff/defendant inconsistent with the pleaded case. In Yew Wan Leong v Lai Kok Chye [1990] 2 MLJ 152, the Supreme Court had in strong terms held, and which 27 still stands as a ‘gold standard’ in pleading rules and evidence, as follows: It is not the duty of the court to make out a case for one of the parties when the party concerned does not raise or wish to raise the point. In disposing of a suit or matter involving a disputed question of fact, it is not proper for the court to displace the case made by a party in its pleadings and give effect to an entirely new case which the party had not made out in its own pleadings. The trial of a suit should be confined to the pleas on which the parties are at variance. (Emphasis added) …” [54] The plaintiff must furnish the requisite particularity by pleading the circumstances of material facts as to the questions of “who, what, where, when and how” of the alleged fraud and conspiracy in order to enable the defendants to provide a meaningful response. It cannot be emphasised enough that general statements which are vague and containing conclusory allegations do not satisfy the requirements of Order 18 r 7 and r 12. The statement of claim too cannot hide behind purported averments which in truth are nothing but merely a set of formulaic recitation of the ingredients of a cause of action. [55] Pleadings sans particularisation is bad pleading because matters such as fraud and conspiracy cannot be expected to be inferred from statements which are vague and general in nature, more so as the concept of fraud itself is not immutable. Similarly, when alleging fraud and conspiracy against more than one defendants, like presently, the plaintiff must specify, with particularity, each of the fourth and fifth defendant’s offending conduct. The defendants cannot be grouped together without identifying which defendant has committed which wrong. [56] An example of a striking out where the pleading was found not to have shown the existence of a reasonable cause of action is the case of Renault SA v Inokom Corp Sdn Bhd [2010] 5 MLJ 394 where the statement of claim containing the allegation of conspiracy did not set out with clarity and precision the overt acts alleged to have been done by each of the alleged conspirators in furtherance of the conspiracy. The Court of Appeal in that case concluded thus:- "[48] We are unanimous that there is no cause of action in the tort of conspiracy as against TC Euro. The statement of claim is vexatious and frivolous. Just as fraud must be pleaded with great particularity, so must the constituent ingredients of the alleged conspiracy by TC. Euro be pleaded. In the circumstances, for reasons already stated, the appeal is allowed and the statement of claim against TC Euro is struck off".​ In other words, the failure of the plaintiff in the instant case to plead the constituent ingredients of its claim of conspiracy against the defendants ought similarly to be met with the rejection of its Statement of Claim. The affidavit of the plaintiff too failed to depose the necessary to deny averments of the defendants [57] The case of the plaintiff is particularly difficult to sustain because not only is its statement of claim seriously lacking in particulars, the affidavits affirmed for the plaintiff to resist the instant applications too do not provide the requisite clarification and particularity of the alleged fraud and conspiracy. Not that an affidavit can validly improve and repair on what should have rightfully be in the statement of claim. [58] Yet the documents relevant to the transaction on the sale of the Lands, being contemporaneous to the process do not suggest any irregularity that render any of documents flawed or invalid. Crucially, relevant transfer documents had been generated and forwarded by Messrs KHRL, the plaintiff’s solicitors to Messrs YCLS, the fourth defendant’s solicitors. The MOT was also prepared and sent by Messrs KHRL and appeared to have been validly executed by the plaintiff under its common seal. [59] The fifth defendant had never singly created any documents. Not to mention the fourth defendant. The SPA was drafted by the fifth defendant, as the solicitor for the fourth defendant, the purchaser of the Lands, in line with industry practice for the buyer to prepare the draft agreement. The SPA was sent to both the plaintiff and Messrs KHRL for their comments and endorsement before the execution of the SPA. [60] Further, statutory company documents such as the Forms 24, 44, 49 of the Companies Act 1965 and the M&A had been compiled, sent and thus represented by Messrs KHRL to be properly and validly certified by the second defendant as the company secretary of the plaintiff. And again, the Lands were successfully registered in the name of the fourth defendant. [61] That Messrs YCLS, as the solicitors for the fourth defendant, had conducted the requisite land searches on the Lands and company searches on the plaintiff cannot be disputed. Nor can it be denied that, I repeat, the draft SPA had been sent to both the plaintiff, as the vendor, and its solicitors, Messrs KHRL for their comments and endorsement prior to the execution of the SPA. [62] But from the affidavit evidence, and in light of standard conveyancing practice, a number of factual observations cannot be emphasised enough. First, copies of the identity cards of the plaintiff’s directors had been certified by a lawyer practising at Messrs KHRL, the law firm acting for the plaintiff. Secondly, the plaintiff’s Forms 24, 44, and 49, as well as the M&A, and the directors’ circular resolution and members’ circular resolution had been certified by the second defendant as the company secretary of the plaintiff company. [63] Thirdly, the Forms 14A MOT had been duly executed by the first and third defendants for the plaintiff company, and the plaintiff’s common seal affixed thereon. Therefore the said Forms 14A are valid, binding and enforceable as against the Plaintiff. Fourthly, as stated earlier, LHDN’s assessment valued the Lands at the same purchase consideration as contained in the SPA, and the Stamp Duties thereon duly paid. And fifthly, the Lands were on or about 27 April 2016 registered in the name of the fourth defendant as the proprietor. [64] As stated earlier, the shortcomings in the case of the plaintiff are not merely in respect of the serious lack of particularisation of the allegation of fraud, and conspiracy in the statement of claim. That, as found earlier, already considerably weakens the position of the plaintiff. And it is trite law that omissions of material facts in the statement of claim cannot be made good by affidavit evidence (see the Court of Appeal decision in Sivakumar a/l Varatharaju Naidu v Ganesan a/l Retanam [2011] 6 MLJ 70). [65] But crucially, even in the affidavits of the plaintiff filed to oppose the striking out applications the plaintiff fell significantly short in terms of not providing any relevant evidence and averments to credibly rebut those of the defendants. Instead, the plaintiff is contented to aver only bare denials and disclaimed knowledge, inconsistent with the existence and contents of documents. This failure to contradict should be treated as an admission in line with the established principle stated in Ng Hee Thoong & Anor v Public Bank Berhad [1995] 1 MLJ 281. [66] Most of the transaction documents such as Form 14A were prepared by and originated from Messrs KHRL. Messrs CSL, being the fifth defendant, had thus in that context only proceeded on the basis of the implied representation from Messrs KHRL, who have not been sued by the plaintiff nor made a party to the underlying writ action. [67] Among others, as highlighted in the affidavits, the plaintiff’s claim that the SPA was below market price is devoid of merit. Based on the assessment by LHDN, as stated earlier, the Lands were valued at the same price as the SPA. Notwithstanding the bare allegations of the plaintiff, based on affidavit evidence, it cannot be doubted that the fifth defendant had indeed conducted the necessary land and company searches in the discharge of the duty of the fifth defendant as the solicitor for the fourth defendant’s solicitors. [68] Nor can the plaintiff’s allegation that the fifth defendant is negligent and had therefore committed a fraud be construed other than being untenable. For plainly, the fifth defendant, as the solicitor for the purchaser (the fourth defendant) does not owe any professional duty of care to the plaintiff as the seller of the Lands. This duty should and could only be owed by Messrs KHRL, being the plaintiff’s own solicitors for the transaction in question. The assertion by the plaintiff that Messrs KHRL were not its solicitors flies in the face of the various correspondences accompanying, and documents integral to the conveyancing process of the Lands including the several letters from Messrs KHRL themselves, which point overwhelmingly to the contrary. Thus the affidavits contesting these applications fall short of mounting a successful challenge to the striking out. [69] It is manifest from the contents of the statement of claim that the principal case of the plaintiff of conspiracy, forgery and fraud is for all intents and purposes directed against the first to the third defendants, all, at the relevant time, being company insiders. [70] The fourth and fifth defendants are outsiders to the plaintiff company. Indoor management rule strengthens case of the defendants [71] In such event, the fourth and fifth defendants were entitled to assume that the internal proceedings of the plaintiff company were undertaken in good order, on the basis of the indoor management rule as established in the English case of Royal British Bank v Turquand [1856] 119 ER 474. [72] This concept of presumption of regularity in the internal management of a company, subject to exceptions such as where one is put on enquiry when circumstances require the same (and which in my assessment is not applicable to this instant case) is also well established in this country (see the Federal Court decision in Pekan Nenas Industries Sdn Bhd v Chang Ching Chuen [1998] 1 AMR 169). [73] This is further supported by the plaintiff’s own affidavit, for after all, the plaintiff had even averred that the first defendant, as its director, had custody of the plaintiff’s documents, including the land title and company seal. The first defendant had complete control over matters in relation to the plaintiff’s administration and operation. This is borne out of the plaintiff’s own admission that “kebiasaan dia [the first defendant] yang membuat urusan Syarikat” in a police report lodged by the plaintiff’s representative, as exhibited. [74] Thus I cannot but agree with the contention that alleging knowledge and fraud concerning the sale of the Lands on the part of the fourth and fifth defendants instead when the plaintiff himself clearly admitted that the plaintiff company was run by the first defendant means that the plaintiff is blowing hot and cold on the matter. [75] The plaintiff cannot blow hot and cold. It cannot approbate and reprobate. In the case of  Bakti Dinamik Sdn Bhd v. Bauer (Malaysia) Sdn Bhd [2016] 10 CLJ 247, I stated thus:- “[43] The position taken by the plaintiffs currently may be characterised as one which violated the principle against ‘approbating and reprobating’. In the Court of Appeal case of Visage Continental Sdn Bhd v Smooth Track Sdn Bhd [2007] 6 CLJ 570, Richard Malanjum JCA (as his Lordship then was) referred to various authorities and enunciated clearly the rule that a party should not be allowed to approbate and reprobate as it is a practice that is both plainly unconscionable and unfair”. [76] In examining the pleadings, the Court is looking at the plaintiff who has pleaded his best case (see Godrej Sara Lee Ltd v Siah Teong Teck & Anor (No. 1) [2007] 10 CLJ 255). But, in the instant case, the allegations in the statement of claim that the fourth defendant together with the fifth defendants have directly and/or indirectly abetted and/or participated with the first defendant in the abuse of power and/or cheating and/or misappropriating and/or fraud in the sale and purchase transaction of the Lands, causing the plaintiff to suffer heavy losses, are simply untenable when pleaded generally without particularisation, and when the affidavits of the defendants are not credibly challenged, let alone denied. [77] On the basis of the pleadings, and more so when the affidavit evidence of the defendants are not controverted, it is difficult to deny the contentions of the fourth and fifth defendants that the sale and transfer of the Lands by the plaintiff to the fourth defendant are valid, binding and effective, that the fourth defendant appears to be a bona fide purchaser for value without notice, whose title as registered owner of the Lands is indefeasible pursuant to Section 340 of the National Land Code 1965, and that the fourth and fifth defendants had acted in good faith and without knowledge of the internal workings or management of the plaintiff. [78] That is not all. For the sale and purchase transaction also appears to be an ordinary transaction of property with terms in the SPA which are generally expected to be found in other sale of property agreements. So too would the manner in which the transaction was carried out not have alerted the suspicions of a reasonable man similarly circumstanced as the fourth defendant, being the purchaser who acted upon the advice of the fifth defendant solicitor. I cannot emphasise enough that both seller and buyer had their own solicitors advising them on the sale of the Lands, and I reiterate that the affidavit of the plaintiff did not contain any averments that could credible challenge the propriety of the attendant process and the accompanying documents. [79] Whilst it is trite that a statement of claim should not plead evidence, in a striking out application based on affidavit evidence, the failure of the plaintiff to rebut averments of the defendant which are substantiated by documents must surely be detrimental to the plaintiff’s case. [80] In the instant case, the plaintiff’s affidavit in reply is, for all intent and purposes, devoid of any evidence of abuse of power, cheating, misappropriation, forgery or fraud (despite being pleaded in the statement of claim) on the part of the first defendant and neither is there any evidence of abetment of the same on the part of the fourth defendant or fifth defendant. [81] Thus, as examples, despite the pleading in paragraph 11.4 of the amended statement of claim that the CCM had rejected Form 48A and Form 49 dated 13 January 2016, the plaintiff’s affidavit in reply is devoid of any evidence of the alleged rejection when faced with the fifth defendant’s affidavit which exhibited the relevant Form 49 which stated that the third defendant is a director of the plaintiff company at the material time. Notwithstanding the pleading in paragraph 12(d) of the amended statement of claim, the plaintiff’s affidavit in reply is similarly bereft of any evidence of the alleged market value of the Lands being RM12 million. [82] Further, the Federal Court of Doshi v Yeoh Tiong Lay [1975] 1 MLJ 85, as cited by the defendants is most instructive. It was held thus:- “In regard to the purchase price, the learned judge took the view that it was insufficient for the defendant to make a bare allegation without the support of some sort of valuation or assessment to show the market value of the land at the date of sale. In the circumstances, he was unable to say that there was fraud to which the Plaintiff or his servant or agent was a party or privy. [83] The plaintiff’s affidavit in reply is also conspicuously silent of any evidence of its interest which was claimed to have been adversely affected, not to mention the absence of any semblance of quantification or evidence of such alleged losses suffered by the plaintiff. [84] The plaintiff’s affidavit in reply too engaged in averments which are unsupported, chief amongst which is the brazen denial of the legal representation by Messrs KHRL for the plaintiff in respect of the SPA. This assertion is so directly in conflict with various documentary evidence exhibited in the defendants’ affidavits in support, such as including the SPA, and all written communication concerning thereto, as mentioned earlier. [85] Yet, at the same time, as correctly highlighted by the defendants, the plaintiff has refrained from making similar allegations of abuse of power or cheating or misappropriation or fraud vis-à-vis the payments of the redemption sums by the fourth defendant of the redemption sums of the Lands which effectively extinguished the plaintiff’s debt of RM2,484,301.11 to Malaysia Building Society Berhad. [86] In this regard the plaintiff quietly accepts certain parts of the transaction but conveniently challenges other parts of the same sale transaction of the Lands. I repeat that the plaintiff cannot approbate and reprobate. [87] It is as clear as day that viewed in totality, the averments and arguments raised by the plaintiff are considerably inflicted by various shortcomings that do little, if at all, to advance its resistance to these striking out applications. Above all, the case of the plaintiff is also riddled with averments which are not substantiated. These are largely bare averments without any real or true support thus, seriously impairing the case of the plaintiff. [88] No documents of any real substantive worth were produced by the plaintiff to corroborate its stance on virtually all of its assertions. It is of course trite that mere bare denials or assertions do not constitute evidence and they cannot give rise to triable issues (see the Court of Appeal decision in Chen Heng Ping & Ors v Intradagang Merchant Bankers (M) Bhd [1995] 2 MLJ 363). [89] The following observation of the Supreme Court in Raja Zainal Abidin Raja Tachik & Ors v British-American Life & General Insurance Bhd [1993] 1 MLRA 372 is especially relevant to describe the case of the plaintiff:- “In conclusion, with great respect, the learned Judge could have avoided the pitfall as described by the Privy Council in the Tractors (supra). The lower Court should have also scrutinized the evidence in order to decide whether the action was bound to fail. If so, it would have been found otiose to send the case back to its starting point to start its long and expensive course albeit such a conclusion was reached on an application filed under O.18 r.19 We must emphasize that for any Court to reach such a similar decision on an application under O.18 r.19, there must, in all probability, have been an absence of conflict of material evidence or of conflict of affidavits on material points so that seemingly triable issues, seemingly difficult ones, could be readily decided in such a way as to lead to the conclusion that the action was bound to fail.” [90] I agree that there are no triable issues raised by the claim of the plaintiff. No serious discussion is warranted, nor is a full trial justified. Instead it is plainly frivolous, vexatious and an abuse of the process of the Court. The claim is so obviously unsustainable. [91] Nor do the various cases referred to by the plaintiff advance its position. Cases such as Dato’ Ahmad Zahid Bin Hamidi v Amir Bazli bin Abdullah [2012] 6 MLJ 564, Sivarasa Rasiah & Ors v Che Hamzah Che Ismail & Ors [2012 1 MLJ 473, Sheikh Khaled Bin Jassem Bin Mohammad Jassem Al-Thani (t/a Petroserv General Trading Establishment) v Merbok Hilir Bhd (No.2) [2013] 7 MLJ 879 involve significant conflicts of affidavit evidence which could only be resolved during trial unlike the instant case, which as I have shown exhibited nothing but a patent absence of any such conflict. [92] Denials of knowledge and bare averments without any supporting evidence and failure to specify the alleged arguable points of law or fact requiring full trial translate quite plainly into the inescapable conclusion that there are simply no triable issues. [93] For completeness, I should state that the fourth defendant had also raised a preliminary objection against the admission of the plaintiff’s affidavit in reply for allegedly not having stated the date of affirmation. I dismissed this objection and heard the parties on the merits of the striking out applications. Conclusion [94] In view of the myriad of reasons as discussed above, it is my judgment that the fourth and fifth defendants have clearly succeeded in establishing their case to have the statement of claim of the plaintiff struck out for being frivolous and vexatious under Order 18 r 19 (1) (b) as well as an abuse of process under Order 18 r 19 (1) (d), rendering the claim to be obviously unsustainable, justifying its striking out. [95] Accordingly, I allow enclosures 21 and 23 with costs. Dated: 2 November 2017 (MOHD NAZLAN BIN MOHD GHAZALI) Judge High Court NCC1 Kuala Lumpur Counsel Counsel for Plaintiff George Varughese with Azhana Mohd Khairudin and Johan Mohan Messrs George Varughese Petaling Jaya, Selangor Counsel for the Second Defendant CJ Ooi Messrs Chih - Jen & Associates Kuala Lumpur Counsel for the Fourth Defendant Sheena Sinnapah with Valerie Fernando Messrs Sheena Valerie & Partners Melaka Counsel for the Fifth Defendant Robert Low with Helen Lim and Ryan Ng Messrs Ranjit Ooi & Robert Kuala Lumpur Page 18 of 25

Tika 2.6.0

S-05-(H)-131-03/2016

PERAYU Mohd Halid bin Mappa RESPONDEN Public Prosecutor

Murder — Appeal against conviction and sentence — Charged with offence of murder — Circumstantial evidence — Whether there were cogent and overwhelming circumstantial evidence amply supporting the trial judge’s finding — Whether the appellant can avail himself of the defence of grave and sudden provocation — Onus of proving — Evidence Act 1950 [Act 56], section 105;Penal Code [Act 574], s300 & s 302

02/11/2017

YA DATUK KAMARDIN BIN HASHIMKorumYAA TAN SRI DATUK SERI PANGLIMA DAVID WONG DAK WAHYA DATUK DR HAJI HAMID SULTAN BIN ABU BACKERYA DATUK KAMARDIN BIN HASHIM

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=a7f4d17b-d6e3-4374-9ccf-3ca4d7615e40&Inline=true

MRJ NO:S-05-(H)-131-03/2016 1 IN THE COURT OF APPEAL MALAYSIA AT SANDAKAN [APPELLATE JURISDICTION] CRIMINAL APPEAL NO: S-05-(H)-131-03/2016 BETWEEN MOHD HALID BIN MAPPA … APPELLANT AND PUBLIC PROSECUTOR …RESPONDENT [In The Matter of High Court in Sabah & Sarawak At Sandakan Criminal Trial No: SDK-45-08-2010 Between Public Prosecutor And Mohd Halid bin Mappa] CORAM: DAVID WONG DAK WAH, JCA HAMID SULTAN ABU BACKER, JCA KAMARDIN HASHIM, JCA MRJ NO:S-05-(H)-131-03/2016 2 JUDGMENT OF THE COURT [1] The appellant was charged at the Sandakan High Court for an offence of murder under Section 302 of the Penal Code for causing the death of his wife, Verisrin @ Veris Bte Alip @ KK Abd Alip (‘the deceased’). The charge reads as follows: “That you, on the 10th day of May 2009, between 9.00 a.m to 10.50 a.m at Kampung Langkabang, Tongod, Kinabatangan, in the District of Kinabatangan, in the state of Sabah, did commit murder by causing the death of one VERISRIN @ VERIS BT ALIP @ KK ABD ALIP (NRIC: 791121-12-5584) and that you have thereby committed an offence punishable under Section 302 of the Penal Code (Act 574) of the Laws of Malaysia.” [2] At the end of the trial, the appellant was found guilty and convicted by the learned trial judge. He was sentenced to the mandatory death sentence accordingly by the learned trial judge. Hence, the appellant’s appeal to this Court. [3] We heard the appeal on 26.9.2017. After hearing the parties and after perusing the Appeal Records, we unanimously dismissed the appeal. We affirmed the conviction and sentence of the High Court. We now give our reasons in doing so. MRJ NO:S-05-(H)-131-03/2016 3 The Prosecution’s Case [4] Briefly, the prosecution’s case can be summarized as follows: (a) According to Salmah Bte Pintor (PW6), one day before the incident of murder took place, the deceased and one of the deceased’s friend by the name Era came to PW6’s house. Era wanted to charge her handphone and at that time the deceased was crying and hugging PW6 and informed her that if her husband (the appellant) comes back from Bukit Garam, he will kill her. Before PW6 could asked the deceased what had happened, the appellant was already back with his children and shouted at the deceased “matilah kau di situ”. PW6 try to run away with the deceased to the deceased sister’s house since the appellant had tried to attack the deceased. However, the appellant managed to grab the deceased while PW6 managed to run away for help; (b) The deceased brother, Abdul Rahim Bin Alip (PW7) testified that on 9.5.2009, a day before the incident, when he was at home, he heard his name called “Payak”. PW7 came out from the house and saw the appellant grabbed the deceased until her shirt was torn. PW7 also saw the appellant brought a knife (which later identified as P10) which the appellant slipped in front inside his pants; (c) At that time the deceased was crying and begging the appellant to release her but failed. The deceased had also asked the appellant to give her the said knife (P10) but the appellant refused. The deceased’s sister, Yatimah bte Abd Alip (PW8) MRJ NO:S-05-(H)-131-03/2016 4 also tried to take the knife from the appellant but failed. The appellant then told the deceased “Aku bunuh kau” and the deceased replied “Bunuhlah, bunuhlah aku daripada kau kasi sengsara aku”. At that time PW8 saw the appellant took out the knife P10 [page 91 of the Appeal Record, Volume (11)]; (d) Later on, PW7 and PW8 managed to calm and settle both the appellant and the deceased. The appellant agreed to release the deceased. The appellant together with the deceased and their children then went to PW8’s house; (e) At the PW8’s house, the couple continued to quarrel until they sleep. During the argument, PW8 heard that they will proceed with their divorce on Monday (the incident was on Saturday). The next morning i.e on 10.5.2009, PW8 saw both of them still quarrelling. PW8 then left them in the house as PW8 had to go to Telupid to bring her mother to the clinic; (f) At about 10.00 a.m, PW8 received a phone call from her husband one Martinus Subang (had since passed away before the trial commence) informed her that her sister, the deceased had died. PW8 went back home but on the way, PW8 together with Yusuf bin Hapid (PW4) went to Balai Polis Telupid and PW4 lodged a police report (P1) which was received by Constable Tony Tasek (PW1); (g) When PW8 reached her house, Martinus Subang told her that when he was at the kitchen cooking rice for the deceased’s children, suddenly the deceased came and fell near him with her neck been slashed. Statement under Section 112 of the Criminal Procedure Code recorded from Martinus Subang had MRJ NO:S-05-(H)-131-03/2016 5 been tendered and received as evidence under Section 32(1) of the Evidence Act 1950 and marked as P33; (h) According to P33, that fateful morning Martinus Subang was at the front of his house (serambi) together with the appellant and the deceased. Martinus Subang had adviced them to settle their problem and refer to the authority for divorce. Martinus Subang then went inside the kitchen to cook rice as the deceased’s children were hungry. Later, Martinus Subang saw the deceased come inside the kitchen and fell near him. Martinus Subang saw the deceased body covered with blood and he noticed that there was a slashed wound to the deceased’s neck. Martinus Subang went out to look for the appellant but the appellant was no longer in the vicinity; (i) The appellant was arrested on the next day (11.5.2009) after he surrendered to the police. Before that, the appellant came to the plantation where he met Asman bin Sani (PW9). The appellant gave the knife P10 to PW9 and show a signal using his hand to indicate that P10 had been used to slit somebody’s throat. PW9 immediately called the police and later he handed over the knife to the police. The appellant was arrested by SM Rosman bin Rosdi (PW2) and his team at PW9’s house at Kampung Linayukan, 42 km from Telupid; (j) A post mortem on the deceased’s body was conducted by Dr. Jessie Hiu (PW5) . The cause of death of the deceased as certified by the pathologist was a result of the incised wound on the neck which injured the airway and blood vessels causing bleeding and death. PW5 confirmed that the injuries were fatal in nature and would in ordinary course of nature cause death. MRJ NO:S-05-(H)-131-03/2016 6 PW5 rejected the possibility that the wound was self-inflicted as although it is possible but in this case it is not likely. PW5 explained that usually self-inflicted fatal neck injury would have multiple tentative superficial cuts before the final fatal one inflicted. Sometimes they might have cuts on the wrist as well but in this case, there was no other superficial cuts on the neck or on the wrist. The post-mortem report prepared by PW5 was tendered and marked as P7. [5] At the end of prosecution’s case, the learned trial judge made the following findings, at page 12 of the Appeal Record, volume (1): “[2] The essential ingredients of the charge which the Prosecution must prove against the Accused person are as follows: [2.1] that Verisrin @ Veris Bt Alip @ KK Abd Alip (NRIC No: 791121-12-5584) (“the deceased”) is dead; [2.2] that her death was caused by injuries sustained by her; [2.3] that her death was caused by or in consequence of the act of the Accused; [2.4] inflicting the injuries upon the deceased person, the Accused person either:- (i) caused them with the intention of causing death; or (ii) caused them with the intention of causing such bodily injuries as the Accused person knew to be likely to cause death; or (iii) caused them with the intention of causing such bodily injuries and such injuries were sufficient in the ordinary cause of nature to cause death. [3] At the end of the Prosecution’s case and having subjected the Prosecution’s case to a maximum evaluation, I find that the Prosecution has proved a prime facie against the Accused and ordered the Accused to enter his defence to the charge preferred against him.”. MRJ NO:S-05-(H)-131-03/2016 7 [6] After having satisfied that the prosecution had proven a prima facie case against the appellant, the learned trial judge accordingly called the appellant to enter on his defence. The Defence [7] The appellant elected to give evidence on oath. The appellant was the sole witness for the defence. The evidence and defence of the appellant had been summarized by the learned trial judge to which we reproduced as follows: “[7.1] The Accused’s defence is that he did not kill his wife on the morning of 10/05/2009 at the house of PW8. He testified that when he saw his wife, the deceased, holding the knife to her throat, he ran towards her and caught her hand in an attempt to stop her but she proceeded to pull the knife, causing her to slit her throat. [7.2] The Accused stated that he and the deceased, have been living under the same roof for the last 17 years or so despite having gone through having incessant quarrels since their first child. [7.3] In the year 2008, both he and his wife had gone to the MUIS office at Telupid where they met an officer called Raman and during their meeting, they discussed their marriage problem but were told to think first and to come back two weeks later. He further testified that they then aborted their intention to divorce after his wife asked him not to proceed with it until their first daughter is working. The wife claimed that he had not been providing food to the children and that she was MRJ NO:S-05-(H)-131-03/2016 8 willing to make amend herself by not repeating her adultery with another man. [7.4] His narration of what had happened before the fatal incident on 10.05.2009 started with a phone call he made to his wife when he was at Bukit Garam, asking her to come to Bukit Garam. His wife agreed to come on Sunday but did not keep her words. Instead, she called him asking him to come home with money. He told her that he could not go on leave as he liked since he had just started work. His wife then insisted that he took leave and went home with the money. [7.5] The Accused then went home to give her the money and when he reached their home, he caught her and a man called Sharif together, the said Sharif made signals to her in his presence and the Accused then advised her not to do it again. [7.6] On the next day, the Accused went back to Telupid enroute to Bukit Garam but could not make it and went back home. Again he caught his wife with Sharif at the back of the house. He scold her. Sharif was angry and chased him with a parang to his house but he ignored him. He then advised his wife, not to see Sharif again but on the next day she still continued meeting Sharif. He then told her that they had better get a divorce but that he would not give the children to her because she had another man. His wife retorted that he could take the children after she had died. The Accused told her that since she had another man, she could go to that man. [7.7] The Accused further testified about his quarrel with Sharif where Sharif chased him with a parang after he caught Sharif and his wife at the back of the house, 3 days before the fatal incident and after that he had carried the knife (Exhibit P10] for self-protection since Sharif was MRJ NO:S-05-(H)-131-03/2016 9 living nearby renting the house of Jamain Sameon whose wife is related to the Accused’s wife. [7.8] The Accused denied having attacked his wife or threatening to kill his wife as claimed by PW6. He claimed that he had tried to bring her home by pulling her hand but she resisted. After persuasion by PW7 and PW8, the couple stopped quarrelling and his wife went to PW8’s house followed by him and their 3 children. Instead of going back to their home, his wife and 3 children slept inside PW8’s house, while he slept on the corridor. [7.9] The Accused further testified that on the morning of 10.05.2009 when he discussed with his wife, the Deceased about getting divorce and that he wanted to take all the children, his wife did not agree and was angry. She told him that it was better that he killed her first and then take the children. He then told her that he was not a killer and suggested that they find other way but she still insisted that she wanted the children. After the discussion failed, she then asked him to leave the knife on the table and went into the room. From there she called him to come into the room to discuss but when he asked her why they could not discuss outside, she kept on calling him and after the third time, he then went into the room. Once inside the room, she hugged him and cried and when asked why she cried, she did not answer. He then pushed her to the bed and took off her shirt and saw her body red. He asked her why her body was red and she told him that what he had said in their telephone-conversation, the previous day was correct, that she was lying to him and that while having the telephone-conversation with him, she was “playing” with a man. [7.10] After seeing her body was red, he then undressed her and asked what had happen to her vagina, to which, she replied if you want to use, then used it but it is painful. When he asked her why it was painful MRJ NO:S-05-(H)-131-03/2016 10 despite that he was seldom at home, she told him that what he had said was correct. He then asked her why she said like that, to which she replied, that it was a sin for her to live in this world. He then told her to put on her underwear and said that it was a sin for him to use her. After that, she got up and walked in front of him while he was sitting and went out of the room. Suddenly he heard Martinus Subang shouted “in-law, don’t do it” [“ipar jangan begitu”] and when he came out from the room, he saw her holding the knife near her neck. He then ran from the room, caught her hand in an attempt to stop her but then the knife touched her neck and she continued to slit her throat. He took the knife from her hand and saw her waving her hand as if telling him to run away. He then ran into hiding in the jungle. [7.11] During the night he then came out from the jungle to the road and waited in futility for a transport to Bukit Garam. He then walked to Kg Linayukan and arrived at PW9’s house where he kept the knife [Exhibit P10]. He claimed to have met the RELA personnel and when informed that they were looking from someone from Kg Langkabong who had killed his wife, he told them that he was the one and asked them to arrest him. He further claimed that he was tied and beaten by the RELA personnel before the police came up and arrested him and brought him to Balai Polis at Telupid and thereafter when the police from the Balai Polis Kinabatangan came, he took them to where he had kept the knife and his shirt.”. [8] The learned trial judge had considered the defence of the appellant. The main trust of the defence is that the deceased had tried to commit suicide and the appellant had tried to stop her from doing so but was unsuccessful. MRJ NO:S-05-(H)-131-03/2016 11 [9] After considering all the evidence and the relevant laws, the learned trial judge rejected the appellant’s version. The learned trial judge held that it is unlikely for the deceased to commit suicide as she was very concerned about having custody of their children when the issue of divorce was brought up between her and the appellant. This meant that the children are very important to the deceased and the deceased live for the children instead of leaving the children behind, by taking her own life. The learned trial judge further found that the appellant’s version of the events leading up to the death of the deceased were not credible, mere fabrication and an afterthought. [10] At the conclusion of the trial, the learned trial judge found that the defence of the appellant had failed to create a reasonable doubt on the prosecution’s case and that the prosecution had succeeded in proving its case beyond reasonable doubt. The appellant was convicted and sentenced to death. [11] The learned judge found that the circumstantial evidence adduced and relied by the prosecution in this case were very strong and only pointed to the guilt of the appellant. The learned trial judge findings at MRJ NO:S-05-(H)-131-03/2016 12 the conclusion of the trial were as follows (at pages 16 – 17 of the Appeal Record, volume (1): “[27] I find that the strong circumstantial evidence in the present case, only pointed to the Accused as the person who committed the murder of the Deceased as the Accused was the last person with the deceased by his own admission, the Accused had threatened and quarreled with the Deceased one day before the incident and which quarrel continued into the next morning before the incident took place. Further PW8 testified that the Deceased had told PW6, the day before the incident that if the Accused came back, he will kill her, both PW7 and PW8 saw the Accused carrying the knife [Exhibit 10] with him and had threatened to kill the Deceased while holding Exhibit P10 when they quarreled. When PW9 met the Accused one day after the incident and the Accused gave Exhibit P10 to him and asked him to surrender it to the police, during the investigation conducted by PW10, and the Accused had brought him to a place which led to the discovery of his cloth and also the knife at PW9’s house. ORDER [28] From the evidence led by the Prosecution and the evidence of the Accused and the circumstances of this case, I find that the Accused in his defence failed to cast reasonable doubt to the prosecution’s case or justify that his act fall under any exception to Section 300(c) of the Penal Code. Hence, I convicted the Accused on the murder charge under section 302 of the Penal Code, as preferred against him.”. MRJ NO:S-05-(H)-131-03/2016 13 The Appeal [12] Before us, learned counsel for the appellant canvassed three grounds of appeal, namely: (a) The learned trial judge had failed to consider that there was no eye-witness who saw the appellant slashing or slitting the throat of the deceased. The deceased blood was not found on the shirt (P8) and trousers (P9) of the appellant; (b) The learned trial judge failed to hold that the prosecutions’ failure to adduce evidence as to the height of the appellant as fatal. There was no evidence led as to the height of the appellant so as to establish that the appellant had in fact inflicted the wound; and (c) The learned trial judge failed to consider whether the appellant can avail himself of the defence of grave and sudden provocation although it was not put to the prosecution nor raised by the appellant. [13] In regard to the 1st and 2nd grounds, learned counsel argued that since there was no eye witness to the crime, the evidence as regard to the height of the appellant became very crucial. Learned counsel submitted that if the appellant was shorter than the deceased, then the wound caused could be consistent with the wound inflicted which slanted downtrend from the higher part to the lower part of the neck. If the appellant was of the same height with the deceased, then the wound caused would have been either parallel or slanting downtrend from the MRJ NO:S-05-(H)-131-03/2016 14 higher part to the lower part of the neck. Learned counsel further submitted that if the appellant was taller than the deceased, then the wound would have been either parallel or slanting uptrend from the lower part to the higher part of the neck. [14] On the 3rd ground, learned counsel argued that since the learned trial judge had made findings of fact that the appellant had discovered about the deceased’s adultery and that the appellant had a quarrel with the deceased a day before the incident which must have inflamed the appellant to kill the deceased, it was suggested by learned counsel that any man in the appellant’s position would have been filled with uncontrolled rage and caused the death of the deceased unintentionally. Learned counsel’s complaint was that had the learned trial judge went on to consider whether the appellant can avail himself of the defence of grave and sudden provocation, the learned trial judge would have found and held that the appellant was entitled to the defence of sudden and grave provocation. Our Decision [15] In regard to the issue that no eye-witness who saw the appellant slitting the deceased’s throat, we agreed with the learned trial judge that there are strong circumstantial evidence to point the guilt of the MRJ NO:S-05-(H)-131-03/2016 15 appellant. We had the opportunity to peruse the Appeal Records and we are of the considered view that the findings of the learned trial judge was not perverse in convicting the appellant. We found that there were cogent and overwhelming circumstantial evidence amply supporting the trial judge’s decision. We noted that the burden on the prosecution for this type of cases are much heavier one, but it has been fulfilled by the prosecution in the case before us. In PP v. Lin Lian Chen [1992] 2 MLJ 561, Edgar Joseph Jr., SCJ stated it summarily: “It is trite law that where the prosecution is relying on circumstantial evidence the onus upon it is a very heavy one and that evidence must point irresistibly to the guilt of the accused. If there are gaps in it then that will not be sufficient.”. [16] As we alluded to earlier in our judgment, the learned trial judge had relied on the strong circumstantial evidence which pointed to the appellant alone who committed the murder of the deceased. The appellant was the last person seen with the deceased, no one else present. The appellant threatened and quarreled with the deceased one day before the incident and continued in the morning before the incident took place. The appellant had told PW6 earlier that if the appellant came back he will kill his wife. Both PW7 and PW8 saw the appellant brought the murder weapon (P10) with him and had threatened to kill the MRJ NO:S-05-(H)-131-03/2016 16 deceased while holding P10 when they had a quarrel. PW9 met the appellant a day after the incident and the appellant gave PW9 the knife P10 and asked the appellant to surrender to the police which the appellant later did. Finally, it was the appellant who brought the police team led by PW10 to recover the murder weapon and his clothes at the PW9’s house. [17] On the learned counsel’s complaint that the appellant’s clothes did not bear the deceased’s blood, this could be explained by the lack of evidence as regard to the manner how the incident had happened. It could have happened from the rear of the deceased in which case there was no possibility for the deceased’s blood to have smeared the appellant’s clothings. Even though the evidence of the blood are available, that evidence would only be considered as supportive in nature. We find no merits in the learned counsel’s complaint regarding the 1st ground of appeal. [18] On the issue that the prosecution failing to prove the height of the appellant, we disagree that it was fatal to the prosecution’s case. From the Appeal Records, it shows that even though this issue had been raised before the learned trial judge in the appellant’s learned counsel’s submission, the same issue was never put to the prosecution’s MRJ NO:S-05-(H)-131-03/2016 17 witnesses. It is trite that the failure to cross examine a witness or to put the defence case during the prosecution’s case on a crucial part of the case would amount to an acceptance of the witness testimony and rendered the defence to be an afterthought (see Wong Swee Chin v. PP [1980] 1 LNS 138). [19] We find the learned counsel’s submission as regard the possibility of the wound suffered by the deceased much depended on the height of the assailant are a mere conjecture and from the bar table which we should not take into consideration. As we alluded to earlier there was no evidence as to how the incident occurred. No evidence as to the position of the deceased and the appellant at the time the injuries were inflicted, therefore the height of the assailant are not relevant. The fact whether the assailant was of the same height or different height with the deceased are not important and irrelevant. [20] The learned trial judge was right when his Lordship accepted the evidence of the pathologist (PW5) who had explained the injuries suffered by the deceased. In his judgment, the learned trial judge explained [pages 12 – 13 of the Appeal Record volume (1)]: MRJ NO:S-05-(H)-131-03/2016 18 “[15] I accepted the evidence and findings of the Pathologist (PW5) who inter alia had found 2 injuries namely, an incision on the front of the neck and a bruise on the front of the chest [Refer to Q237 at p31 of the Notes of Proceedings]. She also found that there was no defensive wound to suggest any sign of a struggle [Refer to Q238 at p31 and Q284 at p55 – 56 of the Notes of Proceedings], that the fact that there was no defensive wound to suggest any sign of a struggle is more consistent with the deceased, being slashed and not suicide. [16] If the Accused contended that he tried to stop the deceased from slitting her own throat then there should be signs of a struggle but there was none. Furthermore from the nature, depth and severity of the deceased’s wound, as can be seen in the photographs which are produced as exhibits, I find that it cannot be self-inflicted as the nature and severity of the said wound can only be inflicted with considerable force and the wounds were more consistent with slashing with considerable force rather than slitting. If indeed the Accused did hold the Deceased’s hand and tried to stop her slitting her throat, I would not expect the wounds sustained by the Deceased to be so deep and severe.”. [21] The evidence of PW5 which are material to this case can be found at pages 31 – 33 of the Appeal Record volume (11) as follows: “Q237 How many injuries were found on the deceased’s body? A 2 injuries, one incised wound on the front of the neck cutting the left neck muscle, the airway, left carotid artery, left jugular vein and the left vagus nerve. There was a bruise on the front of the chest. MRJ NO:S-05-(H)-131-03/2016 19 Q238 From these injuries, were there any defensive wound? A No Q239 Which injury caused his death? A Incised wound on the neck. Q240 Upon your expert opinion what can cause such injury? A Sharp object. Q241 From your expert opinion what was the deceased cause of death? A Incised wound on the neck which injured the airway and blood vessels causing bleeding and death. Q242 From your expert opinion, were the injuries fatal in nature? A Yes Q243 Why? A Injury on the blood vessel caused massive and rapid bleeding. This resulted in one, in excessive lost of blood and two, no blood supply to the left side of the head and neck and almost two-third of the left side of the brain. The injury on the airway caused difficulty in breathing. Q244 From the injury, what was the chance of survival? A Unlikely to survive. Q245 Were the injuries sufficient in ordinary course of nature to cause death? A Yes Q246 Refer ID3 (17) and (18), based on your examination finding, can the incised wound on the neck be caused by self infliction? A Possible but in this case not likely. Usually self inflicted fatal neck injury would have multiple tentative superficial cuts before the final fatal one inflicted. Sometimes they might have cuts on the wrist as well. In this case there was no other superficial cuts on the neck or on the wrist. MRJ NO:S-05-(H)-131-03/2016 20 Q247 Have you ever conducted post mortem on self inflicted neck injury? A Yes Q248 How many times? A A few times, I cannot recall the exact number. Q249 From the injury on the neck, can you tell how was it inflicted? A If right handed person stand in front or behind the deceased and slashed the deceased neck from the left to the right, it is possible to get this type of injury.”. [22] We found no merits in the learned counsel’s complaint on the issue of the appellant’s heights not being proven by the prosecution. [23] The final ground argued by the learned counsel before us was on the alleged failure of the learned trial judge to consider the defence of grave and sudden provocation available to the appellant. Learned counsel admitted that the defence of grave and sudden provocation was never put nor raised by the appellant in the court below. Learned counsel reiterates that the defence of the appellant was that the deceased slit her own throat. That explained the learned trial judge’s failure to consider whether the appellant can be availed himself for the defence of grave and sudden provocation. We are of the view that the learned trial judge could not be blamed for the failure simply because the MRJ NO:S-05-(H)-131-03/2016 21 issue was never put and never raised before the learned trial judge. The same issue was only raised for the first time before us. [24] The law on the defence of grave and sudden provocation can be found under Exception 1 to section 300 of the Penal Code which provides: “Exception 1 – Culpable homicide is not murder if the offender, whilst deprived of the power of self control by grave and sudden provocation, causes the death of the person who gave the provocation, or causes the death of any other person by mistake or accident. The above exception is subject to the following provisos: (a) that the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person; (b) that the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant; (c) that the provocation is not given by anything done in the lawful exercise of the right of private defence. Explanation – Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder, is a question of fact. ILLUSTRATIONS (a) A, under the influence of passion excited by a provocation given by Z, intentionally kills Y, S’s child. This is murder, inasmuch as the provocation was not given by the child, and MRJ NO:S-05-(H)-131-03/2016 22 the death of the child was not caused by accident or misfortune in doing an act caused by the provocation. (b) Y gives grave and sudden provocation to A. A, on this provocation, fires a pistol at Y, neither intending nor knowing himself to be likely to kill Z, who is near him, but out of sight. A kills Z. Here A has not committed murder, but merely culpable homicide. (c) A is lawfully arrested by Z, a bailiff. A is excited to sudden and violent passion by the arrest, and kills Z. This murder, inasmuch as the provocation was given by a thing done by a public servant in the exercise of his powers. (d) A appears as a witness before Z, a Magistrate. Z says that he does not believe a word of A’s deposition, and that A has perjured himself. A is moved to sudden passion by this words, and kills Z. This is murder. (e) A attempts to pull Z’s nose. Z, in the exercise of the right private defence, lays hold of A to prevent him from doing so. A is moved to sudden and violent passion in consequence, and kills Z. This is murder, inasmuch as the provocation was given by a thing done in the exercise of the right of private defence. (f) Z strikes B. B is by this provocation exited to violent rage. A, a bystander, intending to take advantage of B’s rage, and to cause him to kill Z, puts a knife into B’s hand for that purpose. B kills Z with the knife. Here B may have committed only culpable homicide, but A is guilty of murder.”. [25] Before the defence of grave and sudden provocation can be utilized, certain requirements have to be satisfied by the appellant on the balance of probabilities as required by section 105 of the Evidence Act 1950. Defence of grave and sudden provocation had been explained at MRJ NO:S-05-(H)-131-03/2016 23 length by Nik Hashim, FCJ in the case of Che Omar Mohd Akhir v. PP [2007] 3 CLJ 281, as follows: “[14] The question whether the provocation was grave and sudden such as to make the accused to lose his self-control is a question of fact and not one of law (see Explanation to Exception 1 to s 300 of the PC: Kuan Ted Fatt v Public Prosecutor [1985] 1 CLJ 150; [1985] CLJ (Rep) 174 FC). Each case is to be considered according to its own facts. The court must decide on the particular circumstances of that case whether the provocation was grave and sudden enough to permit an indulgent view of the crime committed by the accused, (see Ratanlal & Dhirajlal, The Indian Penal Code, 29th edn, 2002 p 1194). [15] The test of “grave and sudden provocation” was clearly stated in the Supreme Court case of Lorensus Tukan v Public Prosecutor [1988] 1 CLJ 143; [1988] 1 CLJ (Rep) 162. Seah SCJ in delivering the judgment of the court said: The test of ‘grave and sudden’ provocation is whether a reasonable man, belonging to the same class of society as the accused, placed in the situation in which the accused was placed would be so provoked as to lose his self-control (see Nanavati v State of Maharashtra AIR [1962] SC 605, 530). In determining what amounts to grave and sudden provocation the court may take into account the habits, manners and feelings of the class or community to which the accused belongs but not of the particular idiosyncracies of the accused: Madhavan v State of Kerala AIR [1966] Ker 258 (260). MRJ NO:S-05-(H)-131-03/2016 24 [16] It is also said that the defence of provocation is a dual one: the alleged provocative conduct must be such as (i) actually causes in the accused, and (ii) might cause in a reasonable man, a sudden and temporary loss of self-control as a result of which he kills the deceased. [17] Thus, in order to successfully set up provocation as a defence for the reduction of the offence of murder to one of culpable homicide not amounting to murder, it is not enough to show that the accused was provoked into losing his self-control; it must be shown that the provocation was grave and sudden and must have by its gravity and suddenness caused a reasonable man to lose his self-control and induced him to do the act which caused the death of the deceased. In determining that question the court may also consider, along with other factors, the nature of the retaliation by the accused, having regard to the nature of the provocation.”. [26] Further at page 294 at para [20] of the same case, his Lordship said: “[20] ….To our minds, there is no such thing as gradual and accumulated provocation that amounts to grave and sudden provocation. Devoid of its gravity and suddenness, a gradual and accumulated provocation is not sufficient to constitute a defence under Exception I to S.300 of the PC”. [27] We found no appealable error on the part of the learned trial judge in not making any finding on the defence of grave and sudden provocation. The burden is on the appellant to prove on balance of probabilities, the existence of circumstances bringing the case within any MRJ NO:S-05-(H)-131-03/2016 25 of the general exceptions as envisaged in section 105 of the Evidence Act 1950, which states: “105. When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the general exceptions in the Penal Code, or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the court shall presume the absence of those circumstances. ILLUSTRATIONS (a) A accused of murder alleges that by reason of unsoundness of mind he did not know the nature of the act. The burden of proof is on A. (b) A accused of murder alleges that by grave and sudden provocation he was deprived of the power of self control. The burden of proof is on A. (c) Section 325 of the Penal Code provides that whoever, except in the case provided for by section 335, voluntarily causes grievous hurt shall be subject to certain punishments. A is charged with voluntarily causing grievous hurt under section 325. The burden of proving the circumstances, bringing the case under section 335, lies on A.”. [28] We found that the appellant had failed to discharge their burden on proving his defence available under any of the exceptions under Section 300 of the Penal Code. As admitted by the learned counsel, the defence of grave and sudden provocation was never raised nor put to the prosecution’s case at the Court below. We found no merit on the third MRJ NO:S-05-(H)-131-03/2016 26 ground of appeal raised by the learned counsel for the appellant (see Bala Matik v. PP [2006] 2 CLJ 229). Conclusion [29] Based on the reasons adumbrated above, we found no merits in the appellant’s appeal. The conviction is safe and amply supported by the evidence adduced by the prosecution. The appeal is dismissed. The conviction and sentence of the High Court is affirmed. Dated: 2 November 2017 Signed (KAMARDIN BIN HASHIM) Judge Court of Appeal Malaysia Counsel/Solicitors For the Appellant: Zaleha bte Mohd Yusuf Pan Messrs Peter Lo & Co 2nd Floor, Standard Chartered Bank Building, Jalan Pelabuhan, 90000 Sandakan, Sabah For The Respondent: Mohd Zain bin Ibrahim Deputy Public Prosecutor Attorney General’s Chambers Putrajaya.

Tika 2.6.0

WA-11BNCVC-66-12/2016

PLAINTIF KASTURI BIN YUSUP DEFENDAN 1. LEONARD ANSELM GOMES 2. YAU YIN KEAT

02/11/2017

YA DATUK S. NANTHA BALAN

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=0d88f013-d45f-4e10-bc8b-e8ef3b1f3594&Inline=true

D.\L.\M MAHK.\M:\H TIN GIDI Kl Al.\ I,uMPU)< D.\L.\.\1\H x\'.\H Pl:R.\' UA\1 mm A LUMPLR 12 201 AN 1 .\Rv\ KASTURI BIN YUSUP ...PERAYU D.»\\' I. LEONARD ANSEIJ/1 COMES 2.vAU YIN ICEAT ...RE.SPONDEN-RESFONDEN DALAM M_\H};zuL\H MVISTRET DI KLHLA l.U.\lP 'R DAL\MNI’G1'lU \\1L.m\H sr ‘U'lL L-\L.\‘1'S|A KASTURI BIN YUSUP . PLAINTIF n.w 3. LEONARD ANSELM GOMES 4.VAU YIN KEAT DEFENDAN-DEFENDAN QEQUNDS or luncmgux 1 Tm; L: an appeal whm. :n.<z< our nf :1 mnnmg dmxm marrer whcrcm rhc plilnrlffs clmm ‘A2: dwinwxcd mm full (ml) hy ma lunmcd \I:\gIm'alc The dwxslun of [hi lmrlwd n\l»1;;x>|.rntc 1: dalcd 2 Dccunlztr mm The Appual by um pl-.uumT ls ngxunsl lmbxhty ma Wmum 1 man mic; [0 (ha pzmcs 1., mm angina] udcs. 'lhe npptllanr shall be nfentd to 2: "me plaintiff‘. The am defgndam and yuond dzfrndant my be ztfumd m as “D1”znd -1:2“ respccuxely W was The accxdenr nccurted on 30 M:n:]\ 2015 at awuml 100 pm «lung ]a].1n Dum, Km Lumpur A. I11: x-mkcml ume, an plmnuii was riding momrcyclc No.\X"1$ arm r-nu motorcycle") and D1 was dnvmg muzonzar No. AEY mo ("the molorcm”). D2 was |h: oxvncx of Lhc motozcsr. Thu: .5 a dispute as me how an asddmt tuctly occurred On d1: one hand. mg plmnuff alkgrs am he was ndmz lhc mamrcycle along Jahm Dum. Kuala Lumpur and was (mvcllmg along me northerly (Iwccuun .1: pm A to B m the much plnn (p.93, AR) whrn lhe motorcnr which was Lm\'e|.I.Ing nhcnd or mm. zpputnlly revel -a m ordu [0 swerve to am left so as .0 head zowuds (I1: sliymad :0 1mm. Dun. The ahp mad .5 suumzd on an 12:‘. of Jam. Dun Accnrdmg :0 the plalnnff, the molorcyrle mums mm me rear-nglt suit of ch: motoxcax. Thur ms consxdemble damage to me motorcycle. The plamuffalso susmmtd scnmls miuncs. The p1mnrr,.n,un¢.- am a) F1-acmrc right clnvlck: b) mgm Ln:c strum"; C) chm: fuczum 11gh:4"‘2nd 5*‘ rain. 4) Starring hum; 5. The plzAn(1f("s residual Imuncs Ire — 1) Pan: at fight shoulder when using ugh: upptr hmh. M) Mud defon-mty It nght clnvxclc ma. my Unablc .0 carry heavy ohms. AV‘) Dmiculzv to he on his nghr side of the bud) during sletpmg; v) mg“ chm mu pain, my UnsnghL|yscars- 9cmVshzptd|accx:uon sczx hyu forearm: - |nulnple slrflll abrasion scms ugh! rmm; - 2 x 2 cm nbrmon scar nghr km; . 7 cm sulguzzl scus ngln davldt On :11: who: mud. on rrmnmns am he was mmxhng along jalan Dulz md was 2; me ha sldc u! d): 1uncL\on an jalan Dutz/Dumms when he hma the ham ufmomlrycle winch had fallen Th: unis: mm: from the [ell or Crom the hack of uh: motoxcnr. He stopped the momxczx ma wan m txamme the smlauan H: found that rhere was no damage .9 the Inolmmr. He $H\\' me ride: of uh: man-ncytle Ind falluu bzlumd ch: motmcnr. Hc u uluwarc .5 m haw Lhc .ma.m had nccuncrl I mm new m zhc pullcc xrpuns by the pluuuff and D1‘ up we In In. pnllcc repnn mzwx K\n\¥,A Lmm mnzxuxnmama 2 -\pnl 2019 (pm. AR) um plalnuff ma Ihn me accxdcnt atzuuud )4. (olIu\w- --1--ma xmmzuxs JAM LHIIH xusuxu mm m mm. 3/WA M[~ND«fiGA)\(‘v MUIOVIKM. NOMBOR ms mm mm rm» (HEO\& MOTOR szummu .\|r;Nuu xs mwaumu mass umamz PADA in nu my ,unmn A s';\\,\ saw-xx m 1:.» nun. DEKGERAK srmm nus»: DI L/mu» sam mu ‘mu sum Luml mzum KERETA no Am‘ um \'. Nu mum m H,uww~ Mum SAVA m All wmcunxun m. nxumw: |:m'uK M/\§|JK K1: wsux mm unum m swam: Km! Lunw saw ummu 1r,x<:am TV. All 1' nu.wu< NE m;r.\N umuk wmux Kn smmu. ma All mu mun v.\'/u mm mm; tun mm: mm mcM;v:IAK rum m:i:n.mK.\N mun «mun 1l-.ks:Bur 'rr_|.An 'r -nmw In-:1u'r um MQIKAL Mu v LA :4 . mm vu rmx AVI xmxnm nu. 5-WA .w:.u<;».LAm Ksuun-mun r,\-mu mm. KA, N. wx/\NG uustk ‘shun/ul K/N/xx scam mm mm m nxwcm mm m.s<x \.1E.\ERmA xnuuaw nx uosmm SINKOSA ».nm-/um: w§1K,\L g,w,« mu wwuu. Iokx. covkk sv-‘I my um L/ms swznsumn auuu urns: mm 1 Mil [zmplmsfl and undckhnmg added] In In: pnhcc Vrpnrr {rR\F1K mm A : nmwxnzmnrm dated 30 Mmh :m i (p '25 AR‘, Ihc am ndzmz sum the fnllnumg mm .umn/zms JAM mum KUUNU vuum sxmm s.m\ mam ME.‘/IANDL s Bum MKAR N0 mm AEV exnu um D~‘HHk\M:\|l m< nun KL Am my-mwm-m. mus». armm nv PEKEIMPANGAN JLN nITArnIvrAM/H, mm Knuu my gun. amum m uwm Kw! my TIBAJIBA < nr.xM:\a - v n \1 am. 1: II mm by $553!: mu. sum M§\II1§§j[hT|KAK M/K43 my rm mm u\'11v5 M:-wuun K1-:A|)A.sN nu mg 35A in DAPAH mug 5,5” nmx mung-(5 gm srnu.uu.- xlzuh r mm.-<mw< mun E gfggggfigj; mm s/WA mm sznsmm 1-r,mv.vr.<,,w:. M SIKAL No 1'r,Nu wrs new man remmm on xammmo mm mm Ywxf/\ Kr\4-xi./NGAV s/WA nmu. mm -mm; sum LIHAT rsuuuaama TERSEBUT MENGANGKAT MSIKALNYA sawnnu KL ‘IEPI JALAN DAN m mrm MENGALAM) KECEDERAAN l.\JI(A m 'lA)\4'IAV\ um smm TURU1 MENOLONG psnwcmuo 1'ERSEBU1 MENOLAK M’§IKr\I.NV/\ xz -rm mum mum SA‘/A nun LM-mun ADALAH vxemnanumnu BAHAWA sum rm: vmum saw Tum. mmxm x_,u«usuNa [mm KEMAIANIIAN INI smm uvouuw saw. [cmphzsls ma Ilnderhmng .dd:d] Analysis 9 Th: pollcc mvesngnuon officer for me zcndtnr was Sana:-A Mas Ifikindli 3... Ah (Pcgmrzl Fevmasnt Tmfik) (“the 10") The [0 was called its a mm; fur me plmnuff. Hc ruufird am he cxnmlned mg momma: ma fnund mm mm \\ s nu damage. Em hr ma omitted to take plmlugmphs H: candully zzccpmd um he was at (mm for not talung phologaphs 01' ch: molnrcn In so in as an cundniou ofzhe moxoxmx is concerned. me no sud during c)<m\|n:uan—1n—ch1=f um he found mu: was no darnng: [0 ch: motolcnr The 103 cndcnc: rnzy be seen from :11: notes of evldcncz whxch reads as.— “W mm kcmukun up-.1; krrmeH:1n.iika|:u mp syn Kcndcnnn mm“. AEV alnn .u.:.n mama. -mu |znl:I)uIl kuzn uu...um.: (9 4. AR Tamhzlun um -msm The ltamed .\cag.sc.m um themfore (ma .1... crmfllrung (easons as .0 how the mac... mi)’ have I-ulppcncd, Humg (nus mad the evldcntc. rhc lczmed Magxumze mm: .0 the LIUIKILIVIUII .1... .1“ plmndif hm not pruvzn 1... use 0.. . balance of pmbabmuts ma dxsmsssed m. 51.1.... 11.: mlm... pan ofxhe grounds ofyudgrnent reads as follows. »n.1.... kc: ...., ubipmum ynng vzlah dmyuukan .1. am. ms. km...» .1... pxllnk ........... bngnlmum n.....:...g.... bulnku ml... bcncmlxgguh Sacnu nnghsnya. ..|......r...:..p..1a.. hahnwa «mam mmnundulkivl kcmunya .14.. mcnyebnbhm m......r udak kmpfl mzngelak Wu ...u..,.... .......k.. defnndm 5:m1.k..,z 4er...a... mu. ...:.......n..... a.r:..a... scdung ..........d.. um... dduvdan mdtngv 5...... km u>cr=...:... mzmhcv-hcnlxknn mmnknr .1... mehhnl ,.u.....: .4... lmulull mam. k..m.am..,. ...=........... ,.1.a....r...;....x.x mnmmknmy: kc Itpi M... Yemx-.n| pcnymnlmzmhn1lu1\ubuh|w:||Iadn mg. Ixhasdalam kcs nmm kc-pad: lakln um Im. a.:..... kc...a.... mht mm, ......u.....:. ...=....,....m\ pzndzkzlan .......x mtngarultsa buku xcnyip y..... wxdapzl um... ken .... Mg...-,¢.... kcmukan L...«m..., p1......r mznylukan bahawa kcnmkun mm. pm raw... Y1-ndlc. rm dam covw ul dzpnn Mmam. ........u. mm... ...a. wbalang kc.......... mm... aw... ,x...».. ..c.._v..u. .<........ lwdi .......r... .........»w..:> dcfmdzn a......\... nun pegawzu p:n)1|:uL Belnauakm hahwnlu mam. kesnlapan behlu. Szltmsuyu. peywal ptn)vln| mink aw .m...m.m uuk pahnggamn ma... dun milk ...=-..u....... mbnnng kzsun kcnulanggm 1.... mm am. ..»..gs...».... ......a. ..1.s....n:..a...y. wndm sun mm ...:.......... mom....m...4... Pegawu .x........ mm. sauwu mm... ...=.u...... kcuulmm mhapl fiujuk mm. Mamlrcl" RTM ................k.... p..=....g.;...... wmynng a.m...um... nkh kedua-du: puhak Sertlah ....mm.:. mgnehu saga]: kcnrnngan _ ....m...... ..=...:......... mm plaumf um I. mmuunnyn ma. x..m.|.... ....n......... ..u... ...a..... ,..a. ........k... aaum w.:......... usywu ,....y:.... 9...: ....m. nungnmhil .,..|.... ........k..» .:.:....x..... ...-..... .a..n.... n....n..... mm... lxllnu Ielnh nd .. ........:u. .m....u... .1... .......:.....n ma: ubnnng 1...... u.-......... .............. x.......... ...a...... .....:. ........................ Fageinfi! SrL:m um. sums mcmbm knemuan. ylamlxl nun mznmdaknn ‘x’ pad‘ n sehagm Itmpll beflakunyn kurIallngan.S:1:|Il\ dlamalx. mm we tcnmblll ndnluh bum]-Ix-ml sdvclnm Qlr!snI1»:uIs|uy:ny mrmbuhnwkln ,.n.n., samada kt km vanu kc Tannin mm am: ,.In.. ms k: max unaunyn fllngur din Pruling In): Milkamnh harp:-nd|pI|xekIlu1yA vem plalnnl Izmbulkms. a... »gk;m,.. ynmnk: deftndun mm bu-Ada a. mu. uerenn... um mm Incngundul kc belnknng uruuk kc kln kzrunl ludapzl nuns vans Vncncukupu .1. nm new yum mzmbnhlmkunanlan mnunsh ms-ebnl Selnnjulnva. ualzupnn Leldxval perunggahan mengrnzx mm km ynng d1-Imp: dcimvdan a. mum dllnm Iupmm pulu deftmnu -hnynnkuu dzfendzn lenbznpx hunyx as hdakang rnznakala a.1..n its mni defcndln an malxkamah, dzluldxn tnenylukm ltmnngar bunyn .1. scbelah lunxn mlhkmuh bcrpcndapnl hlhawu ycvunggahnn lcrsdrm um ‘ran!’ an- uhk menjejaskan krudflnlm knzmnpu dzfendan mu k:selunIJuMyI Malnhuu mahkumh hcrpumnpux hlhxwu khan pcmbuklum Idnlnh padn Sqlflnjing mu: Azxleuk nna. pnnnnv Mslcm mv. bcvdasarkm Iluan-ahsan dv am. my mu Imhingan kebanngkalun, nuhkzmah Iknyn mi mamflmknn hnhntu plllnhfngal mcml-mlnkan ks mm... dcfzndlll. Olek mg dtmikxln. :n..n.z... vhnnxlfdxlollk dcngul kn: :ebau)akKM|.2flD00 - [Kcknd mu... 1mr..zn.nuI».nr: 7 ,9; [flnphasls addccl] In my mw, hm! on an cudtnce um was pxtscmtd to due Conn .: mal, (ha conclusnon um was leached by m: lezmed Mzpsmle wns one which was fun and rcasonzblc and am not drmonsmle mm mm was my nuszppxtcxaunn of Lhe tndmce. I find am we lcamad Magsunte took me pxopti legal approach when confxomtd wuh canflxcling vcmons as :9 how me accident may have occurred‘ Clearly, «nu l::m=d Mngnmu had believed mg 10:: :v1dcn(c um xhcre was nu damage m an: murmur 13,- pink} at msnnmg, u zinc muns Lhaz dx: lcnrncd xungmmc had Lvehcved D1 ma: them was no darnzg: to me morotcxr u...1.rs 12 In ma result. xh: pmnurrs vzrsion am (ha motorcycle knocked mm the rear (ugh: side) of me molormt would bc inherently Improbable bccnuin xi more was Contact bukwncn the rnmorc_\'cl: and xhr mnloxcnr, um than would be vmble usll-mlc “gm on the mat of the momma: u. an form of much mad: or dcnts tn: Thus, me Magsrntds findmg mm mm WEI: no signs of any dmnzge (0 mg [ell of ch: mun:-(ca: dcmohshcs :11: credibility or the plmnuffs vuslon as no how Lh: zcudcnt had occumd. 13 Consequently. 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Pytesseract-0.3.10

B-01(A)-427-11/2016

PERAYU MADHUVITA JANJARA AUGUSTIN (B/C NO: CM 00424) (SUING THROUGH NEXT FRIEND MARGARET LOUISA TAN PAPUA NEW GUINEA PASSPORT NO: C113485) …APPELLANT RESPONDEN 1. AUGUSTIN A/L LOURDSAMY (I/C NO: 740330-08-6403) 2. ATTORNEY GENERAL MALAYSIA 3. CHIEF REGISTRAR OF BIRTHS & DEATHS MALAYSIA … RESPONDEN TS

Constitutional Law — Citizenship by operation of law — Application for — Whether a decision under Part III of the Federal Constitution is non-justiciable — Whether subject matter is entirely justiciable and within the purview of the Court — A child born out of wedlock — Legitimization by the subsequent marriage of her parents — Scope of word ‘parents’ under the Federal Constitution — Whether ‘parents’ in that provision simply refers to capacity of "parents" of person seeking citizenship — Whether she has the necessary bloodline as prescribed in that at least one of her parents is at the time of her birth either a citizen or permanently resident in the Federation of Malaysia — Federal Constitution, Article 14(1)(b), Article 160, Second Schedule, Part II, section 1(a), section 1(e), Part III , section 17; Births and Deaths Registration Act 1957 [Act 299], Legitimacy Act [Act 60], sections 3 and 4; Adoption Act 1952 [Act 257] .

02/11/2017

YA DATO' MARY LIM THIAM SUANKorumYAA TUN TENGKU MAIMUN BINTI TUAN MATYA DATUK KAMARDIN BIN HASHIMYA DATO' MARY LIM THIAM SUAN

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=cc2e59ad-9016-47ce-82d0-b2efd0826ab2&Inline=true

1 IN THE COURT OF APPEAL, MALAYSIA (APPELLATE JURISDICTION) CIVIL APPEAL NO: B-01(A)-427-11/2016 BETWEEN MADHUVITA JANJARA AUGUSTIN (B/C NO: CM 00424) (SUING THROUGH NEXT FRIEND MARGARET LOUISA TAN PAPUA NEW GUINEA PASSPORT NO: C113485) …APPELLANT AND 1. AUGUSTIN A/L LOURDSAMY (I/C NO: 740330-08-6403) 2. ATTORNEY GENERAL MALAYSIA 3. CHIEF REGISTRAR OF BIRTHS & DEATHS MALAYSIA … RESPONDENTS [In the Matter of the High Court of Malaya at Shah Alam (Civil Division) Originating Summons No: BA-34-8-03/2016 Between Madhuvita Janjara Augustin (B/C No: CM 00424) (Suing Through Next Friend, Margaret Louisa Tan Papua New Guinea Passport No: C113485) … Applicant And 1. Augustin a/l Lourdsamy (I/C No: 740330-08-6403) 2. Attorney General Malaysia 3. Chief Registrar of Births & Deaths Malaysia … Respondents] 2 CORAM: TENGKU MAIMUN BINTI TUAN MAT, JCA KAMARDIN BIN HASHIM, JCA MARY LIM THIAM SUAN, JCA JUDGMENT OF THE COURT [1] The appellant, Madhuvita Janjara Augustin is a minor, aged 11. Her application before the High Court for amongst others, an order that she be re-registered by the 3rd respondent, the Registrar of Births And Deaths, with the status of a “Malaysian citizen” was brought on her behalf by her mother, her next friend. There were no objections to her other orders, that she is the lawful child of the 1st respondent, her father; that appropriate DNA tests be conducted to verify her blood ties with the 1st respondent and her mother. Those orders were consequently granted without event. However, her application that she was entitled to be declared a Malaysian citizen was objected to by the respondents and consequently, dismissed by the High Court. [2] Upon full consideration, we unanimously allowed her appeal and granted the order sought. These are our reasons in full. 3 Brief facts [3] The appellant was born on 28.11.2005 at the Tengku Ampuan Rahimah Hospital at Klang. Her birth was duly reported to the authorities on 1.12.2005. The appellant’s mother, Margaret Louisa Tan, holds a passport issued by the Government of Papua New Guinea. Her father, the 1st respondent, is a Malaysian citizen, born in Selangor. [4] At the time of her birth, her parents were not married to each other. Her parents only married on 23.1.2006, after the appellant was born. They could not marry any earlier as her mother’s divorce from her former husband had yet to be finalised. The appellant has since birth, lived with her parents at Taman Mujur in Klang, Selangor. At the time of her application, she was schooling at Sekolah Rendah SK Kampung Jawa in Selangor. [5] In her mother’s affidavit filed in support of the appellant’s application, her mother averred that both she and her husband were not aware that the appellant’s birth was not registered until they wanted to enrol the appellant for primary education at a local school. A birth certificate was required for that purpose. The appellant’s birth was then registered on 18.4.2011. According to the details entered in the birth certificate issued to her by the 3 rd respondent, the appellant is not a citizen of Malaysia. [6] The 1st respondent, the appellant’s father subsequently applied for citizenship for the appellant under Article 15A of the Federal Constitution. By letter dated 16.1.2013, the Home Ministry advised the 1st respondent that the application was unsuccessful. 4 [7] Before the High Court, the appellant sought the following orders: i. a declaration that the appellant is a legitimate daughter of the 1st respondent and Margaret Louisa Tan; ii. an order that the appellant and the 1st respondent undergo DNA test to establish blood ties between them and that such results be taken as conclusive evidence of blood relations between them; iii. the Registrar of Births & Deaths Malaysia re-register the appellant’s birth as a legitimate person under the name of Madhuvita Janjara Augustin and the names of the 1st respondent and Margaret Louisa Tan be registered as the respective biological father and mother; iv. the Registrar of Births And Deaths Malaysia re-register the status of citizenship of the appellant as “Malaysian citizen” and her religion as “Christian”. [8] The 2nd and 3rd respondents had no issue with and had no objections to the first three prayers. These prayers were then, allowed. The respondents had further agreed that a new birth certificate pursuant to section 17 of the Births And Deaths Registration Act 1957 [Act 299] will be issued in the event the appellant is declared as the legitimate child of the 1st respondent and Margaret Louisa Tan. With these concessions, a DNA test to establish paternity under prayer (ii) no longer arose. 5 [9] Consequently, the only issue before the High Court was whether the appellant may be granted citizenship by operation of law pursuant to Article 14(1)(b) of the Federal Constitution. Contentions of the parties [10] These were the principal arguments of the parties raised before the High Court. [11] Learned counsel for the appellant contended that the appellant qualifies to be recognised as a citizen of Malaysia as she meets the conditions in Article 14(1)(b). Article 14(1)(b) only requires the appellant to satisfy any of the qualifications specified in Part II of the Second Schedule. Since the appellant meets Article 14(1)(b) read with the supplementary provisions in section 1(a) of Part II of the Second Schedule, and/or, Article 14(1)(b) read with section 1(e) of Part II of the Second Schedule, she is a citizen of Malaysia. [12] Specifically, and in relation to Article 14(1)(b) read with section 1(a) of Part II of the Second Schedule, the submission is that the appellant is a legitimate child of her parents given that her parents are lawfully married. Section 17 of Part III of the Second Schedule which would have excluded her from the operation of Article 14(1)(b) therefore, does not apply. [13] The appellant further relied on sections 3 and 9 of the Legitimacy Act 1961 and the decision in Yu Sheng Meng (suing through Next of Kin, Yu Meng Queng) v Ketua Pengarah Pendaftaran Negara & Ors 6 [2016] 1 CLJ 336 in support. In that decision, the learned High Court Judge is said to have been prepared to consider the issue of citizenship by way of operation of law under Article 14(1)(b) of the Federal Constitution had the parents of the applicant in that case been legally married thus rendering the child a legitimate child of his parents. In that case too, there was no averment on the status of the parents’ marriage or even evidence on whether the biological parents of the child were legally married. Consequently, the child was deemed an illegitimate person under the law. As an illegitimate person, section 17 of Part III of the Second Schedule operates to disqualify the person from claiming status as a citizen of Malaysia. Contrasting with the facts in the present case, the appellant is a legitimate person within the meaning of section 3 of the Legitimacy Act 1961 [Act 60] as her parents are married to each other in which case, section 17 of Part III of the Second Schedule does not apply. [14] The alternative ground for her claim of citizenship is Article 14(1)(b) read with section 1(e) of Part II of the Second Schedule. The appellant makes the case that this provision guards against statelessness. Since the appellant is born in the Federation and is not born a citizen of any other country, including her mother’s, she is entitled, as of right, to be a citizen of Malaysia. [15] These are the rival arguments of the respondent, some of which pertain to the issue of the appellant’s birth certificate, whether the existing should be amended or, a new birth certificate will be issued under section 17 of the Births and Deaths Registration Act 1957. 7 [16] As for the arguments on the citizenship of the appellant, the affidavit in reply of the respondent principally contended that the appellant is an illegitimate person. As an illegitimate person, the appellant adopts the citizenship of her mother under section 17 of Part III of the Second Schedule. Consequently, the appellant is not entitled to follow the citizenship of her father. [17] Learned Senior Federal Counsel further argued that section 1(a) of Part II of the Second Schedule requires the ‘parents’ of the appellant to be ‘lawful parents’ and not, ‘biological parents’. Only ‘lawful parents’ beget the ‘lawful child’ or ‘lawful person’. Although the appellant’s parents married each other, the solemnisation was subsequent to the birth of the appellant thus rendering the appellant as a person ‘born out of wedlock’. Several cases were cited in support; namely Nedunchelian V Uthiradam v Nurshafiqah Mah Singai Annal & Ors [2005] 2 CLJ 306; Shamala Sathiyaseelan v Dr Jeyaganesh C Mogarajah & Anor [2004] 2 CLJ 416; and Foo Toon Aik (Suing on his one behalf and as representative of Foo Shi Wen, Child) v Ketua Pendaftar Kelahiran & Kematian, Malaysia [2012] 9 MLJ 573. Section 13 of the Births and Deaths Registration Act 1957 is cited in further support. [18] The learned Senior Federal Counsel also submitted before the High Court that the appellant cannot be granted citizenship under Article 15(2), again because of her illegitimacy and the operation of section 17 of Part III of the Second Schedule. Further, any order legitimizing the appellant under sections 3, 4 and 5 of the Legitimacy Act 1961 [Act 60] cannot serve to confer or qualify the appellant the status as citizen. This is because the Act clearly provides that the status of legitimacy is only 8 enjoyed from the prescribed date or from the date of marriage of the appellant’s parents, and that date is a date after the appellant was born. [19] Lastly, learned SFC submitted that citizenship is entirely within the executive discretion of the federal government, that it is not a justiciable matter open to the Court to review, and that the Court has no jurisdiction to hear or make any order concerning citizenship. Article 31 and the decisions in Kuluwante (An Infant) v Government of Malaysia & Anor [1978] 1 MLJ 92, In Re Meenal w/o Muniyandi [1980] 2 MLJ 299, Yu Sheng Meng v Ketua Pendaftaran Negara & Ors [supra] were cited in support. [20] These same submissions were, to a large extent, canvassed before us by both parties. Decision of the High Court [21] The High Court agreed with the submissions of the learned SFC. The High Court further agreed that matters concerning citizenship are non-justiciable and outside the purview of the Court. According to Her Ladyship, the appellant ought to have appealed to the Government when her application for citizenship under Article 15A of the Federal Constitution was refused. [22] On the question of whether the appellant may be granted citizenship by operation of law pursuant to Article 14(1)(b) of the Federal Constitution, the learned Judge answered the question posed in the negative. Her Ladyship refused the application on the basis that the 9 appellant did not fulfil both conditions prescribed in Article 14(1)(b) read with section 1(a) of Part II of the Second Schedule. Although the appellant fulfilled the first condition in that she is born in the Federation, she did not meet the second condition. The second condition required at least one of her parents to be, at the time of her birth, a Malaysian citizen or was ordinarily resident in the Federation. This second condition was not met because her parents were not lawfully married to each other at the time of her birth. The appellant was born out of wedlock. [23] Relying on the decision in Foo Toon Aik (Suing on his own behalf and as Representative of Foo Shi Wen, child) v Ketua Pendaftar Kelahiran dan Kematian, Malaysia [2012] 9 MLJ 573 and Chin Kooi Nah v Pendaftar Besar Kelahiran dan Kematian, Malaysia [2016] 7 MLJ 717, her Ladyship held that the appellant was only entitled to citizenship where her parents were lawfully married to each other at the time of her birth. In other words, the word “parent” was read as necessarily inferring “lawful parents”. Since the appellant’s parents were not married to each other at the material time of her birth, the appellant did not qualify under the terms of the Federal Constitution. For the same reasons, the appellant would not qualify under Article 15(2). [24] The learned Judge further found that the appellant was not without citizenship. According to her Ladyship, the appellant was actually entitled to citizenship under the laws of Papua New Guinea as her mother is her citizen; and that the appellant ought to apply for her citizenship in Papua New Guinea – see page 6 of the Additional Record of Appeal. 10 Our decision [25] As stated earlier, after considering the submissions of both learned counsel, we found merits in the appellant’s submissions and unanimously allowed the appeal. These are the reasons in full. Justiciability of the issue [26] We start with a few preliminary issues; first of which is the issue of justiciability of the matter, the argument being that a decision under Part III of the Federal Constitution is non-justiciable. Section 2 of Part III of the Second Schedule reads: A decision of the Federal Government under Part III of this Constitution shall not be subject to appeal or review in any Court. [27] Section 2 above stands as an ouster clause. Parliament, in all its wisdom has seen it fit that decisions of the Federal Government under Part III of the Federal Constitution are not to be subject to appeal or review in any Court. Now, as an ouster clause, and that will include such a clause sited in the Federal Constitution, which serves to limit and oust the jurisdiction of the Court, section 2 must be read strictly. This is because the Courts guard its jurisdiction and powers responsibly and for many more good reasons which do not require examination or expansion for the present purposes. 11 [28] It is quite clear from the carefully worded terms of section 2 that the scrutiny of the Court is only excluded where it concerns a decision of the Federal Government made under Part III of the Federal Constitution. It is apparent from the Records of Appeal that the Court was not moved to hear an appeal or review of any decision made by the Federal Government under Part III, and that includes the Federal Government’s rejection of the appellant’s application for citizenship under section 15A. That decision of the Federal Government is not under challenge. In fact, no decision of the Federal Government is in the facts of the present appeal. It is further clear from the cause papers and submissions before us that the decision of the Federal Government under Article 15A in respect of the appellant remains with the executive government. [29] But, that is not to say that the Court may not refer to that decision in the course of its deliberations on the appellant’s application. Neither can it be right nor may it be suggested to be the intention of Parliament as set out in section 2 above, that the Court cannot make any pronouncements on citizenship under Part III of the Federal Constitution. Matters concerning citizenship, as are a whole host of other subject matters found in the Federal Constitution are within the purview of the Courts. It is only the decisions of the Federal Government under Part I I I that are not open to appeal or review in any Court. [30] In the Originating Summons filed by the appellant, the appellant sets out her prevailing facts and conditions before she invites the Court to make certain declaratory orders on her status in respect of her claim for citizenship. When considering such an application, the Court is far from sitting on appeal or review, let alone appeal or review of a decision already made by the Federal Government under Part III of the Federal 12 Constitution. We, therefore, do not agree with the learned Judge in this regard. [31] We observed that the learned Judge agreed with the submissions of the learned SFC that the matter before her is non-justiciable. Before leaving this first issue, we must correct the use of the term, “non- justiciable”. [32] The presence of an ouster clause of some degree or extent in its application found in section 2 of Part III of the Second Schedule is to our minds, not the same as saying that the matter is non-justiciable. Although the decisions in Kuluwante (An Infant) v Government of Malaysia & Anor [1978] MLJ 92; Andrew s/o Thamboosamy v Superintendent of Pudu Prisons, Kuala Lumpur [1976] 2 MLJ 156; and In Re Meenal w/o Muniyandi [1980] 2 MLJ 299 have been cited in support of this proposition, a careful reading of the same does not hold true. What those cases, in fact, say is that “the laws on citizenship and immigration rest solely on questions of public policy”; that “Under the Immigration Ordinance, only the Executive has power to release the appellant. Whether or not the Executive should do so is a matter of policy for them, they have information and sources of information not available to the Court and are moved by political, economic, social and cultural considerations which the Court is not well equipped to apply, and judges should be slow to embarrass them into any course of action .” None of the cases cited equated the existence of ouster clauses, or matters concerning citizenship or immigration as “non-justiciable”. The Courts merely alluded to the fact that the Court should be slow to enter into these areas for the subject matters of immigration and citizenship are often fraught with policy, political and administrative considerations. 13 An example of a non-justiciable matter would be clemency or pardon where such matters are within the prerogative of the Ruler of the realm and where mercy begins. A quick thumb through the law journals will readily yield results showing many challenges taken on immigration and citizenship matters. The success or otherwise of these challenges have not been for reasons of non-justiciability. [33] In Kuluwante (An Infant), Yusoff J said at page 95: “For these reasons, I am of the view that in a proper case, the Court is not precluded by reason of the ‘ouster provision’ only, to entertain a claim for declaration that an individual is a citizen. But whether the Court would entertain a claim for declaration that the plaintiff ‘is eligible for registration as a citizen’ under a relevant provision of the Federal Constitution, as it is sought in this case, involves different considerations and the Court should also construe other provisions of the law relating to citizenship to determine the effect of such declaration.” [34] In the present appeal, the subject matter is entirely justiciable and within the purview of the Court. Principles to be adopted when interpreting the Federal Constitution [35] Moving quickly then to another preliminary matter and this really pertains to the interpretive principles that are to be applied when construing the Federal Constitution. We note that in determining 14 whether Margaret Louisa Tan and Augustin a/l Lourdsamy are the parents of Madhuvita Janjara Augustin within the meaning of Article 14(1)(b) read with section 1(a) of Part II of the Second Schedule or section 1(e) of Part II of the Second Schedule, the High Court had turned to provisions of various statutes such as the Births and Deaths Registration Act, the Legitimacy Act and the Adoption Act. Principally, this was because the case authorities that were referred to the Court concerned these statutes. This indirect reliance on statutes to construe and interpret the most basic and fundamental of all law in this country, that is, the Federal Constitution, must be treated with utmost care and circumspection, regardless the end result. This is especially inadvisable given that the Federal Constitution has its own interpretation provisions in Article 160, and in the particular instance of this appeal, Part III of the Federal Constitution has its own interpretation provision in section 17 of Part III of the Second Schedule. [36] The apex Court has laid down the principles to be applied when interpreting and construing the Federal Constitution, the supreme law of the land. Two of those principles that come immediately to mind were expressed in Dato’ Menteri Othman bin Baginda & Anor v Dato’ Ombi Syed Alwi bin Syed Idrus [1981] 1 MLJ 29 and Dewan Undangan Negeri Kelantan v Nordin bin Salleh & Anor [1992] 1 MLJ 697. In Dato’ Menteri Othman bin Baginda, Raja Azlan Shah, Ag. LP (as His Royal Highness then was) said at page 32: “In interpreting a constitution two points must be borne in mind. First, judicial precedent plays a lesser part than is normal in matters of ordinary statutory interpretation. Secondly, a constitution, being a living piece of legislation, its provisions must be construed broadly and not in a pedantic way – “with less 15 rigidity and more generosity than other Acts” (see Minister of Home Affairs v Fisher). A constitution is sui generis, calling for its own principles of interpretation, suitable to its character, but without necessarily accepting the ordinary rules and presumptions of statutory interpretation. As stated in the judgment of Lord Wilberforce in that case: “A constitution is a legal instrument given rise, amongst other things, to individual rights capable of enforcement in a court of law. Respect must be paid to the language which has been used and to the traditions and usages which have given meaning to that language. It is quite consistent with this, and with the recognition that rules of interpretation may apply, to take as a point of departure for the process of interpretation a recognition of the character and origin of the instrument, and to be guided by the principle of giving full recognition and effect to those fundamental rights and freedoms.” The principle of interpreting constitutions “with less rigidity and more generosity” was again applied by the Privy Council in Attorney General of St Christopher, Nevis and Anguilla v Reynolds. [37] This approach was adopted and applied by the Supreme Court in Dewan Undangan Negeri Kelantan v Nordin bin Salleh & Anor with Abdul Hamid Omar LP citing again the Privy Council’s decision in Minister of Home Affairs v Fisher, that a constitution based on the Westminster model must not be treated as if it were an Act of Parliament and that “a constitution should be construed with less rigidity and more generosity than other statutes and as sui juris, calling for principles of interpretation of its own, suitable to its character but not forgetting that respect must be paid to the language which has been used .” The Lord President cited Barwick CJ who, in the decision of the High Court of Australia in Attorney General of the Commonwealth (At The Relation of McKinlay) v The Commonwealth of Australia & Anor (1975) 135 CLR 1 said at page 17: 16 “…the only true guide and the only course which can produce stability in constitutional law is to read the language of the constitution itself, no doubt generously and not pedantically, but as a whole and to find its meaning by legal reasoning”. [38] In Dewan Undangan Negeri Kelantan v Nordin bin Salleh, the Supreme Court further shared the view of the Privy Council expressed in Ong Ah Chuan v PP [1981] AC 648. Although that was a decision on the Constitution of the Republic of Singapore, it is nevertheless noteworthy in relation to the approach when interpreting a constitution of a nation, that a “generous interpretation is suitable, avoiding what has been called “the austerity of tabulated legalism ”. The Supreme Court also adopted the view of the Supreme Court of India in OK Ghosh v EX Joseph AIR 1963 SC 812 that an interpretation rendering the Constitution ineffective and illusory ought to be avoided. [39] While these cases may have concerned different provisions of the Federal Constitution and certainly different subject matters, fundamental liberties as opposed to citizenship, we do not see how these basic principles which have been consistently applied in our land, should cease to be relevant or have no bearing in matters concerning citizenship. We note that none of these principles weighed in the learned Judge’s mind when interpreting Article 14 of the Federal Constitution; and they should. Instead, the meaning and application of Article 14 was determined and construed by reference to statutes which are obviously subsidiary to the Federal Constitution. 17 [40] Having set out the proper approach when interpreting and applying the Federal Constitution, we shall now move to the particular provisions at play. An entire part of the Federal Constitution, that is, Part III, comprising three Chapters dedicated to the subject of citizenship. Chapter 1 deals with acquisition of citizenship, Chapter 2 deals with termination of citizenship while Chapter 3 contains Supplemental provisions. [41] The Articles in Part III must be read together with two schedules, the First and the Second Schedules. The First Schedule contains the oath to be taken for citizenship by registration or naturalisation. The Second Schedule has three Parts; Part I does not concern this appeal as it deals with citizenship by operation of law of persons born before Malaysia Day. Parts II and III of the Second Schedule do because these Parts contain the detailed provisions on citizenship by operation of law of persons born on or after Malaysia Day and, the Supplementary Provisions. [42] The appellant’s application is moved under Article 14 which falls under Part III. Specifically, she claims citizenship by operation of law as set out in Article 14(1)(b) read with section 1 (a) and/or (e) of Part II of the Second Schedule. These provisions read as follows: Citizenship by operation of law 14. (1) Subject to the provisions of this Part, the following persons are citizens by operation of law, that is to say: 18 (a) every person born before Malaysia Day who is a citizen of the Federation by virtue of the provisions contained in Part I of the Second Schedule; and (b) every person born on or after Malaysia Day, and having any of the qualifications specified in Part II of the Second Schedule. (c) (Repealed). (2) (Repealed). (3) (Repealed). [43] The qualifications in Part II of the Second Schedule are as follows: 1. Subject to the provisions of Part III of this Constitution, the following persons born on or after Malaysia Day are citizens by operation of law, that is to say: (a) every person born within the Federation of whose parents one at least is at the time of the birth either a citizen or permanently resident in the Federation; and (b) every person born outside the Federation whose father is at the time of the birth a citizen and either was born in the Federation or is at the time of his birth in the service of the Federation or of a State; and (c) every person outside the Federation whose father is at the time of the birth a citizen and whose birth is, within one year of its occurrence or within such longer period as the Federal Government may in any particular case allow, registered at a consulate of the Federation or, if it occurs in Brunei or in a territory prescribed for this purpose by order of the Yang di- Pertuan Agong, registered with the Federal Government; and 19 (d) every person born in Singapore of whose parents one at least is at the time of the birth a citizen and who is not born a citizen otherwise than by virtue of this paragraph; and (e) every person born within the Federation who is not born a citizen of any country otherwise than by virtue of this paragraph. [Emphasis added] [44] By virtue of Article 31, until Parliament otherwise provides, the supplementary provisions relating to citizenship which are contained in Part III of the Second Schedule shall have effect for the purposes of Part III of the Federal Constitution. Amongst the Supplementary Provisions are provisions on interpretation. Sections 17 and 19 of the interpretation provisions are crucial and they read as follows: 17. For the purposes of Part III of this Constitution references to a person’s father or to his parent, or to one of his parents, are in relation to a person who is illegitimate to be construed as references to his mother, and accordingly section 19 of this Schedule shall not apply to such a person. 18. … 19. Any reference in Part III of this Constitution to the status or description of the father of a person at the time of that person’s birth shall, in relation to a person born after the death of his father, be construed as a reference to the status or description of the father at the time of his father’s death; and where that death occurred before and the birth occurs on or after Merdeka Day, the status or description which would have been applicable to the father had he 20 died after Merdeka Day shall be deemed to be the status or description applicable to him at the time of his death. This section shall have effect in relation to Malaysia Day as it has effect in relation to Merdeka Day. [Emphasis added] [45] As succinctly explained by Abang Iskandar JCA in Pendaftar Besar Kelahiran dan Kematian, Malaysia v Pang Wee See & Anor [2017] 7 CLJ 33, generally, two concepts are commonly applied in determining citizenship: the concept of jus soli and the concept of jus sanguinis. The earlier refers literally to a ‘right of the soil’ or birth right citizenship or “the right of anyone born in the territory of a state to nationality or citizenship”. The latter refers to ‘right of blood’, a “principle of nationality law by which citizenship is not determined by place of birth but by having one or both parents who are citizens of the State”. Article 14(1)(b) read with sections 1(a) Part II, Second Schedule [46] In the case of Article 14(1)(b) read with sections 1(a) Part II, Second Schedule of the Federal Constitution, citizenship by operation of law is anchored on elements of both concepts of jus soli and of jus sanguinis. Citizenship is claimed by virtue of these two rights, right of being born in the territory of Malaysia and by right of one or both parents who are themselves, citizens of Malaysia. [47] Whether any person including the appellant fulfils the requirements and qualifications prescribed in Article 14(1)(b) read with sections 1(a) 21 Part II, Second Schedule of the Federal Constitution, is a question of mixed fact and law. [48] First, the facts. The undisputed fact is that the appellant is born within the Federation. To the extent of jus soli, she has fulfilled the terms of qualification set out at section 1(a) of Part II of the Second Schedule. What is disputed is that she has the necessary bloodline as prescribed in that her parents one at least is at the time of her birth either a citizen or permanently resident in the Federation of Malaysia. [49] The appellant says one of her parents, that is, her father is a citizen at the time of her birth whereas the 2nd and 3rd respondents contend otherwise. The 2nd and 3rd respondents contend that section 17 of Part III of the Second Schedule operates to prevent her from referring to or relying on her father as making up her parents because she is illegitimate. Until she is legitimised, she is obliged to refer to her mother as her lawful parent. Since her mother is not a citizen of Malaysia, the appellant cannot claim citizenship by operation of law under Article 14(1)(b). [50] With respect, we disagree. [51] In the first place, Article 14(1)(b) read with section 1(a) of Part I I of the Second Schedule does not make reference to the nature or state of the capacity of “parents”; the term “parents” is not qualified in any manner or form in Article 14. Certainly, it is not qualified by the word “lawful”, “natural”, “biological”, “adopted” or even “surrogate”, or any other description or adjective. It simply refers to the capacity of “parents”. Harkening back to the principles to be adopted when 22 construing and interpreting the Federal Constitution as expressed in Dato’ Menteri Othman bin Baginda, one is reminded that judicial precedent plays a lesser part than is normal in matters of ordinary statutory interpretation. As a “living piece of legislation”, the provisions in the Federal Constitution must be construed broadly and not in a pedantic way. The Court must recognise that the construction of the provisions of the Federal Constitution must be “with less rigidity and more generosity than other statutes” because the Federal Constitution is sui generis, “calling for its own principles of interpretation, suitable to its character, but without necessarily accepting the ordinary rules and presumptions of statutory interpretation.” Since Article 14(1)(b) has not qualified the term “parents”, it is inappropriate to do so. [52] Hence, on a prima facie level, the term “parents” must bear its ordinary common sense meaning. The Merriam-Webster Dictionary defines the term ‘parent’ as one that begets or brings forth offspring; or a person who brings up and cares for another and that includes a foster parents. The Collins Dictionary defines “parent” as a father or mother or a person acting as a father or mother. Even Black’s Law Dictionary [10th Ed, Thomson Reuters] defines ‘parent’ not just as the ‘lawful father or mother of someone’ but goes on to state that: “…the term commonly includes (1) either the natural father or the natural mother of a child, (2) either the adoptive father or the adoptive mother of a child, (3) a child’s putative blood parent who has expressly acknowledged paternity, and (4) an individual or agency whose status as guardian has been established by judicial decree…” 23 [53] It is where these meanings do not lend sense and will render violence to the main text that some other meaning may have to be considered. [54] The respondent relied on the High Court decision of Foo Toon Aik (Suing on his own behalf and as Representative of Foo Shi Wen, child) v Ketua Pendaftar Kelahiran dan Kematian, Malaysia [2012] 9 MLJ 573. In Foo Toon Aik, the High Court had accepted the submissions of learned SFC that the word ‘parent’ cannot refer to a father of an illegitimate child and that the word ‘parent’ in article 14 refers to a lawful parent in a recognised marriage in the Federation. The learned SFC had cited Stroud’s Judicial Dictionary of Words and Phrases (7th Ed), that the word ‘parent’ cannot include a father of an illegitimate child; and the cases of Re M (An Infant) [1955] 2 QB 479 and Shamala Sathiyaseelan v Dr Jeyaganesh C M ogarajah & Anor [2004] 2 CLJ 416 where the Court also relied on Black’s Law Dictionary Abridged (6th Ed) to the same effect. [55] Bearing in mind that it is the Federal Constitution that is being examined and interpreted and reminding oneself of the applicable approach and principles to be adopted, the decision of Foo Toon Aik (Suing on his own behalf and as Representative of Foo Shi Wen, child) v Ketua Pendaftar Kelahiran dan Kematian, Malaysia [supra], and Chin Kooi Nah v Pendaftar Besar Kelahiran dan Kematian, Malaysia [supra], offered by the respondent as authority for the proposition that the term ‘parents’ in Article 14(1)(b) refers to ‘lawful parents’, is misplaced. Even in Re M (An Infant) [supra], a case which must be read with care as it concerned adoption and not citizenship, and which was relied on in Foo Toon Aik, Denning LJ qualified his view: 24 “In my opinion the word “parent” in an Act of Parliament does not include the father of an illegitimate child unless the context otherwise requires.” [emphasis added] [56] The same may be said of the High Court decision in Yu Sheng Meng (Suing Through Next of Kin, Yu Meng Queng) v Ketua Pengarah Pendaftaran Negara & Ors [2016] 1 CLJ 336 where an old decision of Re D (An Infant) [1959] 1 QB 229 was cited. Again, the observations of illegitimacy in Re D (An Infant) were made in the context of an adopted child and in relation to property or succession rights, not citizenship. We also made similar observations in respect of the recent decisions of the Court of Appeal in Lim Jen Hsian & Anor v Ketua Pengarah Jabatan Pendaftaran Negara & Ors [2017] MLJU 425 and Than Siew Beng & Anor v Ketua Pengarah Jabatan Pendaftaran Negara & Ors [2017] MLJU 426. [57] For further reasons which will become more apparent, these decisions are also not applicable in the present appeal as the Court in those cases was not considering the position of biological parents or even biological parents who subsequently married each other. Those decisions concerned persons who were adopted and whose parents never married each other or where the biological parents of the child or person was unknown. This is an important and significant distinction from the underlying facts in the present appeal which, unfortunately were overlooked by the learned Judge. 25 [58] In any case, even if the term “parents” is qualified by the status of “lawful”, we find it difficult to see how the natural or biological parents of the person can ever be said to be not lawful. In Pendaftar Besar Kelahiran dan Kematian, Malaysia v Pang Wee See & Anor, the Court of Appeal opined that the phrase ‘parents’ “has categorically made a reference to the biological parent of the person, who must either be a Malaysian citizen or a person who is permanently resident in Malaysia. He must be a person, whose either parent was a Malaysian ci tizen or a Malaysian permanent resident, when he was born in Malaysia .” The Court of Appeal rejected the submission that the term “parent” in Article 14(1)(b) read with section 1(a) of Part II of the Second Schedule refers to an “adoptive parent”, albeit Malaysian adoptive parent, but quite clearly concluded that the term refers to the “biological parents” of the person. [59] We agree with that reading of the Court of Appeal in that it accords with and comprises the two basic elements for citizenship, jus soli and jus sanguinis. Since it is an uncontroverted and an admitted fact by the respondent that Augustine a/l Lourdsamay is the biological father of the appellant, Augustine a/l Lourdsamay is the father and thereby parent of the appellant, and Augustine a/l Lourdsamay is a citizen of Malaysia at the time of the appellant’s birth, the terms of Article 14(1)(b) read with section 1(a) of Part II, Second Schedule are met. [60] We further find that the fact that Augustine a/l Lourdsamay and Margaret Luisa Tan, the biological parents of the appellant were not married to each other at the time of the appellant’s birth does not alter or diminish their capacities as parents of the appellant. 26 [61] The next consideration is whether the above conclusions are now qualified by the interpretation provisions in Part III of the Second Schedule. It is our respectful view that it is not. To recapitulate, section 17 provides that in relation to a person who is illegitimate, a reference to that person’s father or parent is to be construed as a reference to the person’s mother. The reason why we say that section 17 does not alter the above interpretation is because section 17 only applies to a person who is illegitimate. Section 17 is drafted in the present tense and it is the prevailing status of legitimacy or illegitimacy which is the relevant consideration. [62] In that regard, the appellant is clearly, not illegitimate. She is born of parents who were not married to each other at the time of her birth. She is known as a child born out of wedlock. However, she is no longer illegitimate by reason of legitimation by the subsequent marriage of her parents. [63] The Legitimacy Act 1961 [Act 60] is an Act passed by Parliament to provide for the legitimation of children born out of wedlock. Although we are cautious to ensure that we cannot and do not use a subsidiary piece of legislation such as Act 60 to interpret the Federal Constitution, we find the reference to Act 60 appropriate in order to determine whether the appellant is illegitimate. The Federal Constitution has not defined the meaning of “illegitimate”. The ordinary meaning of illegitimate person would be one who is born out of wedlock or is the issue of parents who were not married to one another at the time of the person’s birth. 27 [64] In the present appeal, the parents of the appellant have married each other since 23.1.2006. Their marriage has been properly solemnised and recognised under section 3 of Act 60. Where that happens, section 4 of Act 60 applies. Section 4 reads as follows: Subject to section 3, where the parents of an illegitimate person marry or have married one another, whether before or after the prescribed date, the marriage shall, if the father of the illegitimate person was or is at the date of the marriage domiciled in Malaysia, render that person, if living, legitimate from the prescribed date or from the date of the marriage, whichever is the later. [65] With the clear terms of section 4, the appellant is rendered legitimate by the subsequent marriage of her parents and that legitimation is from the date of the marriage, that is, from 23.1.2006. From the language and terms of section 17, the appellant’s legitimacy or illegitimacy is questioned at the time of the consideration of the application, and not some other point in time. [66] As a legitimate person from 23.1.2006, section 17 does not apply. Section 17 only applies where the person is illegitimate. Since there is legitimation of the appellant, section 17 does not apply. As a legitimate person, the appellant is entitled to rely on her father’s citizenship in which case, the appellant has quite clearly fulfilled the requirements of Article 14(1)(b) read with section 1(a) of Part II of the Second Schedule. [67] We must add that the appellant’s case does not fall under section 5 of Act 60 as the appellant was not claiming to be a legitimate child or 28 be legitimated by certain conditions under section 6. In the case of the appellant, section 4 applies. [68] In conclusion on this ground, we found that the learned Judge was plainly erroneous in her apprehension of the law and the facts. Contrary to the findings and reasoning of the learned Judge, the appellant has properly made her claim for citizenship and that this is an appropriate and suitable case for the grant of the declaratory order sought. Article 14(1)(b) read with section 1(e) Part II, Second Schedule [69] Moving on to the alternative ground of Article 14(1)(b) read with section 1(e) of Part II of the Second Schedule. Unfortunately, the learned Judge did not deal with this equally important issue. Having considered the submissions, we also find that we agree with the submissions of learned counsel for the appellant. This alternative ground reads in the appellant’s favour in that the appellant is a person born in the Federation and is also not a citizen of any country otherwise than by virtue of paragraph 1(e). [70] Learned counsel for the appellant submitted that the appellant has lived all her life in the Federation, and that she has no intention of applying for citizenship of the Independent State of Papua New Guinea. In any case, the Citizenship Act 1975 of Papua New Guinea requires the registration of birth overseas to be made within one year after the birth or with the consent of the Minister, at any time after the end of that period, and this has not been done. 29 [71] In response, the respondent’s submission is that the appellant is not a stateless child, that contrary to the appellant’s contentions, the appellant is actually a citizen of Papua New Guinea. That state can be easily determined by examining section 66(2) Division 2, Part IV of the Constitution of the Independent State of Papua New Guinea which deals with citizenship by descent. Alternatively, the appellant could apply to the Federal Government under Article 15 or 15A of the Federal Constitution. [72] We observed that the respondent’s expositions on citizenship under the Constitution and laws of the Independent State of Papua New Guinea are substantially drawn from learned SFC's opinion and own interpretation. None of the submissions in this regard is supported by either case law from Papua New Guinea or even from esteemed authors in this area of law. There is also no confirmation of any sort or to any degree from the relevant authorities of the Independent State of Papua New Guinea that the appellant is its citizen. [73] Section 66(2) Division 2, Part IV of the Constitution of the Independent State of Papua New Guinea reads as follows: 66. CITIZENSHIP BY DESCENT. (1) A person who- (a) is born in the country on or after Independence Day; and (b) had one parent who was a citizen or who, if he had survived to Independence Day, would have been or would have been entitled to become, such a citizen, is a citizen. 30 (2) A person- (a) who is born outside the country on or after Independence Day; and (b) who had one parent who was a citizen or who, if he had survived to Independence Day, would have been, or would have been entitled to become, such a citizen; and (c) whose birth is registered as prescribed by or under an Act of Parliament made for the purposes of this subsection, is a citizen. [74] The Citizenship Act 1975 [Chapter 12] is the relevant Act of Parliament, it is an Act passed to implement Part IV (citizenship) of the Constitution of the Independent State of Papua New Guinea. Section 5 of this Act states: 5. REGISTRATION OF BIRTHS OVERSEAS. (1) For the purposes of Section 66(2)(c) of the Constitution, the registration of a birth overseas may be made by giving to a person appointed by the Minister the prescribed particulars. (2) The registration shall be made within one year after the birth or, with the consent of the Minister, at any time after the end of that period. (3) The regulations may provide for the keeping of a register or registers of births overseas for the purposes of Part IV of the Constitution. (4) A certificate under, or apparently under, the hand of a person appointed under Subsection (1) and purporting to set out details of registration of a birth is prima facie evidence of the facts set out in it. 31 [75] On the strength of these two documents alone, we find difficulty in accepting the respondent’s contentions that the appellant is a citizen of the Independent State of Papua New Guinea. That status is a question of mixed fact and law and there is insufficient evidence to come to that conclusion, particularly when the appellant’s birth was undisputedly, never registered under the Citizenship Act 1975 [Chapter 12] of Papua New Guinea. Had there been a certificate to that effect issued under section 5(4), the respondent’s contentions would have strong plausible basis. As it is, there is none and the suggestion that the appellant is thereby a citizen of Papua New Guinea is not one that the Courts here should accept readily; more so on the particular facts in this appeal. [76] This is quite different from the position in Pham v Secretary of State [2015] 3 All ER 1015, a case concerning the deprivation of citizenship; a status described by Lord Reed as one of “fundamental importance”. At page 1046, Lord Sumption dealt with the issue of statelessness by considering whether the appellant there had Vietnamese citizenship at the time of his birth. Because the answer was in the affirmative, the Supreme Court concluded that the withdrawal of British nationality by the respondent did not render the appellant stateless, a condition that would have contravened article 1(1) of the Convention Relating to the Status of Stateless Persons 1954 (Cmd 9505). [77] Coming back to the present appeal, in support of her application, the appellant has shown that she is not a citizen of Papua New Guinea. The appellant’s birth was not registered in Papua New Guinea. It was 32 registered here instead. We agree with the submissions of learned counsel for the appellant that if the declaration sought is not given, if the appellant is not a citizen of the Federation, then she is stateless. That state would not and cannot be said to be in the best interest and for the welfare of the appellant. Consequently, the appellant satisfies the terms of Article 14(1)(b) read with section 1(e) of Part II of the Second Schedule to the Federal Constitution. Conclusion [78] For all the reasons discussed above, we are compelled to exercise our appellate powers and intervene in this appeal so as to set right the decision of the High Court. As explained by Kang Hwee Gee J [as he then was] in Haja Mohideen MK Abdul Rahman & Ors v Menteri Dalam Negeri & Ors [2007] 6 CLJ 662, the two qualifications in Article 14(1)(b) are akin to primary rules and these rules are “conceived of a social contract by which the State recognised the natural right of a citizen to have his offspring becoming a citizen after him.” [79] Given that the appellant and her underlying facts and circumstances have amply satisfied the primary rules of jus soli and jus sanguinis in the terms deployed in Part III of the Federal Constitution, in particular Article 14(1)(b) read with sections 1(a) and/or (e) of Part II of the Second Schedule to the Federal Constitution, the appeal must be and is hereby, allowed in terms of prayer (iv). 33 [80] Finally, we make no order as to costs and order that the deposit be refunded to the appellant. Dated: 2 November 2017 Signed by (MARY LIM THIAM SUAN) Judge Court of Appeal, Putrajaya Malaysia 34 Counsel/Solicitors For the appellant: Ranee Sreedharan (Nurainie Haziqah binti Shafi with her) Messrs Ranee Sree & Associates 11-2, Jalan 2/115A Taman Pagar Ruyung Off Jalan Kuchai Lama 58200 Kuala Lumpur For the 2nd & Maisarah Juhari 3rd respondents: Peguam Kanan Persekutuan Jabatan Peguam Negara Bahagian Guaman No. 45, Persiaran Perdana Presint 4 62100 Putrajaya

Tika 2.6.0

S-05(SH)-123-03/2016

PERAYU NOROL ROJIK BIN JUN RESPONDEN Public Prosecutor

Criminal Law — Appeal — Appeal against conviction and sentence — Accused charged with offence of murder — Whether injury inflicted sufficient in ordinary course of nature to cause death — Whether the case had been proved beyond any reasonable doubt by the prosecution — Trial court convicted accused and sentenced accused to death — Whether trial judge failed to appreciate accused’s defence — Whether trial judge failed to appreciate the appellant’s explanation had cast a reasonable doubt — Criminal Procedure Code [Act 593], section 182A(1); Penal Code [Act 574], sections 300, 302 & 304(a)

31/10/2017

YA DATO' ABDUL RAHMAN BIN SEBLIKorumYA DATUK LIM YEE LANYA DATO' ABDUL RAHMAN BIN SEBLIYA PUAN SRI DATO' ZALEHA BINTI YUSOF

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=35e659ea-e460-42c1-9fed-e8161ac1cfac&Inline=true

1 IN THE COURT OF APPEAL OF MALAYSIA CRIMINAL APPEAL NO. S-05(SH)-123-03/2016 BETWEEN NOROL ROJIK BIN JUN … APPELLANT AND PUBLIC PROSECUTOR … RESPONDENT [In the matter of Criminal Trial No. TWU-45-10/8-2013 of the High Court in Sabah and Sarawak at Tawau Between Public Prosecutor … Complainant And Norol Rojik Bin Jun … Accused] CORAM LIM YEE LAN, JCA ABDUL RAHMAN SEBLI, JCA ZALEHA YUSOF, JCA JUDGMENT OF THE COURT [1] The appellant was initially charged in the High Court at Tawau, Sabah, with the murder of one Persie Santos Cayanong, an offence punishable with death under section 302 of the Penal Code. At the end of the prosecution case, the learned trial judge found that no prima facie case had been established against him. He was accordingly acquitted and discharged of the murder charge but was called upon to enter his defence on the lesser offence of culpable homicide not amounting to murder under section 304(a) of the Penal Code. 2 [2] The reason why the learned judge acquitted the appellant of the murder charge was because he found that although the appellant intended to cause the fatal injuries, they were not sufficient in the ordinary course of nature to cause death, an obvious reference to section 300(c) of the Penal Code. [3] Medical evidence showed that the deceased sustained 23 injuries, 12 of which were caused by a sharp heavy object such as a parang or chopper. The forensic pathologist Dr. Jessie Hiu (PW8) concluded in her post mortem report (exhibit P41) that the cause of death was hypovolemic shock due to or as a consequence of a chop wound on the deceased’s right forearm and chop wounds on his head. [4] The photos at pages 416 – 418 of the record of appeal show the severity of the injuries on the deceased’s right forearm, his right leg, neck and head. PW8’s expert evidence was that the injuries sustained by the deceased caused severe blood loss and drop of blood pressure, resulting in reduced blood supply to vital organs leading to death. [5] When called upon to enter his defence on the section 304(a) offence, the appellant chose to remain silent, whereupon the learned judge proceeded to convict him and sentenced him to 18 years imprisonment with effect from the date of his arrest. [6] Dissatisfied with the decision to acquit the appellant of the murder charge, the prosecution appealed to this court. The appeal was allowed and the appellant was ordered to enter his defence on the original murder charge. The conduct of the trial was then taken over by another High Court 3 Judge as the learned judge who initially heard the case had retired. The appellant was also assigned with a new counsel to defend him. [7] This time around the appellant chose to give unsworn statement from the dock when he entered his defence. At the conclusion of the trial and having heard arguments by both sides, the learned judge found the appellant guilty as charged and sentenced him to death, hence the present appeal before us. [8] In his unsworn statement from the dock, the appellant explained why and how he killed the deceased. We reproduce below the material parts of his statement: “Kami sampai jam lebih kurang 6.50 pagi dan kami pun naik ke rumah saya dan masuk ke bilik saya dan bersarapan disitu. Selepas bersarapan kami berbual sekejap dan kemudian si Mosidi turun ke bawah dan saya pun ceritakan pada Binga mengenai si Persie yang telah memaki hamun isteri saya dan menyebabkan kami sekeluarga sekarang sudah tiada tempat tinggal sendiri. Saya tanya si Binga “macam mana saya masuk dalam bilik saya potong itu orang” yang bermaksud “macam mana kalau saya masuk ke bilik si Persie dan cederakan dia?” dan si Binga cakap dia ikut saja di belakang saya untuk jaga keselamatan saya. Seterusnya saya buka beg galas saya dan ambil parang kerja saya. 9. Seterusnya saya berjalan ke bilik Persie iaitu bilik nombor 3 dan saya terus tendang pintunya sampai terbuka dan saya masuk dan tetak si Persie di lehernya satu kali di depan isterinya Normah yang juga ada disitu. Selepas menetak saya pun berundur sebab saya cuma mau cederakan dia saja supaya dia jera tetapi si Persie tiba-tiba bangun dan meluru ke arah saya mahu memukul. Bila melihat dia meluru saya pun rasa takut yang amat sangat dan kemudian saya dapati diri saya macam hilang kawalan ke atas badan saya sendiri dan perasaan saya macam melihat dalam mimpi saja. Saya tidak dapat kawal diri saya walaupun saya sedar saya sedang melibas parang beberapa kali ke kepalanya. Saya juga hilang kesedaran sehingga saya tidak boleh ingat samada Persie ada menangkis dengan tangannya atau jika kepalanya terkena tetakan parang saya sebab tangan saya hanya melibas sebarangan saja tanpa saya niatkan untuk buat apa-apa. Saya nampak tangannya 4 ada cedera tapi sekejap saja sebab selepas itu isterinya si Normah pun meluru ke arah saya dan saya tidak dapat kawal diri saya dan menyerang Normah dengan parang. Normah kena tetakan saya di bahagian kening dan saya juga tetak kepalanya beberapa kali tapi saya tidak pasti berapa kali dan di bahagian mana kena.” [9] The unsworn statement was clearly a confession by the appellant that he killed the deceased but avoiding liability by saying that he had no intention to cause death. This is what he said in paragraph 12 of the statement: “12. Saya disini ingin menjelaskan bahawa saya sebenarnya tidak ada niat mahu bunuh si Persie. Saya memang mau tetak dia satu kali saja untuk cederakan dia tapi tidak untuk matikan dia. Kalau saya memang mahu bunuh dia maka saya tidaklah akan pergi menyerah diri selepas itu pula. Saya sebenarnya sangka kalau dapat cederakan dia maka dia akan takut dan keluar dari rumah sewa keluarga isteri saya. Saya sehingga sekarang tidak dapat jelaskan kenapa selepas Persie menerkam, saya tiba-tiba hilang kawalan ke atas diri saya sendiri.” [10] The appellant’s first ground of appeal against conviction was as follows: “The learned High Court Judge should not have called the defence on the charge of murder as it was obvious that the most important ingredient of murder, i.e. mens rea was absent. There was absolutely no evidence at all that the Appellant intended to murder anyone particularly the deceased.” [11] We found no merit in this ground of appeal. First of all, the calling of the appellant’s defence to the original murder charge was on the order of this court, which must be taken as if it was made by the trial judge himself. It was therefore not open to the succeeding judge to reopen the issue of whether a prima facie case had been established by the prosecution. Nor was it open to us, being a court of co-ordinate jurisdiction, to do so. 5 [12] The trial judge’s duty after the order was made by this court was only to consider whether the appellant’s explanation, if any, had cast a reasonable doubt in the prosecution case. But of course in doing so, the learned judge was bound by section 182A(1) of the Criminal Procedure Code (“the CPC”) to consider all the evidence adduced before the court, which necessarily includes evidence adduced by the prosecution at its stage of the case. [13] It was also contended under the first ground of appeal that the learned judge erred in failing to address her mind to the appellant’s defence of automatism, ‘uncontrolled action’ or temporary insanity which learned counsel described as ‘amuk’. There is no merit in the contention. [14] The maxim that a man intends the natural and probable consequences of his act is not to be avoided when dealing with the question of intention in murder trials: Eng Sin v Public Prosecutor [1974] 1 LNS 33; [1974] 2 MLJ 168 FC. To establish any of these defences, expert medical evidence was required because whether or not the appellant was driven by automatism or temporary insanity when he killed the deceased is in the realm of medical science. The burden was on the appellant to prove these defences on the balance of probabilities, i.e. the civil standard of proof. [15] No such proof was forthcoming from the appellant. As such there was nothing before the court for the learned judge to come to a finding that the appellant was temporarily insane at the time he committed the offence. In any event, the only reasonable inference to be drawn from the 6 proved facts was that the killing was intentional as it was motivated by a desire to teach the deceased a lesson. [16] The presence of motive negates the appellant’s claim of absence of mens rea, and the learned judge had given her reasons why she found the killing to be intentional. She was perfectly entitled to come to that finding unless it could be shown that she got the facts or the law or both facts and law wrong, which was not the case here. [17] As for the second ground of appeal, the appellant’s complaint was that: “The counsel who was assigned by the High Court to represent the Accused in his defence was an incompetence (sic) counsel in conducting the defence of the Appellant since he has no knowledge of what was the evidence given during the prosecution case and the line of defence of the Appellant presented by the previous assigned counsel and the Appellant was not fully advised and made understood of the weight of evidence in making unsworn statement.” [18] There are two parts to this ground of appeal. The first is a complaint that the assigned counsel who took over from the appellant’s previous assigned counsel was incompetent. The second is that the learned judge failed to explain to the appellant the weight to be given to his unsworn statement from the dock. [19] First, the complaint against the second assigned counsel. The law on incompetence of counsel in a criminal trial has been explained by the apex court in Shamim Reza Abdul Samad v PP [2209] CLJ 93 where Gopal Sri Ram FCJ delivering the judgment of the court said: 7 “In our considered judgment, the incompetence of counsel in the conduct of a defence in a criminal trial is a ground on which a conviction may be quashed provided that (i) such incompetence must be flagrant in the circumstances of the given case; and (ii) it must have deprived the accused of a fair trial thereby occasioning a miscarriage of justice. Nothing short will suffice. And in considering the question, an appellate court must have regard to the conduct of counsel as a whole and not merely to his or her failure in one or two departments.” [20] Going by the record of appeal, we must say that the appellant’s complaint is baseless. There is nothing to support his allegation that the counsel who took over from the first was flagrantly incompetent and that due to his incompetence, the appellant had been denied a fair trial, thereby occasioning a miscarriage of justice. [21] It must be remembered that at that stage of the trial, the counsel who took over from the first was only dealing with the defence case, which arguably is less onerous than dealing with the prosecution stage of the case. The appellant’s allegation that the second counsel had no knowledge of the evidence given during the prosecution case is pure speculation and must be disregarded. [22] The allegation of incompetence directed at the second assigned counsel is unfair and should not have been made as the lawyer was not given the opportunity to defend himself against such serious allegation as dereliction of duty by an attorney in defending a person charged with a capital offence. [23] The fact is, the appellant knew exactly what the case against him was, as he was present and represented by the first assigned counsel throughout the case for the prosecution. There was nothing complicated 8 in the evidence of the prosecution witnesses, particularly the evidence of the deceased’s wife who witnessed the attack and who herself was slashed by the appellant with the same parang that he used to slash the deceased. [24] Given the nature of the evidence, it is far-fetched to say that the appellant did not fully understand what the case against him was. More importantly, he did not dispute that the injuries were caused by him. His dispute was over the question of intention to cause death. [25] With regard to the second part of the second ground of appeal, the contention by learned counsel in his written submissions was that since the appellant had chosen to give unsworn statement from the dock, the learned judge was under a duty, before the appellant proceeded to enter his defence, to explain to him the weight that the court would give to such unsworn statement from the dock. [26] We found nothing of substance to the argument. What weight the court would give to the unsworn statement would depend on the court’s assessment of the entire evidence before the court and not based on the unsworn statement alone. It would be wrong for the learned judge to tell the appellant what weight she would give to his unsworn statement when he had not even uttered a word in his defence. [27] Since the appellant had not even started with his defence, the learned judge would not know what he was going to say in his unsworn statement, or whether he was going to give written or oral unsworn statement. If the learned judge were to tell the appellant that she would give less weight to his unsworn statement, that would be tantamount to 9 prejudging the defence case. In any event, the appellant’s counsel was there to advise him on the pros and cons of giving an unsworn statement from the dock. [28] Further, there is no dispute that when the appellant was called upon to enter his defence, the court interpreter had explained to him the 3 options open to him in making his defence, and he chose to give an unsworn statement from the dock. Obviously, he had been properly advised by his counsel before making the choice. This was confirmed by the appellant himself in his unsworn statement when he said: “1. Saya memilih untuk memberi keterangan bertulis dari kandang tertuduh. Saya memilih cara ini selepas mendengar penjelasan oleh peguam saya pada hari jumaat 23 Oktober 2015 di Penjara Tawau semasa dia datang melawat.” [29] The third ground of appeal was this: “The learned High Court Judge had failed to consider the evidence before her in totality before convicting the appellant had the learned High Court Judge applied her mind to the content of exhibit D1, had she applied her mind to the full content of exhibit D1 she would have found that the Appellant’s statement contained therein shall cast a reasonable doubt to the prosecution case and such failure had resulted the deprivation of the Appellant from being acquitted of the offence charged.” [30] The first thing to note with regard to this ground is that the appellant himself confirmed that the contents of his cautioned statement (exhibit D1) were in most parts similar to the contents of his unsworn statement from the dock. This is what he said in paragraph 2 of his unsworn statement: “2. Saya dengan ini menyatakan bahawa kebanyakan keterangan ini adalah sama dengan kandungan Pemeriksaan dalam Percakapan saya dibawah seksyen 112 KPJ yang mana 10 saya berikan pada C/Insp Ladamah Bin Haji Sulaiman pada 17/11/2011. Oleh itu saya mohon agar keterangan dalam percakapan tersebut ditandakan sebagai eksibit D1.” [31] We have compared the appellant’s cautioned statement with his unsworn statement from the dock and it is true that most parts of his unsworn statement are similar to his cautioned statement. In fact, on all material issues, what he said in his unsworn statement was a repetition of what he said in his cautioned statement. We had perused the learned judge’s grounds of judgment and found that Her Ladyship had indeed taken into consideration the appellant’s unsworn statement when at paragraph 4, page 5 of the Record of Appeal, she stated as follows: “…this court is of the view, the unsworn statement given by the accused from the dock is considered as an evidence and this goes on further for this court to evaluate the accused’s evidence and what weight is to be given.” [32] Thus, although the learned judge did not refer to the appellant’s cautioned statement in her grounds of judgment, the omission had not occasioned any substantial miscarriage of justice and is curable by the proviso to section 60(1) of the Courts of Judicature Act, 1964. For context, we reproduce below the whole of section 60(1): “60. (1) At the hearing of an appeal the Court of Appeal shall hear the appellant or his advocate, if he appears, and, if it thinks fit, the respondent or his advocate in reply, and the Court of Appeal may thereupon confirm, reverse or vary the decision of the High Court, or may order a retrial or may remit the matter with the opinion of the Court of Appeal thereon to the trial court, or may make such other order in the manner as it may seem just, and may by that order exercise any power which the trial court might have exercised: Provided that the Court of Appeal may, notwithstanding that it is of opinion that a point raised in the appeal might be decided in favour of the appellant, dismiss the appeal of it considers that no substantial miscarriage of justice has occurred.” 11 [33] It is clear from her grounds of judgment that the learned trial judge had considered the appellant’s defence with meticulous care and having done that, found that his explanation did not cast any reasonable doubt in her mind as to the guilt of the appellant. On the crucial issue of intention to cause death, the learned judge referred to Tham Kai You & Ors v PP [1976] 1 LNS 159 FC and then correctly applied the ratio decidendi of the case to the proved facts when she said: “6. The facts remained established in the prosecution stage that there were 23 injuries all over the accused’s body and this was consistent with injuries caused by a “parang”. The deceased’s cause of death was due by chop wounds on the right forearm which cut the ulnar artery and this was never denied by the accused that he had caused these injuries. 7. 23 injuries on the body was more than just a lesson to the deceased and those injuries the deceased sustained to the head and neck, can be fatal. This court had to agree with the prosecution that the seriousness of the injury and the type of weapon used by the accused intended to kill the victim. The accused came armed, he repeatedly slashed the deceased despite the plea to stop and this leads to a conclusion that he had intended to kill the accused bearing in mind that lack of force as what contended by the defence counsel does not necessarily lack the intention to kill.” [34] The learned judge had in the earlier part of her grounds of judgment (see page 13) observed: “10. This intention of the accused was explicit because the accused barged into the room armed with “parang” and attacked the deceased who was then in bed, slashing him on the head and neck. When the deceased attempted to fend off the attack he was slashed on the feet and legs; and despite the intervention and plea by PW3 to the accused to stop the attack on her husband (the deceased), the accused did not stop but continued to chase after the deceased who attempted to flee the room slashing him multiple times on the back of the chest, forearm and buttocks. PW3 who attempted to stop the accused was herself slashed and sustained several injuries. 12 11. Furthermore, “parang” is a deadly weapon, once used it will either cause serious injuries or death. Therefore the use of such weapon is deemed as an indicator of intention possessed by the accused. The nature and number of injuries the deceased sustained and weapon used to inflict these injuries leaves no doubt as to the intent of the accused to inflict serious body injuries to the deceased.” [35] The fourth ground of appeal was as follows: “The learned High Court Judge had failed to sufficiently consider whether the Appellant’s unsworn statement and his cautioned statement in exhibit D1 is credible or otherwise and nowhere in her grounds of judgment that she addressed the issue and this failure is a misdirection and the Appellant therefore is entitled to be acquitted of the offence charged.” [36] This ground is likewise without any merit. Page 70 of the record of appeal shows that the learned judge had recounted the details of what the appellant said in his unsworn statement, which as we said, was a repetition of what he said in his cautioned statement. As to the weight to be given to the appellant’s unsworn statement from the dock, the learned judge had directed herself to the law correctly when she said: “3. The evidence of the accused from the dock at first instance has to be given consideration as part of his evidence before the court. However, the issue on what weight to be attached to such statement arise. The court should give less weight to the accused’s evidence because the prosecution has no means to verify its veracity. The law has been settled in Dato’ Seri Anwar Ibrahim v PP & Another Appeal [2015] 2 CLJ 145, the Federal Court have said as follows: “[202] We accept that the courts below did not explicitly consider the political conspiracy defence which was raised by the appellant in his unsworn statement from the dock. In law, a trial judge will not give much weight to what an accused has said in his unsworn statement as he is not subject to cross-examination by the prosecution nor can he be questioned by the trial judge (Lee Boon Gan v Regina [1954] 1 LNS 39; [1954] 1 MLJ 103; Udayar Alagan & Ors v PP [1961] 1 LNS 146; [1962] 1 MLJ 39; 13 Mohamed Salleh v PP [1968] 1 LNS 80; [1969] 1 MLJ 104; Juraimi Husin v PP [1998] 2 CLJ 383; [1998] 1 MLJ 537).” [37] As for the fifth ground of appeal, the complaint was that: “The learned High Court Judge has misdirected herself when she ruled that since the Appellant had brought with him ‘parang’ which according to her not related to the Appellant’s job as a welder, it was a clear meditated murder, whereas, the said finding was based on suspicion and suspicion or conjecture is misplaced in murder trial and as such the learned High Court Judge erred in her finding.” [38] The issue raised was inextricably linked to the question of intention to cause death. With due respect to the learned counsel, we fail to see how the learned judge’s ‘ruling’ on the parang can be said to be a misdirection. In the first place, it was not even a ruling. It was necessary for the learned judge to refer to the parang in her deliberation for the simple reason that it was the murder weapon. It would be wrong for her not to do so. [39] In finding that the killing was intentional, it is clear that the learned judge was not only guided by the fact that the appellant had brought the parang with him. It was based on all the surrounding facts and circumstances of the case and certainly not based on suspicion or conjecture as alleged by the appellant. [40] Of course learned counsel was right in saying that the mere fact that the appellant brought a parang with him is not evidence of intention to kill. But as every lawyer with some basic knowledge of the law knows, the golden rule on evaluation of evidence is that except where there is direct 14 evidence of admission, the evidence must be considered in its entirety and not in bits and pieces. [41] In this case there was no dispute that the appellant’s intention from the start was to attack the deceased while arming himself with a parang, and the parang was indeed used to slash the deceased to death. Thus, his act of bringing the parang before the attack is not neutral evidence as counsel seems to be suggesting. It was intended to be used as the weapon of offence by the appellant. [42] The sixth ground of appeal was: “The learned High Court Judge did not view the whole of the evidence objectively from all angles with the result that the Appellant had lost the chance which was fairly open to him for being acquitted.” [43] There is no truth to this complaint. The learned judge had considered the evidence carefully, as can be seen from her grounds of judgment which run into 24 pages. In fact the learned judge had gone beyond what was required of her when she embarked on a re-evaluation of the prosecution’s evidence to determine whether a prima facie case had been established under the heading ‘EVALUATION AND FINDINGS AT THE END OF THE PROSECUTION’S CASE’ (see page 63 - 70 of the record of appeal). So, if at all the learned judge had erred, she had in fact erred in favour of the appellant. [44] At the conclusion of the trial, what section 182A(1) of the CPC requires is for the court to consider all the evidence in determining whether the case had been proved beyond reasonable doubt. This does not mean however that the court must decide all over again whether a prima facie 15 case had been established by the prosecution. That is a requirement of section 180(1) of the CPC at the close of the prosecution case and not a requirement of section 182A(1) at the close of the defence case. [45] It bears repeating that the learned judge’s duty at the conclusion of the trial was only to determine whether the appellant’s explanation had cast a reasonable doubt in her mind as to his guilt and whether the case had been proved beyond any reasonable doubt by the prosecution, and not to determine whether a prima facie case had been established. [46] As for grounds of appeal number 7, 8 and 9, we shall deal with them together as they are inter-related. The grounds are as follows: Ground 7: “The learned High Court Judge failed to appreciate that the circumstantial evidence relied upon by the prosecution which taken together with the other facts and circumstances do not cumulative effect of bringing a reasonable and irresistible inference that the Appellant had committed the offence of murder.” Ground 8: “The learned High Court Judge ought to have given the benefit of the doubt to the Appellant.” Ground 9: “The learned High Court Judge failed to appreciate the evidence of the Appellant as a whole to the conclusion as to the Appellant defence and that the Appellant is entitle to have been convicted under lesser offence of section 304 of Penal Code.” [47] Taking these grounds cumulatively, our comment is that once the learned judge had made a finding of fact that the appellant intended to cause the deceased’s death, the question that the appellant was entitled 16 to be convicted of the lesser offence of culpable homicide not amounting to murder under section 304 of the Penal Code does not arise at all. [48] Was there any reason for the learned judge to give the appellant the benefit of the doubt, as suggested by learned counsel? But first, what is meant by “reasonable doubt”? This court in PP v Cho Sing Koo & Anor [2015] 4 CLJ 491 had occasion to deal with this point at paragraphs [34] and [35] as follows: “[34] We wish to reiterate that the burden on the prosecution is to prove its case beyond reasonable doubt, not beyond the shadow or flicker of a doubt. That is the degree of proof required and there is no dearth of authority on what constitutes “reasonable doubt”. Unless this is properly understood there is the danger that in giving maximum evaluation to the evidence of the prosecution at the close of its case or in considering the evidence of the accused at the close of the defence case, a burden that is heavier and more onerous than what the law requires is demanded of the prosecution. Justice is not better served by acquitting a guilty man than it is to convict an innocent one. [35] Perhaps we should reproduce the oft-quoted pronouncement of Lord Denning in Miller v Minister of Pensions [1947] 2 All ER 372 to better understand the correct burden on the prosecution: ‘That degree is well settled. It need not reach certainty, but must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law will 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’.” [49] On the proved facts of the present case, we were of the view that the learned judge was absolutely right in finding that the murder charge had been proved beyond any reasonable doubt. On the totality of 17 evidence and the probabilities of the case, the only option open to the learned judge was to convict the appellant of the offence of murder as charged and not the offence of culpable homicide not amounting to murder under section 304 of the Penal Code or any other lesser offence. [50] The appellant’s act was clearly an act of murder within the meaning of section 300 paragraph (a) of the Penal Code. The provision reads: “300. Except in the cases hereinafter excepted, culpable homicide is murder – (a) If the act by which the death is caused is done with the intention of causing death.” [51] None of the general exceptions under Chapter IV of the Penal Code applied in the appellant’s favour as his defence of lack of intention to cause death did not fit in with any of the defences under Chapter IV, such as the defence of accident under section 80, private defence under section 96 or grave and sudden provocation under Exception 1 to section 300 of the Penal Code. [52] As for the defence of temporary insanity raised by the appellant in his first ground of appeal, we have mentioned that without expert medical evidence, the defence was not sustainable. [53] The appellant’s defence, as we said, was a confession and avoidance, i.e. confessing to the killing but avoiding liability by saying that he did not intend to cause death. This line of defence falls outside the scope of the general exceptions under Chapter IV of the Penal Code. In any event, the learned trial judge had found that the appellant intended to cause the deceased’s death. We had no reason to disturb this finding of fact. 18 [54] It was for all the foregoing reasons that we dismissed the appellant’s appeal and affirmed the decision of the High Court. ABDUL RAHMAN SEBLI Judge Court of Appeal Malaysia Dated: 31 October 2017. For the Appellant: Abdul Gani Bin Zelika of Messrs Johari & Amin. For the Respondent: Ahmad Sazilee Bin Abdul Khairi, Deputy Public Prosecutor, of the Attorney General’s Chambers.

Tika 2.6.0

W-09-147-04/2016

PERAYU KANAWAGI A/L SEPERUMANIAM … PERAYU RESPONDEN PENDAKWA RAYA ... RESPONDEN

31/10/2017

YA DATO' SRI HASNAH DATO' MOHAMMED HASHIMKorumYA DATUK SERI HAJI MOHD ZAWAWI BIN SALLEHYA DATO' AHMADI BIN HAJI ASNAWIYA DATO' SRI HASNAH DATO' MOHAMMED HASHIM

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1 DALAM MAHKAMAH RAYUAN MALAYSIA RAYUAN JENAYAH NO:W-09-147-04/2016 ANTARA KANAWAGI A/L SEPERUMANIAM … PERAYU DAN PENDAKWA RAYA ... RESPONDEN [Dalam Perkara Mengenai Mahkamah Tinggi di Kuala Lumpur Rayuan Jenayah bil: 42(ORS)-36-05/2015 Antara Kanawagi A/L Seperumaniam ... Perayu (KP No.450112-07-5241) Dan Pendakwa Raya ... Responden] CORAM: MOHD ZAWAWI SALLEH, HMR AHMADI HAJI ASNAWI, HMR HASNAH MOHAMMED HASHIM, HMR 2 GROUNDS OF JUDGMENT [1] This appeal is against the decision of the learned High Court Judge made on 6.4.2016, dismissing the appeal of the Appellant against the decision of the Sessions Court Judge dated 11.5.2015. We heard the appeal on 10.4.2017 and after perusing the record of appeal and considering both the written and oral submissions of learned counsels for the parties, we unanimously dismiss the appeal. These are our reasons. The Antecedents [2] This case has had a chequered history. Therefore, it is necessary to narrate the background facts at some length to appreciate the legal issues arising in this instant appeal. Kuala Lumpur Sessions Court No.62-130-2000 [3] On 23.10.2000 the Appellant was initially charged with 3 charges under section 471 read together with section 467 of the Penal Code (“PC”) in the Kuala Lumpur Sessions Court No.62-130-2000 (“the 1st trial”). At the 1st trial, the Sessions Court Judge called for the Appellant to enter his defence. The 3 Appellant gave evidence under oath. On 26.6.2010, the Deputy Public Prosecutor cross examined the Appellant and referred to a Penang High Court Civil Case (OS No.24-88-1995). After reexamination of the Appellant, the Appellant was released as a witness. The Appellant called 23 witnesses and closed his case on 28.1.2011. On 22.2.2011, the Deputy Public Prosecutor made an oral application to recall the Appellant for further cross examination and also to recall three other witnesses. The Sessions Court Judge refused the application. Kuala Lumpur Sessions Court No.62-164-2011 [4] Before the Sessions Court Judge could deliver her decision in respect of the 1st trial, the Appellant was charged on 7.3.2011 at the Kuala Lumpur Sessions Court for committing perjury arising in the course of the said 1st trial. The charge preferred against the Appellant in the Kuala Lumpur Sessions Court case No.62-164-2011 (“2nd trial”) reads as follows: “ Bahawa kamu pada 24 Jun 2010 di Mahkamah Sesyen (Jenayah 2), Jalan Duta, Kuala Lumpur dalam Wilayah Persekutuan Kuala Lumpur, semasa dipanggil sebagai saksi pembelaan yang pertama (SD1) di dalam prosiding Perbicaraan 4 Jenayah Kes Tangkap 2-62-130-2000 Pendakwa Raya v. Kanawagi a/l Seprumaniam, dihadapan Hakim Puan Rosenani bte Abdul Rahman telah memberi keterangan palsu semasa di peringkat pemeriksaan balas di mana kamu telah menyatakan perkataan-perkataan yang tertera di Lampiran ‘A(1)’ dan A(2)’ (yang digariskan) yang dilampirkan bersama dan kenyataan tersebut yang mana kamu ketahui sebagai palsu dan dengan itu kamu telah melakukan kesalahan di bawah seksyen 193 Kanun Keseksaan yang boleh dihukum bawah seksyen yang sama.” [5] With regards to the 1st trial, the Sessions Court Judge convicted and sentenced the Appellant on all the three charges on 31.5.2011. Dissatisfied with the impugned decision, the Appellant appealed to the High Court (Rayuan Jenayah No.42S-87-2011). On 23.3.2012, the High Court granted a stay of the Kuala Lumpur Sessions Court case No.62-164-2011 proceedings pending the disposal of the appeal of the 1st trial. On 9.3.2015, the High Court Judge allowed the appeal and set aside the conviction and acquitted the Appellant of all the three charges. 5 [6] Dissatisfied with the aforesaid decision, the Deputy Public Prosecutor appealed to the Court of Appeal. On 3.3.2017, the Court of Appeal allowed the appeal in part as follows: “ Dengan sebulat suara: 
i] Rayuan dibenarkan sebahagian; ii] Keputusan pelepasan dan pembebasan Responden oleh HMT diketepikan; iii] Sabitan terhadap Responden oleh HMS untuk ketiga-tiga pertuduhan iaitu:
 P1-Sek.471KK dibaca bersama Sek 467 Kanun yang sama,
 P2-Sek 199 KK yang boleh dihukum dibawah cabang pertama Sek.193 Kanun yang sama dan P3- Sek 471 KK dibaca bersama Sek.467 Kanun yang sama adalah disahkan; iv] Hukuman yang dijatuhkan oleh HMS terhadap Responden diketepikan; v] Responden dihukum untuk:
- P1-1 hari penjara (3.3.2017) dan denda RM100,000.00 gagal bayar 6 bulan penjara,
- P2- 1 hari penjara (3.3.2017) dan denda RM 100,000.00 gagal 6 bayar 6 bulan penjara dan bagi
- P3-1 hari penjara (3.3.2017) dan denda RM100,000.00 gagal bayar 6 bulan penjara; vi] Hukuman penjara berjalan serentak; dan vii] Denda di bayar pada atau sebelum 10.3.2017.” Criminal Notice of Application No.64-34-04/2015 [7] The Appellant subsequently filed an application on 14.4.2015 in the Sessions Court seeking the following orders: “1. Bagi satu perintah pertuduhan terhadap Kanawagi a/l Seperumaniam dalam Mahkamah Sesyen Kuala Lumpur Kes No. 62-164-2011, Pendakwa Raya lwn Kanawagi a/l Seperumaniam yang dituduh memberi keterangan palsu semasa pemeriksaan balas dalam Perbicaraan Jenayah Kes No. 62-130-2000 dan telah menyatakan perkataan-perkataan yang tertera di Lampiran ‘A(1)’ dan ‘A(2)’ yang dilampirkan bersama kertas pertuduhan, diketepikan dan dibatalkan dan selanjutnya Tertuduh, Kanawagi a/l Seperumaniam dibebaskan dan dilepaskan (be set aside and quashed and 7 consequently the Accused, Kanawagi a/l Seperumaniam being discharged and acquitted); 2. Dalam alternatif Bahawa Tertuduh, Kanawagi a/l Seperumaniam dibebaskan dan dilepaskan terhadap pertuduhan yang dibawa terhadapnya dalam Mahkamah Sesyen Kuala Lumpur Kes No.62-164-2011, Pendakwa Raya lwn Kanawagi a/l Seperumaniam (alternatively the Accused, Kanawagi a/l Seperumaniam being discharged of the charge preferred against him in Mahkamah Sesyen Kuala Lumpur Kes No. 62- 164-2011, Pendakwa Raya lwn Kanawagi a/l Seperumaniam); 3. Selanjutnya dalam alternative bagi satu perintah bahawa kesemua prosiding-prosiding dalam Mahkamah Sesyen Kuala Lumpur Kes No. 62-164-2011, Pendakwa Raya lwn Kanawagi a/l Seperumaniam digantungkan sehingga rayuan Timbalan Pendakwa Raya kepada Mahkamah Rayuan terhadap keputusan Mahkamah Tinggi yang diberikan dalam Mahkamah Tinggi Kuala Lumpur Rayuan Jenayah No. 425-87- 2011, Kanawagi a/l Seperumaniam lwn Pendakwa Raya didengar dan diselesaikan secara muktamad (further in the 8 alternative for an order that all proceedings in Kuala Lumpur Sessions Court Case No. 62-164-2011, Pendakwa Raya vs Kanawagi Seperumaniam, be stayed until the DPP’s appeal to the Court of appeal against the decision of the High Court given in Kuala Lumpur High Court Criminal Appeal No. 425- 87-2011 be heard and finally disposed off); 4. Apa-apa relif/dan atau perintah yang difikirkan wajar dan adil oleh Mahkamah Yang Mulia.” [8] The application was purportedly made pursuant to section 303(2) Criminal Procedure Code (“CPC”) read together with Article 7 (2) of the Federal Constitution and/or under the inherent jurisdiction of the court. The affidavit in support of the application affirmed by the Appellant himself, sets out the grounds for making the application, namely, that the charge is barred by the doctrine of autrefois acquit or convict including issue estoppel. We reproduce the relevant part of the Appellant’s affidavit as follows – “….(e) Kes pendakwaan dalam Kes Kedua terhadap pihak Pemohon tidak berdasarkan pada dua pernyataan tidak selaras yang diperbuat oleh pihak Pemohon tetapi atas pernyataan yang diperbuat oleh orang lain berbanding 9 dengan pernyataan pihak Pemohon dalam Kes Pertama dan pihak pendakwaan tidak mencabar kebolehpercayaan pihak Pemohon dalam Kes Pertama dan oleh itu keterangan yang diberikan oleh Pihak Pemohon dalam Kes Pertama kekal sebagai tidak dicabar. (f) Tajuk perkara pertuduhan dalam Kes Kedua telah secara jelas (distinct) dibangkitkan dan didapati dalam prosiding- prosiding Kes Pertama dan setelah Mahkamah Tinggi membenarkan rayuan terhadap keputuasan Kes Pertama, undang-undang isu estopel kini terpakai dan pihak Pendakwaan tidak boleh membangkitkan isu-isu tersebut. (g) Pihak Pendakwaan dalam meneruskan dengan Kes Kedua kini meminta Mahkamah dalam Kes kedua untuk menolak atau mengabaikan pendapat atau penemuan Mahkamah sebelum ini dan membuat pendapat atau penemuan fakta baru yang tidak konsisten dengan pendapat fakta Mahkamah sebelum ini dan yang mana undang-undang Negara ini tidak membenarkan. (h) Pihak Pendakwaan untuk membuktikan Kes Kedua perlu mengemukakan keterangan yang akan bertentangan 10 dengan pembebasan (acquittal) pihak Pemohon dalam Rayuan Mahkamah Tinggi yang mana undang-undang autrefois convict,autrefois acquit,isu estopel dan res judicata tidak membenarkan….” The decision of the Sessions Court [9] The Sessions Court heard the application and on 11.5.2015 dismissed the same. The Sessions Court Judge in his grounds of judgement explained that the hearing of the Kuala Lumpur Sessions Court Case No. 62-164 -2011 could not commence because of the stay granted on 23.3.2012 by the High Court. He further explained that the Court was unable to determine whether the evidence adduced by the prosecution in Kuala Lumpur Sessions Court Case No. 62-164-2011 is similar to the evidence adduced in Kuala Lumpur Sessions Court Case No. 62-130-2000. Thus, the issue with regards to double jeopardy or abuse of court process can only be determined after the hearing of the full trial. The Learned Sessions Court Judge stated: “ Oleh yang demikian, pada peringkat ini mahkamah tidak boleh memastikan sama ada keterangan yang akan dikemukakan oleh Pendakwa Raya dalam kes 62-164-2011 adalah serupa dengan 11 keterangan yang telah dikemukakan dalam kes 62-130-2000. Atas sebab itu, isu sama ada wujud double jeopardy atau penyalahangunaan proses mahkamah belum dapat diputuskan.” [10] The Appellant then appealed to the High Court. The decision of the High Court [11] On appeal, the High Court Judge agreed with the Sessions Court Judge that it is premature at that stage to determine whether the evidence to be adduced would be similar as the Kuala Lumpur Sessions Court case no. 62- 130-2000. His reasons are set out in his grounds of judgment and we reproduce the relevant part as hereunder: “[15] Mahkamah ini mendapati daripada affidavit-affidavit yang difailkan oleh kedua-kedua pihak, bahawa Pertuduhan ‘perjury’ dalam kes kedua tersebut bukanlah berdasarkan fakta yang sama dalam pertuduhan kes pertama. Walaupun jawapan kepada soal balas Perayu yang menjadi asas pertuduhan kes kedua itu berkisar kepada perkara-perkara dalam kes Sivil di Mahkamah Tinggi Pulau Pinang yang sama namun kesan-kesan jawapan itu yang 12 menjadi persoalannya. Oleh itu ia bukan satu perbicaraan secara ‘substantial’ serupa dengan keterangan-keterangan dalam perbicaraan kes pertama. Dengan ini tidak menghalang pihak Pendakwaan meneruskan pertuduhan dalam kes kedua tersebut.” [12] Having heard and considered the arguments of both parties, the High Court dismissed the appeal. Hence, this appeal before us. Parties’ Competing Submissions The Appellant [13] With respect, we would like to note at the outset that it is not easy to comprehend the question of law put forth by learned counsel for the Appellant. [14] If our understanding is correct, learned counsel for the Appellant seems to suggest that the prosecution cannot charge a person whose credit has not been impeached for perjury. He argued that the prosecution can only charge a person whose credit has been impeached by the court resulting from his or her evidence in court. 13 [15] Further, it was argued that section 113(2) of the CPC prohibits any statement made by an accused during the police investigation to be admitted in court. Therefore, the statement recorded under section 113 of the CPC cannot be used to impeach the credibility of the Appellant. [16] The very substratum of the charge in the 2nd trial is “telah memberi keterangan palsu di peringkat pemeriksaan balas … yang kamu ketahui sebagai palsu”. According to learned counsel, the charge in the 2nd trial is unsustainable and doomed to failure because the Appellant cannot be impeached in relation to answers given by him in cross-examination which has not been impeached by the court. [17] The answer given by the Appellant in cross-examination is in respect of Kuala Lumpur Sessions Court Case No. 62-130-2000 where a final decision has been handed down by the court and no impeachment proceedings has been taken against the Appellant. [18] In a nutshell, learned counsel submitted that the prosecution cannot charge the Appellant for perjury as it constitutes a fresh action against the person whose credibility has not been impeached and section 113(2) CPC 14 gives a blanket immunity to an accused from being impeached based on his statement given in the course of police investigation. The Prosecution [19] In response, Learned Deputy Public Prosecutor argued that the charges in both trials are not similar in nature. The charges against the Appellant in the 1st trial was for the usage of a document knowing that it was false and with intent that it should in any way be used or acted on as genuine AS WELL AS filing a false affidavit. Whilst in the Kuala Lumpur Sessions Court Case No. 62-164-2011(the 2nd trial), the charge against the Appellant was for giving false evidence and thus committing perjury. Indeed, they are two different district offences under the Panel Code. Our Decision [20] Before us, the sole issue posed for our determination is simply this: whether a charge can be brought against the Appellant arising from his testimony during cross examination by the prosecution at the defence stage in the 1st trial. After hearing oral submissions of both parties, we had directed both counsels to file further written submission with authorities (if any) on 15 whether the charge under section 193 PC was properly brought against the Appellant. Now, section 193 PC provides as follows: “ Whoever intentionally gives false evidence in any stage of a judicial proceeding, or fabricates false evidence for the purpose of being used in any stage of a judicial proceeding, shall be punished with imprisonment for a term which may extend to seven years, and shall also be liable to fine; and whoever intentionally gives or fabricates false evidence in any other case, shall be punished with imprisonment for a term which may extend to three years, and shall also be liable to fine” [21] On a plain reading of section 193 PC, it is clear that the section applies to a witness who gives false evidence in court and also to a witness who gives false written statement to be used in any criminal proceedings. In order to sustain a conviction under section 193 PC, the prosecution has to prove beyond reasonable doubt the following ingredients: “ that the accused was legally bound to state the truth, either by an oath or by an express provision of law, or that the accused made the declaration in question. Due administration of the oath of the accused person should be proved like any other fact. javascript:DispAct=window.open('/Members/DisplayAct.aspx?CaseActCode=MY_FS_ACT_1997_574&ActSectionNo=193.&SearchId=6hakim154','_DisplayAct','');DispAct.focus() 16 (i) that he made such statement whilst so bound. (ii) that such statement, or declaration, was made in a stage of a judicial proceeding. (iii) that such statement or declaration is false. It must be shown that the false statement charged against the accused is literally false. There must be a statement of fact which is false. It is no offence if the fact stated is true but some circumstance is suppressed, with the result that a wrong inference may be deduced. (iv) that the accused when making such statement or declaration, (a) knew it to be false, or (b) believed it to be false, or (c) did not believe it to be true. (v) that he made such false statement intentionally.” (See: Ratanlal & Dhirajlal’s Law of Crimes; A Commentary on Indian Penal Code; Volume 1; 27th Edition;@page 961). [22] For the offence of perjury, the prosecution must prove that the accused had deliberately made two statements which are so contradictory to and irreconcilable with each other that both cannot possibly be true. It is incumbent on the prosecution to show that the statement made by the 17 accused was false. Learned authors, Ratanlal and Dhirajlal, on the subject of the nature of proof in the case of giving false evidence, stated as follows: “ The true rule in a case of giving false evidence is that no man can be convicted of giving false evidence, except on proof of facts which, if accepted as true, should not merely that it is incredible, but that it is impossible that the statements of the party accused made on oath can be true. If the inference from the facts proved falls short of this, it seems to us that there is nothing on which a conviction can stand, because assuming all that is proved to be true, it is still possible that no crime was committed.” (See: Ratanlal & Dhirajlal’s Law of Crimes; supra@page 962). [23] It is clear, therefore, the court can only make such finding on any witness upon clear proof and on being satisfied that the witness had deliberately lied or otherwise. The trial judge must be fully satisfied that based on the evidence adduced, the two statements are not only contradictory but are from every point of view irreconcilable. If the accused proves that he did not intentionally make any false statement, he is entitled to be acquitted. 18 [24] In his submission, learned counsel had attempted to persuade us that due to legal impediment as alluded to earlier, the prosecution would not be able to prove its case under section 193 of PC against the Appellant. [25] With respect, we disagree. We are in full agreement with the learned High Court Judge that it would be premature to conclude, at this stage, whether the prosecution would be able to prove its case under section 193 of PC against the Appellant. We are of the opinion that in the circumstances of this case, the most convenient procedure should be followed, namely that the prosecution should be allowed to present or offer evidence that would substantiate the charge against the Appellant. [26] In the 2nd trial, the prosecution is yet to formally adduce the evidence in court. It is the duty of the public prosecutor to bring or pursue the prosecution of a criminal proceedings and to represent the public interest. The prosecution is also entitled to the due process in criminal cases, that is, a fair opportunity to prosecute. The Court has always accorded this right to the prosecution. 19 [27] The Appellant cannot claim denial of due process because he will have the opportunity to contest the evidence adduced against him and to prove his defence after the prosecution concludes its case. Conclusion [28] In the light of the foregoing, the learned High Court Judge was correct in dismissing the application, so that the case should continue before the Sessions Court Judge for the determination of whether the Appellant had indeed fabricated evidence as alleged in the charge. The appeal is dismissed. The decision of the High Court is affirmed. [29] We further order that the Sessions Court fix an early date to proceed with the full trial as soon as practicable. sgd (HASNAH BINTI DATO’ MOHAMMED HASHIM) Judge Court Of Appeal Malaysia Putrajaya Date: 31.10.2017 20 Counsels: For Appellant: Mr. Manjeet Singh Dillon, Tetuan Melissa Ram, Peguambela dan Peguamcara, No. 3, Jalan Abdullah, Off Jalan Bangsar, 59000 Kuala Lumpur. For Respondent: Pendakwa Raya, Jabatan Peguam Negara Malaysia, Bahagian Perbicaraan & Rayuan, Aras 5, No. 45, Jalan Persiaran Perdana, Presint 4, 62100 Putrajaya. (Attention: Puan Fatnin bt. Yusof)

Tika 2.6.0

B-02(NCVC)(W)-154-01/2016

PERAYU SEDIABENA SDN. BHD. (No. Syarikat: 085679-H) …………. PERAYU RESPONDEN CHINA COMSERVICE (HONG KONG) LIMITED …….. RESPONDEN

Contract — Supply of goods and services — Who was in breach of the contractual obligations— Whether it was Plaintiff who had committed a repudiatory breach — Whether plaintiff completed works as claimed and entitled to full payment — Whether the Defendant is a trustee on the monies paid by Maxis in the Dedicated Account — Whether the Defendant had acted in breach of its implied/fiduciary duties and obligations under its trustee’s duties — Contracts Act 1950, section 74

31/10/2017

YA DATO' ZABARIAH BINTI MOHD YUSOFKorumYA DATUK NALLINI PATHMANATHANYA DATUK DR. PRASAD SANDOSHAM ABRAHAMYA DATO' ZABARIAH BINTI MOHD YUSOF

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=a450d5f0-b871-4412-9688-d4a0ec397246&Inline=true

1 DALAM MAHKAMAH RAYUAN MALAYSIA (BIDANGKUASA RAYUAN) RAYUAN SIVIL NO.: B-02(NCVC)(W)-154-01/2016 ANTARA SEDIABENA SDN. BHD. (No. Syarikat: 085679-H) ………….PERAYU DAN CHINA COMSERVICE (HONG KONG) LIMITED ……..RESPONDEN (disatukan dengan) DALAM MAHKAMAH RAYUAN MALAYSIA (BIDANGKUASA RAYUAN) RAYUAN SIVIL NO.: B-02(NCVC)(W)-152-01/2016 ANTARA CHINA COMSERVICE (HONG KONG) LIMITED …..…..….PERAYU DAN SEDIABENA SDN. BHD. (No. Syarikat: 085679-H) ………RESPONDEN 2 [Dalam Perkara Mahkamah Tinggi Malaya di Shah Alam (Bahagian Sivil) Guaman Sivil No: 22NCVC-254-05/2014 Antara China Comservice (Hong Kong) Limited ………….Plaintif Dan Sediabena Sdn. Bhd. (No Syarikat: 085679-H) ……..Defendan] ____________________________________________________________ CORAM: NALLINI PATHMANATHAN, JCA DR. PRASAD SANDOSHAM ABRAHAM, JCA ZABARIAH MOHD YUSOF, JCA JUDGMENT 1. The claim by the Plaintiff against the Defendant, in the High Court, is for, inter alia, the following reliefs: a) a declaration that the Defendant had breached its express obligations under the Strategic Alliance Agreement dated 23.12.2010 (SAA); 3 b) a declaration that the Defendant acted in breach of its implied obligations under the SAA; c) a declaration that the Defendant acted in breach of its fiduciary duties and obligations as a trustee; d) Damages, as consequential relief; e) Costs. 2. The Defendant counterclaimed against the Plaintiff, inter alia, for a declaration that the Plaintiff had breached the SAA, and sought an order or compensation for the breach committed. 3. At the end of the trial, the learned trial Judge allowed the Plaintiff’s claim in part, as follows: “(1) it is declared that the Defendant acted in breach of its expressed obligations under the Strategic Alliance Agreement dated 23rd December 2010; (2) damages are to be assessed and paid by the Defendant to the Plaintiff; (3) the Defendant shall pay to the Plaintiff interest on such sums as awarded to the Plaintiff at the rate of 4% per annum from the date of judgment until the date of full settlement; and (4) the Defendant shall pay to the Plaintiff costs of RM50,000.00.” 4 4. The claim of the Plaintiff that sought a declaration that the Defendant acted in breach of its implied obligations under the SAA and a declaration that the Defendant acted in breach of its fiduciary duties and obligations in respect of its duties as a trustee were dismissed by the learned trial Judge. 5. The counterclaim by the Defendant was also dismissed. 6. The Plaintiff appealed to the Court of Appeal against that part of the decision of the learned trial Judge that disallowed the Plaintiff’s claim. Whereas the Defendant appealed against the whole of the said decision. 7. After hearing both parties and after perusing the Appeal Records, we unanimously dismissed both Appeals with costs and affirmed the decision of the learned trial Judge of the High Court. 8. Herein below are our grounds. Parties shall be referred to, as they were in the High Court. BACKGROUND: 9. On 15.2.2010, the Defendant and Dewarisan Holdings Sdn. Bhd. (DHSB) entered into a “Smart Partner Project Agreement” (SPPA) with Maxis Broadband Sdn. Bhd. (Maxis). Pursuant to this SPPA, Maxis appointed the Defendant and DHSB for the supply, delivery, 5 construction, installation, testing, commissioning and decommissioning and maintenance of network infrastructure and facilities for Maxis for a period of 3 years (Works). Maxis has the option to renew the SPPA for another 2 years. 10. The scope of work undertaken by the Defendant under the SPPA is for the supply, delivery, construction, installation, testing, commissioning and decommissioning of network infrastructure (Defendant’s Works), whilst DHSB undertook the maintenance portion of the works. 11. With regards to the Works including the Defendant’s Works, the provisions of the SPPA (which are relevant to our present appeal), are as follows: (i) Clause 14 provides that such works as required by Maxis are requisitioned by way of “Work Orders” in the form of Purchase Orders or Departmental Release Orders (DROs); (ii) Clauses 36 and 37 provide that, when such works have been completed and accepted, Maxis will be invoiced by the Defendant. Subsequently, Maxis will make payments of the invoiced amount into a Nominated Joint Account (NJA) of DHSB and the Defendant. From the NJA, the Defendant’s portion will be paid to the Defendant. 6 12. The Plaintiff came into the picture when it entered into a SAA on 23.12.2010 with the Defendant for the Defendant’s Works under the SPPA. These being the Work Orders issued by Maxis as of the date of the SAA and defined thereto in the SAA as “On-Going Projects” (2010 DROs). 13. Clause 2.1 of the SAA provides that the Defendant is to be the sole and exclusive project manager for the Defendant’s Works under the SPPA. 14. The SAA also provides that: A. The Defendant shall, inter alia: (i) allocate all work orders received from Maxis for execution; (Clause 3.1 (a)); (ii) not issue any invoices for the Project Works without the prior consent of the Plaintiff (Clause 3.1 (f)); (iii) provide the Plaintiff with all invoices issued to Maxis and updates on all payments received from Maxis (Clause 3.1 (f)). B. The Plaintiff shall inter alia: 7 i) execute the works with due skill and care and in a professional manner (Clause 3.2 (b)); ii) be responsible for all financing including operational and capital expenses (Clause 3.2 (c)); iii) offer employment to all the Defendant’s employees as may be determined by the Plaintiff (Clause 3.2 (d)); C. The Defendant warrants and represents that: i) the aggregate contract value of the 2010 DROs is no less than RM16,643,694.00 all of which is fully recoverable from Maxis (Clause 4.1 (c)); ii) as at 23.12.2010 the works for the 2010 DROs duly performed and carried out is no less than RM8,321,847.00 all of which is fully recoverable from Maxis (Clause 4.1 (d)); iii) all payments from Maxis can only be paid into the NJA operated jointly by DHSB and the Defendant with the Defendant’s portion thereafter credited into the Defendant’s account by way of a standing instruction issued jointly by DHSB and the Defendant (Clause 4.1 (e) and (f)). D. Pursuant to the SAA, the Plaintiff was to implement the DROs issued after the SAA was entered into, i.e. the post 2010 DROs, 8 including financing all operational and capital expenses incurred in that regard. 15. As for the 2010 DROs, it is not disputed that the implementation and all operational and capital expenses incurred thereof, were the responsibility of the Defendant. For these 2010 DROs, the Plaintiff was to provide assistance to the Defendant with funding and that the Defendant was required to complete the 2010 DROs. In this regard the Plaintiff agreed to contribute no more than RM15,811,509.00 to assist the Defendant in its commitment under the 2010 DROs, or On- Going projects. The contribution was to be made in 3 Tranches which as follows: a) First Tranche - no more than RM8,321,847.00 to be paid on 24.12.2010; b) 2nd Tranche - no more than RM5,825,293.00 to be paid when the total amount of the invoices issued by the Defendant to Maxis amounts to no less than RM12,482,771.00; c) 3rd Tranche - no more than RM1,664,369.00 to be paid after the Plaintiff has received RM16,643,694.00 from the On-Going Projects (2010 DROs) paid by Maxis. 9 16. Upon payment of the 1st and the 2nd Tranches by the Plaintiff, the Defendant was to complete the 2010 DROs within the time stipulated and to invoice Maxis for the same. 17. Further, Clause 5.7 of the SAA provides that the Plaintiff is entitled to RM16,643,694.00 from the 2010 DROs payable from 90% of all payments received by the Defendant from Maxis for 2010 DROs, with any excess amount going to the Defendant and any shortfall to be paid by the Defendant to the Plaintiff. 18. Clause 6.1 (a) of the same, states that if the total payments received from Maxis in relation to the Projects Works is less than RM200 million, the Plaintiff gets 90% of those total payments received. Clause 6.1 (b) states that if the total payments received from Maxis in relation to the Project Works is more than RM200 million, the Plaintiff gets 95% of those total payments received. The above is termed as the “Agreed Benefit Ratio”. 19. The Defendant agreed and undertook that all monies received by it from Maxis would be paid into a “Dedicated Account”, which is the Defendant’s dedicated current account. There was to be, after the payment of the 1st and the 2nd Tranches, a Standing Instruction for all monies in the Dedicated Account to be paid out to the Plaintiff and 10 Defendant according to the Agreed Benefit Ratio (Clause 6.1 (a) and (b) of the SAA)). 20. It is not disputed that the Plaintiff had only paid the 1st Tranche to the Defendant. The dispute is as to the 2nd Tranche which the Plaintiff did not release to the Defendant. The Defendant contends that by early August 2011, the total amount of invoices issued to Maxis amounted to no less than RM12,482,771.00 and hence this triggered the release of the 2nd Tranche payment, which the Defendant alleged the Plaintiff failed to make. 21. However, the Plaintiff asserts that: i) the total amount invoiced by the Defendant to Maxis and also the payments received by the Defendant from Maxis could not be verified by the Plaintiff; ii) the Plaintiff was neither kept updated nor given copies of the invoices issued out to Maxis; iii) the Plaintiff was not kept informed of the payments received from Maxis. Premised on the above reasons, the Plaintiff could not release the 2nd Tranche. 11 22. Parties attempted to resolve the dispute and find an amicable solution. However, all attempts at resolution failed. The Plaintiff alleged that despite its numerous requests for the invoices issued to Maxis or evidence of payment to Maxis, it fell to deaf ears. 23. Subsequently, at a meeting on 25.7.2012, the Plaintiff gave notice to the Defendant that it is withdrawing from the SAA (refer to page 563- 564 of ACB Volume 2). It is not disputed that the Plaintiff had completely withdrawn itself from the SAA between June/July 2012. The Plaintiff pleaded that on or around 28.7.2012 the SAA was terminated. 24. The Plaintiff initiated a suit in the High Court seeking a declaration that the Defendant had acted in breach of its obligations under the SAA and also in breach of its fiduciary duties and obligations as trustee. This is the subject of the Appeal before us. 25. The main complaint of the Plaintiff is reflected in paragraph 11 of the Statement of Claim. The Plaintiff claims that notwithstanding that it had performed its obligations, including advancing the First Tranche of RM8,321,847.00 and incurring a further sum of RM13 million plus towards operational and capital expenditure for the Project Works, the Defendant committed various breaches of its obligations under the SAA and/or its fiduciary/trustee duties and obligations. The particulars of the breaches are: 12 (i) the Defendant attempted to put all of its employees on the Plaintiff’s payroll regardless of whether they were deployed for the Project Works; (ii) From and around October 2011, the Defendant failed to obtain the Plaintiff’s consent before invoices were issued to Maxis; (iii) the Defendant failed to keep the Plaintiff informed and updated on the invoices issued to Maxis; (iv) the Defendant failed to keep the Plaintiff informed and updated on the payments received from Maxis; (v) the Defendant failed to account to the Plaintiff and keep the Plaintiff informed and updated of all and any monies transferred to the Dedicated Account; (vi) the Defendant failed to account and pay to the Plaintiff the Plaintiff’s share of the payments and monies received from Maxis in the Agreed Benefit Ratio or at all; (vii) the Defendant failed to issue the requisite Standing Instruction to authorize immediate payments out of the Dedicated Account to the Plaintiff according to the Agreed Benefit Ratio. 13 26. The Plaintiff alleged that, by reason of the said breaches by the Defendant, the Plaintiff was put to suffer loss and damage. The particulars of loss and damage claimed by the plaintiff are as follows: a) RM16,643,694.00 being the sum the Plaintiff is entitled to (Clause 5.7 of the SAA)); b) RM8,321,847.00 being the 1st Tranche of funding advanced by the Plaintiff; c) RM13,657,844.00 being the further sums incurred by the Plaintiff towards the operational and capital expenditure for the Project Works; d) 90% of all sums received by the Defendant from Maxis by which the Plaintiff is entitled to by Clause 6.1 (a) of the SAA; and e) RM1,388,217.52 being finance and other costs incurred by the Plaintiff for the funding and expenditure as aforesaid. 27. Whereas, the counterclaim by the Defendant is as follows: a) A declaration that the Plaintiff had breached the SAA; b) An order for compensation of RM20,000.00 to be paid to the Defendant by the Plaintiff for the breach committed by the Plaintiff; 14 c) A declaration that the Plaintiff has no right over the monies in the Dedicated Account in Maybank; d) An Order for payment of RM14,353,611.88 being the operational costs incurred by the Defendant from 24.12.2010 until 31.5.2012 (and still accruing); e) An Order for payment of RM5,504,613.50 for advances made by the defendant for expenses incurred for the Plaintiff; f) An Order for payment of RM1,062,288.98 being the loss of income suffered by the defendant for the On-going Works; g) An Order for payment of RM386,914.54 for the reduced claims; h) A declaration that the Plaintiff is not entitled to 15% shareholding in the Defendant’s company that has been charged to the Plaintiff according to the Share Charge Agreement dated 23.12.2010; i) An Order to compel the Plaintiff to sign the Form of Transfer of Securities in favour of Mr. Chew Wai Choy for the 15% shares 7 days from the date of this Order; j) In the alternative for an order that the amount of RM16,643,694.00 being the amount of the shares be considered as a set off if the Plaintiff’s claim is successful; 15 k) Loss and damages to be assessed; and l) Costs and interest. Issues: 28. The main issues to be determined were as follows: i) Whether the Plaintiff/Defendant had breached the SAA; ii) Whether the Defendant is a trustee on the monies paid by Maxis in the Dedicated Account. If so, whether the Defendant had acted in breach of its implied/fiduciary duties and obligations under its trustee’s duties under the SAA. The Decision of the High Court: 29. The primary issue before the Court was who was in breach of the SAA. The contention of the Plaintiff was that it was the Defendant who did not keep the Plaintiff informed of the invoicing to, and payments received from, Maxis. 30. On the other hand, the Defendant maintained that it was the Plaintiff who failed to advance the 2nd Tranche payment of RM5,825,283.00. The Defendant contended that the undisputed evidence showed that the Plaintiff abandoned works and failed to comply with its obligations 16 under the SAA and accordingly, it was the Plaintiff who had committed a repudiatory breach of the SAA. 31. The trial proceeded on liability. The learned trial Judge found that the Defendant was the one who had breached its obligations under Clause 3.1 of the SAA. It was her finding that the Defendant had failed to provide the Plaintiff with copies of Maxis’s invoices to allow the Plaintiff to verify that the total amount of invoices issued by the Defendant to Maxis had reached the threshold sum of RM12,482,771.00 under Clause 5.2 of the SAA. Consistent with her findings, she also found that: a) the Defendant could only issue invoices with the prior consent of the Plaintiff; and b) the Defendant did not obtain the prior consent of the Plaintiff before issuing invoices. 32. The first Tranche of RM8,321,847.00 was already paid. It is only the 2nd Tranche which was withheld by the Plaintiff. It was only payable when the total invoice for the 2010 DROs was “no less than RM12,482.00”. The Plaintiff was unable to verify the financial progress of the Project nor the trigger point for the release of the 2nd Tranche. Hence, the learned trial Judge found that the Plaintiff was therefore entitled to withhold the 2nd Tranche. 17 33. The learned trial Judge also found that the breach by the Defendant of such obligations constituted a breach of a fundamental term of the agreement. However, she disallowed the Plaintiff’s “fiduciary/trustee duties claim” premised, essentially on the fact that the 2nd Tranche payment had yet to take place. FINDINGS: Whether the Plaintiff/Defendant had breached the SAA: 34. The learned trial Judge found that the Defendant failed to comply with Clauses 3.1 (e) and (f) and was therefore in breach of a fundamental term and hence was entitled to withhold the 2nd Tranche payment to the Defendant and ultimately to terminate the SAA on 28.7.2012. The learned trial Judge preferred the evidence of the Plaintiff whom she viewed as “more credible” in support of their contention, as compared to the witnesses of the Defendant who were “evasive and blowing hot and cold in responding to questions in relation to the failure in providing the invoices in question as in so much it had portrayed untruthfulness on their part and also lack transparency as the parties to the agreement”. 35. It is trite law that findings of the credibility of witnesses by the trier of the court of first instance, who has audio visual advantage, is rarely disturbed by an appellate court, unless it can be shown that the trier of fact is plainly wrong in arriving at its conclusions and decision. 18 (refer to Steven Phoa Cheng Loon & Ors and other appeals [2003] 1 MLJ 567; MMC Oil & Gas Engineering Sdn Bhd v Tan Bock Kwee & Sons Sdn Bhd [2016] 2 MLJ 428). Was the learned trial Judge wrong in her findings? 36. A perusal of the provisions of the SAA discloses the following. Clause 3.1 (e ) and (f) of the SAA provides for the general obligations of the Defendant: “3.1 The general Obligations of SSB Subject to the terms and conditions herein contained, SSB shall: (e) not issue any invoices with respect to the Project Works without the prior consent of CCSHK and where such consent has been obtained, to do so in the form and manner to be determined by CCSHK; (f) subject to Clause 3.1 (e), to provide CCSHK with all invoices issued to MBSB and an update on all payments received therefrom;” 37. According to the SAA, the 2nd Tranche was only payable when the total amount of invoices issued by the Defendant to Maxis for the 2010 DROs are not less than RM12,482,771.00. 38. The logical question to ask would be, how would the Plaintiff be able to verify that the amount of the invoices issued by the Defendant to Maxis for the 2010 DROs are not less than RM12,482,771.00. 19 39. Clauses 3.1 (e) and (f) appear to be the mechanism for the Plaintiff to keep track of the payments made by Maxis to the Defendant. This, consequently would have an effect on the funding obligations (the Tranche payments) on the part of the Plaintiff for the Defendant’s 2010 DROs entitlement pursuant to the SAA. By this, the Plaintiff would be able to monitor the contractual payments made by Maxis by reference to the payments updates provided by the Defendant. 40. From the evidence, it is not in dispute that the Plaintiff’s consent to the Defendant’s invoicing for the Project Works was by a representative of the Plaintiff who would sign the invoices for onward transmission to Maxis. From the testimony of the Plaintiff’s representative, SP 3 (Li Wen) the Plaintiff was only given few invoices to sign and it was never anywhere close to what ought to have been invoiced to Maxis given the number of DROs received from Maxis (refer to Tab 22 of the RCB Q & A No 10). 41. As a result, the Plaintiff queried repeatedly, as evidenced by the e- mails dated 15.3.2011 and 21.4.2011, requesting that the Defendant send to the Plaintiff the invoices before the issuance to Maxis for the Plaintiff’s signing and records. 42. The Plaintiff had insisted that they be given an account of the actual amount invoiced to and payment received from Maxis before the 2nd Tranche could be released. Instead the Plaintiff was only given listings of what the Defendant alleged to be invoices and payments. 20 43. The Defendant’s witness, Encik Zahar (SD 1) sought to justify the failure to obtain the signature of the Plaintiff’s representative before delivering it to Maxis, by alleging that this was due to the unavailability of the Plaintiff’s representative. However, in the same breath, he admitted that it was easy to call the Plaintiff for the signature. It is the Plaintiff’s case that its representatives were available at all material times and there is no evidence to suggest otherwise. The Defendant continued to issue invoices to Maxis without the Plaintiff’s consent, in total disregard of the provision of Clause 3.1 (e) of the SAA. Hence, the learned trial Judge correctly made the finding that the Defendant had breached Clause 3.1 of the SAA. (Refer to para 34 of her grounds). 44. Evidence further showed that the Plaintiff continued to make further requests from the Defendant for the invoices that were issued to Maxis, as can be seen from the following documents: a) e-mail on 21.4.2011 (Tab 4 page 31 of the RCB); b) e-mail on 6.10.2011 (Tab 10 page 95 of RCB); c) e-mail dated 28.6.2012 (Tab 14 at page 111 of RCB); d) letter dated 13.7.2012 (Tab 15 at page 112-113 of RCB); e) letter dated 6.8.2012 ( Tab 16 at page 114-115 of RCB); f) letter dated 10.10.2012 (Tab 17 at page 116-118 of RCB); g) letter dated 17.10.2012 (Tab 18 at pages 120-121 of RCB). 21 Therefore, the submissions by the Defendant that there was no evidence to support the finding of the learned trial Judge that there were repeated requests for the verification of the invoices was misplaced. 45. The Defendant could, at the very least, have provided true copies of the invoices issued to Maxis, to the Plaintiff. That would have been sufficient to enable the Plaintiff to keep track of the amounts invoiced. This is provided in Clause 3.1 (f) of the SAA. 46. Even SD 1 admitted that as at October 2011, the Plaintiff was still asking for the justification of the total bill that the Defendant had billed Maxis and total receivables based on the invoice or value. However, the Plaintiff’s request was not acceded to, by the Defendant, save and except for 9 or so invoices which were signed by the Plaintiff’s representative. 47. The Defendant contended that it had provided to the Plaintiff, via e- mail on 26.4.2011, scanned copies of letters which were sent to Maxis by the Defendant purportedly enclosing the invoices issued. However, a perusal of such e-mailed letters show that the invoices were never enclosed. Clearly, the letters alone would not reflect the actual amount or value of the invoices which were sent to Maxis. Without the actual invoices, the Plaintiff would not be able to verify the amount billed to Maxis by the Defendant. In any event, from the e- mailed letters, the invoices were only for the period before 26.4.2011. 22 What happened to the invoices after that date? These invoices were never provided to the Plaintiff. 48. The Defendant also asserted that it had provided a compilation of invoices to the Plaintiff’s representative, Webb Wei (SP 4) on 30.7.2011. This was evidenced from the letter of the Defendant dated 22.8.2011 (Refer to tab 7 page 86 of the RCB). However, the Plaintiff denied ever receiving such a letter and averred that it did not have record of it. In any event, we agree with the submission of the Plaintiff that it is unsafe to accept as conclusive that the delivery of such letter had been made to the Plaintiff, because: a) The letter did not state anywhere that a “compilation of invoices” was enclosed. At best it states a “compile (d) invoice summary” was given to Webb Wei (SP 4) on 30.7.2011; b) The Defendant was not certain when exactly this alleged “compile (d) invoice summary” was handed to the Plaintiff. The Defendant’s witness, SD 2 who is the Managing Director was evasive when cross examined on this, contradicting the contents of his own letter. (refer to Tab 25 at page 166-168 of RCB); c) What is more damaging is that on the day, 30.7.2011, which was the day the letter says the alleged “compile (d) invoice summary” was purportedly handed to the Plaintiff, Webb Wei (SP 4), it was not disputed that Webb Wei was not in Malaysia. 23 Hence the letter dated 22.8.2011 relied upon by the Defendant does not help its case at all. In addition, a compiled summary of invoices which is a summary obviously prepared by the Defendant, is insufficient for purposes of verification of the actual amount invoiced to Maxis. 49. Clause 3.1 (f) of the SAA places further obligations on the Defendant to provide the Plaintiff with updates on all payments received from Maxis, with the Plaintiff and the Defendant receiving the Agreed Ratio Benefit of either 90:10 or 95:5. 50. It is agreed that all monies paid by Maxis which parties are entitled to, are to be ultimately transferred into the Dedicated Account. Hence it follows that such evidence of monies received from Maxis would be reflected in the bank statements of the Dedicated Accounts itself. 51. However, until the conclusion of the trial, the bank statements of the Dedicated Account had not been given to the Plaintiff, despite numerous requests being made to the Defendant, be it oral or written. This was the evidence that was produced at trial: a) SP 3 e-mailed the Defendant on 24.8.2011 requesting that all “project account receipts” are to be e-mailed to him to enable the Plaintiff to verify the payments received from Maxis, with 24 such information to be on a fortnightly basis. SP 3 was referring to the bank statements in the Dedicated Account. b) However, what the Defendant did was to e-mail a summary of what the Defendant said were payments received from Maxis in an excel spreadsheet which was prepared by the Defendant, as was conceded by SD 1 (Zahar). Surely this spreadsheet was prepared based on the primary documents i.e. bank statements. 52. After the e-mail dated 24.8.2011, SP 3 approached the Defendant through its representative, Mr. Deva who was in charge of the Defendant’s finances. Mr. Deva was informed that the spreadsheet was insufficient and that the actual bank statements were required for the Plaintiff to verify the payments received from Maxis. Again there was no response from the Defendant. Instead the Defendant continued to send more summaries of the payment received from Maxis in excel spreadsheets. The Defendant denied that such a request was ever made to Mr. Deva. However, Mr. Deva of the Defendant was never called to testify and no reason given for such failure. The burden was on the Defendant to call Mr. Deva, as it was the Defendant who asserted that no such request was ever made to Mr. Deva of the Defendant. As Mr. Deva was not called, the denial was a bare one. 25 53. As such, the failure of the Defendant to provide the necessary documents to enable the Plaintiff to verify the payments received from Maxis amounts to a breach of Clause 3.1 (f) of the SAA as was the finding of the learned trial Judge in her grounds at page 204 para 57 at tab 27 RCB. It cannot therefore be said that the learned trial Judge erred in arriving at her conclusion. The 2nd Tranche Payment: 54. According to the SAA, the Plaintiff is to release this 2nd Tranche to the Defendant when the total amount of invoices issued by the Defendant to Maxis for the 2010 DROs is no less than RM12,482,771.00. 55. The learned trial Judge found that the “the evidence shows that the refusal by the plaintiff to release the 2nd Tranche is because the total amount invoiced by the defendant to Maxis and also the payment received by the defendant from Maxis could not be verified by the plaintiff. The plaintiff was never kept informed of the payment nor given copies of invoices issued to Maxis”. The Defendant submitted that this finding of the learned trial Judge was wrong. 56. However, we are not with the Defendant in this respect. As had been shown in the preceding paragraphs, the Defendant was the one which had failed to provide the Plaintiff with the invoices to Maxis and the updated payments received from Maxis. Without the Plaintiff being 26 able to verify the actual amount from the invoices to Maxis and the updated payments received from Maxis, how could the Plaintiff determine the trigger point for the release of the 2nd Tranche, as it would only trigger at no less than RM12,482,771.00? The learned trial Judge correctly observed that the built-in mechanism housed in Clause 3.1 of the SAA provides the agreed method for the Plaintiff to independently verify and monitor the amount invoiced to/and paid by Maxis. 57. The Defendant submitted that BG Lim (the alleged agent of the Plaintiff - which was never proven) would be able to give confirmation and verification that the collections from Maxis had reached the threshold of about RM14 million as at November 2011. This can be seen from his e-mail of 23.11.2011. Later, this amount was revised upwards to RM15 million in his e-mail of 20.12.2011. However, a perusal of the e-mail dated 23.11.2011 does not show that BG Lim had confirmed nor verified the collections from Maxis. The e-mail shows that it was a mere summary of the discussion in the meeting between the parties on 23.11.2011 (refer to ACB-2 at page 446-447). Similarly, the e-mail of 20.12.2011 was also a summary of the discussion between BG Lim, SP 1 and SD 2 on 20.12.2011 (refer to ACB-2 at page 447). Moreover, the issue whether such collections were verified by the Plaintiff or BG Lim at the meeting on 23.11.2011 and/or 20.12.2011 was never the case of the Defendant and never put to any of the witnesses. Therefore the Defendant’s argument that 27 the collections from Maxis have reached the threshold of RM14 million is baseless. 58. The Defendant also submitted that the court should invoke an adverse inference against the Plaintiff for failure to call this BG Lim to court as a witness. We are of the view that if at all an adverse inference is to be made, it should be invoked against the Defendant, as it was the Defendant who asserted that the invoices have reached the threshold. In any event, BG Lim is not a material witness, given that the evidence in relation to the invoice and evidence in relation to BG Lim has all been reduced to writing (which are in part B and hence not disputed). 59. Finally, as no determination could be made as to the amount of the invoices, the Plaintiff is entitled to withhold the release of the 2nd Tranche of RM5,825,847.00. The Defendant is the author of this predicament. The Plaintiff has no basis to release the 2nd Tranche payment. This was the finding of the learned trial Judge, which we agreed to be correct. Whether the breach by the Defendant constitutes a breach of a fundamental term of the SAA: 60. The learned trial Judge after considering the evidence arrived at a finding that the conduct of the Defendant constituted a breach of Clause 3.1 (e) of the SAA. The learned trial Judge found that the act of providing the invoices is fundamental to the SAA, which justified 28 the Plaintiff taking the steps of not releasing the 2nd Tranche and terminating the SAA on 28.7.2012. Hence her finding that the termination of the SAA was valid. The Defendant submitted that the learned trial Judge did not explain in her grounds as to how she came to the conclusion that the various obligations under Clause 3.1 of the SAA (which is an omnibus clause entitled “the General Obligations of SSB”) constituted a “fundamental condition”. The Defendant asserted that the SAA does not expressly classify any of the obligations under Clause 3.1 as conditions. It was also not the pleaded case of Plaintiff that Clause 3.1 was in the nature of conditions. The Defendant submitted that any breach of Clause 3.1 (f) could not, in law, constitute a ground for termination. This, according to the Defendant, was the error committed by the learned trial Judge. We, however, are in total agreement with the finding of the learned trial Judge in this regard. In construing a clause of the SAA, regard must be given to the words used in their factual and commercial context. The clauses of the SAA must be viewed and assessed in the light of the overall purpose of the SAA. Clauses 3.1 (e) and (f) are essential and go to the root of the entire SAA, without which the ultimate purposes of the SAA are impossible to achieve. It is clear that without the invoices, the Plaintiff could not verify the amount billed to Maxis, which in turn affected the 2nd Tranche payment. The Plaintiff had raised its concerns on the problem of collection for the Defendant’s repayment for the 1st Tranche (RM8,321,847.00) at the meeting on 25.7.2012 (refer to page 563 of ACB Volume 2), which 29 caused difficulty to the Plaintiff to continue the Project after these losses. Therefore, one cannot deny the importance of these clauses, which are fundamental to the SAA, a breach of which, by the Defendant, entitles the Plaintiff to terminate the SAA. 61. It was argued by the Defendant in its submission that there was no clear notice of the Plaintiff’s termination of the SAA. However, a perusal of the minutes of meeting dated 25.7.2012 clearly show that the Plaintiff did give a notice to the Defendant that the Plaintiff would withdraw from the SAA and reasons were given for the withdrawal (refer to page 563 and 564 of ACB Volume 2). Ultimately the Plaintiff completely withdrew from the SAA between June/July 2012. This was never disputed at trial in the High Court. Consequential relief to the Plaintiff as a result of the breach by the Defendant: 62. The learned trial Judge further found that the Plaintiff had not breached the SAA by withholding the 2nd Tranche as claimed by the Defendant. The Plaintiff had already committed and contributed a sum of RM8,321,847.00 in the 1st Tranche but had yet to receive any returns whilst the Defendant had gained financial benefit derived from Maxis Smart Partner Project. It therefore follows that the Defendant’s counterclaim must fail as it is premised upon the Plaintiff terminating the SAA. The Plaintiff is entitled to compensation for any loss or damage which arose from the breach by the Defendant. By virtue of 30 section 74 of the Contracts Act 1950, the Plaintiff who was the party who had suffered from the breach is entitled to claim for whatever loss that it suffered as a result thereof. 63. We are of the view that the learned trial Judge had made the correct findings in this respect and we find no reason to disturb the same. Whether the Defendant is a trustee of the monies paid by Maxis in the Dedicated Account. If so, whether the Defendant had acted in breach of its fiduciary duties and obligations under its trustee’s duties under the SAA 64. The learned trial Judge refused this claim on the basis that, inter alia, the 2nd Tranche had yet to take place and that the claim for an account and inquiry requested would only be relevant when the payment of the 2nd Tranche was made. The Plaintiff submitted that the learned trial Judge fell into error in law and fact, in that having determined that the Plaintiff’s inability to release the 2nd Tranche was due to the conduct of the Defendant when it failed to provide the Plaintiff with the invoices issued to Maxis and the payments made by Maxis, she disallowed the Plaintiff’s breach of fiduciary/trustee duties claim. 65. The Plaintiff submitted that nowhere in the SAA does it state that the Plaintiff’s entitlement to the monies in the Dedicated Account is dependent upon payment of the 2nd Tranche and/or securing the 31 replacement Bank Guarantee Facility. To say that it is, is reading into the SAA terms which are plainly not there, which the law disallows. Thus, the Plaintiff submitted that its entitlement is in no way qualified or made conditional upon the payment of the 2nd Tranche and/or any other condition. 66. The Plaintiff submitted that the learned trial Judge did not reject the existence of a trust in the present Appeal. The Defendant submitted that there was certainty of the subject matter of the trust as far as the present appeal is concerned. The Defendant submitted that the cumulative effect of Clauses 5.7, 6.1 and 6.2 disclose : a) An intention to create a trust; the agreement sets out that the Defendant agrees to receive and hold all payments and monies from Maxis on trust for inter alia the Plaintiff in the Dedicated Account; b) there was certainty of object; it being clear that it is the payments of Maxis to which the Plaintiff was entitled to in accordance with the ratio in the SAA, and thus the Plaintiff is a beneficiary of it; and c) there was certainty of subject matter; it being clear that the trust attaches itself to all the monies received by the Defendant from Maxis pursuant to the SPPA dated 15.2.2010 which will then be transferred and credited into the Dedicated Account. 32 For clarity and convenience, Clauses 5.7, 6.1 and 6.2 are set out below: Clause 5.7 of the SAA provides as follows:- “For the avoidance of doubt, [the Plaintiff] is entitled to receive RM16,643,694.00 from the On-Going Projects and shall be paid from 90% of all payments and proceeds accruing and received by [the Defendant] under the On-Going Projects to be distributed in accordance with the Agreed Benefit Ratio under the dedicated account…” Clause 6.1 of the SAA provides as follows:- “6.1. Agreed Benefit Ratio Subject to the terms and conditions herein, the parties agree and acknowledge that contractual payments for the Project Works shall be apportioned in the following manner: (a) so long as the cumulative aggregate contractual payments for the Project Works (which does not include the contractual values of the On-Going Projects) received is less than RM200,000,000.00 and such sums are or will be credited into the Dedicated Account, the parties shall apportion the same as follows: (i) 90% to [the Plaintiff]; and (ii) 10% to [the Defendant]. (b) in the event, the cumulative aggregate contractual payments for the Project Works (which does not include the contractual value of the On-Going Projects) received is more than RM200,000,00.00 and such sums are or will be credited into the Dedicated Account, the 33 apportionment for the next gross contractual payment received for the Project Works shall be apportioned in the following manner: (i) 95% to [the Plaintiff] and; (ii) 5% to [the Defendant]. The Parties agree and acknowledge that the respective apportionment under Clause 6.1 above shall be carried out by way of SI under the Dedicated Account.” Clause 6.2 of the SAA provides as follows:- “Dedicated Account (a) [The Defendant] has already established and is operating a dedicated current account in Malayan Banking Berhad (Company No: 3813-K) at the branch in Tapah, Perak. (b) [The Defendant] agrees and undertakes to transfer the SSB Portion from the Nominated Joint Account into the Dedicated Account. [The Defendant] agrees and acknowledges that [the Defendant] shall ensure that all monies to be received from [Maxis] under the [SPPA] will be credited only into the Dedicated Account. (c) With respect to the Dedicated Account, the parties shall upon the First Tranche and Second Tranche being paid in accordance with Clause 5.2, issue to Malayan Banking Berhad a SI to be effectively immediately authorising all payments credited to this Dedicated Account to be immediately remitted to [the Plaintiff] and [the Defendant] in the Agreed Benefit Ratio. The parties agree and acknowledge that no changes to the Dedicated Account or any instruction to the bank shall be made without the prior written consent of [the Plaintiff]. 34 (d) Upon the First Tranche and Second Tranche being paid in accordance with Clause 5.2 and the replacement bank guarantee facility being made available in accordance with Clause 5.6, the parties agree that all the cheque and/or operating signatories to the Dedicated Account shall be nominated and appointed by [the Plaintiff]. (e) [The Defendant] and [the Plaintiff] agree and undertake that no payments, transfers, remittance or withdrawals shall be made from the Dedicated Account unless it is done under the SI with payments only to [the Plaintiff] and [the Defendant] in accordance with their respective Agreed Benefit Ratio.” 67. The Plaintiff submitted that, given that the Defendant is a trustee of the monies in the Dedicated Account and the Plaintiff is a beneficiary thereof, the Defendant thus owes fiduciary duties to the Plaintiff. It was also submitted that, even if there is no trust, the Plaintiff owes fiduciary duties as the relationship between the Plaintiff and the Defendant is one that possesses the 3 general characteristics of a fiduciary obligation as set out in Frame v Smith [1987] 42 DLR 81 i.e.: “Relationships in which a fiduciary obligation have been imposed seem to possess three general characteristics: (1) the fiduciary has scope for the exercise of some discretion or power; (2) the fiduciary can unilaterally exercise that power or discretion so as to affect the beneficiary’s legal or practical interests; (3) the beneficiary is peculiarly vulnerable to, or at the mercy of, the fiduciary holding the discretion or power.” 35 Thus the Plaintiff contended that the Defendant has breached its express and/or implied obligations under the SAA and its fiduciary duties and obligations and/or its express and/or implied duties as trustees when: a) it failed to obtain consent from the Plaintiff before invoices were issued to Maxis; b) it failed to keep the Plaintiff informed and updated on the invoices issued to Maxis and to keep the Plaintiff updated on the payments received from Maxis; c) it failed to account to the Plaintiff and keep the Plaintiff informed and updated of all monies transferred to the Dedicated Account; d) it failed to account and pay to the Plaintiff the Plaintiff’s share of the payments and monies received from Maxis in the Agreed Benefit Ratio or at all; and e) it failed to issue the requisite Standing Instruction to authorize immediate payments out of the Dedicated Account to the Plaintiff according to the Agreed benefit Ratio. 68. The argument advanced by the Plaintiff was premised on express trust where the 3 certainties were referred to. In the course of the Plaintiff’s argument to support the proposition of the existence of a 36 trust, the cases of ESPL (M) Sdn Bhd v Radio & General Engineering Sdn Bhd [2005] 2 MLJ 422 and Re Kayford Ltd [1975] 1 AER 604 were referred to us. We noted that, in those cases, there was evidence of an express intention to create a trust. For example, in ESPL (M) Sdn Bhd v Radio & General Engineering Sdn Bhd [2005] 2 MLJ 422 the word “trust” was used. None of those cases imposed conditions that had to be fulfilled before the beneficiary’s interest crystallized. 69. It is noted that an express trust may be created without using the words “trust”. In the absence of express words creating such an express trust, the Court will look at the surrounding circumstances to determine whether the party intended to constitute itself a trustee, as illustrated by this Court in ESPL (M) Sdn Bhd v Radio & General Engineering Sdn Bhd (supra) where there was a clear and an express Clause 27.1 in the sub contract which stated “….Sub- Contractor will receive the payment made by the Contractor and will hold the right to receive such payments as a trust fund to be applied first to the payment of labourers, suppliers, Sub-sub-Contractors and others responsible for the Works justifying such payments….”. In that case the said clause together with the contemporaneous correspondence and the surrounding circumstances showed that the plaintiff clearly “intended to constitute itself a trustee for the defendant”. 37 70. Similarly, Re Kayford Ltd [1975] 1 AER 604 is another authority that illustrates the proposition that the intention of the parties is to be gathered from the totality of the circumstances of the case, including the words written or spoken and the conduct of parties, in the determination of the existence of a trust. Megarry J held that although no imperative words were used in any of the documents, it was clear that the intention was that “there should be a trust”. He said as follows: “Now there are clearly some loose ends in the case. Mr. Kay, advised to establish a “customers’ trust Deposit Account”, seems to have thought that it did not matter what the account was called so long as there was a separate account; and so the dormant deposit account suggested by the bank manager was used. The bank statement for this account is before me, and on the first page, for which the title is simply “Deposit Account Kayford Limited”, nearly 26 Pound is credited. The second and third pages have the words “Customer Trust Deposit Account” added after the previous title of the account; and Mr. Joel’s payment was made after these words had been added. Mr. Kay also left matters resting on a telephone conversation with the bank manager until he wrote his letter of 12 December to the bank. That letter reads: “We confirm our instructions regarding the opening of the deposit account for customers deposits for new orders”; and he then makes some mention of other accounts with the bank. The letter goes on; Please ensure the re-opened deposit account is titled “Customer Trust Deposit Account”. Then he gives the reference number and asks for confirmation that this has been done. Nevertheless, despite the loose ends, when I take as a whole the affidavits of Mr. Wainwright, Mr. Kay and Mr Hall (the bank manager) I feel no doubt that the intention was that there should be a trust. There are no difficulties. The property concerned is pure personality, and so- called “three certainties” of a trust. The subject matter to be held on trust is clear, and so are the beneficial interests therein, as well as the beneficiaries. As for the requisite certainty of words, it is well settled that a trust 38 can be created without using the words “trust” or “confidence” or the like; the question is whether in substance a sufficient intention to create a trust has been manifested.” 71. Gunn Chit Tuan SCJ in Geh Cheng Hooi v Equipment Dynamics [1991] 1 MLJ 293 applied Re Kayford Ltd (supra) where he said: “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 of these cases a trust can be implied even where the agreements themselves do not contain an express clause that the proceeds of sale should 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 party customers (emphasis added).” 72. As far as the present appeal is concerned, there is nothing in the testimonies of the witnesses to show that the true intention of the parties was to create a trust, as this issue was never addressed by the witnesses of the Plaintiff nor suggested via cross-examination of the Defendant’s witnesses. 73. The Plaintiff sought to rely on the cumulative effect of Clauses 5.7, 6.1 and 6.2 of the SAA to show that there was a trust. However, we 39 failed to see how such provisions of the SAA can be interpreted to create a trust. The entire structure of the SAA was such that, the Plaintiff would only earn the right to repay themselves from the Dedicated Account once the Plaintiff has paid the 1st Tranche and the 2nd Tranche. It is not in dispute that the 1st Tranche was paid, but not the 2nd Tranche. If one is to read Clause 5.6 of the same, which provides that if the Plaintiff failed to replace the bank guarantee facility of the Defendant by 15.1.2011, then the Defendant shall be entitled to utilize the funds in the Dedicated Account for that purpose. Such a provision cannot be compatible with the existence of a trust as contended by the Plaintiff. 74. This Court in Perman Sdn Bhd v European Commodities Sdn Bhd [2005] 4 CLJ 750) has held that the standard of proof of the existence of an express trust in given circumstances is very high. The rationale in law is that, no person’s property should be burdened with the interest of another in the absence of the clearest of proof. The law requires an intention to create a trust to be expressed in clear language. 75. The relationship between the Plaintiff and the Defendant is strictly governed by the SAA. There are no clear stipulations in the SAA as to creation of a trust. What is clear, is the dispute in relation to the alleged breaches by the parties of the provisions of the SAA. The 40 cause of action is breach of a commercial contract i.e. the SAA which was entered between 2 business entities. A further examination of the relevant provisions of the SAA discloses the following: a) Clause 6.2 (c) provides that after paying the 1st Tranche and the 2nd Tranche, a Standing Instruction will be issued to Maybank to authorize the remittance of the monies in the Dedicated Account upon the Agreed Benefit Ratio; b) It is from this Dedicated Account that the Plaintiff was to seek repayment of the advances it was to make to the Defendant in the form of the 1st Tranche and the 2nd Tranche, together with the notional top up, to the extent of RM16,643,694.00. Hence the right to seek repayment will only accrue upon payment of the 2nd Tranche; and c) Clause 5.7 provides that, if for whatever reason, the proceeds of the On-Going Projects should be insufficient to repay the Plaintiff, the Defendant was not to make any payment to cover the shortfall from its own coffers. Instead, the shortfall was to be covered from the profits derived from any future collaboration between the Plaintiff and the Defendant. The abovementioned provisions of the SAA militate against the existence of a trust. 41 76. In addition, it is trite law that we do not import elements of fiduciary duties and trust into contractual commercial contexts. In the case of Hospital Products Limited v United States Surgical Cooperation [1984] CLR 41, Maison J summarized the contractual and fiduciary relationship between contracting parties, where he held at page 97: “That contractual and fiduciary relationships may co-exist between the same parties has never been doubted. Indeed, the existence of a basic contractual relationship has in many situations provided a foundation for the erection of a fiduciary relationship. In these situations it is the contractual foundation which is all important because it is the contract that regulates the basic rights and liabilities of the parties. The fiduciary relationship, if it is to exist at all, must accommodate itself to the terms of the contract so that it is consistent with, and conforms to them. The fiduciary relationship cannot be superimposed upon the contract in such a way as to alter the operation which the contract was intended to have according to its true construction.” 77. Hence, upon a true construction of the SAA, it is clear that the repayment of the advances made by the Plaintiff (in the form of the 1st and the 2nd Tranches together with RM16,634,694.00) from the Dedicated Account was after the 1st and the 2nd Tranches were paid. An express/implied trust cannot be inferred to have been created in these situations. The entitlement of the Plaintiff to the repayment from the Dedicated Account did not crystallize, unlike the facts in ESPL (M) Sdn Bhd v Radio & General Engineering Sdn Bhd (supra), Re Kayford (supra), Geh Cheng Hooi v Equipment 42 Dynamics (supra). Ultimately, our present Appeal is a case of breach of contract. 78. Therefore, we found that the learned trial Judge had not erred when she dismissed the claim of the Plaintiff that the Defendant acted in breach of its implied obligations under the SAA or that the Defendant acted in breach of its fiduciary duties and obligations under its trustees’ duties. The purported departure by the Plaintiff from its pleadings: 79. The Defendant argued that the Plaintiff had departed from its pleaded case when it argued that it was not able to verify the invoices issued by Maxis. The Defendant submitted that the learned trial Judge‘s finding that the Defendant had not provided the actual invoices and payments, is at variance with the Plaintiff’s pleaded case. However, this argument by the Defendant is without merit as the Plaintiff has pleaded these material facts at : i) para 7 (d) (iv) in the Statement of Claim which reads: “(d) The Defendant shall…. (iv) provide the Plaintiff with all invoices issued to maxis and updates on all payments received from maxis (Clause 3.1 (f))” ii) para 11 (c ) and (d) of the Statement of Claim which read: 43 “(c) The Defendant failed, in particular from in and around October 2011, to keep the Plaintiff informed and updated on the invoices issued to Maxis.” (d) The Defendant failed, in particular from in and around October 2011, to keep the Plaintiff informed and updated on the payments received from Maxis.” 80. Subsequently, the Plaintiff adduced evidence at trial to support these material facts, i.e. that such information or update on the invoices must surely be that which is reasonably and objectively verifiable, given that these two parties here are commercial business entities entering into an agreement for the first time. It has been established through evidence that there have been no invoices to Maxis, provided to the Plaintiff for verification, which is an obligation stipulated under the SAA. The invoices are the best evidence for the said purpose, not the summaries or listings as provided by the Defendant. Evidence from the Defendant’s witnesses who said that they have provided the invoices to the Plaintiff are inadequate to verify the actual amount of the invoices billed to Maxis. Similarly, as to payments which the Defendant received from Maxis, the best evidence would be the bank statements of the Dedicated Account. 81. Hence, we found that the Plaintiff’s case was in accordance to its pleaded case and the argument that the Plaintiff had departed from the same holds no water. 44 The Counterclaim by the Defendant: 82. The Defendant argued that as the Plaintiff had purportedly breached the SAA, the Plaintiff cannot take advantage of its own wrong. The Defendant referred us to the case of Poh Geok Sing v HB Enterprise Sdn Bhd [2006] 1 CLJ 765 in support of its proposition that a contract breaker, being responsible for the breach of an agreement, “cannot seek to recover any benefit he may have conferred upon the innocent party where he is himself guilty of a breach of the contract. Were it otherwise, a contract breaker will be in a position to take advantage of his own wrong”. 83. However, the facts in Poh Geok Sing (supra) are distinguishable from the facts in the Appeal before us for the following reasons: (a) Firstly, the Plaintiff in the present Appeal is not the contract breaker. We have found that it was the Defendant which breached the SAA when it failed to comply with Clause 3.1 (e) and (f) of the SAA, as there cannot be a determination on the amount which had been invoiced to Maxis, thus making it impossible for parties to determine that the payment for the 2nd Tranche has been triggered. Hence, the Plaintiff could not be faulted for withholding the 2nd Tranche payment to the Defendant. The Plaintiff is not in breach of the SAA for withholding of the 2nd Tranche. 45 (b) Secondly, in Poh Geok Sing (supra), there was a clear termination of the contract by the defendant therein, which the court held to be justified and lawful, and hence the defendant therein was entitled to claim for damages. In our present Appeal, the Defendant never terminated the SAA. If at all, in fact it affirmed the SAA. (c) In addition, in Poh Gek Sing (supra), the case involved a “lump sum contract” where the contract requires the completion of an entire project before payment becomes due, which is not the situation in our present Appeal. Nowhere in the SAA was it stated that the Plaintiff is to complete the Project Works before it is entitled to receive payments. The SAA provides that the Plaintiff is entitled to receive: i) RM16,643,694.00 from 90% of the 2010 DROs; ii) 90%/95% of the proceeds from the post 2010 DROs; as and when these monies are paid into the Dedicated Account by Maxis. This happened whenever Maxis issued a DROs, the Plaintiff/Defendant will complete the DROs and the Defendant will then invoice Maxis who will then make payment. (d) In Poh Gek Sing (supra), it was also found that the defendant therein had not conferred any benefit upon the plaintiff therein 46 pursuant to the contract. It was held that the structures built by the plaintiff were in fact a burden. This Court held in Poh Gek Sing (supra) that in the absence of such finding of benefit, the plaintiff was not entitled to claim for the benefits bestowed upon the defendant therein. In the present Appeal, the Plaintiff has carried out the works as issued out from the DROs in 2011, and in the process expended a sum of RM13,657,844.00 in capital and operational expenses. On the other hand, the Defendant had in fact received payments from Maxis, and has thus received benefits. 84. Consequently, the declaration sought by the Defendant in the counterclaim was rightly dismissed by the learned trial Judge. Conclusion: 85. We therefore dismissed both the appeals with no order as to costs. The decision of the learned High Court Judge is affirmed. Signed by: Zabariah Mohd Yusof Judge Court of Appeal Putrajaya Date: 31.10.2017 47 COUNSEL: Conrad Young, K. Thavanesan, Tan Shang Neng for the Appellant in Appeal B-02(NCVC)(W)-152-01/2016 and for the Respondent in Appeal B-02 (NCVC)(W)-154-01/2016 [Messrs. Sreeneevasan Young] Michael Chow & T.P. Teh for the Respondent in Appeal B-02(NCVC)(W)-152- 01/2016 and for the Appellant in Appeal B-02(NCVC)(W)-154-01/2016 [Messrs. Michael Chow]

Tika 2.6.0

BA-24-430-04/2017

PLAINTIF MURUGAN A/L K.MUNUSAMY (NO. K/P: 720114-08-5387/ A2153089) DEFENDAN SOMY A/L SEETHIAH (NO. K/P: 600314-08-5449)

30/10/2017

YA DATUK AZIMAH BINTI OMAR

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=816aa213-eeec-424e-9293-10eb243cfc82&Inline=true

1 DALAM MAHKAMAH TINGGI DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN, MALAYSIA SAMAN PEMULA NO. BA-24-430-04/2017 Dalam Perkara Seksyen 52(1), 24(4), 53(B) (1) & (2) dan 85(3) Akta Kebankrapan 1967; DAN Dalam Perkara Kaedah 263 Kaedah-Kaedah Kebankrapan 1969 DAN Dalam Perkara Seksyen 349 Kanun Tanah Negara 1965 DAN Dalam Perkara Aturan 7 Kaedah 2 Kaedah-Kaedah Mahkamah 2012 ANTARA 2 MURUGAN A/L K.MUNUSAMY (NO. K/P: 720114-08-5387/ A2153089) … PLAINTIF DAN SOMY A/L SEETHIAH (NO. K/P: 600314-08-5449) ... DEFENDAN ALASAN PENGHAKIMAN (Kandungan 4) A. PENGENALAN [1] Kandungan 4 ini adalah permohonan Defendan untuk membatalkan Saman Pemula (Kandungan 1) Plaintif menurut Aturan 18 kaedah 19 (1)(b) Kaedah-Kaedah Mahkamah 2012 (KKM 2012). [2] Plaintif di dalam kes adalah seorang individu bernama Murugan a/l Munusamy. Defendan juga adalah seorang individu bernama Somy a/l Seethiah. [3] Plaintif telah memfailkan Saman Pemula (Kandungan 1) pada 17.4.2017 untuk mendapatkan perintah-perintah berikut: 3 i. satu deklarasi bagi membatalkan pindahmilik yang telah dilaksanakan oleh Pentadbir Tanah pada 9.11.2004 ke atas hartanah-hartanah di dalam GM 427, Lot 2953, Mukim Batang Padang, Daerah Batang Padang, Tapah, Perak (Lot 2953) dan GM 654, Lot 2974, Mukim Batang Padang Daerah Batang Padang, Tapah, Perak (Lot 2974) (kedua-dua hartanah tersebut) kepada Defendan (Somy a/l Seethiah). ii. satu perintah untuk melarang/menahan Defendan daripada melupuskan hartanah-hartanah tersebut dengan apa-apa cara pun sehingga pelupusan tindakan ini. (perintah-perintah tersebut) [4] Bersandarkan intitulemen (intitulement) yang tertera di saman pemulanya, Plaintif telah memohon mendapatkan perintah-perintah tersebut bersandarkan kepada seksyen-seksyen 52(1), 24(4), 53(B) (1) & (2) dan 85(3) Akta Kebankrapan 1967 (AK 1967) dan Kaedah 263 Kaedah-Kaedah Kebankrapan 1969. 4 B. LATAR BELAKANG KES [5] Sebelum menimbangkan serta menentukan merit permohonan Defendan, untuk mudah kefahaman molek kiranya Mahkamah ini terlebih dahulu menggariskan dengan ringkas kes Plaintif. 5.1 Plaintif telah mendakwa bahawa kedua-dua hartanah tersebut telah dilelong oleh pihak bank melalui lelongan awam di perkarangan Pejabat Tanah Daerah Batang Padang, Tapah, Perak masing-masing pada 09.06.2004 (Lot 2974) dan 29.07.2004 (Lot 2953). 5.2 Pada kedua-dua tarikh lelongan tersebut, Plaintif adalah merupakan pembida yang berjaya membeli kedua-dua hartanah tersebut pada harga-harga berikut: a. Lot 2974 - RM55,000.00; dan b. Lot 2953 - RM50,000.00. 5.3 Plaintif telah mendakwa bahawa deposit bagi pembelian kedua- dua hartanah tersebut telah dibayar oleh beliau sendiri daripada wang simpanannya. Manakala baki bayaran harga 5 belian bagi kedua-dua hartanah tersebut akan dibayar beliau melalui pinjaman bank. 5.4 Namun, Plaintif mendakwa beliau telah tidak berjaya mendapatkan sebarang pinjaman daripada bank-bank berlesen. Plaintif kemudiannya telah dirujuk kepada Defendan oleh seorang kawan di mana dikatakan Defendan sudi memberi pinjaman kepadanya. 5.5 Defendan dikatakan telah memberi Plaintif pinjaman wang sebanyak RM100,000.00. Untuk itu, dua perjanjian telah ditandatangani oleh kedua mereka. Adalah menjadi dakwaan Plaintif juga bahawa salah satu daripada perjanjian tersebut adalah Perjanjian Pilihan Untuk Membeli (Option to Purchase). 5.6 Bagi Option to Purchase tersebut, terdapat persetujuan di antara Plaintif dan Defendan bahawa sekiranya Plaintif gagal membayar balik pinjaman tersebut dalam jangkamasa dua belas (12) bulan atas kadar RM5,000.00 sebulan, maka kedua- dua hartanah tersebut akan dipindahmilik kepada Defendan. 6 5.7 Selang lebih kurang dua minggu dari tarikh Option to Purchase itu ditandatangani, satu Perjanjian Jual Beli (SPA) telah dimasuki pula oleh Plaintif dan Defendan pada 2.9.2004. 5.8 Plaintif telah mendakwa bahawa Defendan telah memaklumkan kepadanya bahawa SPA tersebut ditandatangani hanya sebagai memenuhi syarat pinjaman tersebut. 5.9 Plaintif juga mendakwa bahawa peguamcara beliau telah meminta beliau menandatangani Borang-Borang Pindah Milik 14A, KTN bagi kedua-dua hartanah tersebut. 5.10 Pinjaman yang diterima daripada Defendan tersebut telah digunakan oleh Plaintif untuk membuat pembayaran penuh bagi baki harga belian kedua-dua hartanah tersebut. 5.11 Selepas daripada itu, Pentadbir Tanah telah mengeluarkan Perakuan Jual di dalam Borang 16 I KTN bagi Lot 2974 pada 6.9.2004 dan bagi Lot 2953 pada 21.9.2004 kepada 7 peguamcara Plaintif (Tetuan C.K. Leong & Co) telah memindahmilk kedua-dua hartanah tersebut atas Plaintif. 5.12 Plaintif walau bagaimanapun telah gagal membuat bayaran semula pinjaman yang diiperoleh daripada Defendan dalam tempoh yang ditetapkan dan telah memohon jasa baik Defendan untuk satu perlanjutan masa akan tetapi Defendan enggan memberikan perlanjutan masa kepada Plaintif. 5.13 Memandangkan kedudukan kewangan Plaintif yang tidak baik, Plaintif gagal melangsaikan pinjaman yang diperolehinya daripada Defendan. 5.14 Dalam pada itu MBF Finance Berhad (MBF) telah memperoleh suatu Penghakiman lngkar pada 01.03.1999 terhadap Plaintif, 5.15 Plaintif kemudiannya telah dijadikan bankrap pada 11.05.2005 melalui Petisyen Kebankrapan yang difailkan Mahkamah Tinggi Shah Alam. 8 5.16 Plaintif telah mendakwa bahawa beliau tidak mengetahui bahawa dirinya telah dijadikan bankrap sehinggalah tahun 2010. Beliau hanya mengetahui beliau adalah seorang bankrap apabila permohonannya untuk membuka akaun semasa pada tahun 2010 ditolak bank atas alasan bahawa beliau seorang bankrap. 5.17 Kemudian itu, Plaintif telah menghubungi Pejabat lnsolvensi dan telah mengemukakan Penyataan Hal Ehwal Kewangan (PHEK) nya ke Pejabat Insolvensi. 5.18 Pada tahun 2011, Plaintif telah dipanggil sebagai saksi di Mahkamah Tinggi lpoh untuk satu tuntutan sivil yang telah dibawa oleh Defendan terhadap satu syarikat pihak ketiga. 5.19 Apabila berjumpa Defendan, Plaintif mendakwa beliau telah memaklumkan kepada Defendan beliau adalah seorang bankrap mulai 11.05.2005. 5.20 Namun, atas carian persendirian yang dibuat terhadap kedua- dua hartanah tersebut pada 11.10.2013, Plaintif telah 9 mendapati bahawa kedua-dua hartanah tersebut telah dipindahmilik kepada Defendan pada 9.11.2004. C. KES DEFENDAN [6] Defendan walau bagaimanapun telah menentang keras permohonan Plaintif dan di dalam afidavit-afidavit jawapan dan balasannya, Defendan telah membangkitkan pengataan-pengataan yang versinya adalah bertentangan dengan apa yang dinyatakan oleh Plaintif. [7] Di dalam afidavit jawapan 1nya juga, Defendan telah membuat penyataan bahawa afidavit jawapan yang telah difailkannya ini tidak akan menjejaskan hak beliau untuk memfailkan suatu permohonan untuk membatalkan saman pemula Plaintif atas alasan-alasan bahawa tindakan saman pemula Plaintif ini adalah dihalang oleh had masa kerana pindakmilik kedua-dua hartanah tersebut telah dilaksanakan pada tahun 2004 dan Plaintif adalah terikat dengan keputusan di dalam kes Saman Pemula No.24-538-04/2015 (SP 538). [8] Versi Defendan pula adalah seperti berikut: 10 8.1 Seorang broker bernama Mohan telah memaklumkan kepada beliau bahawa terdapat dua keping tanah untuk dijual. Bagi menguruskan dua keping tanah tersebut, Defendan telah membayar RM3,000.00 kepada Mohan. 8.2 Defendan kemudiannya telah melantik Tetuan C.K. Leong & Co untuk mewakilinya bagi menguruskan pembelian kedua-dua hartanah tersebut. 8.3 Carian rasmi yang dibuat oleh Tetuan C.K. Leong & Co pada 27.8.2004 telah mendapati bahawa pemilik Lot 2953 adalah Kalaivanan a/l Letchumanan, manakala pemilik Lot 2974 adalah Kumarasamy a/l Gopal. 8.4 Berdasarkan salinan suratan hakmilik kedua-dua hartanah tersebut status kedua-dua hartanah tersebut pada 27.8.2004 menunjukkan bahawa pemilik Lot 2953 telah mencagar hartanahnya kepada Bank Pertanian Malaysia, manakala pemilik Lot 2974 telah mencagar hartanahnya kepada Bank Pertanian Malaysia. 11 8.5 Tetuan C.K. Leong & Co telah memaklumkan kepada Defendan bahawa Plaintif adalah pembida yang berjaya di dalam lelongan-lelongan yang dijalankan dan telah membayar 10% harga lelong untuk kedua-dua hartanah tersebut. 8.6 Memandangkan Plaintif tidak dapat menjelaskan baki harga belian untuk kedua-dua hartanah tersebut dalam tempoh 120 hari, Plaintif telah menjual kedua-dua hartanah tersebut kepada Defendan. Jumlah wang yang diterima daripada Defendan akan dijelaskan kepada Pejabat Tanah supaya kedua-dua hartanah berkenaan dapat dipindahmilk kepada Defendan. 8.7 Plaintif telah meminta Defendan untuk menjelaskan bayaran kepadanya sebanyak RM113,000.00. Jumlah RM113,000.00 adalah untuk bayaran-bayaran berikut:- i. RM2,000.00 dibayar tunai kepada Plaintif. ii. RM16,500.00 dibayar atas nama Intensiftek (M) Sdn Bhd; dan 12 iii. RM94,500.00 dibayar ke atas nama Tetuan C.K Leong & Co bagi menjelaskan baki bayaran kepada Pejabat Tanah. 8.8 Defendan telah mendakwa beliau telah membayar wang tunai sebanyak RM2,000.00 kepada Plaintif. Manakala bayaran kepada Intensiftek (M) Sdn Bhd sebanyak RM16,500.00 telah dibuat melalui demand draft dan demand draft tersebut telah diserahkan kepada Plaintif. Defendan juga telah mengisu satu Bankers cheque untuk jumlah RM99,245.00 atas nama Tetuan C.K.Leong & Co untuk bayaran baki belian kedua-dua hartanah tersebut dan fi guaman. 8.9 Atas bayaran penuh sebanyak RM113,000.00 yang telah dibuat oleh Defendan, satu perjanjian jual beli (SPA) telah dilaksanakan di antara beliau dan Plaintif pada 2.9.2004. 8.10 Tetuan C.K. Leong & Co kemudiannya telah mengemukakan bayaran-bayaran berjumlah RM94,500.00 kepada Pejabat Tanah untuk kedua-dua hartanah tersebut. 13 8.11 Selepas bayaran-bayaran tersebut dibuat oleh Tetuan C.K. Leong & Co kepada Pejabat Tanah, Pejabat Tanah telah mengeluarkan Borang 16 I KTN bagi kedua-dua hartanah tersebut. 8.12 Plaintif kemudiannya telah menandatangani borang-borang pindahmilik bagi kedua-dua hartanah tersebut untuk memindahmilik kedua-dua hartanah kepada Defendan. D. UNDANG-UNDANG MENGENAI PERMOHONAN DI BAWAH ATURAN 18 KAEDAH 19 KKM 2012 [9] Undang-undang mengenai kuasa budi bicara mahkamah di dalam pembatalan tindakan di bawah Aturan 18 Kaedah 19 (A.18 k.19) KKM 2012 adalah jitu dan mantap. Terlalu banyak otoriti yang telah membincangkan dan memutuskan prinsip-prinsip pemakaian kuasa budi bicara mahkamah di bawah A.18 k.19 ini. Memadai sekiranya Mahkamah ini merujuk kepada beberapa kes sebagai panduan dan rujukan. 14 [10] Di dalam kes Bandar Builder Sdn Bhd & Ors v United Malayan Banking Corporation Bhd [1993] 4 CLJ 7, prinsip-prinsip undang- undang mengenai kuasa budi bicara mahkamah di bawah A.18 k.19 ini telah diterangkan dengan begitu jelas oleh Mohamed Dzaiddin HMA (YAA pada ketika itu) seperti berikut: “It is only in plain and obvious cases that recourse should be had to the summary process under this rule (per Lindley MR in Hubbuck & Sons Ltd v Wilkinson, Heywood & Clark Ltd), and this summary procedure can only be adopted when it clearly seen that a claim or answer is on the face of it “obviously unsustainable” (see AG of Duchy of Lancaster v L & NWRly & Co). It cannot be exercised by a minute examination of the documents and facts of the case, in order to see whether the party has a cause of action or a defence (see Wenlock v Moloney & Ors). The authorities further show that if there is a point of law which requires serious discussion, an objection should be taken on the pleadings and the point set down for argument under Order 33 r 3 (which is in pari material with our Order 33 r 2 of the RHC)(see Hubbuck & Sons Ltd v Wilkinson, Heywood & Clark Ltd). The court must be satisfied that there is no reasonable cause of action or that the claims are frivolous or vexatious or that the defences raised are not arguable.” [11] Manakala Vincent Ng H (YA ketika itu) dalam kes Suppuletchemi v Palmco Bina Sdn Bhd [1994] 2 AMR 1191, di muka surat 1205 penghakimannya telah berkata: 15 “But in an application under Order 18 r 19 or Order 14, it is still incumbent upon the court to determine whether issues could more appropriately have been decided, without the expence of a full trial with a witnesses and expenditure of the court’s invaluable time. No party in a proceeding is entitled to require the court to accord them valuable time of several days open court viva voce trial only upon mere or bare assertions in their affidavits. The crucial question the court would have to ask itself in applications under Order 14 or Order 18 r 19(1)-(d) is first, whether the piece or pieces of evidence essential to make out the reasonable prima facie cause of action or a prima facie triable issue of fact are of the nature such that they are adduceable by affidavit evidence; and secondly – if the answer to this question is in the positive – whether such essential prima facie evidence had been so adduced in the supporting affidavits. Such affidavits ought not to contain bare averments but must condescend or come definitely into particulars fro serious argument such that they are sufficient to satisfy the court that there is a reasonable prima facie cause of action or triable issue or issue of fact or law in the defence as the case may be. …the court must and ought to look at the whole situation and ask itself whether the plaintiff (in an application to strike off a claim) has satisfied the court that he has a bona fide or prima facie cause of action,…” 16 [12] Di dalam kes Mooney & Ors v Peat Marwick Mitchell & Co & Anor [1967] 1 MLJ 87 Raja Azlan Shah J (DYMM pada ketika itu) di muka surat 88 telah menyatakan seperti berikut: “It is firmly established that the power exercisable under r. 4 “is only appropriate in cases which are plain and obvious so that a judge can say at once that a statement of claim as it stands is insufficient, even if proved, to entitle the plaintiff to the relief of which he ask for”: See the judgment of Lindley MR in Hubbuck & Sons v Wilkinsons Heywood & Clark Ltd.(1) Where the situation arises, the pleadings and particulars alone shall be considered and all the allegations in it shall be presumed to be true, and it is only on that assumption that any statable case can be made for this application: see Peck v Russell.(2) The court cannot and indeed is not empowered to look behind the pleadings and particulars if it discloses a reasonable cause of action. So long as the statement of claim discloses some ground of action, the mere fact that the plaintiff is not likely to succeed on it at trial is no ground for it to be struck out: see Boaler v Holder.(3) A recent exposition of the law is afforded by the judgment of Danckwerts LJ in Wenlock v Moloney.(4): “Under the rule (ie. O. 25 r. 4) it had to appear on the face of the plaintiff’s pleadings that the action could not succeed or was objectionable for some other reason. Not evidence could be filed… But, as the procedure was of a summary nature the party was not to be deprived of his right to have his case tried by a proper trial unless the matter was clear.’’ 17 After stating that the former rules are now incorporated in the revised Rules of the Supreme Court, O. 18 r. 19, he continues: “But this summary jurisdiction of the court was never intended to be exercised by a minute and protracted examination of the documents and facts of the case in order to see whether the plaintiff really has a cause of action. To do that is to usurp the position of the trial judge.” …” [13] Berbalik kepada permohonan di hadapan Mahkamah ini, benarkah seperti yang dihujahkan oleh peguam bagi pihak Defendan bahawa kes ini adalah suatu kes yang sesuai dan patut bagi Mahkamah ini menggunakan kuasa budi bicaranya di bawah A.18 k.19 (1)(b) KKM 2012 untuk membatalkan tuntutan Plaintif atas alasan bahawa Kandungan 1 Plaintif adalah suatu penyalahgunaan proses mahkamah. [14] Bagi menyokong permohonannya di Kandungan 4, Defendan telah memfailkan afidavit sokongan yang diikrarkannya pada 5.5.2017 (Kandungan 5). Permohonan Defendan ini juga disokong oleh afidavit balasan Defendan bertarikh 13.6.2017 yang membalas afidavit jawapan Plaintif menentang Kandungan 4. 18 [15] Defendan telah memohon Mahkamah ini membatalkan tuntutan Plaintif terhadap Defendan atas alasan-alasan berikut: i. Saman Pemula Plaintif adalah tidak sah dan terikat kepada prinsip res judicata dan estoppels kerana Jabatan Insolvensi telahpun memfailkan Saman Pemula terhadap Defendan atas peruntukan-peruntukan undang-undang yang sama yang disandarkan oleh Plaintif di dalam Saman Pemulanya ini. Saman Pemula yang telah difailkan oleh Jabatan Insolvensi telahpun ditarikbalik oleh Jabatan Insolvensi tanpa kebebasan memfailkan semula dan tanpa kos. ii. Afidavit Sokongan Plaintif mengandungi semua dokumen yang sama seperti Saman Pemula yang difailkan oleh Jabatan Insolvensi. iii. Tindakan Plaintif adalah dihalang oleh had masa. Alasan i & Alasan ii 19 [16] Sebelum Plaintif memfailkan tindakan ini, pada 30.4.2015 Jabatan Insolvensi (MDi) atas nama Ketua Pengarah Insolvensi telah memulakan suatu tindakan saman pemula terhadap Defendan melalui Saman Pemula 24-538-04/2015 (SP 538). [17] Intitulement SP 538 adalah seperti berikut: Dalam Perkara Seksyen 52(1), 24(4), 53(B) (1) & (2) dan 85(3) Akta Kebankrapan 1967; DAN Dalam Perkara Kaedah 263 Kaedah-Kaedah Kebankrapan 1969 DAN Dalam Perkara Seksyen 349 Kanun Tanah Negara 1965 DAN Dalam Perkara Aturan 7 Kaedah 2 Kaedah-Kaedah Mahkamah 2012 [18] Relif yang dipohon oleh Ketua Pengarah Insolvensi (KPI) dalam SP 538 adalah: “Membatalkan pindahmilik yang telah didaftarkan pada 9.11.2004 oleh Pentadbir Tanah ke atas ke atas hartanah Murugan a/l 20 Munusamy iaitu GM 654, Lot 2974, Mukim Batang Padang Daerah Batang Padang, Tanjung Lemboh, Perak dan GM 427, Lot 2953, Mukim Batang Padang, Daerah Batang Padang, Tanjung Lemboh Perak mengikut peruntukan di bawah Seksyen 52(1) Akta Kebankrapan 1967.” [19] Defendan telah menentang SP 538 ini dengan memfailkan Afidavit Jawapan (1) bertarikh 2.6.2015. [20] Walau bagaimanapun, selepas pemfailan afidavit jawapan oleh Defendan, KPI pada 24.6.2015 telah menarikbalik SP 538 tanpa kebebasan untuk memfailkan semula dan tanpa kos. Justeru itu, suatu perintah pembatalan SP 538 tanpa kebebasan untuk memfailkan semula dan tanpa kos telahpun direkodkan oleh Mahkamah. [21] Adalah dihujahkan seterusnya oleh peguam Defendan bahawa Plaintif di dalam saman pemulanya ini telah bersandarkan kepada peruntukan-peruntukan undang-undang sama seperti di dalam tindakan KPI terhadap Defendan. Menurut peguam Defendan lagi, apabila KPI menarikbalik SP 538 tanpa kebebasan untuk memfailkan 21 semula dan tanpa kos dan Mahkamah telah membuat perintah bahawa SP 538 dibatalkan tanpa kebebasan untuk memfailkan semula dan tanpa kos. Memandangkan perintah ini tidak diketepikan / diakas dan tiada rayuan difailkan terhadapnya, maka perintah yang direkodkan oleh Mahkamah ini adalah satu keputusan yang muktamad. [22] Peguam Defendan telah seterusnya menghujahkan bahawa di dalam menyokong saman pemulanya, Plaintif juga telah bersandarkan kepada dokumen-dokumen yang sama disandarkan oleh MDi di dalam memfailkan SP 538. [23] Oleh itu, adalah menjadi hujahan peguam Defendan bahawa Plaintif dengan ini adalah dihalang atau diestop dari memfailkan tindakannya kerana terikat kepada prinsip-prinsip estopel dan res judicata. [24] Mahkamah ini telah meneliti afidavit sokongan yang difailkan MDi di dalam menyokong SP 538 mereka. Mahkamah ini bersetuju dengan peguam Defendan bahawa MDi telah membawa SP 538 terhadap Defendan menurut seksyen-seksyen yang tertera pada intitulement 22 SP 538 dengan bersandarkan kepada pengataan-pengataan Plaintif di dalam Penyataaan Hal Ehwal Plaintif (PHEKP) bahawa kedua-dua hartanah tersebut telah dipindahmilik kepada Defendan pada 9.11.2004 tanpa pengetahuannya (Plaintif). [25] Perenggan-perenggan relevan di dalam afidavit sokongan MDi yang diikrarkan oleh Noorhidayah binti Shamsuddin pada 28.4.2015 tersebut adalah seperti berikut: 4. Saya sesungguhnya menyatakan bahawa pada 21.9.2010 bankrap telah memfailkan Pernyataan Hal Ehwal. Pada 22.10.2013 bankrap telah memfailkan sekali lagi Pernyataan Hal Ehwalnya. Sesalinan, Pernyataan Hal Ehwal bertarikh 21.9.2010 dan 22.10.2013 ditandakan secara kolektif sebagai eksibit “NS-2” dan “NS-3”. 5. Saya sesungguhnya menyatakan bahawa pada 14.10.2013 Murugan a/l Munusamy (selepas ini akan disebut sebagai bankrap) telah membuat aduan kepada Ketua Pengarah Insolvensi melalui surat bertarikh 14.10.2013 berkenaan hartanah beliau yang telah dipindah milik kepada pemilik baru. Sesalinan surat bertarikh 14.10.2013 dan Laporan Polis bertarikh 11.10.2013 ditandakan secara kolektif sebagai eksibit “NS-4” dan “NS-5”. 23 6. Selanjutnya, merujuk kepada surat bankrap hartanah beliau yang dikenalpasti sebagai GM654, Lot 2974, Mukim Batang Padang, Tanjung Lemboh, Perak dan GM427, Lot 2953, Mukim Batang Padang, Tanjung Lemboh, Perak yang telah dipindahmilik kepada Somy a/l Seethiah di Pejabat Tanah Daerah Batang Padang, Tapah, Perak di luar pengetahuan beliau pada 9.11.2004. Sesalinan carian rasmi hartanah dan Borang 14A untuk Pindahmilik Tanah, Bahagian atau pajakan ditandakan secara kolektif sebagai eksibit “NS-6” dan “NS-7”. 7. Saya sesungguhnya menyatakan bahawa menurut rekod jabatan ini, pindahmilik tersebut berlaku enam bulan sebelum perintah penerimaan dan perintah penghukuman dibuat terhadap bankrap. Oleh yang demikian pindahmilik ini adalah terbatal terhadap Ketua Pengarah Insolvensi dan Ketua Pengarah Insolvensi mempunyai hak untuk mendaftar hartanah tersebut ke atas nama Ketua Pengarah Insolvensi bagi tujuan penghasilan. Hasil daripada jualan tersebut akan dimajukan ke estet bankrap untuk tujuan pembahagian kepada pemiutang-pemiutang yang telah memfailkan tuntutan di dalam kes kebankrapan ini. [26] Plaintif di dalam PHEKP telah menyatakan berikut: G Harta 24 Penuh mengenai tiap-tiap jenis harta dalam milik dan perkembalian yang tidak termasuk dalam mana-mana senarai lain hendak ditunjukkan dalam senarai ini. Butir-butir Pernyataan penuh dan jenis harta. 1) Pada 09-11-2004 jam 09:46:25 melalui no: perserahan: 1308/2004 pindahmilik tanah seluas 3 ekar kelapa sawit atas geran no: GM 427 LOT 2953 adalah milik saya. 2) Pada 09-11-2004 jam 09:46:25 melalui no: perserahan: 1305/2004 pindahmilik tanah seluas 3 ekar kelapa sawit atas geran no: GM 654 LOT 2974 adalah milik saya. Saya dapat tahu melalui satu carian resmi pada 11-1-2013, bahawa kedua- dua harta tanah saya tersebut di atas bukan milik saya dan saya tidak lagi dan saya tidak tahu bagaimana tanah itu tukar milik dari nama saya semasa saya dalam Perintah Penghakiman dan Perintah Penerimaan Kebankrapan. [27] Di dalam membuat keputusan memfailkan atau membawa SP 538 terhadap Defendan, MDi telah mempercayai bahawa pindahmilik kedua-dua hartanah tersebut telah dilaksanakan oleh Defendan tanpa pengetahuan Plaintif dan memandangkan pindahmilik itu berlaku pada tahun 9.11.2004 dan Plaintif telah dijadikan seorang bankrap pada 11.5.2005, makanya MDi telah berpandangan bahawa pindahmilik kedua-dua hartanah telah dilaksanakan enam bulan 25 sebelum tarikh perintah penerimaan dan perintah penghukuman dikeluarkan terhadap Plaintif. [28] Namun, apabila fakta sebenar telah dinyatakan oleh Defendan di dalam afidavit balasannya menentang saman pemula MDi, MDi telah menarikbalik saman pemulanya tanpa kebebasan untuk pemfailan semula. [29] Peguam Plaintif telah cuba menghujahkan bahawa keputusan MDi menarikbalik saman pemulanya tanpa kebebasan pemfailan semula tidak mengikat Plaintif kerana saman pemula tersebut telah dimulakan oleh MDi dan bukan diri Plaintif secara individu. Di samping itu, menurut Plaintif, MDi di dalam kes ini telah memberikan sanksi bertarikh 11.4.2017 kepada Plaintif untuk Plaintif memulakan tindakan terhadap Defendan. [30] Mahkamah ini perlu menegaskan bahawa peruntukan undang- undang yang disandarkan oleh MDi dan Plaintif di dalam memfailkan saman pemula adalah peruntukan-peruntukan yang sama dan tidak ada langsung yang berbeza. 26 [31] Relif yang sama telah dipohon oleh MDi dan Plaintif di dalam saman pemula masing-masing. [32] MDi telah memulakan tindakan terhadap Defendan atas PHEKP dan kini Plaintif telah mengulangi pengataan-pengataan dan dakwaan- dakwaan yang sama. Walaupun SP 538 dimulakan oleh MDi dan saman pemula ini difailkan oleh Plaintif, hakikat yang tidak boleh dipertikaikan adalah peruntukan-peruntukan undang-undang yang digunakan oleh Plaintif adalah sama dengan MDi. Relif yang sama dan sandaran pengataan-pengataan dan dokumen-dokumen yang sama. Maka, pihak yang berbeza yang memfailkan tindakan tidaklah bermakna menghalang penggunaan prinsip-prinsip estoppel dan res judicata oleh Defendan. [33] Plaintif tidaklah boleh menghujahkan tindakan yang diambil oleh MDI adalah tindakan yang berbeza semata-mata dengan penyataan bahawa MDI dan beliau adalah pihak yang berbeza. Hakikatnya relif yang cuba diperoleh oleh MDi dan Plaintif adalah menurut seksyen- seksyen 52(1) dan 53 AK 1967. 27 [34] Mahkamah ini merujuk kepada keputusan kes yang dikemukakan oleh peguam Defendan iaitu kes Dato Sivanathan a/l Shanmugam v. Artisan Fokus Sdn Bhd [2015] 3 AMR 104. Di dalam kes Dato Sivanathan a/l Shanmugam telah diputuskan antara lain bahawa: “The fact that the parties to this suit are different from HTF suit does not disentitle the appellant from invoking the doctrine of issue estoppels to bar the respondent from relitigating a specific issue that had been decided in the prior separate action. The doctrine also applies to a non-party.” [35] Adalah menjadi dapatan Mahkamah ini bahawa tindakan yang dimulakan oleh Plaintif ini adalah tindakan yang sama dengan SP 538 dan malahan saman pemula Plaintif adalah merupakan tindakan ulangan (repetitive action) terhadap Defendan. [36] Justeru, Mahkamah ini tidak boleh membiarkan mana-mana pihak untuk memfailkan tindakan ulangan terhadap pihak yang sama untuk relif-relif yang sama walhal tindakan yang pertama telahpun ditarikbalik tanpa kebebasan untuk memfailkan semula. 28 [37] Pemfailan tindakan yang sama untuk relif yang sama atas fakta-fakta yang sama adalah merupakan suatu penyalahgunaan proses mahkamah dan sewajarnya tidak boleh dibenarkan. [38] Atas alasan ini sahaja tindakan Plaintif hendaklah dibatalkan menurut Aturan 18 kaedah 19(1)(b) KKM 2012. Alasan iii [39] Persoalan mengenai halangan had masa bukanlah suatu isu perlu diputuskan oleh Mahkamah ini kerana Plaintif bukanlah memfailkan satu tindakan terhadap Defendan yang mempersoalkan kesahan transaksi-transaksi (dealings) antara Plaintif dan Defendan sama ada terdapatnya frod, terdapatnya salahnyataan, samada terdapat pinjaman wang, sama ada Plaintif hanya menggunakan wang Defendan untuk membeli kedua-dua hartanah tersebut atau disebaliknya, sama ada pindahmilik kedua-dua hartanah itu adalah transaksi yang sah atau tidak. Sekiranya isu-isu timbul baharulah tersebut isu had masa timbul dan perlu diputuskan. 29 [40] AKAN TETAPI saman pemula Plaintif adalah semata-mata bersandarkan kepada seksyen 52 dan seksyen 53B AK 1967. Seksyen 52 telah memperuntukkan berkenaan pengelakkan penyelesaian sukarela. [41] Seksyen 52 (1) AK 1967 memperuntukkan: Avoidance of voluntary settlement 52. (1) Any settlement of property, not being a settlement made before and in consideration of marriage or a settlement made in favour of a purchaser or incumbrancer in good faith and for valuable consideration, or a settlement made on or for the wife or children of the settlor of property which has accrued to the settlor after marriage in right of his wife, shall, if the settlor becomes bankrupt within two years after the date of the settlement, be absolutely void against the Director General of Insolvency, and shall, if the settlor becomes bankrupt any subsequent time within five years after the date of the settlement, be void against the Director General of Insolvency, unless the parties claiming under the settlement can prove that the settlor was at the time of making the settlement able to pay all his debts without the aid of the property comprised in the settlement, and that the interest of the settlor in such property had passed to the trustee of such settlement on the execution thereof. 30 [42] Seksyen 52 ini memperuntukkan bahawa mana-mana penyelesaian harta (si bankrap) yang telah dilaksanakan yang bukan suatu penyelesaian yang dibuat sebelum dan sebagai balasan kepada perkahwinan atau suatu penyelesaian yang dibuat yang memihak kepada pembeli atau penyandang dengan suci hati dan untuk suatu balasan berharga, atau suatu penyelesaian yang dibuat pada atau bagi isteri atau anak-anak penyelesai harta yang terakru ke atas penyelesai setelah berkahwin yang isterinya adalah berhak, jika penyelesai (si bankrap) menjadi bankrap dalam tempoh dua tahun selepas tarikh penyelesaian, menjadi tidak sah secara mutlak terhadap Ketua Pengarah Insolvensi, dan hendaklah, jika penyelesai menjadi bankrap pada bila-bila masa yang berikutnya dalam tempoh lima tahun selepas tarikh penyelesaian, menjadi tidak sah terhadap Ketua Pengarah Insolvensi, ……. pelaksanaannya. [43] Manakala seksyen 53B AK 1967 memperuntukkan bahawa mana- mana harta atau hasil diperolehi dari transaksi-transaksi yang tak sah, harta atau hasil tersebut adalah dianggap harta dan hasil KPI. 31 [44] Seksyen 53B AK 1967 memperuntukkan berikut: Property or proceeds therefrom deemed to be property of Director General of Insolvency 53B. (1) Where a person has acquired property of the bankrupt under a transaction that is void or under a voidable transaction (that is subsequently set aside) and sold, disposed of, realized or collected the property or any part of it, the money or other proceeds from any such dealing, whether further disposed of or not, shall be deemed to be the property of the Director General of Insolvency. (2) The Director General of Insolvency may recover the property referred to in subsection (1) or its value or the money or other proceeds therefrom from the person who acquired it from the bankrupt or from any other person to whom the person may have sold, resold or transferred the property or paid over the money or other proceeds therefrom as fully and effectually as the Director General of Insolvency could have recovered the property if it had not been so sold, transferred, disposed of, realized or collected. (3) Notwithstanding subsections (1) and (2), where any person, (not being the person who acquired the property from bankrupt) to whom the property was sold, resold or otherwise disposed of, had paid or given therefor valuable consideration and acted in good faith such person shall not be 32 subject to the operation of this section and the Director General of Insolvency’s recourse for recovery of the consideration so paid or given or its value shall be solely against the person who entered into the transaction with the bankrupt. (4) Where the consideration payable for or upon any sale or resale of such property or any part thereof remains unsatisfied the right of the Director General of Insolvency shall be subrogated for that of the vendor to compel payment or satisfaction. [45] Had masa yang relevan berhubung dengan kes ini adalah semata- mata menurut seksyen 52 (1) AK 1967 dan bukannya di bawah Akta Had Masa 1953. [46] Berdasarkan alasan-alasan di atas, Mahkamah ini membenarkan Kandungan 4 Defendan dengan kos. Saman Pemula Plaintif di Kandungan 1 dengan ini dibatalkan menurut Aturan 18 kaedah (19)(1)(b) KKM 2012. Plaintif hendaklah membayar kos sebanyak RM 6000.00. 33 t.t. ..................................................... (DATUK AZIMAH BINTI OMAR) Hakim Mahkamah Tinggi Shah Alam (Saman Pemula) Selangor Darul Ehsan Bertarikh 30hb Oktober 2017 Peguam Plaintif - Tetuan Bas Vin Associates Encik B. Manikam Peguam Defendan - Tetuan Raj & Co. Encik P. Selvaraj

Tika 2.6.0

12B-231-11/2015

PERAYU RAVICHANDRAN A/L MARIE RESPONDEN 1. ARULVEL A/L KUNJAH 2. TIGA ANAK MAJU ENTERPRISE 3. MMIP SERVICES SDN BHD

30/10/2017

YA DATIN ZALITA BINTI DATO' HJ. ZAIDAN (PK)

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=2824093e-95c3-4685-a8eb-50bfb247c9df&Inline=true

DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN, MALAYSIA RAYUAN SIVIL NO.: 12B-231-11/2015 ANTARA RAVICHANDRAN A/L MARIE … PERAYU DAN 1. ARULVEL A/L KUNJAH 2. TIGA ANAK MAJU ENTERPRISE 3. MMIP SERVICES SDN BHD … RESPONDEN-RESPONDEN Dalam Mahkamah Sesyen di Sepang Dalam Negeri Selangor Darul Ehsan, Malaysia Saman No. A53-127-06/2013 ANTARA RAVICHANDRAN A/L MARIE … PLAINTIF DAN 1. ARULVEL A/L KUNJAH 2. TIGA ANAK MAJU ENTERPRISE 3. MMIP SERVICES SDN BHD … DEFENDAN-DEFENDAN GROUND OF JUDGMENT Introduction [1] This is an appeal by the Appellant (Plaintiff) on the Sessions Court’s decision which dismissed the Appellant’s suit against the Respondents who are the First Defendant, Second Defendant and Third Defendant. The First Defendant is the driver of the vehicle lorry bearing registration number BCX 6424 involved in the alleged accident as well as the servant or agent to the Second Defendant who is the registered owner of the said lorry. At all material times, the Third Defendant is the insurer for the said lorry (paragraph 4 Amended Writ and Statement of Claim, page 17 of Appeal Record). [2] The appeal is on liability and quantum. The Respondent here is the Third Defendant. For ease of reference, the parties will be referred to as they were in the Sessions Court. At times, parties will be referred individually as ‘the First Defendant’, ‘the Second Defendant’ and ‘the Third Defendant’ or singularly as ‘the Defendant’. Facts [3] The relevant factual background giving rise to this appeal may be briefly stated as follows: (a) The Plaintiff is the rider of the motorcycle bearing registration number BAX 4112. The Plaintiff pleaded that on 15.3 2012 the Plaintiff was sitting on his motorcycle which was parked at the side of the road Jalan 4, Taman Jaya Utama Telok Panglima Garang, Selangor Darul Ehsan when all of a sudden a lorry bearing registration number BCX 6424 which was in the front reversed without any warning and caused the accident. The Plaintiff’s written submission stated that the accident to the Plaintiff’s motorcycle caused the Plaintiff to fell and his eyes to hit the motorcycle handle: “….secara tiba-tiba sebuah m/lori No. BCX 6424 yang dipandu oleh Responden/Defendant Pertama telah mengundurkan m/lorinya tanpa sebarang tanda amaran atau isyarat lalu melanggar Perayu/Plaintiff dan m/sikal No. BAX 4112 menyebabkan Perayu/Plaintiff terjatuh dan matanya terkena pada handle motorsikal lalu mengalami kecederaan.” (b) The Plaintiff’s Amended Writ and Statement of Claim (paragraph 5, page 17 of Appeal Record) stated that, “Pada 15.03.2012 plaintif sedang dengan sah disisi undang-undang menduduk di atas m/sikalnya No. BAX 4112 yang berada di tepi Jalan 4, Taman Jaya Utama Panglima Garang, Selangor Darul Ehsan apabila dengan tiba-tiba sebuah m/lori No. BCX 6424 yang berada di depan mengundur tanpa memberi sebarang tanda amaran dan/atau isyarat dan mengundurkan m/lori No. BCX 6424 lalu menyebabkan kemalangan berlaku.” (c) The Plaintiff claimed that the accident was due to First Defendant’s negligence in driving its lorry or in managing the lorry. The Plaintiff claimed that the First Defendant was negligent as spelt out in its Amended Statement of Claim (paragraphs a – h and paragraphs 7 & 8, pages 17 – 18 of Appeal Record). (d) The Plaintiff pleaded that its injury were: “-Luka di kaki kiri - Bengkak mata di sebelah kanan - Lain-lain kecederaan.” (e) The Sessions Court dismissed the Plaintiff’s suit with cost and awarded general damages of RM70,000.00 for Plaintiff’s right eye choroidal rupture and vitreous hemorrhage and special damages of RM500.00 with interests. Plaintiff’s case [4] The learned counsel for the Plaintiff advanced several grounds that the Session Judge had erred in deciding that the Plaintiff failed to prove on balance of probabilities. It was brought to this Court’s attention the Sessions Court’s decision was wrong seeking this Court’s intervention to correct the miscarriage of justice and relied on a number of authorities, the Supreme Court’s decision in Chung Hwa Ying v Phang Mun Mooi & Anor [1987] 2 MLJ 693; Lim Soh Meng & Anor v Krishnan [1967] 1 MLJ 8; Sepang Omnibus Sdn Bhd v Christina Loh Soo Pang & Ors [1970] 2 MLJ 234 and Sivalingam A/L Periasamy v Periasamy & Anor [1995] 3 MLJ 395. It was submitted that the Plaintiff had proven based on Plaintiff’s witnesses SP2 and SP6, that the First Defendant and Second Defendant should be held liable 100% for the accident. [5] The Plaintiff’s counsel submitted that the Session Judge failed to take into account the eye specialist’s testimony which affirmed the date of accident to be 14.3.2012 and that the first medial report from Poliklinik Dan pembedahan Reiki Baba and also Hospital Tengku Ampuan Rahimah Klang verified the date of accident as 14.3.2012, consistent with Plaintiff’s version in its Statement of Claim (paragraph 4, page 8 of Appeal Record). Therefore the counsel for the Plaintiff prayed for this Court to adjudge the Defendants as 100% liable. In addition, it was submitted that the First Defendant as the employee of the Second Defendant only made the police report after 1 month from the date of alleged accident and on a wrong date. [6] The Plaintiff informed this Court that the Plaintiff’s witness, SP2, the investigating police officer (IO) whom had testified that the Defendant was summoned for two offences under Rule 17 of Road Traffic Rules LN 166/59 for reversing his lorry negligently and for delaying in making police report. The Plaintiff’s counsel also contended that the First Defendant failed to testify at the trial and did not rebut Plaintiff’s case. As such, it was submitted, an adverse inference could be raised by this Court against the First Defendant and conclude that the First Defendant is responsible for the accident, referring to a Federal Court decision of Fatimah Derakman v Wan Jusoh Bin Wan Kolok & Anor [1994] 4 CLJ 537 which accepted the plaintiff’s evidence as the defendant did not produce any evidence to dispute plaintiff’s evidence. [7] The Court also heard Plaintiff’s counsel’s submission that the Third Defendant pleaded that there is fraud and conspiracy issue but First Defendant failed to be called to testify to prove that he was not involved in the accident and thus section 114(g) of Evidence Act 1950 would be applicable: Sinnayah & Sons Sdn Bhd v Damal Setia Sdn Bhd [2015] 5 AMR 497. It was submitted that the Session Judge was erred in accepting the adjustors report as exhibit when it was testified by SD4 and SD 5 (Defendants witnesses) that the said report was not signed. [8] The Plaintiff’s counsel prayed that the Defendants be held 100% liable and the Third Defendant be responsible as the insurance policyholder, as Third Defendant had admitted to the accident in its Defence. The Plaintiff’s counsel submitted that as pleaded, the award for damages be retained. Defendant’s case [9] The learned counsel for the Third Defendant submitted that based on the case of Tu Leh Ho & Anor v Anin Anak Lengie & Anor [2009] MLJU 68 which quoted the Federal Court case of Wong Thin Yit v Mohamed Ali [1971] 2 MLJ 175: “In a negligence action the onus of proof rests wholly on the Plaintiff, whether or not the defendant gives evidence. The Plaintiff cannot succeed without proof that the Defendant is negligent.” [10] The Third Defendant’s counsel advanced several grounds and submitted that the Plaintiff had failed to prove the existence of an accident between the Plaintiff and the Defendants based on the following grounds (Third Defendant’s Defence at pages 28-31 of Appeal Record), briefly: (a) There was a material discrepancy as to the actual date of accident where SP1, the investigating police officer (IO) testified that the first information received on the accident was on 15.3.2012 when Plaintiff reported on 14/3/2012 whereas the Plaintiff reported that it occurred on 15.3.2012. (b) The IO testified that he is unaware of the actual date and only knew of the discrepancy from the Plaintiff and First Defendant. Based on his investigation, the damage found on both vehicles. (c) The Plaintiff’s daughter was in the Plaintiff’s house when the alleged accident occurred but none of his family members were called out to help the Plaintiff and she agreed upon testified that she did not witness the accident. (d) The IO testified that based on his investigation, no damage was found on the Plaintiff’s motorcycle as reported by the Plaintiff as, “lampu depan pecah and body kemek dan lain-lain”. (e) There was a first report of Plaintiff from Poliklinik dan Pembedahan Reiki Baba but no mention of the actual accident. It was only stated that, “the abovementioned has came to see me on 14/03/2013 at 23.34pm motor vehicle accident affecting his injury eye. I did dressing and send him to Hospital Tengku Ampuan Rahimah, Klang.” (f) Based on the medical report from Hospital Tengku Ampuan Rahimah dated 13.6.2012, it was stated that the Plaintiff first received the medical treatment on 15.3.2012 which was verified by one Dr. Ng Ker Hsin (SP 7) whom prepared the medical report, where at the history part of the report (page 88 of the Appeal Record) stated the alleged accident was between a pedestrian and a motorcycle on 14.3.2012. (g) The First Defendant took a statutory declaration that he was not involved in the accident and the police report was made on Plaintiff’s instruction, who is his employer, for an insurance claim. [10] The counsel for the Plaintiff averred that based on the above facts mentioned, the Sessions Court was right to consider the IO’s investigation to be abstained from the Plaintiff’s evidence, in particular the investigation where the IO went to Plaintiff’s home to inspect the motorcycle and yet the Plaintiff refused to show and the photos of the motorcycle (pages 105-106 of Appeal Record) were taken by the Plaintiff and not the IO. [11] The Third Defendant’s counsel submitted that the Plaintiff failed to prove that the accident occurred and the Plaintiff knowing that the First Defendant made the statutory declaration, should have called the First Defendant to testify and support his evidence based on the First Defendant’s police report who is also the Plaintiff’s employee. THE COURT’S FINDINGS [12] Both counsels advanced several arguments on the grounds of the appeal. For the purpose of this judgment, I will be brief, focusing on the main grounds. I would start of by staying that this suit was brought by the Plaintiff and the burden rests on the Plaintiff to prove its claim, based on the balance of probabilities. The burden of proof as well as the initial onus to prove the claim rest with the Plaintiff and the Plaintiff is to discharge its onus to prove its cause of action against the Defendants as decided by the Federal Court in the case of Letchumanan Chettiar Alagappan @ L. Allagapan, M. Venkatachalam S/O Venkatachalam Chettiar v Secure Plantation Sdn Bhd No. 02-78-10/2014. Based on Letchumanan Chettiar (supra) case, section 101 of the Evidence Act 1950 was referred holding that the burden to establish the case rests throughout on the party who asserts the affirmative of the issue. [13] Based on the facts and evidence submitted before this Court, it is found that there were many discrepancies on the alleged accident as reported based on the police report, the medical reports and the photos of the motorcycle and the lorry. The medical report submitted by the Plaintiff where the first treatment at the poliklinik mentioned that the accident was between a pedestrian and a motorcycle. This was supported by the medical report from Hospital Tengku Ampuan Rahimah dated 13.6.201 which stated at the history part of the report that the accident was between a pedestrian and a motorcycle. [14] I viewed that it must be incriminating for the Plaintiff where the IO came to investigate to see the motorcycle and the Plaintiff refused to show the motorcycle and the photos of motorcycle submitted are those taken by the Plaintiff and not the IO. To top it off, the police report made by the First Defendant was made one month after the alleged accident which is serious as the accident almost made Plaintiff blinded one eye. The First Defendant made a statutory declaration denying any involvement, stating that the police report was made on Plaintiff’s instructions to claim insurance, is inevitably a serious matter and yet the Plaintiff failed to call the First Defendant to testify and be cross-examined to support the Plaintiff’s case. [15] This Court holds the view that the facts and the evidence remains unexplained by the Plaintiff who asserts it and the basic requirement stipulated under section 101 of Evidence Act 1950 had not been fulfilled. There is a gap between the accident and the evidence tendered by the Plaintiff to which the burden of proof did not reveal that the injury to Plaintiff’s eye was caused by the accident as alleged by the Plaintiff. I stand to be guided by the Federal Court case of Mohamed Salleh Bin Awang & Anor v Low Han Leong & Anor [1981] 1 MLRA 306 where it was found that the Plaintiff’s unproven evidence must fail. I find that the Session Judge in the instant case did not misdirect himself on facts and law and his decision does not require this Court’s intervention. In light of the above reasons, I dismiss the appeal. Dated: 30 October 2017 (ZALITA BINTI DATO’ ZAIDAN) Judicial Commissioner Shah Alam High Court COUNSEL FOR THE APPELLANT/PLAINTIFF HARJEET SINGH S/O SARDARA SINGH Tetuan P.S. Sohanpal & Sidhu Peguambela dan Peguamcara No. 742-6, 6th Floor Wisma NAC, Jalan Sentul 51000 Kuala Lumpur [Ref: PSS/AN//KLG/ 192/12/ Lza)] Tel: 03-4044 7526 Fax: 03-4044 7536 COUNSEL FOR THE 3rd RESPONDENT/DEFENDANT GANESAN RAJA Tetuan Ganes & Partners Peguamcara dan Peguambela 13-2, Jalan USJ 9/5N 47620 Subang Jaya Selangor Darul Ehsan [Rujukan: GP.MMIP.729.1328/13] Tel: 03-8024 2488 / 9 Fax: 03-8024 2473 12

Tika 2.6.0

12B-231-11/2015

PERAYU RAVICHANDRAN A/L MARIE RESPONDEN 1. ARULVEL A/L KUNJAH 2. TIGA ANAK MAJU ENTERPRISE 3. MMIP SERVICES SDN BHD

30/10/2017

YA DATIN ZALITA BINTI DATO' HJ. ZAIDAN (PK)

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=2824093e-95c3-4685-a8eb-50bfb247c9df&Inline=true

DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN, MALAYSIA RAYUAN SIVIL NO.: 12B-231-11/2015 ANTARA RAVICHANDRAN A/L MARIE … PERAYU DAN 1. ARULVEL A/L KUNJAH 2. TIGA ANAK MAJU ENTERPRISE 3. MMIP SERVICES SDN BHD … RESPONDEN-RESPONDEN Dalam Mahkamah Sesyen di Sepang Dalam Negeri Selangor Darul Ehsan, Malaysia Saman No. A53-127-06/2013 ANTARA RAVICHANDRAN A/L MARIE … PLAINTIF DAN 1. ARULVEL A/L KUNJAH 2. TIGA ANAK MAJU ENTERPRISE 3. MMIP SERVICES SDN BHD … DEFENDAN-DEFENDAN GROUND OF JUDGMENT Introduction [1] This is an appeal by the Appellant (Plaintiff) on the Sessions Court’s decision which dismissed the Appellant’s suit against the Respondents who are the First Defendant, Second Defendant and Third Defendant. The First Defendant is the driver of the vehicle lorry bearing registration number BCX 6424 involved in the alleged accident as well as the servant or agent to the Second Defendant who is the registered owner of the said lorry. At all material times, the Third Defendant is the insurer for the said lorry (paragraph 4 Amended Writ and Statement of Claim, page 17 of Appeal Record). [2] The appeal is on liability and quantum. The Respondent here is the Third Defendant. For ease of reference, the parties will be referred to as they were in the Sessions Court. At times, parties will be referred individually as ‘the First Defendant’, ‘the Second Defendant’ and ‘the Third Defendant’ or singularly as ‘the Defendant’. Facts [3] The relevant factual background giving rise to this appeal may be briefly stated as follows: (a) The Plaintiff is the rider of the motorcycle bearing registration number BAX 4112. The Plaintiff pleaded that on 15.3 2012 the Plaintiff was sitting on his motorcycle which was parked at the side of the road Jalan 4, Taman Jaya Utama Telok Panglima Garang, Selangor Darul Ehsan when all of a sudden a lorry bearing registration number BCX 6424 which was in the front reversed without any warning and caused the accident. The Plaintiff’s written submission stated that the accident to the Plaintiff’s motorcycle caused the Plaintiff to fell and his eyes to hit the motorcycle handle: “….secara tiba-tiba sebuah m/lori No. BCX 6424 yang dipandu oleh Responden/Defendant Pertama telah mengundurkan m/lorinya tanpa sebarang tanda amaran atau isyarat lalu melanggar Perayu/Plaintiff dan m/sikal No. BAX 4112 menyebabkan Perayu/Plaintiff terjatuh dan matanya terkena pada handle motorsikal lalu mengalami kecederaan.” (b) The Plaintiff’s Amended Writ and Statement of Claim (paragraph 5, page 17 of Appeal Record) stated that, “Pada 15.03.2012 plaintif sedang dengan sah disisi undang-undang menduduk di atas m/sikalnya No. BAX 4112 yang berada di tepi Jalan 4, Taman Jaya Utama Panglima Garang, Selangor Darul Ehsan apabila dengan tiba-tiba sebuah m/lori No. BCX 6424 yang berada di depan mengundur tanpa memberi sebarang tanda amaran dan/atau isyarat dan mengundurkan m/lori No. BCX 6424 lalu menyebabkan kemalangan berlaku.” (c) The Plaintiff claimed that the accident was due to First Defendant’s negligence in driving its lorry or in managing the lorry. The Plaintiff claimed that the First Defendant was negligent as spelt out in its Amended Statement of Claim (paragraphs a – h and paragraphs 7 & 8, pages 17 – 18 of Appeal Record). (d) The Plaintiff pleaded that its injury were: “-Luka di kaki kiri - Bengkak mata di sebelah kanan - Lain-lain kecederaan.” (e) The Sessions Court dismissed the Plaintiff’s suit with cost and awarded general damages of RM70,000.00 for Plaintiff’s right eye choroidal rupture and vitreous hemorrhage and special damages of RM500.00 with interests. Plaintiff’s case [4] The learned counsel for the Plaintiff advanced several grounds that the Session Judge had erred in deciding that the Plaintiff failed to prove on balance of probabilities. It was brought to this Court’s attention the Sessions Court’s decision was wrong seeking this Court’s intervention to correct the miscarriage of justice and relied on a number of authorities, the Supreme Court’s decision in Chung Hwa Ying v Phang Mun Mooi & Anor [1987] 2 MLJ 693; Lim Soh Meng & Anor v Krishnan [1967] 1 MLJ 8; Sepang Omnibus Sdn Bhd v Christina Loh Soo Pang & Ors [1970] 2 MLJ 234 and Sivalingam A/L Periasamy v Periasamy & Anor [1995] 3 MLJ 395. It was submitted that the Plaintiff had proven based on Plaintiff’s witnesses SP2 and SP6, that the First Defendant and Second Defendant should be held liable 100% for the accident. [5] The Plaintiff’s counsel submitted that the Session Judge failed to take into account the eye specialist’s testimony which affirmed the date of accident to be 14.3.2012 and that the first medial report from Poliklinik Dan pembedahan Reiki Baba and also Hospital Tengku Ampuan Rahimah Klang verified the date of accident as 14.3.2012, consistent with Plaintiff’s version in its Statement of Claim (paragraph 4, page 8 of Appeal Record). Therefore the counsel for the Plaintiff prayed for this Court to adjudge the Defendants as 100% liable. In addition, it was submitted that the First Defendant as the employee of the Second Defendant only made the police report after 1 month from the date of alleged accident and on a wrong date. [6] The Plaintiff informed this Court that the Plaintiff’s witness, SP2, the investigating police officer (IO) whom had testified that the Defendant was summoned for two offences under Rule 17 of Road Traffic Rules LN 166/59 for reversing his lorry negligently and for delaying in making police report. The Plaintiff’s counsel also contended that the First Defendant failed to testify at the trial and did not rebut Plaintiff’s case. As such, it was submitted, an adverse inference could be raised by this Court against the First Defendant and conclude that the First Defendant is responsible for the accident, referring to a Federal Court decision of Fatimah Derakman v Wan Jusoh Bin Wan Kolok & Anor [1994] 4 CLJ 537 which accepted the plaintiff’s evidence as the defendant did not produce any evidence to dispute plaintiff’s evidence. [7] The Court also heard Plaintiff’s counsel’s submission that the Third Defendant pleaded that there is fraud and conspiracy issue but First Defendant failed to be called to testify to prove that he was not involved in the accident and thus section 114(g) of Evidence Act 1950 would be applicable: Sinnayah & Sons Sdn Bhd v Damal Setia Sdn Bhd [2015] 5 AMR 497. It was submitted that the Session Judge was erred in accepting the adjustors report as exhibit when it was testified by SD4 and SD 5 (Defendants witnesses) that the said report was not signed. [8] The Plaintiff’s counsel prayed that the Defendants be held 100% liable and the Third Defendant be responsible as the insurance policyholder, as Third Defendant had admitted to the accident in its Defence. The Plaintiff’s counsel submitted that as pleaded, the award for damages be retained. Defendant’s case [9] The learned counsel for the Third Defendant submitted that based on the case of Tu Leh Ho & Anor v Anin Anak Lengie & Anor [2009] MLJU 68 which quoted the Federal Court case of Wong Thin Yit v Mohamed Ali [1971] 2 MLJ 175: “In a negligence action the onus of proof rests wholly on the Plaintiff, whether or not the defendant gives evidence. The Plaintiff cannot succeed without proof that the Defendant is negligent.” [10] The Third Defendant’s counsel advanced several grounds and submitted that the Plaintiff had failed to prove the existence of an accident between the Plaintiff and the Defendants based on the following grounds (Third Defendant’s Defence at pages 28-31 of Appeal Record), briefly: (a) There was a material discrepancy as to the actual date of accident where SP1, the investigating police officer (IO) testified that the first information received on the accident was on 15.3.2012 when Plaintiff reported on 14/3/2012 whereas the Plaintiff reported that it occurred on 15.3.2012. (b) The IO testified that he is unaware of the actual date and only knew of the discrepancy from the Plaintiff and First Defendant. Based on his investigation, the damage found on both vehicles. (c) The Plaintiff’s daughter was in the Plaintiff’s house when the alleged accident occurred but none of his family members were called out to help the Plaintiff and she agreed upon testified that she did not witness the accident. (d) The IO testified that based on his investigation, no damage was found on the Plaintiff’s motorcycle as reported by the Plaintiff as, “lampu depan pecah and body kemek dan lain-lain”. (e) There was a first report of Plaintiff from Poliklinik dan Pembedahan Reiki Baba but no mention of the actual accident. It was only stated that, “the abovementioned has came to see me on 14/03/2013 at 23.34pm motor vehicle accident affecting his injury eye. I did dressing and send him to Hospital Tengku Ampuan Rahimah, Klang.” (f) Based on the medical report from Hospital Tengku Ampuan Rahimah dated 13.6.2012, it was stated that the Plaintiff first received the medical treatment on 15.3.2012 which was verified by one Dr. Ng Ker Hsin (SP 7) whom prepared the medical report, where at the history part of the report (page 88 of the Appeal Record) stated the alleged accident was between a pedestrian and a motorcycle on 14.3.2012. (g) The First Defendant took a statutory declaration that he was not involved in the accident and the police report was made on Plaintiff’s instruction, who is his employer, for an insurance claim. [10] The counsel for the Plaintiff averred that based on the above facts mentioned, the Sessions Court was right to consider the IO’s investigation to be abstained from the Plaintiff’s evidence, in particular the investigation where the IO went to Plaintiff’s home to inspect the motorcycle and yet the Plaintiff refused to show and the photos of the motorcycle (pages 105-106 of Appeal Record) were taken by the Plaintiff and not the IO. [11] The Third Defendant’s counsel submitted that the Plaintiff failed to prove that the accident occurred and the Plaintiff knowing that the First Defendant made the statutory declaration, should have called the First Defendant to testify and support his evidence based on the First Defendant’s police report who is also the Plaintiff’s employee. THE COURT’S FINDINGS [12] Both counsels advanced several arguments on the grounds of the appeal. For the purpose of this judgment, I will be brief, focusing on the main grounds. I would start of by staying that this suit was brought by the Plaintiff and the burden rests on the Plaintiff to prove its claim, based on the balance of probabilities. The burden of proof as well as the initial onus to prove the claim rest with the Plaintiff and the Plaintiff is to discharge its onus to prove its cause of action against the Defendants as decided by the Federal Court in the case of Letchumanan Chettiar Alagappan @ L. Allagapan, M. Venkatachalam S/O Venkatachalam Chettiar v Secure Plantation Sdn Bhd No. 02-78-10/2014. Based on Letchumanan Chettiar (supra) case, section 101 of the Evidence Act 1950 was referred holding that the burden to establish the case rests throughout on the party who asserts the affirmative of the issue. [13] Based on the facts and evidence submitted before this Court, it is found that there were many discrepancies on the alleged accident as reported based on the police report, the medical reports and the photos of the motorcycle and the lorry. The medical report submitted by the Plaintiff where the first treatment at the poliklinik mentioned that the accident was between a pedestrian and a motorcycle. This was supported by the medical report from Hospital Tengku Ampuan Rahimah dated 13.6.201 which stated at the history part of the report that the accident was between a pedestrian and a motorcycle. [14] I viewed that it must be incriminating for the Plaintiff where the IO came to investigate to see the motorcycle and the Plaintiff refused to show the motorcycle and the photos of motorcycle submitted are those taken by the Plaintiff and not the IO. To top it off, the police report made by the First Defendant was made one month after the alleged accident which is serious as the accident almost made Plaintiff blinded one eye. The First Defendant made a statutory declaration denying any involvement, stating that the police report was made on Plaintiff’s instructions to claim insurance, is inevitably a serious matter and yet the Plaintiff failed to call the First Defendant to testify and be cross-examined to support the Plaintiff’s case. [15] This Court holds the view that the facts and the evidence remains unexplained by the Plaintiff who asserts it and the basic requirement stipulated under section 101 of Evidence Act 1950 had not been fulfilled. There is a gap between the accident and the evidence tendered by the Plaintiff to which the burden of proof did not reveal that the injury to Plaintiff’s eye was caused by the accident as alleged by the Plaintiff. I stand to be guided by the Federal Court case of Mohamed Salleh Bin Awang & Anor v Low Han Leong & Anor [1981] 1 MLRA 306 where it was found that the Plaintiff’s unproven evidence must fail. I find that the Session Judge in the instant case did not misdirect himself on facts and law and his decision does not require this Court’s intervention. In light of the above reasons, I dismiss the appeal. Dated: 30 October 2017 (ZALITA BINTI DATO’ ZAIDAN) Judicial Commissioner Shah Alam High Court COUNSEL FOR THE APPELLANT/PLAINTIFF HARJEET SINGH S/O SARDARA SINGH Tetuan P.S. Sohanpal & Sidhu Peguambela dan Peguamcara No. 742-6, 6th Floor Wisma NAC, Jalan Sentul 51000 Kuala Lumpur [Ref: PSS/AN//KLG/ 192/12/ Lza)] Tel: 03-4044 7526 Fax: 03-4044 7536 COUNSEL FOR THE 3rd RESPONDENT/DEFENDANT GANESAN RAJA Tetuan Ganes & Partners Peguamcara dan Peguambela 13-2, Jalan USJ 9/5N 47620 Subang Jaya Selangor Darul Ehsan [Rujukan: GP.MMIP.729.1328/13] Tel: 03-8024 2488 / 9 Fax: 03-8024 2473 12

Tika 2.6.0

BA-12B-42-03/2016 Digabungkan bersama BA-12B-43-03/2016

PERAYU 1. WAKIL DIRI KEPADA HARTA PESAKA, ANBALAGAN A/L RENGAN, SIMATI 2. SPLENDOUR HARDWARE SUPPLY SDN BHD RESPONDEN SURENDREN A/L SUGUMARAN

30/10/2017

YA DATIN ZALITA BINTI DATO' HJ. ZAIDAN (PK)

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=6669566f-0d59-41c2-a8de-48646fff1cfb&Inline=true

DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN, MALAYSIA RAYUAN SIVIL NO: BA-12B-42-03/2016 ANTARA 1. WAKIL DIRI KEPADA HARTA PESAKA, ANBALAGAN A/L RENGAN, SIMATI 2. SPLENDOUR HARDWARE SUPPLY SDN BHD … PERAYU-PERAYU DAN SURENDREN A/L SUGUMARAN … RESPONDEN DALAM MAHKAMAH SESYEN DI BANDAR BARU BANGI DALAM NEGERI SELANGOR DARUL EHSAN, MALAYSIA SAMAN NO. A53KJ-326-8/2-14 ANTARA SURENDREN A/L SUGUMARAN …PLAINTIF DAN 1. WAKIL DIRI KEPADA HARTA PESAKA, ANBALAGAN A/L RENGAN, SIMATI 2. SPLENDOUR HARDWARE SUPPLY SDN BHD ...DEFENDAN-DEFENDAN Digabungkan bersama DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN, MALAYSIA RAYUAN SIVIL NO: 12B-43-03/2016 ANTARA SURENDREN A/L SUGUMARAN …PERAYU DAN 1. WAKIL DIRI KEPADA HARTA PESAKA, ANBALAGAN A/L RENGAN, SIMATI 2. SPLENDOUR HARDWARE SUPPLY SDN BHD ... RESPONDEN-RESPONDEN GROUND OF JUDGMENT Introduction [1] These are appeals on two decisions of the Sessions Court dated 19.2.2016, both heard together. One is an appeal by the Respondent (12B-42-03/2016) who are the Defendants, involving the issues of liability and quantum and the other is an appeal by the Appellant, who is the Plaintiff (12B-43-03/2016), on liability. [2] For ease of reference, the parties, in this judgment, will be known as they were in the Sessions Court. Facts [3] The Plaintiff’s claim is based on one road accident on 11.4.2012 between the Plaintiff’s motorcycle bearing registration number NBQ 7080 and Defendant’s vehicle lorry number BKJ 4154 at the T-junction of Jalan Taman Bunga Raya Bangi, Selangor Darul Ehsan. [4] The Plaintiff’s pleaded version is as follows: “Motorlori Defendan dari arah bertentangan Plaintiff secara tiba tiba dan tanpa sebarang isyarat amaran telah membelok ke kanan masuk simpang dan melintasi arah perjalanan Plaintif lalu mengakibatkan satu perlanggaran dengan Plaintif.” (see pages 16 – 17 of Appeal Record) [5] The Defendant’s version is as follows: “Penunggang motosikal tersebut yang gagal memerhatikan keadaan jalan di sekitarnya terutamanya pergerakan / kedudukan motorlori Defendan Pertama telah secara tiba-tiba dan dengan cuainya serta tanpa sebarang amaran atau isyarat keluar dari satu simpang dan melanggar motorlori Defendan Pertama yang sedang dipandu di jalan utama justeru itu mengakibatkan satu kemalangan (kemalangan tersebut) pada tarikh, masa dan tempat yang dinyatakan dalam Penyata Tuntutan Plaintiff.” [6] The Sessions Court decided on 19.2.2016 as follows: “Liabiliti: Plaintiff dan Defendan masing-masing bertanggungan 50%. Kuantum gantirugi am i. Severe traumatic head injury : RM100,000-00 ii. Scarring : RM 10,000-00 iii. 20% permanent loss of left vision : RM 22,000-00 iv. Loss of consciousness : RM 5,500.00 v. Bi-frontal contusion : RM 20,000-00 Kuantum gantirugi khas : Ditolak” [7] The Plaintiff claimed that the liability should be 100% on the Defendants and the general damages award be retained. The Defendants on the other hand claimed that the Plaintiff should be liable at 100% and that the award be reduced. Defendants’ case (Case No.:12B-42-03/2016) [8] The learned counsel for the Defendants advanced several grounds that the Session Judge had erred in deciding that the Defendants are liable at 50%. Briefly, the Session Judge had erred by stating that there was no version from the Defendant when it should be the Plaintiff to prove on the balance of probabilities. Extracting some of the Session Judge’s judgment, the counsel for Defendant submitted that the Session Judge had stated, “secara total memandangkan pemandu motorlori telah meninggal dunia dan tidak boleh menyatakan versi serta memberikan keterangan beliau secara jelas kepada Mahkamah tanpa mengambil kira Section 101 Akta Keterangan 1950…” [9] It was submitted that the Session Judge erred in facts and law by not considering that there was no independent witness to support Plaintiff’s version. The Defendant’s counsel brought to this Court’s attention that the Session Judge did not take into account the fact that the oil spill or debris of the accident was not on Plaintiff’s right of way. In addition, it was submitted that the Plaintiff was not in possession of a valid driving license and had no experience in riding a motorcycle and would have placed himself and other road users’ safety in jeopardy. The only evidence is the oil spill due to collision which was on the Defendant’s right of way. [10] In relation to quantum, the Defendant’s counsel submitted the arguments as follows; “Maka Perayu/Defendan berhujah Hakim Mahkamah Sesyen tidak memenuhi Prinsip Good Gracious test dalam kes Mohd Akmal Sopi v Mohd Fauzi Nordin (2013 0 ILNS 755) dalam membuat awad bagi GANTI RUGI AM dan tidak membuat awad mengikut trend awad terkini. Ganti Rugi AM (atas dasar 100%) a) Severe Traumatic Head Injury Mahkamah telah mengawadkan RM100,000.00. Pihak Defendan telah cadangkan di antara RM30,000.00 hingga RM35,000.00 dan berhujan berdasarkan laporan pakar neuro Dr. Ravi Krisnapillai kecederaan ini adalah mild head injury. Hakim Mahkamah Sesyen juga terkhilaf dari segi undang undang dan fakta apabila tidak mengambil kira pakar pilihan Plaintiff sendiri B.M Sellarudurai, MB FCRS mencatiti di para 3 m/s 82 Rekod Rayuan Perayu Defendan kecederaan ini adalah mild head injury. Tidak ada klarifikasi dikemukakan untuk mengatakan kecederaan ini adalah severe head injury dan tidak ada tanda tangan diturunkan selepas perkataan “mild” dipotong di ayat tersebut. Maka awal RM100,000 untuk mild head injury tidak memenuhi prinsip good gracious test seperti diputuskan oleh kes Mohd Akmal Sopi Perayu Defendan lawan Mohd Fauzi Nordin Responden Plaintif. Tambahan pula Hakim Mahkamah Sesyen tidak membuat deduction kerana pihak Plaintiff tidak mengikat topi keledarnya. b) Loss of Conciousness Mahkamah membenarkan RM5,500.00 walaupun tiada hujahan dari Plaintiff bagi kecederaan ini, dan pihak Defendan tidak mengemukakan sebarang hujahan tentang kecederaan ini kerana kecederaan ini adalah overlapping dengan head injury. c) Bi frontal Contusion Mahkamah telah mengawadkan RM20,000 bagi kecederaan ini tanpa mengambil kira overlapping of injury dan Plaintiff langsung tidak ikat topi keledarnya. Tambahan pula, pihak perayu Plaintiff tidak mengemukakan sebarang hujahan bagi kecederaan ini. Maka pihak perayu Defendan merayu rayuan Perayu Defendan dibenarkan dengan kes dan rayuan balas Perayu Plaintiff ditolak dengan kos. Dengan itu, Perayu/Defendan dengan rendah diri memohon supaya rayuan ini berkenaan isu Liabiliti dan Kuantum dibenarkan dengan kos.” The Sessions Court’s Decision [11] The Sessions Court’s decision is reproduced here in parts, as follows: “….. Mahkamah berpendapat bahawa setelah mendengar serta meneliti keterangan daripada saksi-saksi kedua-dua belah pihak maka Mahkamah mendapati terdapat keraguan dalam keterangan kedua-dua pihak dalam kes ini. Mahkamah juga perlu mengambil sikap berhati-hati dalam meneriam keterangan saksi-saksi dan tidak boleh hanya mempercayai keterangan Plaintif secara total memandangkan pemandu motorlori telah meninggal dunia dan tidak boleh menyatakan versi serta memberikan keterangan beliau secara jelas kepada Mahkamah. Tambahan pula tiada saksi bebas serta penyiasatan Pegawai penyiasat yang tidak lengkap dan…… Oleh yang demikian berdasarkan alasan-alasan sebagaimana yang diterangkan dan atas dasar imbangan kearangkalian serta berdasarkan alasan-alasan sebagaimana telah diterangkan di atas maka atas isu liabiliti Plaintif didapati bertanggungan 50% dan Defendan Pertama juga bertanggungan 50% dalam menyebabkan kemalangan ini. KUANTUM [i] Gantirugi Am bagi kecederaan dialami oleh Plaintif (atas dasar 100%) a) Severe Traumatic Head Injury -Mahkamah membenarkan awad sebanyak RM100,000.00 Sebagaimana yang telah diterangkan sebelum ini Peguamcara Plaintif gagal memberikan sebarang hujahan berkaitan isu kuantum disebabkan kegagalan memasukkan hujahan bertulis dalam tempoh yang diberikan. Maka Mahkamah hanya mengambil kira cadangan serta hujahan yang dikemukakan oleh pihak peguamcara Defendan sahaja dalam membuat keputusan bagi keseluruhan kuantum bagi kecederaan yang dialami Plaintif dalam kes ini. Bagi kecederaan ini peguamcara Defendan berhujah untuk awad dalam linkungan jumlah sebanyak RM30,000,00 hingga RM35,000.00 sahaja berdasarkan laporan pakar neuro Dr. Ravi Krisnapillai yang menyatakan kecederaan yang dialami Plaintif hanya mild head injury. Selain itu Defendan berhujah bahawa kecederaan ini dialami juga disebabkan pengakuan Plaintif sendiri…… Peguamcara Defendan menghujahkan jumlah sebanyak RM20,000.00 untuk kecederaan ini berdasarkan “Compendium of Personal Injury Awards”. Akan tetapi Mahkamah membenarkan jumlah lebih tinggi sedikti juga berdasarkan serta setelah mengambil kira faktor nilaian wang semasa dan faktor inflasi. d. Loss of consciousness - Mahkamah membenarkan awad sebanyak RM5,500.00 Walaupun tiada hujahan Defendan bagi kecederaan ini Mahkamah bagaimanapun membenarkannya juga setelah mendapati terdapat makluman berkaitan ini melaui laporan yang dikemukakan serta berpandukan “Compendium of Personal Injury Awards”. e. Bi-frontal contusion -Mahkamah membenarkan awad sebanyak RM20,000.00 Begitu juga seperti kecederaan di atas walaupun tiada hujahan Defendan bagi kecederaan ini Mahkamah bagaimana pun membenarkannya juga setelah mendapati terdapat makluman berkaitan ini melalui laporan yang dikemukakan serta berpandukan “Compendium of Personal Injury Awards”. [ii] Gantirugi Khas oleh Plaintif: (atas dasar 100%) A. Item (a hingga d) - TIDAK DIBENARKAN B. Item (e hingga h) - DIMASUKKAN DI BAWAH KOS” APPEAL [12] In matters relating to appeal on liability and quantum, the appeal courts are aware that they should be slow in disturbing the decisions of the trial judge unless the situation warrants it. This would depend on the circumstances of the case that is, whether the trial judge had applied the wrong principles of law or misdirected himself on the facts and law. In the case involving appeal on quantum, the appeal court must consider whether an erroneous estimate of the amount has been made by the trial judge to consider relevant matters or having admitted irrelevant factors in the course of the assessment of damages. [13] The principle of appellate intervention as mentioned at paragraph [12] of my judgment was decided in the Supreme Court’s decision of Tan Kuan Yau v Suhindrimani [1985] 1 CLJ 429, where it was viewed that for a court to interfere or otherwise would depend on the circumstances of each case, and if the court is satisfied that the trial judge had acted on the wrong principle of law, then it would be justified in reversing the trial judge’s decision. Similarly, for appeal on quantum of damages, the decision of the trial judge cannot simply be reversed merely because it should be a lesser sum if it was heard before me in the first instance. It should reflect the proper compensation for the injury suffered and the loss sustained as decided by Justice Richard Malanjum (Chief Justice of Sabah and Sarawak) in Wong Li Fatt William (an infant) v Haidawati bt Bolhen & Anor [1994] 2 MLJ 497. [14] I wish to refer to the authority of the Federal Court in Inas Faiqah Mohd Helmi (a child suing through her father and next friend, Mohd Helmi Abdul Aziz) v Kerajaan Malaysia & 2 Ors [2016] 1 PIR [16]; 2 CLJ 885, I cannot resist but to quote YA Abdull Hamid Embong FCJ (as he then was) on assessing damages, had occasion to say, “It is trite that damages served as compensation, not a reward, less still a punishment. In assessing damages, the courts should not be motivated by sympathy and award fair compensation based on cogent evidence. The court could not descend into a domain of speculation. The evaluation of evidence which form the basis of any risk of future damage, must still be undertaken. The trial judge could only evaluate such evidence based on the recognized balance of probability standard, but with a lower degree of certainty as to the occurrence of such loss or damage in the future.” [15] This suit was brought by the Plaintiff and the burden rests on the Plaintiff to prove its claim, based on the balance of probability. The burden of proof as well as the initial onus to prove the claim rest with the Plaintiff to discharge the burden to prove its cause of action against the Defendant as decided by the Federal Court in the case of Letchumanan Chettiar Alagappan @ L. Allagapan, M. Venkatachalam S/O Venkatachalam Chettiar v Secure Plantation Sdn Bhd No. 02-78-10/2014. Based on Letchumanan Chettiar (supra) case, section 101 of the Evidence Act 1950 was referred holding that the burden to establish the case rests throughout on the party who asserts the affirmative of the issue. [16] The Plaintiff’s appeal on liability claiming that the Defendant contributed negligence to the accident, that it should be held liable 100%. I viewed that when contributory negligence is set up as a defence, it does not depend on any duty owed by the injured party to the party to be sued. It is for the injured party to show that he did not in his own interest take reasonable care of himself and contributed by his want of care, to his own injury: Nance v British Columbia Electric Railway Company [1951] AC 601. The test of contributory of negligence is based entirely on the conduct of the plaintiff in the accident case. [17] I shall be brief. Based on the facts of the case, the version where the deceased came out from the junction without taking heed of the vehicle coming from his right is indeed a breach of the Road Traffic Rules 1959, particularly Rule 7(2) and Rule 7(2)(A) of the Road Traffic Rules 1959. However as it was the assertion of the Plaintiff to prove liability where the Plaintiff himself is not in possession of a valid license, as stated in Defendant’s Defence (at page 32 Appeal Record), this Court view this as a serious offence, where it would be a grievous mistake not to hold the Plaintiff liable for his failure to observe the provisions of the Road Transport Act 1987, riding his motorcycle without a valid driving license and affecting the safety of other road users. [18] Based on the facts and the evidence submitted, this Court holds the view that both parties failed to observe the law and this Court finds that the Plaintiff must be held liable at 80% and the Defendant liable at 20%. I stand to be guided by a number of authorities where the provisions of the Road Transport Act 1987 and Road Traffic Rules must be observed and indeed taken into account in deciding liability of parties in an accident case: Kek Kee Leng v Teresa Bong Nguk Chin & Anor [1978] 1 MLJ 61; Yahaya Bin Mat & Nor v Abdul Rahman Bin Abu [1982] 1 MLJ 202; Sukatno v Lee Seng Kee & Anor A-04-76-2008, Court of Appeal. [19] In relation to quantum, the award of RM100,000.00 is retained for severe traumatic head injury based on the medical reports from both parties and I find the award of the Session Judge not excessive. The award for scar is reduced from RM10,000.00 to RM5,000.00 as it is not a permanent scar. I viewed that the award for loss of consciousness is taken out as based on the medical report, the Plaintiff was conscious when he was treated after the road accident. There will be no award for bifrontal contusions, I opined that this should be assessed together with the head injury and not separately. [20] In light of the above reasons, for Defendant’s appeal under BA-12B-42-03/2016, I had announced as dismiss as I did not allow 100% liability on Plaintiff. What I meant is the appeal for 100% liability on Plaintiff is dismissed and substituted with liability at 80%, the quantum appeal is substituted with the award for scar at RM5,000.00, no award for loss of consciousness and no award for bifrontal contusions. For appeal BA-12B-43-03/2016, the Plaintiff’s appeal for 100% liability on Defendant is dismissed and I substitute with a reduced portion from 50% to 20%. Dated: 30 October 2017 (ZALITA BINTI DATO’ ZAIDAN) Judicial Commissioner Shah Alam High Court COUNSEL FOR THE APPELLANT SIVAKUMARESAN A/L SUPERMANIAM Tetuan Naicker & Associates Peguambela & Peguamcara No. 33 (2nd Floor) Jalan Desa Taman Desa 58100 Kuala Lumpur [REF: NA/MMIP-222/B1/14/D] Tel: 03-7981 7329 Fax: 03-7981 8729 COUNSEL FOR THE RESPONDENT MOHD SAUFI BIN SAMSUDIN Tetuan G. Dorai & Co. Peguambela dan Peguamcara No. 7, Jalan Mawar 1 Taman Mawar 48000 Rawang Selangor Darul Ehsan [REF: PGD/7192/12/INS/sh] Tel No: 03-6093 6890 Fax: 03-6093 3677 1

Tika 2.6.0

BA-12B-42-03/2016 Digabungkan bersama BA-12B-43-03/2016

PERAYU 1. WAKIL DIRI KEPADA HARTA PESAKA, ANBALAGAN A/L RENGAN, SIMATI 2. SPLENDOUR HARDWARE SUPPLY SDN BHD RESPONDEN SURENDREN A/L SUGUMARAN

30/10/2017

YA DATIN ZALITA BINTI DATO' HJ. ZAIDAN (PK)

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DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN, MALAYSIA RAYUAN SIVIL NO: BA-12B-42-03/2016 ANTARA 1. WAKIL DIRI KEPADA HARTA PESAKA, ANBALAGAN A/L RENGAN, SIMATI 2. SPLENDOUR HARDWARE SUPPLY SDN BHD … PERAYU-PERAYU DAN SURENDREN A/L SUGUMARAN … RESPONDEN DALAM MAHKAMAH SESYEN DI BANDAR BARU BANGI DALAM NEGERI SELANGOR DARUL EHSAN, MALAYSIA SAMAN NO. A53KJ-326-8/2-14 ANTARA SURENDREN A/L SUGUMARAN …PLAINTIF DAN 1. WAKIL DIRI KEPADA HARTA PESAKA, ANBALAGAN A/L RENGAN, SIMATI 2. SPLENDOUR HARDWARE SUPPLY SDN BHD ...DEFENDAN-DEFENDAN Digabungkan bersama DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN, MALAYSIA RAYUAN SIVIL NO: 12B-43-03/2016 ANTARA SURENDREN A/L SUGUMARAN …PERAYU DAN 1. WAKIL DIRI KEPADA HARTA PESAKA, ANBALAGAN A/L RENGAN, SIMATI 2. SPLENDOUR HARDWARE SUPPLY SDN BHD ... RESPONDEN-RESPONDEN GROUND OF JUDGMENT Introduction [1] These are appeals on two decisions of the Sessions Court dated 19.2.2016, both heard together. One is an appeal by the Respondent (12B-42-03/2016) who are the Defendants, involving the issues of liability and quantum and the other is an appeal by the Appellant, who is the Plaintiff (12B-43-03/2016), on liability. [2] For ease of reference, the parties, in this judgment, will be known as they were in the Sessions Court. Facts [3] The Plaintiff’s claim is based on one road accident on 11.4.2012 between the Plaintiff’s motorcycle bearing registration number NBQ 7080 and Defendant’s vehicle lorry number BKJ 4154 at the T-junction of Jalan Taman Bunga Raya Bangi, Selangor Darul Ehsan. [4] The Plaintiff’s pleaded version is as follows: “Motorlori Defendan dari arah bertentangan Plaintiff secara tiba tiba dan tanpa sebarang isyarat amaran telah membelok ke kanan masuk simpang dan melintasi arah perjalanan Plaintif lalu mengakibatkan satu perlanggaran dengan Plaintif.” (see pages 16 – 17 of Appeal Record) [5] The Defendant’s version is as follows: “Penunggang motosikal tersebut yang gagal memerhatikan keadaan jalan di sekitarnya terutamanya pergerakan / kedudukan motorlori Defendan Pertama telah secara tiba-tiba dan dengan cuainya serta tanpa sebarang amaran atau isyarat keluar dari satu simpang dan melanggar motorlori Defendan Pertama yang sedang dipandu di jalan utama justeru itu mengakibatkan satu kemalangan (kemalangan tersebut) pada tarikh, masa dan tempat yang dinyatakan dalam Penyata Tuntutan Plaintiff.” [6] The Sessions Court decided on 19.2.2016 as follows: “Liabiliti: Plaintiff dan Defendan masing-masing bertanggungan 50%. Kuantum gantirugi am i. Severe traumatic head injury : RM100,000-00 ii. Scarring : RM 10,000-00 iii. 20% permanent loss of left vision : RM 22,000-00 iv. Loss of consciousness : RM 5,500.00 v. Bi-frontal contusion : RM 20,000-00 Kuantum gantirugi khas : Ditolak” [7] The Plaintiff claimed that the liability should be 100% on the Defendants and the general damages award be retained. The Defendants on the other hand claimed that the Plaintiff should be liable at 100% and that the award be reduced. Defendants’ case (Case No.:12B-42-03/2016) [8] The learned counsel for the Defendants advanced several grounds that the Session Judge had erred in deciding that the Defendants are liable at 50%. Briefly, the Session Judge had erred by stating that there was no version from the Defendant when it should be the Plaintiff to prove on the balance of probabilities. Extracting some of the Session Judge’s judgment, the counsel for Defendant submitted that the Session Judge had stated, “secara total memandangkan pemandu motorlori telah meninggal dunia dan tidak boleh menyatakan versi serta memberikan keterangan beliau secara jelas kepada Mahkamah tanpa mengambil kira Section 101 Akta Keterangan 1950…” [9] It was submitted that the Session Judge erred in facts and law by not considering that there was no independent witness to support Plaintiff’s version. The Defendant’s counsel brought to this Court’s attention that the Session Judge did not take into account the fact that the oil spill or debris of the accident was not on Plaintiff’s right of way. In addition, it was submitted that the Plaintiff was not in possession of a valid driving license and had no experience in riding a motorcycle and would have placed himself and other road users’ safety in jeopardy. The only evidence is the oil spill due to collision which was on the Defendant’s right of way. [10] In relation to quantum, the Defendant’s counsel submitted the arguments as follows; “Maka Perayu/Defendan berhujah Hakim Mahkamah Sesyen tidak memenuhi Prinsip Good Gracious test dalam kes Mohd Akmal Sopi v Mohd Fauzi Nordin (2013 0 ILNS 755) dalam membuat awad bagi GANTI RUGI AM dan tidak membuat awad mengikut trend awad terkini. Ganti Rugi AM (atas dasar 100%) a) Severe Traumatic Head Injury Mahkamah telah mengawadkan RM100,000.00. Pihak Defendan telah cadangkan di antara RM30,000.00 hingga RM35,000.00 dan berhujan berdasarkan laporan pakar neuro Dr. Ravi Krisnapillai kecederaan ini adalah mild head injury. Hakim Mahkamah Sesyen juga terkhilaf dari segi undang undang dan fakta apabila tidak mengambil kira pakar pilihan Plaintiff sendiri B.M Sellarudurai, MB FCRS mencatiti di para 3 m/s 82 Rekod Rayuan Perayu Defendan kecederaan ini adalah mild head injury. Tidak ada klarifikasi dikemukakan untuk mengatakan kecederaan ini adalah severe head injury dan tidak ada tanda tangan diturunkan selepas perkataan “mild” dipotong di ayat tersebut. Maka awal RM100,000 untuk mild head injury tidak memenuhi prinsip good gracious test seperti diputuskan oleh kes Mohd Akmal Sopi Perayu Defendan lawan Mohd Fauzi Nordin Responden Plaintif. Tambahan pula Hakim Mahkamah Sesyen tidak membuat deduction kerana pihak Plaintiff tidak mengikat topi keledarnya. b) Loss of Conciousness Mahkamah membenarkan RM5,500.00 walaupun tiada hujahan dari Plaintiff bagi kecederaan ini, dan pihak Defendan tidak mengemukakan sebarang hujahan tentang kecederaan ini kerana kecederaan ini adalah overlapping dengan head injury. c) Bi frontal Contusion Mahkamah telah mengawadkan RM20,000 bagi kecederaan ini tanpa mengambil kira overlapping of injury dan Plaintiff langsung tidak ikat topi keledarnya. Tambahan pula, pihak perayu Plaintiff tidak mengemukakan sebarang hujahan bagi kecederaan ini. Maka pihak perayu Defendan merayu rayuan Perayu Defendan dibenarkan dengan kes dan rayuan balas Perayu Plaintiff ditolak dengan kos. Dengan itu, Perayu/Defendan dengan rendah diri memohon supaya rayuan ini berkenaan isu Liabiliti dan Kuantum dibenarkan dengan kos.” The Sessions Court’s Decision [11] The Sessions Court’s decision is reproduced here in parts, as follows: “….. Mahkamah berpendapat bahawa setelah mendengar serta meneliti keterangan daripada saksi-saksi kedua-dua belah pihak maka Mahkamah mendapati terdapat keraguan dalam keterangan kedua-dua pihak dalam kes ini. Mahkamah juga perlu mengambil sikap berhati-hati dalam meneriam keterangan saksi-saksi dan tidak boleh hanya mempercayai keterangan Plaintif secara total memandangkan pemandu motorlori telah meninggal dunia dan tidak boleh menyatakan versi serta memberikan keterangan beliau secara jelas kepada Mahkamah. Tambahan pula tiada saksi bebas serta penyiasatan Pegawai penyiasat yang tidak lengkap dan…… Oleh yang demikian berdasarkan alasan-alasan sebagaimana yang diterangkan dan atas dasar imbangan kearangkalian serta berdasarkan alasan-alasan sebagaimana telah diterangkan di atas maka atas isu liabiliti Plaintif didapati bertanggungan 50% dan Defendan Pertama juga bertanggungan 50% dalam menyebabkan kemalangan ini. KUANTUM [i] Gantirugi Am bagi kecederaan dialami oleh Plaintif (atas dasar 100%) a) Severe Traumatic Head Injury -Mahkamah membenarkan awad sebanyak RM100,000.00 Sebagaimana yang telah diterangkan sebelum ini Peguamcara Plaintif gagal memberikan sebarang hujahan berkaitan isu kuantum disebabkan kegagalan memasukkan hujahan bertulis dalam tempoh yang diberikan. Maka Mahkamah hanya mengambil kira cadangan serta hujahan yang dikemukakan oleh pihak peguamcara Defendan sahaja dalam membuat keputusan bagi keseluruhan kuantum bagi kecederaan yang dialami Plaintif dalam kes ini. Bagi kecederaan ini peguamcara Defendan berhujah untuk awad dalam linkungan jumlah sebanyak RM30,000,00 hingga RM35,000.00 sahaja berdasarkan laporan pakar neuro Dr. Ravi Krisnapillai yang menyatakan kecederaan yang dialami Plaintif hanya mild head injury. Selain itu Defendan berhujah bahawa kecederaan ini dialami juga disebabkan pengakuan Plaintif sendiri…… Peguamcara Defendan menghujahkan jumlah sebanyak RM20,000.00 untuk kecederaan ini berdasarkan “Compendium of Personal Injury Awards”. Akan tetapi Mahkamah membenarkan jumlah lebih tinggi sedikti juga berdasarkan serta setelah mengambil kira faktor nilaian wang semasa dan faktor inflasi. d. Loss of consciousness - Mahkamah membenarkan awad sebanyak RM5,500.00 Walaupun tiada hujahan Defendan bagi kecederaan ini Mahkamah bagaimanapun membenarkannya juga setelah mendapati terdapat makluman berkaitan ini melaui laporan yang dikemukakan serta berpandukan “Compendium of Personal Injury Awards”. e. Bi-frontal contusion -Mahkamah membenarkan awad sebanyak RM20,000.00 Begitu juga seperti kecederaan di atas walaupun tiada hujahan Defendan bagi kecederaan ini Mahkamah bagaimana pun membenarkannya juga setelah mendapati terdapat makluman berkaitan ini melalui laporan yang dikemukakan serta berpandukan “Compendium of Personal Injury Awards”. [ii] Gantirugi Khas oleh Plaintif: (atas dasar 100%) A. Item (a hingga d) - TIDAK DIBENARKAN B. Item (e hingga h) - DIMASUKKAN DI BAWAH KOS” APPEAL [12] In matters relating to appeal on liability and quantum, the appeal courts are aware that they should be slow in disturbing the decisions of the trial judge unless the situation warrants it. This would depend on the circumstances of the case that is, whether the trial judge had applied the wrong principles of law or misdirected himself on the facts and law. In the case involving appeal on quantum, the appeal court must consider whether an erroneous estimate of the amount has been made by the trial judge to consider relevant matters or having admitted irrelevant factors in the course of the assessment of damages. [13] The principle of appellate intervention as mentioned at paragraph [12] of my judgment was decided in the Supreme Court’s decision of Tan Kuan Yau v Suhindrimani [1985] 1 CLJ 429, where it was viewed that for a court to interfere or otherwise would depend on the circumstances of each case, and if the court is satisfied that the trial judge had acted on the wrong principle of law, then it would be justified in reversing the trial judge’s decision. Similarly, for appeal on quantum of damages, the decision of the trial judge cannot simply be reversed merely because it should be a lesser sum if it was heard before me in the first instance. It should reflect the proper compensation for the injury suffered and the loss sustained as decided by Justice Richard Malanjum (Chief Justice of Sabah and Sarawak) in Wong Li Fatt William (an infant) v Haidawati bt Bolhen & Anor [1994] 2 MLJ 497. [14] I wish to refer to the authority of the Federal Court in Inas Faiqah Mohd Helmi (a child suing through her father and next friend, Mohd Helmi Abdul Aziz) v Kerajaan Malaysia & 2 Ors [2016] 1 PIR [16]; 2 CLJ 885, I cannot resist but to quote YA Abdull Hamid Embong FCJ (as he then was) on assessing damages, had occasion to say, “It is trite that damages served as compensation, not a reward, less still a punishment. In assessing damages, the courts should not be motivated by sympathy and award fair compensation based on cogent evidence. The court could not descend into a domain of speculation. The evaluation of evidence which form the basis of any risk of future damage, must still be undertaken. The trial judge could only evaluate such evidence based on the recognized balance of probability standard, but with a lower degree of certainty as to the occurrence of such loss or damage in the future.” [15] This suit was brought by the Plaintiff and the burden rests on the Plaintiff to prove its claim, based on the balance of probability. The burden of proof as well as the initial onus to prove the claim rest with the Plaintiff to discharge the burden to prove its cause of action against the Defendant as decided by the Federal Court in the case of Letchumanan Chettiar Alagappan @ L. Allagapan, M. Venkatachalam S/O Venkatachalam Chettiar v Secure Plantation Sdn Bhd No. 02-78-10/2014. Based on Letchumanan Chettiar (supra) case, section 101 of the Evidence Act 1950 was referred holding that the burden to establish the case rests throughout on the party who asserts the affirmative of the issue. [16] The Plaintiff’s appeal on liability claiming that the Defendant contributed negligence to the accident, that it should be held liable 100%. I viewed that when contributory negligence is set up as a defence, it does not depend on any duty owed by the injured party to the party to be sued. It is for the injured party to show that he did not in his own interest take reasonable care of himself and contributed by his want of care, to his own injury: Nance v British Columbia Electric Railway Company [1951] AC 601. The test of contributory of negligence is based entirely on the conduct of the plaintiff in the accident case. [17] I shall be brief. Based on the facts of the case, the version where the deceased came out from the junction without taking heed of the vehicle coming from his right is indeed a breach of the Road Traffic Rules 1959, particularly Rule 7(2) and Rule 7(2)(A) of the Road Traffic Rules 1959. However as it was the assertion of the Plaintiff to prove liability where the Plaintiff himself is not in possession of a valid license, as stated in Defendant’s Defence (at page 32 Appeal Record), this Court view this as a serious offence, where it would be a grievous mistake not to hold the Plaintiff liable for his failure to observe the provisions of the Road Transport Act 1987, riding his motorcycle without a valid driving license and affecting the safety of other road users. [18] Based on the facts and the evidence submitted, this Court holds the view that both parties failed to observe the law and this Court finds that the Plaintiff must be held liable at 80% and the Defendant liable at 20%. I stand to be guided by a number of authorities where the provisions of the Road Transport Act 1987 and Road Traffic Rules must be observed and indeed taken into account in deciding liability of parties in an accident case: Kek Kee Leng v Teresa Bong Nguk Chin & Anor [1978] 1 MLJ 61; Yahaya Bin Mat & Nor v Abdul Rahman Bin Abu [1982] 1 MLJ 202; Sukatno v Lee Seng Kee & Anor A-04-76-2008, Court of Appeal. [19] In relation to quantum, the award of RM100,000.00 is retained for severe traumatic head injury based on the medical reports from both parties and I find the award of the Session Judge not excessive. The award for scar is reduced from RM10,000.00 to RM5,000.00 as it is not a permanent scar. I viewed that the award for loss of consciousness is taken out as based on the medical report, the Plaintiff was conscious when he was treated after the road accident. There will be no award for bifrontal contusions, I opined that this should be assessed together with the head injury and not separately. [20] In light of the above reasons, for Defendant’s appeal under BA-12B-42-03/2016, I had announced as dismiss as I did not allow 100% liability on Plaintiff. What I meant is the appeal for 100% liability on Plaintiff is dismissed and substituted with liability at 80%, the quantum appeal is substituted with the award for scar at RM5,000.00, no award for loss of consciousness and no award for bifrontal contusions. For appeal BA-12B-43-03/2016, the Plaintiff’s appeal for 100% liability on Defendant is dismissed and I substitute with a reduced portion from 50% to 20%. Dated: 30 October 2017 (ZALITA BINTI DATO’ ZAIDAN) Judicial Commissioner Shah Alam High Court COUNSEL FOR THE APPELLANT SIVAKUMARESAN A/L SUPERMANIAM Tetuan Naicker & Associates Peguambela & Peguamcara No. 33 (2nd Floor) Jalan Desa Taman Desa 58100 Kuala Lumpur [REF: NA/MMIP-222/B1/14/D] Tel: 03-7981 7329 Fax: 03-7981 8729 COUNSEL FOR THE RESPONDENT MOHD SAUFI BIN SAMSUDIN Tetuan G. Dorai & Co. Peguambela dan Peguamcara No. 7, Jalan Mawar 1 Taman Mawar 48000 Rawang Selangor Darul Ehsan [REF: PGD/7192/12/INS/sh] Tel No: 03-6093 6890 Fax: 03-6093 3677 1

Tika 2.6.0

T-02(NCVC)(W)-37-01/2016

PERAYU KHAIRIL ANUAR BIN MUDA & 16 OTHERS … APPELLANTS RESPONDEN 1. SULONG BIN MUDA 2. RAMLI BIN MUDA … RESPONDEN TS

Contract — Validity of — Trust Property — Limitation of guardian's powers — Claim by beneficiaries of estate — Muslim beneficiaries — Hukum faraid — Accrual of cause of action — When period of limitation begins to run — Effect of — Limitation Act 1953 [Act 254], ss 6, 22; Guardianship Of Infants Act 1961 [Act 351], s15

30/10/2017

YA DATUK HARMINDAR SINGH DHALIWALKorumYA DATO' ALIZATUL KHAIR BINTI OSMAN KHAIRUDDINYA DATO' ZABARIAH BINTI MOHD YUSOFYA DATUK HARMINDAR SINGH DHALIWAL

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1 IN THE COURT OF APPEAL, MALAYSIA AT PUTRAJAYA (APPELLATE JURISDICTION) CIVIL APPEAL NO. T-02(NCVC)(W)-37-01/2016 BETWEEN KHAIRIL ANUAR BIN MUDA & 16 OTHERS … APPELLANTS AND 1. SULONG BIN MUDA 2. RAMLI BIN MUDA … RESPONDENTS (In the High Court of Malaya at Kuala Terengganu Civil Suit No: 22 NCVC-35-11/2014 Between Khairil Anuar bin Muda & 16 Others … Plaintiffs And 1. Sulong bin Muda 2. Ramli bin Muda … Defendants CORAM: ALIZATUL KHAIR OSMAN KHAIRUDDIN, JCA ZABARIAH MOHD YUSOF, JCA HARMINDAR SINGH DHALIWAL, JCA 2 JUDGMENT OF THE COURT [1] This is an appeal against the decision of the High Court at Kuala Terengganu delivered on 30 November 2015 after a full trial. The High Court had dismissed the plaintiffs’ claim and allowed the defendants’ counterclaim with costs of RM10,000.00. [2] This appeal was heard on 6 July 2017. After hearing the parties and taking into consideration the written submissions, we allowed the appeal and set aside the order of the High Court. Our reasons for doing so now follow. Where convenient, the parties will be referred to as they were in the High Court. Salient Facts [3] The salient facts giving rise to the civil suit have been well summarised by the learned trial Judge in the grounds of judgment and are reproduced as follows. “1. Plaintif-Plaintif dan Defendan-Defendan adalah merupakan waris-waris MUDA BIN HAJI DRAMAN (NO. K/P: 190405-11-5173/4028091) (selepas ini dirujuk sebagai si Mati) yang meninggal dunia pada 28 April 1985 dan telah meninggalkan harta-harta yang tak berwasiat. 3 2. Melalui Pemberian Surat Mentadbir Harta Pusaka di bawah Permohonan No. 44-16 Tahun 1988 (selepas ini dirujuk sebagai Surat Mentadbir tersebut) Defendan Pertama dan Kedua telah dilantik sebagai Pentadbir kepada harta - harta Si Mati bagi menguruskan/mentadbir harta -harta pusaka peninggalan Si Mati sebagaimana yang disenaraikan di dalam senarai Aset Si Mati yang dikepilkan bersama-sama Surat Mentadbir tersebut (selepas ini dinyatakan sebagai "senarai harta-harta tersebut"). 3. Dan melalui Perintah Mahkamah Rendah Syariah Daerah Kuala Terengganu pada 11 Julai 2006 Hakim Mahkamah Rendah Syariah telah sabit pusaka simati mengikut Hukum Faraid yang hendaklah dibahagikan secara sekaligus kepada 192 bahagian yang mana ahli -ahli waris yang berhak mendapat bahagian dan kadar bahagian yang diperolehi masing- masing adalah seperti berikut:- 1. KHAIRIL ANUAR BIN MUDA (NO. KP: 730828-11-5153) - 14/192 2. KAMARUZAMAN BIN MUDA (NO.KP: 700720-11-5197) - 14/192 3. MOHAMAD NAJID BIN MUDA (NO.KP:800713-11-5111) - 14/192 4. KHAIRUDDIN BIN MUDA (NO. KP: 640323-11-5263) - 14/192 5. AZAHA BIN MUDA (NO. KP: 581117-11-5193) - 14/192 6. MOHAMAD RAZALI BIN MUDA (NO. KP: 761017-11-5063) - 14/192 7. RABIAH BINTI MUDA (NO. KP: 560824-11-5042) - 9/192 8 KHAMSIAH BINTI MUDA (NO. KP: 650324-11-5002) - 7/192 9. KHAIRUNISAH BINTI MUDA (NO. KP: 670722-11-5268) - 7/192 10. KHAIRUL BARIAH BINTI MUDA (NO. KP: 760720-11-5490) - 7/192 11. KHAIRULSAFWATI BINTI MUDA (NO. KP: 790131-11-5502) - 7/192 12. KAMALIAH BINTI MUDA (NO. KP: 750707-11-5382) - 7/192 13. AISHAH BINTI MUDA (NO. KP: 801026-11-5704) - 7/192 14. ASMANORAINI BINTI MUDA (NO. KP: 820523-11-5186) - 7/192 15 ENDON BINTI SEMAN (NO. KP: 600524-11-5204) - 6/192 16. KHADIJAH BINTI YUSOP (NO. KP: 470128-11-5138) - 6/192 17. HAMIDAH BINTI MOKTAR (NO. KP: 550305-11-5172) - 6/192 18. SULONG BIN MUDA (NO. KP: 501225-11-5147) - 14/192 19. RAMLI BIN MUDA (NO. KP: 530713-11-5237) - 18/192 4 4. Semasa hayatnya simati memiliki dua (2) perniagaan Stesen Minyak Shell di Cabang Tiga dan Kuala Nerus di mana Stesen Minyak Shell di Cabang Tiga dibina di atas hartanah milik Shell (simati hanya milik perniagaan sahaja) manakala Stesen Minyak Shell di Batu Enam Kuala Nerus dibina di atas hartanah milik simati (simati memiliki perniagaan dan hartanah tersebut). 5. Defendan Pertama dan Kedua selanjutnya telah membuat satu Surat Perjanjian pada 12/12/1991 yang ditandatangani oleh Plaintif Kelima Belas, Plaintif Keenam Belas, Plaintif Ketujuh Belas, Defendan Pertama dan Defendan Kedua yang antara lain termanya ialah:- 5.1 Stesen Minyak (Shell) Cabang Tiga diserahkan kepada pihak Ketiga yang diwakili oleh Plaintif Keenam Belas. 5.1.1 Sebagai bayaran di atas penyerahan tersebut pihak Ketiga akan membayar hutang bank sebanyak RM150,000.00. 5.1.2 Pihak Ketiga akan membayar pendahuluan sebagaimana yang akan ditetapkan oleh mesyuarat dan juga membuat bayaran ansuran sebanyak RM3,000.00 sebulan sehingga jelas hutang bank sebanyak RM150,000.00 tersebut. 5 5.1.3 Dengan itu semua pihak lain akan melepaskan segala tuntutan dan kepentingan mereka di atas stesen tersebut. 5.2 Stesen Minyak Shell Kuala Nerus (Batu Enam) diserahkan kepada Defendan Kedua. 5.2.1 Sebagai bayaran di atas penyerahan tersebut Defendan Kedua akan membayar hutang bank sebanyak RM450,000.00. 5.2.2 Defendan Kedua akan membayar pendahuluan sebagaimana yang akan ditetapkan oleh mesyuarat dan juga akan membuat bayaran ansuran sebanyak RM3,000.00 sebulan sehingga jelas hutang bank sebanyak RM450,000.00 tersebut. 5.2.3 Dengan itu semua pihak lain akan melepaskan segala tuntutan dan kepentingan mereka di atas Stesen tersebut. 5.3. Defendan Kedua akan memberi pinjaman bulan kepada yang berikut:- 5.3.1 Kamaliah - RM80.00 5.3.2 Mohamad Razali - RM80.00 5.3.3 Mohammad Najid - RM80.00 5.3.4 Aishah - RM80.00 5.3.5 Asma - RM80.00 6 6. Ketika Perjanjian tersebut dibuat umur Plaintif Pertama sehingga Plaintif Keempat Belas ialah:- 6.1 KHAIRIL ANUAR BIN MUDA (NO. KP: 730828-11-5153) - 18 tahun 6.2 KAMARUZAMAN BIN MUDA (NO. KP: 700720-11-5197) - 21 tahun 6.3 MOHAMAD NAJID BIN MUDA (NO. KP: 800713-11-5111) - 11 tahun 6.4 KHAIRUDDIN BIN MUDA (NO. KP: 640323-11-5263) - 27 tahun 6.5 AZAHA BIN MUDA (NO. KP: 581117-11-5193) - 33 tahun 6.6 MOHAMAD RAZALI BIN MUDA (NO. KP: 761017-11-5063) - 15 tahun 6.7 RABIAH BINTI MUDA (NO. KP: 560824-11-5024) - 35 tahun 6.8 KHAMSIAH BINTI MUDA (NO. KP: 650324-11-5002) - 26 tahun 6.9 KHAIRUNISAH BINTI MUDA (NO. KP: 670722-11-5268) - 24 tahun 6.10 KHAIRUL BARIAH BINTI MUDA (NO. KP: 760720-11-5490) - 15 tahun 6.11 KHAIRUL SAFWATI BINTI MUDA (NO. KP: 790131-11-5502) - 12 tahun 6.12 KAMALIAH BINTI MUDA (NO. KP: 750707-11-5382) - 16 tahun 6.13 AISHAH BINTI MUDA (NO. KP: 801026-11-5704) - 11 tahun 6.14 ASMANORAINI BINTI MUDA (NO. KP: 820523-11-5186) - 9 tahun” [4] Many years later in 2014, the plaintiffs filed the instant suit seeking for a declaration that the agreement dated 12 December 1991 (“1991 Agreement”), which was signed by the 4th, 15th, 16th, and 17th plaintiffs and both the defendants, was invalid and null and void. They also sought for an order that the administrators of the estate of the deceased, Muda bin Draman, be authorised to take control of the two petrol stations in question and the profits from the business be divided among the plaintiffs and the defendants according to their entitlement as declared in the hukum faraid dated 11 July 2006 after deducting all costs and expenses incurred. 7 At the High Court [5] At the High Court, several issues were raised and considered by the learned trial Judge. Firstly, the learned Judge decided that the plaintiffs’ claim was barred by the Limitation Act 1953 (“LA 1953”) as it was outside the six year period set out in s. 6 of the LA 1953. Secondly, the Court also declared that the 1991 Agreement was valid and binding on all the parties even though eight of the beneficiaries were minors at the time the agreement was signed. The main reason afforded by the learned Judge was that the mothers of the minors had signed the 1991 Agreement on behalf of the minors. [6] Thirdly, it was decided that the business of the two petrol stations in Kuala Nerus and Chabang Tiga rightfully belonged to the defendants as they had complied with the terms of the 1991 Agreement and had paid off all the outstanding debts in respect of the businesses after the death of the deceased. The learned Judge considered that the said businesses no longer formed part of the estate of the deceased as the licence held by the deceased in respect of the businesses ended with his death. [7] The learned Judge also found that the plaintiffs’ claim was an afterthought and was unreasonable after the plaintiffs themselves had 8 benefitted from the 1991 Agreement. Hence, the claim of the plaintiffs was dismissed and the counterclaim of the defendants, for a declaration that the plaintiffs had no interest in the businesses, was allowed. The Instant Appeal [8] Before us, the decision of the learned trial Judge was assailed on a number of issues. The first issue concerned the learned Judge’s finding that the plaintiffs’ claim was barred by limitation. In this respect, the learned Judge noted that the 1991 Agreement was entered into on 12 December 1991 and the plaintiffs only filed their claim on 5 November 2014, more than 20 years later. The learned Judge agreed that the claim was barred by s. 6 of the limitation Act 1953. [9] On this score, learned counsel for the appellants contended that the learned Judge was in error as it was not section 6 but s. 22(1)(b) of the LA 1953 which was applicable to the present case. Now, s. 22 of the LA 1953 provides as follows: “Limitation of actions in respect of trust property 22. (1) No period of limitation prescribed by this Act shall apply to an action by a beneficiary under a trust, being an action - 9 (a) in respect of any fraud or fraudulent breach of trust to which the trustee was a party or privy; or (b) to recover from the trustee trust property or the proceeds thereof in the possession of the trustee, or previously received by the trustee and converted to his use. (2) Subject as aforesaid, an action by a beneficiary to recover trust property or in respect of any breach of trust, not being an action for which a period of limitation is prescribed by any other provision of this Act, shall not be brought after the expiration of six years from the date on which the right of action accrued: Provided that the right of action shall not be deemed to have accrued to any beneficiary entitled to a future interest in the trust property, until the interest fell into possession. (3) No beneficiary as against whom there would be a good defence under this Act shall derive any greater or other benefit from a judgment or order obtained by any other beneficiary than he could have obtained if he had brought the action and this Act had been pleaded in defence.” [10] It was plain that, in this case, the action commenced by the plaintiffs was an action by beneficiaries to recover trust property from a trustee by virtue of s. 22(1)(b) of the LA 1953 (see Loo Cheng Suan Sabrina v Khoo Oon Jin Eugene [1995] 1 MLJ 115; Pancanath a/l Ratnavale v Sandra Segaran Mahalingam & Ors [2012] 5 MLJ 109). The 10 trust property in the form of the business of the two petrol stations was still in the possession of the trustees even though no allegations of fraud were imputed on the defendants. [11] The upshot is that no limitation period applies. This much was also conceded by learned counsel for the respondents. We are therefore constrained to hold that the learned Judge was plainly wrong in his finding that the plaintiffs’ action was barred by limitation. [12] The second ground raised by the appellants was that the learned Judge was wrong in his finding that the 1991 Agreement was valid and binding on all the parties. Specifically, the contention was that at the time the 1991 Agreement was signed, eight of the beneficiaries were minors who had no capacity to enter into a contract. [13] In this context, s. 11 of the Contracts Act 1950, among others, provides that only persons who are of the “age of majority” are competent to contract. There was some initial controversy in the development of the law regarding the age of majority which is not relevant to the current proceedings as much of the issues raised were later settled with the coming into force of the Age of Majority Act 1971. Under s. 4 of this Act, the minority of all males and females within Malaysia ceases at the age of 11 18 years and “every such male or female attaining that age shall be of the age of majority”. [14] So what is the effect of a contract entered into by a minor? The Privy Council, in an appeal from India, in the case of Mohori Bibee v Dhurmodas Ghose (1903) 30 Cal 539, held that the effect of ss 10 and 11 of the Indian Contracts Act (in pari materia with our ss 10 and 11 of the Contracts Act 1950) is that a contract entered into by a person who has not attained majority is not voidable but void. Our Federal Court in Leha binte Jusoh v Awang Johari bin Hashim [1978] 1 MLJ 202 followed the said Privy Council decision and held that the court could not enforce the agreement entered into by a minor as it was void ab initio. [15] Appreciating this conundrum, the learned Judge in the instant case, however, accepted that with their mothers’ signature to the 1991 Agreement on behalf of the minors, the minors were bound by the terms of that agreement. Was he right? The law in this context appears to have developed differently in different jurisdictions. In any event, in Malaysia, this issue is now covered by statute in the form of s. 15 of the Guardianship of Infants Act 1961 (“GIA 1961”) which reads: 12 “Limitation of guardian’s powers 15. (1) A guardian of the property of an infant shall not, without the leave of the Court or a Judge - (a) sell, charge, mortgage, exchange, or otherwise part with the possession of any of the movable or immovable property of the infant; or (b) lease any land belonging to the infant for a term exceeding one year. (2) Any disposal of an infant’s property in contravention of this section may be declared void, and on such declaration the Judge may make such order as appears requisite for restoring to the infant’s estate the property so disposed of. (3) The Court or a Judge shall not make any order under subsection (2) unless it is necessary or advisable in the interests of the infant.” [16] This provision came up for deliberation in Mohd Ali Jahn bin Yusop Sahibjahn & Anor v Zaleha bt Mat Zin & Anor [1995] 1 CLJ 533. In that case, by an agreement executed in 1948, the plaintiff’s father, who was registered as guardian in the title of a piece of land, sold the said land to the defendant’s father (purchaser). By the agreement, the plaintiff’s father guaranteed that the plaintiffs, who were minors then, would execute the transfer of the land to the purchaser when they attained the age of majority. Title to the land and possession were given to the purchaser. 13 The plaintiffs, after attaining the age of majority, refused to execute the transfer of the said land to the purchaser’s widow and instead sued her for vacant possession. The widow counterclaimed for specific performance or damages for breach of contract. [17] After a trial, the High Court held that where a minor himself signs an agreement for sale of land it is void ab initio and the agreement is absolutely void. The Court also held that in light of s. 15 of the Guardianship of Infants Ordinance 1934 (now repealed and replaced by the 1961 Act), which required the guardian to seek leave of the Court or a Judge in order to deal with the land, the purported sale was void for reason that no such leave was sought. The agreement was therefore held to be unenforceable. [18] Reverting to the instant case, the mothers who signed on behalf of the minors were obviously doing so as guardians of the property of the minors. In entering into the 1991 Agreement, the guardians were involved in the disposal of the minors’ property. It was therefore plain that s. 15 of the GIA 1961 applied in the circumstances and since no leave of the Court was obtained for such disposal of the minors’ property, the disposal as set out in the 1991 Agreement was void. 14 [19] We come now to the final issue which merited consideration. This concerned the finding by the learned Judge that the business of the two petrol stations ended with the death of the deceased and the subsequent setting up of the new business by the defendants. What remained, it was found by the learned Judge, were only the debts due as left behind by the deceased which had to be dealt with by all the beneficiaries. In other words, the profits generated by the new business set up by the defendants were no longer tied to the estate of the deceased and hence the said profits could not be divided among the beneficiaries as contended by the plaintiffs. [20] With respect, we are compelled to observe that this finding overlooks the important fact that in the case of the Kuala Nerus petrol station, the deceased had used his own land to develop the station. It was only the petrol station at Cabang Tiga which sat on the land of the petrol company called Shell. It cannot be denied that the land of the deceased, on which the Kuala Nerus petrol station was situated, became estate property upon the death of the deceased. It was also obvious to us that the same business that was conducted by the deceased before his death continued but with the variations as requested by Shell. Hence, the learned Judge was plainly in error when he declared that the business, 15 and consequently the land on which the business was situated, was not part of the estate. Conclusion [21] In the circumstances, and for the reasons we have given, we were of the view that the decision of the High Court was plainly wrong and that appellate interference was warranted. Accordingly, we allowed the appeal and set aside the order of the High Court. In substitution we allowed the appellants’ claim as set out in paragraph 18 (a), (b) and (c) of the statement of claim. In respect of prayer 18 (b), and in particular the claim for the division of profits among the beneficiaries, we held for the sake of convenience and clarity that the division of profits should begin from 11 July 2006 which was the date of the hukum faraid. [22] Lastly, the respondents were ordered to pay to the appellants costs here and below in the sum of RM15,000.00 subject to payment of allocator fees. The deposit was to be refunded to the appellant. 16 Dated: 30 October 2017 Signed (HARMINDAR SINGH DHALIWAL) Judge Court of Appeal Malaysia Counsel: For the Appellants: Abdul Aziz Hasan (with him Fozi Addhwa bin Mohamed Fozi) (Messrs Nordin Kassim & Aziz) For the Respondents: Mohd Zubir bin Abu Bakar (with him Wan Mohd Haidi bin Wan Jusoh and Wan Ahmad Faiz bin Wan Abdullah) (Messrs Jailani Zubir & Partners)

Tika 2.6.0

BA-24-476-04/2017

PLAINTIF KANDASAMY S/O PARAMASIVAM (INDIA PASSPORT NO.: P 0550996) DEFENDAN CHU SOON KEONG (NO. K/P: 620710-10-6801)

30/10/2017

YA DATUK AZIMAH BINTI OMAR

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=c9a3e281-d745-4dc5-8caa-b20dd8ecb020&Inline=true

1 Dalam Perkara Hartanah yang dipegang di bawah Hakmilik GRN 45580, No. Lot 845, Mukim Serendah, Daerah Ulu Selangor, Negeri Selangor. DAN Dalam Perkara Kaveat Persendirian Perserahan No:40529/2012 didaftarkan pada 5.7.2012 DAN Dalam Perkara Seksyen 327, 329 dan Seksyen 417 Akta Kanun Tanah Negara 1965 DAN Dalam Perkara mengenai Aturan 7 Kaedah 2, Kaedah-kaedah Mahkamah 2012 DAN Dalam Perkara mengenai Aturan 92 Kaedah 4 Kaedah-kaedah Mahkamah 2012 DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN, MALAYSIA SAMAN PEMULA NO: BA-24-476-04/2017 2 ANTARA KANDASAMY S/O PARAMASIVAM …PLAINTIF (INDIA PASSPORT NO.: P 0550996) DAN CHU SOON KEONG (NO. K/P: 620710-10-6801) …DEFENDAN ALASAN PENGHAKIMAN (Kandungan 1) A. PENGENALAN [1] Saman Pemula di Kandungan 1 ini adalah permohonan Plaintif menurut seksyen 327, seksyen 329(1) dan seksyen 417 Kanun Tanah Negara 1965 (KTN) untuk mendapatkan daripada Mahkamah ini perintah-perintah antara lain seperti berikut: (a) Kaveat persendirian yang telah didaftarkan di bawah perserahan No. 40529/2012 pada 5.7.2012 oleh Defendan ke atas hakmilik hartanah yang dipegang di bawah GRN 45580 Lot 845 Mukim 3 Serendah, Daerah Ulu Selangor, Negeri Selangor dibatalkan dan diisytiharkan tidak sah; (b) Pendaftar Hakmilik Negeri Selangor hendaklah mendaftarkan pembatalan kaveat persendirian di bawah perserahan No. 40529/2012 yang telah didaftarkan oleh Defendan pada 5.7.2012 dengan serta-merta selaras dengan Perintah yang dibuat di sini; (c) Defendan membayar gantirugi kepada Plaintif akibat kehadiran kaveat persendirian tersebut di atas hartanah tersebut yakini untuk ditaksirkan oleh Penolong Kanan Pendaftar/Timbalan Pendaftar; [2] Permohonan Plaintif ini adalah disokong oleh afidavit-afidavit yang diikrarkan oleh Plaintif sendiri seperti berikut: i. Afidavit Sokongan yang diikrarkan oleh Kandasamy a/l Paramasivam pada 20.04.2017 (Kandungan 2). ii. Afidavit Balasan Plaintif yang diikrarkan oleh Kandasamy a/l Paramasivam pada 3.07.2017 (Kandungan 6). iii. Afidavit Balasan II Plaintif yang diikrarkan oleh Kandasamy a/l Paramasivam pada 21.8.2017 (Kandungan 14). 4 [3] Mahkamah ini perlu menyatakan di sini bahawa Defendan telah menimbulkan bantahannya terhadap pemfailan Afidavit Balasan II Plaintif (Kandungan 14). Bantahan ini akan dipertimbangkan oleh Mahkamah ini bersama satu bantahan lain di bahagian C, Bantahan Awal Defendan di dalam alasan penghakiman ini. B. LATAR BELAKANG KES [4] Latar belakang kes yang menyebabkan Plaintif memfailkan Saman Pemula (Kandungan 1) adalah seperti berikut: 4.1 Plaintif (Kandasamy a/l Paramasivam) adalah seorang warganegara India yang mempunyai alamat tetap di negara India iaitu Thuvar & Post Nerkuppai, Tirupattur, Sivagangai District, Tamil Nadu. Plaintif juga mempunyai alamat Malaysia di No. 3422/26, Jalan Waterfall Lama, 48000 Rawang, Selangor Darul Ehsan. 4.2 Plaintif adalah anak lelaki kepada seorang yang bernama Paramasivam a/l Palaniappa yang telah meninggal dunia pada 21.11.2014 (Si Mati). 5 4.3 Apabila Si Mati meninggal dunia, Plaintif telah dilantik sebagai wasi kepada harta pusaka Si Mati melalui Geran Probet yang dikeluarkan di dalam kes saman pemula No.32NCVC-216-02/2015. 4.4 Si Mati adalah tuanpunya berdaftar sekeping tanah yang dikenali sebagai Hakmilik GRN 45580, No. Lot 845, Mukim Serendah, Daerah Ulu Selangor, Negeri Selangor (hartanah tersebut). 4.5 Sebagai wasi kepada harta pusaka Si Mati, Plaintif telah mengarahkan peguamcaranya untuk mendaftarkan nama beliau sebagai pemilik atau tuanpunya kepada semua hartanah-hartanah yang ditinggalkan oleh Si Mati termasuklah hartanah tersebut. 4.6 Menurut Plaintif, apabila carian rasmi dibuat ke atas hartanah tersebut pada 18.4.2017, Plaintif telah mendapati satu kaveat persendirian telah didaftarkan di atas hartanah tersebut oleh Defendan (Chu Soon Keong) pada 5.7.2012 di bawah No Perserahan: 40529/2012. 6 [5] Plaintif yang mendakwa terkilan akan kewujudan kaveat persendirian Defendan tersebut telah memfailkan Kandungan 1 ini. C. BANTAHAN AWAL DEFENDAN [6] Sebelum Mahkamah ini membuat pertimbangan ke atas permohonan substantif Plaintif, Mahkamah ini akan terlebih dahulu mempertimbangkan dua (2) bantahan awal yang telah dibangkitkan peguam Defendan. Dua (2) bantahan awal tersebut adalah berhubung dengan pemfailan Afidavit Balasan II Plaintif (Kandungan 14) dan juga intitulmen yang tertera di dalam saman pemula Plaintif. i. Afidavit Balasan II Plaintif [7] Di dalam kes ini adalah satu fakta yang tidak dipertikaikan bahawa Plaintif adalah seorang warganegara India yang tinggal di India tetapi mempunyai alamat di Malaysia. [8] Afidavit Sokongan Kandungan (1) dan Afidavit Balasan Plaintif (Kandungan 6) telah diikrarkan oleh Plaintif di Malaysia di hadapan Pesuruhjaya Sumpah Ramathilagan a/p Ramasamy dengan terjemahan oleh M.Kalaiperumal seorang peguam berserta Jurat. 7 [9] Namun Afidavit Balasan II Plaintif (Kandungan 14), walaupun di dalam Bahasa Melayu telah diikrarkan pada 21.8.2017 di Tamil Nadu, India di hadapan seorang notari awam bernama M.Jahangeer. Bagi deposan-deposan Plaintif di dalam Kandungan 14 nya, terjemahan telah juga dibuat oleh M.Kalaiperumal. Kandungan 14 berbahasa Melayu ini mengandungi enam belas (16) muka surat. Bersama dengan Kandungan 14 ini juga, Plaintif telah memfailkan terjemahan Kandungan 14 di dalam bahasa Inggeris yang hanya mengandungi tiga (3) muka surat. [10] Di dalam afidavit terjemahan Bahasa Inggeris tersebut pula pada Forms Of Jurat (Interpretation), M.Jahangeer telah mengakusahkan seperti berikut: “I, having truly, distinctly and audibly read over the contents of the above Plaintiff’s Affidavit in Reply II to the said Deponent who seemed perfectly to understood the same and signed the said Affidavit in my presence.” [11] Atas pengakusahan oleh M. Jahangeer ini, peguam Defendan telah menghujahkan bahawa sebagai notari awam di Tamil Nadu yang tidak faham afidavit di dalam Bahasa Melayu (Kandungan 8 14), M. Jahangeer tidak berkeupayaan berbuat demikian. Oleh itu Kandungan 14 Plaintif adalah cacat atau defektif dan hendaklah dibatalkan atau diketepikan. [12] Untuk hujahan tersebut, peguam Defendan telah merujuk kepada seksyen 4(1) Notaries Public Act 1959 dan Regulation 12 Notaries Practice Rules 2014. [13] Seksyen 4(1) Notaries Public Act 1959 telah diperuntukkan seperti berikut: “Privileges of notaries public 4.(1) Every notary public shall have and may exercise within his place of practice all the powers and functions which are ordinarily exercised by notaries public in England:” [14] Manakala Regulation 12 Notaries Practice Rules 2014 telah memperuntukkan berhubung dengan bahasa yang berbunyi berikut: “12. Language 12.1 Notarial acts shall normally be drawn up in the English language. 9 12.2 A notary may upon request or in appropriate circumstances prepare a notarial act in a language other than English if he has sufficient knowledge of the language concerned. 12.3 A notary may not authenticate by means of a notarial act a document drawn up in a language other than English unless he has satisfied himself as to its meaning but this does not prevent a notary from authenticating the execution or signature of a document in any language. 12.4 A notary may not certify the accuracy of a translation that has been made by someone other than himself unless he has knowledge of the language sufficient to satisfy himself as to the accuracy of the translation but this does not prevent a notary from attesting a translator’s affidavit or authenticating a verification.” [15] Adalah menjadi hujahan Defendan bahawa berdasarkan peruntukan seksyen 4(1) Notaries Public Act 1959 dan Regulation 12 Notaries Practice Rules 2014, memandangkan Kandungan 14 sebanyak 16 muka surat berbanding terjemahan bahasa Inggerisnya hanya 3 muka surat, maka pengataan-pengataan yang diakusahkan oleh notari awam di dalam bahasa Inggeris 10 adalah tidak sama dan jauh berbeza dengan pengataan- pengataan yang dibuat oleh Plaintif di dalam bahasa Melayu. [16] Menurut peguam Defendan lagi notari awam seperti M Jahangeer tidak boleh menandatangani afidavit dan mengakusahkan pengataan-pengataan dalam bahasa yang beliau tidak faham. Melainkan M.Jahangeer sebagai notari awam dibuktikan yang beliau memahami bahasa Melayu. Dalam keadaan begini pengakusahan yang dibuatnya bagi pengataan-pengataan di Kandungan 14 tidaklah boleh diterima. Apatah lagi di dalam kes ini terjemahan bahasa Inggeris dalam tiga muka surat tidak menggambarkan langsung pengataan-pengataan Plaintif bagi 16 muka surat Kandungan 14 tersebut. [17] Di samping itu, adalah dihujahkan oleh peguam Defendan lagi, Jurat yang dinyatakan di dalam bahasa Melayu telah menunjukkan bahawa seolah-olahnya M. Kaliaperumal telah membaca, menterjemah dan menerangkan Kandungan 14 Plaintif tersebut yang berbahasa Melayu kepada Plaintif di hadapan Notari Awam. 11 [18] Menurut peguam Defendan seterusnya, notari awam adalah dihalang menandatangani Jurat yang dalam bahasa yang tidak difahami oleh dirinya sendiri. [19] Adalah dihujahkan selanjutnya oleh peguam Defendan bahawa di dalam keadaan begini, Plaintif tidak bolehlah dengan hanya menggunakan perkataan “Thus, I adopt my Affidavit in Reply II prepared in Bahasa Malaysia as correct and use to use for this proceeding” dengan anggapan bahawa notari Awam faham akan Kandungan 14 Plaintif tersebut yang di dalam bahasa Melayu tersebut. [20] Untuk hujahan ini, peguam Defendan telah merujuk kepada kes Fung Yuk Lien v Foong Chee Sam (As Administrator of The Estate of Kong Muk Tei, Deceased) [2000] 3 MLJ 543. Di dalam kes Fung Yuk Lien ini telah diputuskan seperti berikut: “Held: (1) The name of the person who interpreted the contents of the affidavit to the deponent before she placed her thumbprint was not filled in. Therefore the jurat was defective and this was a serious defect. Order 41 r 1(7) and (8) of the Rules of the High Court 1980 ('the RHC') use the word 'must' which connotes that it is a mandatory requirement. In view of the serious defect and the 12 mandatory requirement of O 41 r 1(7) and (8) of the RHC, the jurat was not a valid jurat. The serious defect could not be termed irregular. Therefore O 41 r 4 of the RHC was not applicable (see p 548D–G).” [21] Peguam Defendan telah juga menghujahkan bahawa Aturan 2 kaedah 1 Kaedah-Kaedah Mahkamah 2012 (KKM 2012) dan Aturan 92 kaedah 4 KKM 2012 tidak dapat membantu Plaintif untuk mengubati atau memulihkan kecacatan afidavit tersebut. [22] Mahkamah ini telah meneliti hujahan bertulis yang telah difailkan oleh Plaintif, namun Mahkamah ini telah mendapati bahawa peguam Plaintif telah tidak membuat sebarang hujahan balasan terhadap bantahan awal ini. [23] Penelitian rapi Mahkamah ini ke atas Kandungan 14 dan terjemahan bahasa Inggerisnya, Mahkamah ini bersetuju dengan hujahan peguam Defendan bahawa terjemahan bahasa Inggeris Kandungan 14 tidak menggambarkan langsung deposan-deposan Plaintif. Di samping itu adalah tidak dipertikaikan bahawa M Jahangeer adalah seorang yang tidak faham bahasa Melayu, oleh yang demikian tidak mungkin beliau membuat pengesahan akan 13 deposan-deposan Plaintif di dalam Kandungan 14 dengan pengesahan berikut “I, having truly, distinctly and audibly read over the contents of the above Plaintiff’s Affidavit in Reply II to the said Deponent who seemed perfectly to understood the same and signed the said Affidavit in my presence.” (Penekanan Mahkamah ini). [24] Di dalam kes ini apabila M Jahangeer mengakusahkan kandungan 14 yang di dalam Bahasa Melayu tersebut yang sememang tidak difahaminya, M Jahangeer tidak menyatakan bahawa pengataan- pengataan yang dideposkan oleh Plaintif telah diterjemahkan kepadanya yang menjadikan beliau faham pengataan-pengataan di dalam Kandungan 14 tersebut dan membolehkan beliau telah audibly read over the contents of the above Plaintiff’s Affidavit in Reply II to the said Deponent who seemed perfectly to understood the same and signed the said Affidavit in my presence. “ [25] Atas alasan-alasan di atas, adalah menjadi dapatan Mahkamah ini bahawa Kandungan 14 adalah cacat dan defektif. Kecacatan pada Kandungan 14 adalah suatu kecacatan yang serius dan “fatal” yang tidak boleh dipulihkan di bawah Aturan 2 kaedah 1 KKM 2012 mahupun Aturan 92 kaedah 4 KKM 2012. Oleh itu, 14 Kandungan 14 tidak boleh diterima sebagai keterangan dan dengan ini dibatalkan. ii. Intitulmen [26] Peguam Defendan telah membangkitkan hujahan bahawa Plaintif telah tidak memberikan maklumat yang tepat dan terperinci kepada Mahkamah di dalam pemfailan Saman Pemula ini. Menurut Defendan di dalam saman pemula ini, Plaintif telah meletakkan dirinya {Kandasamy S/O Paramasivam (India Passport No: P0550996)} di dalam kapasiti persendirian seolah-olah hartanah tersebut adalah kepunyaannya. Berdasarkan carian rasmi yang dibuat ke atas hartanah tersebut, Si Mati adalah tuanpunya berdaftar hartanah tersebut. Adalah menjadi hujahan Defendan bahawa Plaintif tidak boleh memfailkan saman pemula ini seolah-olah hartanah tersebut adalah dimilikinya dan merupakan tuanpunya berdaftar hartanah tersebut. [27] Sememangnya di dalam saman pemula ini Plaintif telah menamakan dirinya sebagai Plaintif walhal hartanah tersebut masih lagi di atas nama Si Mati. Plaintif sepatutnya meletakkan 15 kapasitinya sebagi wasi kepada harta pusaka Paramasivam a/l Palaniappa dan bukannya nama beliau secara peribadi. [28] Namun, Mahkamah bersetuju dengan peguam Plaintif bahawa di dalam perenggan 1 Afidavit Sokongan Plaintif (Kandungan 2), Plaintif telah menyatakan kapasitinya adalah sebagai wasi kepada harta pusaka Paramasivam a/l Palaniappa Pillai, Si Mati melalui Geran Probet bertarikh 5.3.2015 dari Mahkamah Tinggi Kuala Lumpur Saman Pemula No: 32NCVC-216-02/2015. Plaintif telahpun mengemukakan sesalinan Grant Probet bertarikh 5.3.2015 sebagai Eksibit “KP 1”. [29] Adalah menjadi dapatan Mahkamah walaupun kapasiti sebenar Plaintif telah tidak menyatakan dengan secara spesifik yang beliau bertindak sebagai wasi kepada harta pusaka Paramasivam a/l Palaniappa Pillai, Plaintif telah menerangkan kapasitinya di dalam Kandungan dan telah juga mengeksibitkan geran probet yang dikeluarkan oleh Mahkamah Tinggi Kuala Lumpur. Bagi Mahkamah ini dengan pernyataan di Kandungan 2 tersebut sebenarnya, Defendan mengetahui kapasiti Plaintif di dalam mengambil tindakan saman pemula ini terhadapnya. Kegagalan Plaintif meletakkan kapasiti sebenarnya di atas saman pemula di 16 dalam kes ini bukanlah sesuatu yang kecacatan yang serius ataupun “fatal”. Kecacatan ini boleh dipulihkan di bawah Aturan 2 kaedah 1 KKM 2012. [30] Sebelum Mahkamah ini meneruskan pertimbangan terhadap permohonan Plaintif, Mahkamah ini perlu menyatakan di sini berhubung dengan pengataan Plaintif di perenggan 6 afidavit sokongannya berbanding keseluruhan senario kes di hadapan Mahkamah ini. Plaintif di perenggan 6 afidavit sokongannya (Kandungan 2) membuat pengataan seolah-olah yang beliau hanya mengetahui mengenai kewujudan kaveat persendirian Defendan (kaveat Defendan) di atas hartanah tersebut apabila membuat carian rasmi terhadap hartanah tersebut pada 18.4.2017. [31] Perenggan 6 Kandungan 2 diperturunkan di sini: “6. Saya menegaskan disini bahawa suatu carian rasmi ke atas hartanah tersebut telah dibuat pada 18.4.2017 dan mendapati suatu Kaveat Persendirian dibawah No Perserahan: 40529/2012 telah didaftarkan di atas hartanah tersebut oleh Defendan pada 5.7.2012. Sesalinan Catatan Carian Persendirian ke atas hartanah tersebut dilampirkan dan ditandakan di sini sebagai eksibit “KP 2”.” 17 [32] Tetapi hakikatnya Plaintif telah mengetahui mengenai kaveat Defendan lama sebelum tarikh 18.4.2017. Mahkamah ini berkata begitu atas alasan-alasan berikut: i. Hartanah tersebut adalah termasuk di dalam senarai aset Si Mati semasa permohonan pengeluaran geran probet. Permohonan geran probet telah dibuat pada bulan Februari 2015. Di dalam permohonan geran probet tersebut pastinya sesalinan geran telah dikemukakan sebagai keterangan aset-aset atau harta Si Mati. Plaintiff telah memfailkan permohonan untuk pengeluaran probet pada bulan Febuari tahun 2015 dan geran probet telahpun dikeluarkan pada 24.6.2015. Oleh itu sejak daripada tahun 2015 lagi Plaintif pastinya dan telahpun mengetahui akan kewujudan kaveat Defendan kerana kaveat tersebut telah didaftarkan ke atas hartanah tersebut dua tahun sebelumnya iaitu pada 5.7.2012. ii. Kedua-dua peguamcara Plaintif, Tetuan Kali & Associates (Tetuan Kali) dan Defendan, Tetuan CJ Lee telahpun berkomunikasi sejak dari tahun 2016 lagi melalui surat-surat berikut: i. Surat Tetuan Kali kepada Tetuan CJ Lee bertarikh 3.5.2016 18 We refer to the above matter and to your letter dated 28.4.2016. We are perplexed to note the contents your aforesaid letter as our Mr. Kali didn’t inform your Ms. Nicole that “the Court has ordered that the said property can be removed from the ongoing court proceedings”. Our counsel Mr. Kali informed your Ms. Nicole that “if your client is agreeable to the negotiations held between your client and your client, then we would on behalf of our client apply to court/Land Office for the removal of the caveat” and not as per your letter. Please be corrected. ii. Surat Tetuan CJ Lee kepada Tetuan Kali bertarikh 4.5.2016 “We refer to the above matter and to your letter to us dated 3.5.2016. With reference to the Agreement to Purchase dated 5.6.2012, the Vendor undertakes to remove the private caveat lodge by the third party prior to the execution of the Sale and Purchase Agreement which is plending until todate due to the on-going court proceedings between the Vendor and the third party caveator. Our client would like to proceed with the signing of the Sale and Purchase of the Said Property soonest possible. As such, we shall be obliged if you could revert to us the status of the on-going court proceedings and the status of the removal of third party caveat so that both parties can proceed to discuss on the terms and conditions of the Sale and Purchase Agreement. In the event that the third party caveat can be removed notwithstanding that the court proceeding still on-going, please advise your client to apply to court or land office to remove the same soonest possible in order to fulfil his obligation stated in Clause 4(i) of the Agreement to Purchase dated 5.6.2012.” 19 iii. Peguamcara Plaintif (Tetuan Kali) telah menghantar surat bertarikh 7.3.2017 kepada peguam Defendan Tetuan CJ Lee, di mana pada surat tersebut telah dikepilkan sekali Draf Bank HLB No: 100074 berjumlah RM38,323.75 yang dikatakan merupakan pemulangan wang kepada Defendan oleh Plaintif menurut syarat surat opsyen bertarikh 5.6.2012. iv. Selepas itu kedua-dua peguamcara telah berkomunikasi berhubung dengan transaksi hartanah tersebut sehinggalah pemfailan Kandungan 1. [33] Maka, Mahkamah ini berpandangan bahawa pengataan Plaintif di perenggan 6nya yang seolah-olah baru mengetahui akan kewujudan kaveat persendirian Defendan di atas hartanah tersebut pada 18.4.2017 adalah suatu yang tidak benar dan tidak menggambarkan pengetahuan Plaintif sebenarnya berkenaan kaveat Defendan tersebut. C. KES PLAINTIF [34] Adalah tidak dipertikaikan bahawa pada 5.6.2012 Si Mati dan Defendan telah memasukki dan menandatangani suatu Agreement To Purchase bagi penjualan dan pembelian hartanah tersebut. Adalah juga tidak dipertikaikan bahawa sebelum 20 Agreement To Purchase tersebut ditandatangani kedua-dua Si Mati dan Defendan sememangnya mengetahui bahawa di atas hartanah tersebut wujud kaveat persendirian yang dimasukkan oleh Selvarajoo a/l Palanippa pada 27.12.2011. [35] Plaintif telah mendakwa bahawa Agreement To Purchase yang ditandatangani oleh bapanya itu adalah hanya merupakan satu surat opsyen. [36] Berhubung dengan kaveat Selvarajoo di atas hartanah tersebut syarat 4 surat opsyen tersebut memperuntukkan seperti berikut: “REMOVAL OF PRIVATE CAVEAT (i) There is a private caveat lodged by Selvarajoo A/L Palanippa (NRIC No: 611107-10-6247) vide presentation no. 68744/2011 dated 27.12.2011 the Vendor undertakes to remove the private caveat before the execution of the SPA. (ii) The SPA shall be executed by the parties upon removal of the private caveat and the Vendor shall within 5 days upon removal of the private caveat, forward the documentary 21 evidence to the Purchaser that the private caveat has been removed. (iii) In the event that the Vendor takes more than one (1) year to remove the private caveat, the Purchaser shall be entitled to the refund of Earnest Deposit and the Vendor shall within three (3) days upon receipt of the notice of termination from the Purchaser refund the Earnest deposit to the Purchaser….” [37] Adalah menjadi tegasan Plaintif melalui surat opsyen tersebut Si Mati telah memberikan opsyen kepada Defendan untuk membeli hartanah tersebut dengan harga belian sebanyak RM 1,916,187.50. Dengan menandatangani surat opsyen tersebut Defendan telah membayar kepada Si Mati wang pendahuluan (earnest deposit) sebanyak RM38,323.75. [38] Bersandarkan kepada syarat 4 (iii) surat opsyen tersebut, adalah dihujahkan bagi pihak Plaintif bahawa sekiranya Si Mati gagal untuk membatalkan kaveat persendirian Selvarajoo di dalam masa setahun dari tarikh surat opsyen, maka Defendan adalah dikehendaki menamatkan surat opsyen tersebut dan meminta wang pendahuluan (earnest deposit) dipulangkan dan dibayar 22 kepadanya beserta dengan kiraan faedah dengan kadar 8% setahun. [39] Adalah menjadi tegasan Plaintif juga bahawa surat opsyen bertarikh 5.6.2012 bukanlah satu perjanjian pembelian tetapi ianya adalah suatu tempahan (booking) untuk membeli dan bayaran RM38,323.75 adalah merupakan wang tempahan (booking money). Memandangkan wang tersebut adalah hanya wang tempahan, maka ia hendaklah dipulangkan kepada Defendan apabila kaveat Selvarajoo telah tidak dibatalkan dalam tempoh satu tahun dari surat opsyen itu ditandatangani. [40] Adalah menjadi hujahan Plaintif seterusnya bahawa apabila tempoh setahun telah tamat dan kaveat Selvarajoo masih tidak dibatalkan, maka surat opsyen tersebut adalah luput dengan secara otomatik dan tidak lagi mempunyai sebarang kesan atau tidak lagi berkuatkuasa. [41] Justeru itu adalah menjadi tegasan Plaintif bahawa Defendan tidak lagi mempunyai kepentingan berkaveat terhadap hartanah tersebut. Kaveat persendirian Defendan tersebut tidak boleh kekal 23 di atas hartanah tersebut dan hendaklah dibatalkan atau diketepikan. D. TENTANGAN DEFENDAN [42] Walau bagaimanapun, Defendan (Chu Soon Kong) telah menentang permohonan Plaintif dengan sekeras-kerasnya. Adalah menjadi tegasan Defendan bahawa menurut klausa 4(iii) Agreement To Purchase tersebut, kaveat persendirian beliau perlu dikekalkan di atas hartanah tersebut sehinggalah perlaksanaan penuh Agreement To Purchase tersebut atas tegasan-tegasan berikut: a. Pada tahun 2012, Si Mati telah menghadapi masalah kewangan dan dengan itu Si Mati telah berhasrat untuk menjualkan tanah-tanah kepunyaannya termasuk hartanah tersebut bagi menyelesaikan masalah kewangannya. b. Si Mati kemudian telah menawarkan kepada Defendan tiga (3) keping tanahnya termasuk hartanah tersebut untuk dibeli Defendan. Bagi dua keping tanah yang dibeli oleh Defendan daripada Si Mati, pindahmilik-pindahmilik tanah-tanah tersebut telahpun dilaksanakan dengan sempurna di mana 24 hakmilik kedua-dua tanah tersebut telahpun dipindahkan kepada nama Defendan. c. Bagi hartanah tersebut, kedua-dua Si Mati dan Defendan telah memasukki dan menandatangani Agreement to Purchase pada 5.6.2012 (perjanjian tersebut). d. Defendan telahpun membayar wang pendahuluan (earnest deposit) sebanyak RM38,323.75 kepada Si Mati melalui satu cek Hong Leong Bank bernombor 810490 bertarikh 6.6.2012 di atas nama Si Mati. e. Klausa 10, perjanjian tersebut memberikan hak kepada Defendan untuk mendaftarkan kaveat persendirian ke atas hartanah tersebut bagi menjaga kepentingan beliau ke atas hartanah tersebut sehingga perlaksanaan penuh perjanjian ataupun penamatan sah perjanjian . Klausa 10 “10. Immediately upon execution of this Letter, the Purchaser shall be entitled at its own cost and expense to lodge a private caveat against the said Property for the purpose of protecting the Purchaser’s interest in the said Property 25 prior to the completion or lawful termination of this Agreement and prohibiting any further dealings by the Vendor.” f. Berdasarkan klausa 10 ini, Defendan telah pada 5.7.2012 mendaftarkan kaveat persendiriannya ke atas hartanah tersebut. g. Adalah menjadi tegasan Defendan bahawa memandangkan terdapat tindakan mahkamah yang telah dimulakan oleh Selvarajoo terhadap Si Mati, Si Mati telah memohon secara lisan daripada Defendan untuk diberikan masa yang lebih lama lagi untuk membatalkan dan/atau mengeluarkan kaveat Selvarajoo tersebut. Defendan telah bersetuju dengan permintaan Si Mati dan memberikan perlanjutan masa dan sanggup menunggu sehingga pelupusan tindakan mahkamah yang difailkan oleh Selvarajoo tersebut. h. Namun, Si Mati telah meninggal dunia pada 21.11.2014 dan sehingga tarikh Si Mati meninggal dunia, kaveat Selvarajoo tersebut masih belum dikeluar/dibatalkan lagi. 26 i. Adalah menjadi tegasan Defendan bahawa beliau pada setiap masa masih berhasrat untuk meneruskan perjanjian tersebut dan oleh sebab itulah beliau tidak pernah mengeluarkan sebarang notis penamatan kepada Si Mati ataupun Plaintif bagi menamatkan perjanjian tersebut. j. Adalah menjadi tegasan Defendan lagi bahawa menurut klausa 4(iii) tersebut selagi beliau tidak mengisu ataupun mengeluarkan notis penamatan kepada Si Mati ataupun Plaintif, perjanjian tersebut masih wujud, masih sah dan masih berkuatkuasa. k. Defendan telah menerima surat bertarikh 7.3.2017 daripada peguam yang mewakili Tetuan Kali di mana pada surat tersebut telah dikepilkan sekali Draf Bank HLB No: 100074 berjumlah RM38,323.75 yang dikatakan merupakan pemulangan kepada Defendan oleh Plaintif menurut syarat surat opsyen bertarikh 5.6.2012. l. Namun, Defendan melalui surat peguamcaranya Tetuan CJ Lee bertarikh 15.3.2017 telah tidak mahu menerima wang tersebut, sebaliknya berhasrat meneruskan perjanjian dan 27 menghantar deraf salinan perjanjian jualbeli kepada peguamcara Plaintif, Tetuan Kali untuk disemak dan atau diberi sebarang komen. m. Defendan tidak bersetuju dengan harga (tawaran) baru Plaintif tersebut dan melalui surat Tetuan CJ Lee bertarikh 21.4.2017 telah menyerahkan empat (4) salinan perjanjian jual beli yang telah ditandatangani Defendan untuk mendapatkan tandatangan Plaintif. Antara kandungan surat bertarikh 21.4.2017 adalah antara lain seperti berikut: “We write to confirm that our client has deposited with us the sum of RM153,295.00 being the Balance Deposit for the Property ready for onward transmission to you as stakeholder for your client upon your client’s execution of the SPA. A copy of the cheque is enclosed herewith for your attention. As communicated to your Mr. Kali in our telephone conversation on 27.4.2017 with the undersigned, our client is not agreeable to your client’s proposal to vary or to increase the Purchase Price. We reiterate that parties have mutually agreed with the purchase price of RM1,916,187-50 pursuant to the Agreement to Purchase dated5.6.2012 and our client maintain the same. Our client also do not agree to your client’s proposal to remove the caveat ‘only if’ our client accede to your request to increase the purchase price as stated in your letter dated 3.5.2016. We reiterate that pursuant to clause 4(i) of the Agreement to Purchase, your client undertakes and/or is obligated to remove the caveat at your own costs. 28 In the circumstances, kindly return the duly signed SPA by your client within seven (7) days from the date of receipt of this letter as our client intends to proceed with the sale and purchase of the land irrespective of whether the caveat is removed or otherwise as per the terms of the Agreement to Purchase dated 5.6.2012. Failing which, our client reserves his rights to take the necessary legal actions against your client without any further reference to you. [43] Adalah menjadi hujahan Defendan bahawa berdasarkan klausa 10 perjanjian tersebut, Defendan pada setiap masa yang material telah diberikan hak oleh Si Mati untuk memasukkan kaveat persendirian demi menjaga kepentingan beliau ke atas hartanah tersebut. [44] Berdasarkan haknya yang terbit / timbul daripada perjanjian tersebut dan menurut klausa 9 (b) perjanjian tersebut, Defendan telah memfailkan satu tindakan di Mahkamah Tinggi Shah Alam (Guaman Sivil No. BA-24-654-06/2017) terhadap Plaintif untuk perlaksanaan spesifik perjanjian tersebut. Guaman sivil tersebut masih belum ditetapkan untuk perbicaraan lagi. [45] Defendan juga telah menegaskan bahawa tindakan yang diambil oleh Plaintif terhadapnya telah difailkan dengan tangan yang tidak bersih “unclean hands” atas tegasan-tegasan berikut: 29 i. Defendan hanya mengetahui bahawa tindakan Selvarajoo telah pun selesai pada tahun 2013 melalui prosiding ini. ii. Apabila diserahkan dengan Kandungan 2 yang melampirkan carian persendirian yang dibuat (Eksibit “KP-2”), Defendan baru mengetahui bahawa Plaintif telahpun mengeluarkan Notis Cadangan untuk membatalkan / mengeluarkan kaveat Selvarajoo (Kaveat Persendirian atas tanah No Pers 68744/2011) bertarikh 8.9.2016. Kaveat Selvarajoo yang didaftarkan pada tahun 2011 telah dibatalkan pada 23.8.2016. iii. Plaintiff juga telah mengeluarkan Notis Cadangan untuk membatalkan / mengeluarkan bagi membatalkan satu lagi kaveat yang dimasukkan oleh Selvarajoo pada tahun 2016 (Kaveat Persendirian atas tanah No Pers 41659/2016) pada pada 9.11.2016. iii. Plaintif cuba menyembunyi fakta berhubung perintah guaman yang difailkan oleh Selvarajoo terhadap Si Mati (Guaman No: 22NCVC-504-04/2012). Malahan Plaintif juga tidak pernah memaklumkan kepada Defendan bahawa 30 kaveat persendirian Selvarajoo yang didaftarkan pada tahun 2011 tersebut telahpun dibatalkan pada 23.8.2016. [46] Daripada tegasan-tegasan di atas, Defendan telah mempertahankan kaveat persendirian yang dimasukkannya dengan membangkitkan alasan-alasan berikut: . i. Perjanjian bertarikh 05.06.2012 masih wujud, masih sah dan belum dibatalkan ii. Plaintif sebagai wasi kepada Simati hendaklah meneruskan tugas Si Mati yang belum disempurnakan. iii. Plaintif telah memulakan tindakan ini terhadap dengan tangan yang tidak bersih “unclean hands”. iv. Defendan telahpun memulakan tindakan mahkamah (Guaman Sivil No. BA-24-654-06/2017) terhadap Plaintif untuk mendapatkan relif perlaksanaan spesifik terhadap perjanjian tersebut. Alasan i: Perjanjian bertarikh 05.06.2012 adalah masih wujud, masih sah dan masih belum dibatalkan [47] Adalah dihujahkan bagi pihak Defendan bahawa perjanjian tersebut adalah masih wujud, masih sah dan masih belum 31 dibatalkan. Di dalam kes ini Defendan telahpun membayar wang pendahuluan sebanyak RM38,323.75 kepada Si Mati. Berdasarkan perjanjian tersebut, kedua-dua pihak Defendan dan Si Mati telah dengan secara sukarela mengikat diri masing-masing berdasarkan terma-terma dan syarat-syarat yang terkandung di dalam Perjanjian tersebut. [48] Adalah menjadi hujahan Defendan bahawa berdasarkan klausa 4(iii) perjanjian tersebut, perjanjian tersebut adalah masih sah dan ianya hanya luput sekiranya Defendan mengeluarkan dan menyerahkan satu notis penamatan / pembatalan (notis penamatan tersebut) kepada Si Mati / Plaintif. Hak penamatan atau pembatalan yang diperuntukkan di klausa 4(iii) adalah jelas diperuntukkan kepada Defendan. Sekiranya notis penamatan dikeluarkan oleh Defendan, barulah Plaintif dikehendakki mengembalikan wang pendahuluan sebanyak RM 38,323.75 kepada Defendan. [49] Di dalam kes ini, menurut Defendan lagi, masa bukanlah satu intipati di dalam perjanjian tersebut. Apatah lagi di dalam kes ini Si Mati telah secara lisan memohon perlanjutan masa daripada Defendan untuk membatalkan kaveat Selvarajoo sehingga 32 tindakan mahkamah Selvarajoo diselesaikan. Menurut Defendan Plaintif pasti tidak mengetahui berkenaan perkara ini kerana Plaintif adalah seorang warganegara India dan sentiasa berada di Negara India. Plaintif sebenarnya tidak mempunyai pengetahuan berkenaan perjanjian tersebut yang dimasukki oleh Si Mati dan Defendan. [50] Peguam Defendan telah memohon Mahkamah ini membaca dan mempertimbangkan perjanjian tersebut secara keseluruhan dan mentafsirkan niat Si Mati dan Defendan semasa menandatangani perjanjian tersebut. Untuk hujahan ini, peguam Defendan telah merujuk kepada beberapa kes otoriti: i. Mulpha Pacific Sdn Bhd V Paramount Corp Bhd [2003] 4 MLJ 357. (Mahkamah Rayuan) (1) It is the court's duty to give effect to the bargain of the parties according to their intention and when that bargain is in writing the intention is to be looked for in the words used unless they are such that one may suspect that they do not convey the intention correctly.If those words are clear, there is very little that the court has to do. The court must give effect to the plain meaning of the words however much it may dislike the result (see p 363E– F). 33 Mahkamah Rayuan di dalam kes Mulpha Pacific Sdn Bhd ini telah merujuk kepada kes The Royal Selangor Golf Club v Anglo-Oriental (Malaya) Sdn Bhd [1990]1 CLJ 995. ii. Kedah Cement Sdn Bhd v Masjaya Trading Sdn Bhd [2007] 3 MLJ 597. PS Gill, HMP (yang membacakan keputusan Mahkamah Persekutuan): [16] We are well aware of the settled law that it is for the parties who intend to be bound by mutual obligations to make a contract for themselves and it is not competent for the court to make a contract for the parties which they did not in the first place see fit to make for themselves, or to import a covenant which does not arise by fair and necessary implication from the language they have used (see Smith v Harwich Corp (1857) 140 ER 572 at p 579). iii. Ganam d/o Rajamany V Somoo s/o Sinniah [1984] 2 MLJ 290. Mahkamah Persekutuan telah memutuskan antara lain bahawa: “In a contract for the sale of land the time fixed by the parties for completion or performance is not to be strictly construed unless it is the intention of the parties that time should be of the essence of the contract [see Jamshed v Burjorji AIR 1915 PC 83, Stickney v 34 Keeble [1915] AC 386, Warren v Tay Say Geok & Ors [1965] 1 MLJ 44 and section 56(1) of the Contract Act 1950]. Intention may either be express or implied and there are three cases in which time is of the essence of the contract. (a) where the contract expressly states that time shall be of the essence of the contract [Steedman v Drinkle [1916] 1 AC 275 and Brickles v Snell [1916] 2 AC 599 ]; (b) where time was not originally of the essence of the contract but has been made so by one party giving a notice to the other. Such notice can only be given after the other party has been guilty of unreasonable delay and the time mentioned in the notice must be reasonable [Stickney v. Keeble (supra) ]. (c) where from the nature of the property time may be considered to be of the essence of the contract [Tilley v Thomas (1867) 3 Ch App 61 ]. These three principles are cited by the then Court of Appeal in the case of Haji Hasnan v Tan Ah Kian [1963] MLJ 175 176. In Yeow Kim Pong Realty Ltd v Ng Kim Pong [1962] MLJ 118 120 the Privy Council said at page 120. https://www.lexisnexis.com/my/legal/search/runRemoteLink.do?A=0.21188429247979368&bct=A&service=citation&risb=21_T26468602278&langcountry=MY&linkInfo=F%23GB%23AC%23sel1%251915%25page%25386%25year%251915%25 https://www.lexisnexis.com/my/legal/search/runRemoteLink.do?A=0.7333487935972689&bct=A&service=citation&risb=21_T26468602278&langcountry=MY&linkInfo=F%23MY%23MLJ%23vol%251%25sel1%251965%25page%2544%25year%251965%25sel2%251%25 https://www.lexisnexis.com/my/legal/search/runRemoteLink.do?A=0.7333487935972689&bct=A&service=citation&risb=21_T26468602278&langcountry=MY&linkInfo=F%23MY%23MLJ%23vol%251%25sel1%251965%25page%2544%25year%251965%25sel2%251%25 https://www.lexisnexis.com/my/legal/search/runRemoteLink.do?A=0.3680521506936131&bct=A&service=citation&risb=21_T26468602278&langcountry=MY&linkInfo=F%23MY%23USM_PA%23act%250136%25section%2556%25 https://www.lexisnexis.com/my/legal/search/runRemoteLink.do?A=0.6671093753454805&bct=A&service=citation&risb=21_T26468602278&langcountry=MY&linkInfo=F%23GB%23AC%23vol%251%25sel1%251916%25page%25275%25year%251916%25sel2%251%25 https://www.lexisnexis.com/my/legal/search/runRemoteLink.do?A=0.3634132054834128&bct=A&service=citation&risb=21_T26468602278&langcountry=MY&linkInfo=F%23GB%23AC%23vol%252%25sel1%251916%25page%25599%25year%251916%25sel2%252%25 https://www.lexisnexis.com/my/legal/search/runRemoteLink.do?A=0.9188327764412376&bct=A&service=citation&risb=21_T26468602278&langcountry=MY&linkInfo=F%23GB%23AC%23vol%252%25sel1%251916%25page%25599%25year%251916%25sel2%252%25 https://www.lexisnexis.com/my/legal/search/runRemoteLink.do?A=0.19242560007619602&bct=A&service=citation&risb=21_T26468602278&langcountry=MY&linkInfo=F%23MY%23MLJ%23sel1%251963%25page%25175%25year%251963%25tpage%25176%25 https://www.lexisnexis.com/my/legal/search/runRemoteLink.do?A=0.20963143604762924&bct=A&service=citation&risb=21_T26468602278&langcountry=MY&linkInfo=F%23MY%23MLJ%23sel1%251962%25page%25118%25year%251962%25tpage%25120%25 35 "The question whether time is the essence of a contract is one to be determined by ascertaining the real intention of the parties. This is to be gathered by the examination amongst other things of attendant circumstances." iv. Abdul Rahim Bin Syed Mohd V Ramakrishnan Kandasamy (Wan Ahmad Azlan Bin Wan Majid & Anor, Interveners) And Another Action [1996] 3 MLJ 385. [51] Menurut Defendan lagi wang sebanyak RM38,323.75 yang dibayar oleh Defendan adalah wang deposit dan bukanlah wang tempahan seperti yang didakwa Plaintif. Peguam Defendan telah merujuk Mahkamah ini kepada kes-kes: i. WORKERS TRUST AND MERCHANT BANK LTD v DOJAP INVESTMENTS LTD [1993] 2 ALL ER. ii. LINGGI PLANTATION LTD v JAGATHEESAN [1972] 1 MLJ 89 PC. “There is in their Lordships' judgment no difference in this context between the expression "deposit" and the expression "earnest money". In this context they are two words for the same thing, although in 36 common modern English usage "earnest money" has a slightly archaic ring. As Fry L.J. said in Howe v. Smith at page 101: "It (i.e., the deposit) is not merely a part payment, but is then also an earnest to bind the bargain so entered into, and creates by fear of its forfeiture a motive in the payer to perform the rest of the contract." Alasan ii: Plaintif sebagai wasi kepada Si Mati hendaklah meneruskan tugas simati yang belum sempurnakan. [52] Adalah dihujahkan oleh Defendan bahawa Plaintif selaku wasi kepada estet Si Mati hendaklah meneruskan tugas Si Mati yang belum diselesaikan lagi iaitu mengeluarkan kaveat persendirian Selvarajoo tersebut. Bagi menyokong hujahannya, peguam Defendan telah merujuk kepada Mahkamah ini kepada kes-kes: i. Haji Osman Bin Abu Bakar v Saiyed Noor Bin Saiyed Mohamed [1952] 18 MLJ. Mahkamah Rayuan telah memutuskan bahawa: “Held, the death of the proprietor — transferor of land did not avoid contract; the legal personal representative of such deceased person was trustee for the purchaser who, subject to 37 the terms of the contract and in the absence of fraud, misrepresentation or mistake, was entitled to the land and to possession.” ii. Kersah La’usin v Sikin Menan [1966] 2 MLJ 20 Raja Azlan Shah telah menyatakan seperti berikut “In Haji Osman's case, supra, Pretheroe Ag.C.J. remarked at page 38: “The fact that at the date of contract the vendor had neither title nor power to call for title is not of itself an answer to a suit of specific performance by the purchaser: Brickles Snell [1916] 2 AC 599. Actual possession of both the legal estate and any equitable rights are not prerequisites so long as the vendor is in such a position that when the time for completion comes he will be in a position to pass on the title to the purchaser. In those circumstances the contract is good but only in equity. In 1956, Thomson J. (as he then was) in his usual way, stated the matter emphatically and concisely in Bachan Singh Mahinder Kaur & Ors [1956] MLJ 97 at p 98: "Where there is a valid binding contract for the sale of land, the purchaser, when he has performed his side of the contract, acquires a right ad rem, which is also a right in personam. In other words, he acquires a right to the land as against the vendor personally but not good against the world as a whole and, in due course, that right can https://www.lexisnexis.com/my/legal/search/runRemoteLink.do?A=0.1932352749556271&bct=A&service=citation&risb=21_T26469706899&langcountry=MY&linkInfo=F%23GB%23AC%23vol%252%25sel1%251916%25page%25599%25year%251916%25sel2%252%25 https://www.lexisnexis.com/my/legal/search/runRemoteLink.do?A=0.7797373433881297&bct=A&service=citation&risb=21_T26469706899&langcountry=MY&linkInfo=F%23MY%23MLJ%23sel1%251956%25page%2597%25year%251956%25tpage%2598%25 https://www.lexisnexis.com/my/legal/search/runRemoteLink.do?A=0.7797373433881297&bct=A&service=citation&risb=21_T26469706899&langcountry=MY&linkInfo=F%23MY%23MLJ%23sel1%251956%25page%2597%25year%251956%25tpage%2598%25 38 become a real right good against the world as a whole on registration in accordance with the Land Code which has the same effect in our law as appearance before the Praetor in the law of Rome, delivery of seisin in the old English feudal law and infeftment by registration in the Register of Sasines in the modern Scots law," … In Haji Osman's case, supra, Pretheroe Ag.C.J. remarked at page 38: "As death does not avoid a contract of this nature it seems clear that the same principles apply where a proprietor dies and his representative becomes the registered proprietor. As such he can, in my opinion, be compelled to take all steps necessary to give effect to the contract executed by the deceased proprietor". Thomson J. (as he then was) said at page 39: "If a purchaser agrees to buy a piece of land and pays the purchase price then subject to the terms of the contract and in the absence of fraud, misrepresentation or mistake he is entitled to a good title to the land and to possession, and the death of the vendor does not abate his rights by one iota".” [53] Adalah menjadi hujahan Defendan bahawa di dalam kes ini berdasarkan Eksibit “KP-2”, Kandungan 2 jelas menunjukkan bahawa kaveat persendirian Selvarajoo tersebut telahpun 39 dibatalkan pada 23.8.2016. Justeru itu, Plaintif adalah diikat dengan klausa 4(ii) perjanjian tersebut dengan dikehendaki memaklumkan dan menyediakan perjanjian jualbeli dan ditandatangani antara Plaintif selaku wasi kepada Simati dan Defendan. Alasan iii : Plaintif telah memulakan tindakan ini dengan tangan yang tidak bersih “unclean hands” [54] Defendan telah menafikan dakwaan Plaintif bahawa selepas tempoh satu tahun luput (daripada tarikh 5.06.2012) beliau telah tidak mengambil sebarang tindakan terhadap Si Mati. Adalah menjadi tegasan Defendan, bapa Plaintif Si Mati telah memohon secara lisan suatu perlanjutan masa untuk membatalkan kaveat persendirian Selvarajoo kerana terdapatnya tindakan mahkamah telah difailkan Selvarajoo terhadapnya. Sehingga Si Mati meninggal dunia kaveat Selvarajoo masih wujud di atas hartanah tersebut. [55] Defendan telah menegaskan bahawa disebabkan terdapat tindakan Selvarajoo, beliau telah tidak berbuat apa-apa dan tindakan pembatalan kaveat Selvarajoo tersebut masih 40 tergantung. Adalah menjadi dakwaan Defendan bahawa Si Mati atau Plaintif telah menyembunyikan fakta bahawa tindakan Selvarajoo (Guaman No: 22NCVC-504-04/2012) telahpun selesai pada tahun 28.2.2013. [56] Si Mati ataupun Plaintif sendiri tidak pernah memberitahu Defendan apakah sebenarnya prosiding mahkamah antara Si Mati dengan Selvarajoo atau keluarganya. [57] Walaupun Plaintif telah melampirkan salinan perintah bertarikh 28.2.2013 bagi guaman No: 22NCVC-504-04/2012 (Eksibit “KP 7”, Kandungan 6) tetapi Plaintif telah tidak memaklumkan kepada Mahkamah ini sebarang penjelasan berkenaan kes mahkamah Selvarajoo terhadap Si Mati. [58] Adalah menjadi hujahan Defendan bahawa memandangkan Plaintif telah semata-mata melampirkan perintah tersebut tanpa penjelasan mengenai perintah tersebut, maka Plaintif adalah diletakkan beban untuk memaklumkan kepada Mahkamah akan segala fakta yang berhubung dengan perjanjian tersebut. 41 [59] Menurut Defendan, namun di dalam kes ini Plaintif telah cuba mengelakkannya dengan menyatakan bahawa sekiranya Defendan ingin penjelasan, Defendan boleh menulis surat kepada peguamcaranya untuk mendapatkan penjelasan. [60] Justeru itu, adalah menjadi dakwaan Defendan bahawa Plaintif telah memulakan tindakan terhadap Defendan dengan tangan yang tidak bersih “unclean hands”. Alasan iv: Tindakan mahkamah Guaman Sivil No. BA-24-654- 06/2017 telah diambil oleh Defendan untuk mendapatkan perintah perlaksanaan spesifik. [61] Defendan telah memfailkan guaman untuk pelaksanaan spesifik terhadap Plaintif. Maka, adalah menjadi hujahan Defendan, demi menjaga kepentingan Defendan di atas hartanah tersebut dan kaveat persendirian Defendan hendaklah dikekalkan sehingga pelupusan guaman BA-24-654-06/2017 tersebut. E. ANALISIS DAN KEPUTUSAN MAHKAMAH [62] Di dalam kes ini, memandangkan Plaintif telah merujuk Agreement To Purchase tersebut sebagai satu surat opsyen, manakala 42 Defendan pula merujuknya sebagai perjanjian jual beli, maka Mahkamah ini akan merujuk dokumen bertarikh 5.6.2012 sepertimana tajuknya iaitu Agreement To Purchase (ATP tersebut) dan terma-terma di dalamnya akan dirujuk sebagai terma. [63] Di dalam kes ini kedua-dua Plaintif dan Defendan telah sama- sama bersandarkan terma 4(iii) ATP tersebut. Plaintif telah menghujahkan bahawa Defendan tidak lagi mempunyai kepentingan berkaveat terhadap hartanah tersebut atas alasan ATP tersebut telah luput. Manakala Defendan pula telah menegaskan bahawa memandangkan beliau telah tidak dimaklumkan oleh Plaintif bahawa kaveat Selvarajoo telahpun dibatalkan dan dari tarikh ATP ditandatangani sehinggalah kini masih berhasrat meneruskan perjanjian tersebut, dan selagi beliau tidak menamatkan perjanjian tersebut, selagi itulah perjanjian tersebut masih wujud, masih sah dan belum ditamatkan. [64] Di dalam kes ini adalah tidak dipertikaikan bahawa Defendan telahpun membayar Si Mati wang sebanyak RM38,323.75 melalui cek HLB 810490. Apabila Plaintif cuba memulangkan wang tersebut kepada Defendan melalui deraf bank HLB 100074 bertarikh 27.2.2017 yang dikepilkan bersama surat beliau bertarikh 43 7.3.2017. Fakta ini jelas menunjukkan bahawa cek HLB 810490 tersebut telahpun ditunaikan oleh Si Mati dan Si Mati telahpun menerima wang tersebut. [65] Mahkamah ini bersetuju dengan peguam Defendan bahawa berdasarkan “VENDOR’S ACKNOWLEDGEMENT” di dalam ATP tersebut Si Mati telahpun menerima wang tersebut. Untuk itu Mahkamah ini perlu merujuk kepada “VENDOR’S ACKNOWLEDGEMENT” (Pengakuan Penjual) bagi menunjukkan kesan penerimaan wang tersebut oleh Si Mati. “This earnest deposit being 2% of the purchase price amounting to RM38,323.75 (Cheque No. HLB 810490) is to be made payable to the Vendor being earnest deposit towards the purchase of the same. In the event the Vendor rejects this offer, the said earnest deposit is to be refunded to the Purchaser immediately. Upon clearance of the cheque, this offer is deemed accepted by the Vendor.” [66] Adalah menjadi dapatan Mahkamah ini bahawa berdasarkan Pengakuan Penjual di dalam ATP ini, apabila Si Mati menunaikan cek 810490 tersebut, ini bermakna tawaran pembelian hartanah tersebut oleh Defendan telah diterima oleh Si Mati. 44 [67] Terma 2 ATP pula telah menyatakan sedemikian:- “DEPOSIT: On execution of this Letter, the Purchaser shall pay an earnest deposit of RM38,323.75 (“Earnest Deposit”) to the Vendor. The Balance Deposit of RM153,295.00 (“Balance Deposit”) shall be paid by the Purchaser to the Vendor upon execution of the Sale & Purchase Agreement (SPA).” [68] Mahkamah ini perlu menegaskan bahawa di dalam kes ini adalah fakta yang tidak boleh disangkal bahawa Defendan telahpun membayar RM38,323.75 sebagai wang pendahuluan (“Earnest Deposit”) kepada Si Mati semasa ATP tersebut ditandatangani. Walaupun wang ini adalah hanya 2% daripada harga belian, tetapi berdasarkan kepada terma 2 di atas, deposit penuh akan hanya perlu dibayar oleh Defendan kepada Si Mati semasa dan apabila perjanjian jual beli rasmi atau formal dilaksanakan. [69] Akan tetapi menurut terma 4(ii) ATP pula perjanjian jual beli rasmi atau formal akan hanya ditandatangani dan dilaksanakan oleh pihak-pihak di dalam tempoh masa 5 hari selepas kaveat Selvarajoo dibatalkan. [70] Oleh itu di dalam keadaan ini, selagi kaveat Selvarajoo masih wujud di atas hartanah tersebut maka, adalah menjadi dapatan 45 Mahkamah ini bahawa dengan penunaian cek HLB tersebut oleh Si Mati, maka Si Mati telah menerima wang sebanyak RM38,323.75 itu sebagai wang pendahuluan harga belian hartanah tersebut dan bukanlah sebagai wang tempahan (booking money) sepertimana yang didakwa oleh Plaintif. [71] Dengan pembayaran wang pendahuluan tersebut (RM3,323.75) dan memandangkan pembayaran deposit penuh (full deposit sum) adalah tertakluk kepada beberapa terma-terma lain di dalam ATP, maka adalah menjadi dapatan Mahkamah ini bahawa pembayaran wang sebanyak RM38,323.75 tersebut oleh Defendan dan penerimaan wang tersebut oleh Si Mati tidak lain dan tidak bukan bertujuan menjadikan ia sebagai wang pendahuluan bagi penjualan dan pembelian hartanah tersebut. [72] Di dalam kes ini walaupun perjanjian jual beli formal belum dilaksanakan atau ditandatangani, namun terma 4(ii) ATP telah jelas memperuntukkan bahawa perjanjian jualbeli formal hanya boleh dilaksanakan oleh pihak-pihak dalam tempoh masa lima (5) hari dari tarikh kaveat persendirian Selvarajoo (kaveat Selvarajoo) dibatalkan. 46 [73] Di dalam kes ini Defendan mendakwa bahawa beliau hanya mengetahui bahawa kaveat Selvarajoo telah dibatalkan apabila melihat kepada Eksibit “KP-2” yang dikemukakan oleh Plaintif di dalam Kandungan 2 nya. [74] Penelitian rapi kepada terma 4(ii) ATP jelas menunjukkan bahawa adalah menjadi niat Si Mati dan Defendan bahawa pihak- pihak akan hanya menandatangani atau melaksanakan satu perjanjian jual beli yang rasmi atau formal dalam tempoh 5 hari setelah kaveat Selvarajoo itu dibatalkan. Namun ATP ini seterusnya di terma 4(iii) telah memberikan opsyen kepada Defendan untuk menarik diri dari terikat kepada ATP tersebut sekiranya dalam masa satu tahun dari tarikh ATP ditandatangani kaveat Selvarajoo masih tidak dapat dibatalkan. Daripada terus menunggu kaveat Selvarajoo tersebut dibatalkan, selepas tarikh 5.2.2013, Defendan berhak menamatkan / membatalkan ATP ini dengan mengeluarkan / mengisu suatu Notis Penamatan dan meminta Si Mati / Plaintif memulangkan wang RM38,323.75 yang akan dibayar bersekali dengan faedah pada kadar 8% setahun. [75] Opsyen untuk menarik diri dari terikat kepada ATP selepas tempoh masa setahun adalah hanya diberikan kepada Defendan. 47 Dalam erti kata hak untuk menamatkan ATP adalah hak Defendan dan hak pengeluaran notis penamatan ini adalah terletak ditangan Defendan. Hak ini hanya terlaksana apabila Defendan mengeluarkan suatu Notis Penamatan. Selagi Notis Penamatan tidak dikeluarkan oleh Defendan di bawah terma 4(iii) ATP ini, ATP ini masih mengikat pihak Si Mati dan Defendan dan memandangkan Si Mati telah meninggal dunia dan Plaintif telah dilantik sebagai wasi harta pusaka Si Mati, maka ianya mengikat Plaintif. [76] Terma 4(iii) adalah satu terma yang jelas dan spesifik. Tujuan tempoh masa setahun yang terkandung di dalamnya adalah juga jelas dan nyata. Berdasarkan terma yang jelas dan nyata tersebut, adalah menjadi dapatan Mahkamah ini bahawa tempoh masa setahun yang ditetapkan di dalam terma 4(iii) adalah bagi faedah Defendan dan ianya bukanlah beroperasi sepertimana yang didakwa oleh Plaintif iaitu secara otomatik luput. [77] Undang-undang dan prinsip-prinsip berhubung dengan pentafsiran atau pembacaan kontrak adalah jelas dan jitu. Mahkamah ini hanya perlu merujuk kepada kes The Royal Selangor Golf Club v Anglo Oriental (M) Sdn Bhd [1990] 1 CLJ 995. Di dalam kes 48 The Royal Selangor Golf Club ini Hakim Lim Beng Choon di dalam menimbangkan pertikaian pihak-pihak berhubung dengan kontrak yang mereka tandatangani, telah menerima pakai prinsip- prinsip am pentafsiran kontrak yang telah diputuskan di dalam kes National Coal Board v Win Neil & Son (St. Helen) [1948] 1 All ER 555 yang menyatakan berikut: “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 to have regard to extrinsic evidence (there is, of course, no such evidence in this case); (3) a contract must be constructed 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. In Central Bank of India v. Harford Fire Insurance Co Ltd. AIR [1965] SC 1288, the Supreme Court of India lays stress on the Second principle advocated in the Wm Neill & Sons (St Helens) Ltd case when it says at p.1290: Now it is commonplace that it is the Court’s duty to give effect to the bargain of the parties according to their intention and when that bargain is in writing the intention is to be looked for in the words used unless they are such that one may suspect that they do not convey the intention correctly. If those words are clear, 49 there is very little that the Court has to do. The Court must give effect to the plain meaning of the words however much it many dislike the result.” [78] Di dalam kes Syarikat Binaan Utara Jaya (A Firm) v Koperasi Serbaguna Sungei Glugor Berhad [2009] 2 AMR 50 telah diputuskan seperti berikut: (a) the Court must give effect to the plain meaning of the words, no matter how distasteful the result may be (The Central Bank of India Ltd. Amritsrar v. The Hartford Fire Insurance Co. Ltd. [1965] AIR Vol. 52, 1288 SC); (b) where the language in the document is unambiguous and clear, the real nature of the document is to be determine solely by looking at its contents, uninfluenced by any intention of the parties ((Nawab Major Sir) Mohammad Akbar Khan v. Attar Singh and Others [1936] AIR Vol. 23, 171 PC); (c) when the minds of the parties are expressed in an unambiguous manner, the Court cannot override the declared intention of the parties unequivocally expressed (K. Appukuttam Panicker and Another v. S.K.R.A.K.R Athappa Chettiar and Others [1966] AIR Vol.53, 303 Kerala); and (d) there is no scope, at all, for drawing upon hypothetical considerations or the supposed intention of the parties when the words contained in the contract are clear and 50 unambiguous (The Union of India v. Kishorilal Gupta and Bros. [1959] AIR Vol. 46, 1362 SC). (Lihat juga: Jainarain Singh & Anor v The State of Bihar & Ors AIR 1980 Patna 24) [79] Berdasarkan kes-kes Kersah La’usin V Sikin Menan dan Haji Osman Bin Abu Bakar, Plaintif sememangnya terikat dengan ATP bersama terma-terma yang termaktub di dalamnya yang telah dimasukki bapanya, Si Mati. [80] Di dalam kes ini, Mahkamah ini bersetuju bahawa Plaintif telah membawa tindakan ini terhadap Defendan dengan tangan yang tidak bersih “unclean hands” atas alasan-alasan berikut: i. Perlakuan Plaintif seolah-olah kaveat Defendan baru sahaja beliau ketahui pada 18.4.2017, walhal beliau telah pun mengetahuinya sejak tahun 2015. Malahan melalui surat Tetuan Kali bertarikh 3.5.2016 kepada Tetuan CJ Lee. ii. Telah menyembunyikan berhubung fakta-fakta tindakan mahkamah Selvarajoo dan tindakan mahkamah Selvarajoo 51 tersebut telahpun diselesai seawal tahun 2013 daripada Defendan. iii Telah tidak memaklumkan kepada Defendan bahawa kavaet Selvarajoo telahpun dibatalkan pada 23.8.2016 walhal peguamcara Plaintif telahpun berkomunikasi dengan peguamcara Plaintif sejak daripada bulan Mac 2017 lagi. Defendan telah hanya mengetahui pembatalan kaveat Selvarajoo Eksibit “KP-2”. [81] Undang-undang adalah jelas dan jitu bahawa tidak akan membantu pihak yang telah datang ke Mahkamah untuk sesuatu remedi atau relif apabila ia telah datang ke Mahkamah ini dengan tangan yang tidak bersih. [82] Mahkamah ini bersependapat dengan peguam Defendan bahawa Plaintif di dalam cubaan mendapatkan remedi di dalam saman pemula ini telah tidak mendedahkan fakta-fakta yang sebenar yang berkisar ATP secara khasnya berhubung pengetahuan awalnya akan kewujudan kaveat, tidak memaklumkan bahawa tindakan Selvarajoo terhadap Si Mati telah diselesaikan pada tahun 2013 lagi dan tidak memaklumkan bahawa kaveat Selvarajoo telah dibatalkan pada 23.8.2016. Mahkamah ini 52 berpendapat bahawa tindakan sebegini sememangnya mencerminkan “unclean hands” Plaintif apabila beliau memfailkan tindakan ini. [83] Berhubung dengan tuntutan gantirugi yang dituntut Plaintif terhadap Defendan akibat kemasukan kaveat Defendan. Adalah menjadi dapatan Mahkamah ini, tuntutan ini adalah suatu tuntutan yang tidak bermerit kerana kewujudan kaveat Defendan adalah selaras dengan terma-terma ATP yang masih sah dan berkuatkuasa. [84] Adalah menjadi dapatan Mahkamah ini juga bahawa kavaet Defendan hendaklah kekal di atas hartanah tersebut sehingga pelupusan guaman yang difailkan Defendan terhadap Plaintif. [85] Berdasarkan alasan-alasan di atas, Mahkamah ini menolak Kandungan 1 Plaintif dengan kos kepada Defendan sebanyak RM7000.00. 53 t.t. ..................................................... (DATUK AZIMAH BINTI OMAR) Hakim Mahkamah Tinggi Shah Alam (Saman Pemula) Selangor Darul Ehsan Bertarikh 30 Oktober 2017 Peguam Plaintif - Tetuan Kali & Associates Encik Kalia Perumal Muniandy Peguam Defendan - Tetuan Tee Tan & Partners Cik Elaine Fong

Tika 2.6.0

W-02(NCC)(W)-636-04/2017

PERAYU KARUN KLASIK SDN BHD RESPONDEN TENAGA NASIONAL BERHAD

27/10/2017

YA DATUK NALLINI PATHMANATHANKorumYA DATO' ALIZATUL KHAIR BINTI OSMAN KHAIRUDDINYA DATUK NALLINI PATHMANATHANYA DATO' ZABARIAH BINTI MOHD YUSOF

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W-02(NCC)(W)-636-04/2017

PERAYU KARUN KLASIK SDN BHD RESPONDEN TENAGA NASIONAL BERHAD

27/10/2017

YA DATUK NALLINI PATHMANATHANKorumYA DATO' ALIZATUL KHAIR BINTI OSMAN KHAIRUDDINYA DATUK NALLINI PATHMANATHANYA DATO' ZABARIAH BINTI MOHD YUSOF

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Q-01(NCVC)(W)-98-04/2016

PERAYU RATNAWATI BINTI HASBI MOHAMAD SULEIMAN …APPELLANT RESPONDEN 1. SUPERINTENDENT OF LAND & SURVEY DEPARTMENT, KUCHING DIVISIONAL OFFICE 2. THE STATE GOVERNMENT OF SARAWAK … RESPONDEN TS

Land Law — Acquisition of land — Acquisition for public purpose — Land acquired by state government for public purpose — Minister’s declaration under s 48 of the Sarawak Land Code — Compensation awarded less than amount paid to purchase land — Whether first respondent failed to comply with mandatory procedural provisions in resumption process — Whether the resumption process taken by the first respondent up to the registration of the Memorandum of Declaration of Resumption without any notice being given to the appellant and/or without the knowledge of the appellant is null and void — Whether appellant aware that land subjected to declaration under s 48 of the Sarawak Land Code — Whether first respondent liable for appellant’s claim for special and general damages — Sarawak Land Code (Cap 81); ss 15A, 48,49, 51, 52, 53,54 & 60(1)

27/10/2017

YA DATO' AHMADI BIN HAJI ASNAWIKorumYA DATUK SERI HAJI MOHD ZAWAWI BIN SALLEHYA DATO' AHMADI BIN HAJI ASNAWIYA DATUK KAMARDIN BIN HASHIM

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1 IN THE COURT OF APPEAL, MALAYSIA, HOLDEN IN KUCHING, SARAWAK (APPELLATE JURISDICTION) CIVIL APPEAL NO. Q-01(NCVC)(W)-98-04/2016 BETWEEN RATNAWATI BINTI HASBI MOHAMAD SULEIMAN …APPELLANT AND 1. SUPERINTENDENT OF LAND & SURVEY DEPARTMENT, KUCHING DIVISIONAL OFFICE 2. THE STATE GOVERNMENT OF SARAWAK …RESPONDENTS [In the matter of Suit No. KCH-21NCvC-10/9-2014 (HCI) in the High Court of Sabah and Sarawak at Kuching Between Ratnawati Binti Hasbi Mohamad Suleiman …Plaintiff And 1. Superintendent Of Land & Survey Department, Kuching Divisional Office 2. The State Government Of Sarawak …Defendants] 2 CORAM: MOHD. ZAWAWI SALLEH, JCA AHMADI HJ ASNAWI, JCA KAMARDIN HASHIM, JCA JUDGMENT [1] This is an appeal by the appellant/plaintiff against the decision of the High Court, Kuching, dismissing the appellant’s claims against the respondents arising from the acquisition of the appellant’s land, described as Lot 582, Block 6, Matang Land District, for a public purpose, i.e. the Flood By Pass Project from Sungai Sarawak to Batang Salak in the Kuching area (hereinafter referred to as “the subject land”). Background Facts [2] The appellant had, on 8.11.2011, purchased the subject land situated as a first lot land alongside the dual carriage highway from Matang to Telaga Air, Kuching from the previous co-owners (Agatha Cheong Siew Teng and Mary Ling Moi Moi) for a total consideration of RM1.5 million. 3 [3] The land transfer transaction vide Memorandum of Transfer Nos. L 22273/2011 and L 22274/2011 were completed and duly registered in the appellant’s name on 17.8.2011. [4] On 20.8.2013, the appellant through her brother in-law, Dzamaludin bin Zainudin (PW-2), had intended to pay the said subject land’s annual quit rent for the year 2013, but was informed by the first respondent’s counter staff that the said land is no longer registered in the appellant’s name as it had been resumed to the second respondent (hereinafter referred to as “the State”) on 9.1.2012. [5] PW-2’s private search made on 21.8.2013 confirmed that the subject land had indeed resumed to the State. [6] On 22.8.2013 and 23.8.2013, PW-2 lodged 2 separate police reports pursuant to the result of the said search. On 29.8.2012, the appellant herself upon returning from her abode in Doha, Qatar, personally lodged her own police report pertaining to the same. 4 [7] The appellant claimed that she had no knowledge of the resumption process or of the registration of Memorandum of Declaration of Resumption vide Instrument No. L 679/2012 dated 9.1.2012 (the first resumption) as the first respondent’s notice to the appellant prior to the resumption process under s.49 of the Sarawak Land Code (hereinafter referred to as “the SLC”) was sent to the appellant at the wrong address. The appellant’s correct address is Lot No. 336, Jalan Abang Ateh, Kuching, whereas the aforesaid first respondent’s notice to the appellant was sent to No. 366, Jalan Abang Ateh. In the absence of the appellant during the inquiry, the first respondent had awarded the appellant the compensation sum of RM811,693.89 vide Award No. 293/2011 (“the first award”). [8] On 2.9.2013, the appellant, through her solicitor, Messrs. William Ding & Co. Advocates, wrote an official complaint (at pp.802 to 804, Vol. III, Record of Appeal) to the first respondent alleging their failure and negligence in not complying with mandatory procedural provisions of the SLC in the resumption process of the said subject land. 5 [9] On 24.10.2013, the appellant through her solicitor made another private search and was surprised to find that the first respondent had conveniently changed the ownership of the subject land back under the appellant’s name from the State in their Registry Data System. Again, this was done without the appellant’s knowledge. [10] On 27.9.2013, the first respondent issued a fresh notice under s.49 of the SLC calling for an inquiry in respect of the subject land on 24.10.2013. [11] On 24.10.2013, the appellant attended the inquiry together with her valuer and solicitor under protest, arguing that the second inquiry cannot proceed due to apparent procedural irregularities in the first inquiry leading to the resumption of the subject land to the State. [12] In spite of the said protestation by the appellant during the second inquiry, the first respondent nevertheless proceeded with the inquiry and thereafter issued Award No. 420/2013 dated 11.11.2013 (the second award) wherein the appellant was awarded the sum of RM811,693.39 as compensation for the resumption of the subject land to the State as 6 against the RM1.5 million the appellant had paid for the purchase of the subject land from the vendors on 1.8.2011. [13] In response thereto, on 12.11.2013, the appellant through her solicitor wrote a letter of protest stating various grounds of objections (at pp. 708, 709 Vol. III, Record of Appeal (RA)). The appellant also placed on record that she reserved her right to further institute civil claims for damages against the relevant authorities for negligent and nuisance. [14] On 10.1.2014, the first respondent paid the said compensation sum amounting to RM811,693.39 to the appellant. [15] The appellant accepted the sum under protest and had requested the first respondent to refer the matter to the High Court pursuant to s.56 of the SLC. Up to date, the first respondent has yet to refer the matter to the High Court pursuant to s.56 of the SLC. 7 [16] On 6.3.2014, the first respondent registered the Memorandum of Declaration of Resumption vide Instrument No. L 202/2014 in respect of the subject land for the second time (the second resumption). [17] Both the parties were on common ground that the subject land was purchased by the appellant after the Minister’s declaration under s.48 of the SLC, certifying that the subject land was needed for a public purpose which was gazette vide G.N 2624 dated 2.7.2009. [18] The respondents also contended that the appellant had signed a declaration that she was aware that the subject land was subjected to the said s.48 declaration at the time when she purchased the subject land. The Appellant’s Prayers [19] Hence, in her Amended Writ and Statement of Claim dated 17.11.2015, the appellant had applied for declaratory orders, inter-alia: (i) a declaration that the first respondent had failed to comply with mandatory procedural provisions viz ss 49, 51, 52, 53 8 and 54 of the SLC in the resumption process of the said subject land, whereby such non-compliance is fatal. (ii) a declaration that the resumption process taken by the first respondent up to the registration of the Memorandum of Declaration of Resumption vide Instrument No. L679/2012 (“the first resumption”) affecting the subject land whereby the subject land was resumed to the State on 12.3.2012 without any notice being given to the appellant and/or without the knowledge of the appellant is null and void; (iii) a declaration that the first respondent was negligent in failing to comply with the aforesaid mandatory provisions (ss. 49, 51, 52, 53 and 54 of the SLC) in causing the said subject land to be resumed to the State on 9.1.2012 which had put her to suffer damages, shock, distress, deprivation of the use and enjoyment of her land, putting her into unnecessary inconvenience, and expenses when she was compelled to come back from Doha upon being informed by her brother in- law that her land was resumed to the State without her knowledge, entitling her to special and general damages; 9 (iv) a declaration that the first respondent’s action, upon receiving complaints from the appellant, had conveniently reinstated the appellant’s name in the register of the subject land after the subject land had already been resumed to the State without giving any notice or without the knowledge of the appellant, is procedurally wrong in law when in such a case the subject land ought to go through the statutory procedure of realienation to the appellant and the s.48 declaration of the subject land ought to be regazetted before the first respondent can reissue a fresh notice under s.49 of the SLC (Chapter 81) to the appellant, dated 27.9.2013; (v) a declaration that since the first Memorandum of Declaration of Resumption vide Instrument No. L679/2012 had not been revoked, the first respondent cannot in law register a second Memorandum of Declaration of Resumption (the second resumption) affecting the same subject land vide Award No. 420/2013 dated 11.11.2013 (the second award) as this would amount to a duplicity of awards being issued; (vi) a declaration that the second award vide Award No. 420/2013 dated 11.11.2013 is defective in law on account that the subject land was already resumed to the State on 10 12.3.2012 after the issuance and registration of the Instrument No. L679/2012 (the first resumption) and by the fact that the s.48 declaration gazette on 2.7.2009 affecting the subject land is already deemed extinguished and lapsed; (vii) a declaration that the valuation of the compensation sum of RM811,693.89 vide the second award No. 420/2013 based on the s.48 declaration gazette on 2.7.2009 is wrong in law as the said s.48 declaration had been earlier extinguished by the fact that the said land had already resumed to the state on 12.3.2012. The valuation on the compensation should be based on a date when a fresh s.48 declaration ought to be regazetted and that the appellant ought to be compensated not less than RM1.5 million based on the current market value of the land; (viii) Special damages in the sum of RM724,225.51; and (ix) General damages, interest and cost. The Appellant’s Contention [20] The appellant contended that in acquiring the subject land to be resumed to the second respondent, the first respondent had failed to 11 serve a notice of the same to the appellant pursuant to s.49 of the SLC. The inquiry conducted by the first respondent on 25.10.2011 pursuant to s.51 of the SLC was held in the absence of the appellant. Consequently, the first award (Award No. 293/2011) arising out of the said inquiry was never made known to or served upon the appellant. [21] The appellant further contended that the first respondent cannot transfer the subject land back to the appellant after the first resumption process upon receiving the appellant’s complaints without first going through the necessary statutory process of realienation of the said subject land to the appellant pursuant to s.15A and/or s.13 of the SLC. [22] The appellant further submitted that the first respondent is wrong in law to issue a fresh s.49 notice based on the earlier s.48 declaration, gazetted on 2.7.2009, which has been deemed to have been extinguished on 9.1.2012 by the first resumption process. [23] Further, the first respondent cannot register a second Memorandum of Declaration of Resumption vide Instrument No. L 202/2014 (second resumption process) in respect of the same subject land without first 12 revoking the first Memorandum of Declaration of Resumption vide Instrument No. L 679/2012. The two aforesaid instruments had created a duplicity of awards. Conversely, the second award (Award No. 420/2013), the basis upon which the compensation sum was paid, was defective in law as the first award (Award No. 293/2011) has not been revoked, again creating a duplicity of awards. [24] It was finally submitted that the first respondent was negligent in failing to comply with the mandatory provisions of ss. 49, 51, 52, 53 and 54 of the SLC in causing the subject land to be resumed to the State. Decision Of the High Court [25] The learned judge appeared to have ignored the declaratory reliefs sought by the appellant and had made no decision upon the same. Instead, the learned judge found that the root of all these claims boils down to the unsatisfactory amount of compensation awarded to the appellant which was less than RM1.5 million the appellant had paid to purchase the subject land as borne by the appellant’s evidence that she had lost all the investment cost as a result of the unlawful and negligent act of the first respondent. 13 [26] The learned judge was also of the view that the first respondent ought not to be blame for the losses on account that the appellant was fully aware that the subject land was subjected to a s.48 declaration at the time she purchased the property, meaning that the appellant have taken the risk when she proceeded to buy the subject land that has been identified by the State for acquisition for a public purpose and pursuant to s.60(1) of the SLC the compensation to be paid is based on the market value of the subject land as at the date of the publication of the s.48 declaration on 2.7.2009. [27] The learned judge also found that the market value of the subject land on the aforesaid date (date of publication of s.48 declaration) was RM810,000.00 or RM40.00 psm based upon the valuation of DW1 (Haslinda binti Hamdan), the valuer at Kuching Land Office. The appellant did not adduce any evidence to show that the first respondent’s valuation was incorrect. [28] The learned judge also opined that it is not correct that the s.48 declaration had been extinguished upon completion of the first resumption 14 process as there are still many other parcels of land which are yet to be acquired under the same s.48 declaration. There is also nothing in the SLC to suggest that the s.48 declaration would lapse upon completion of the resumption of the land to the State Authority. [29] On the allegation that the first respondent had been negligent in failing to comply with the statutory duties provided under ss. 49, 51, 52, 53 and 54 of the SLC, the learned judge found that the failure to notify the appellant of the inquiry date is not the cause for the subject land to be resumed by the State. The resumption of the subject land and the insufficient amount of the compensation sum are the main complaints which must be distinguished from the issue of the alleged negligent acts of the 1st respondent. [30] The learned judge further found that the alleged negligent acts of the first respondent had no direct bearing on the resumption of the subject land to the State under the s.48 declaration. The said declaration was made by the Minister and is valid unless withdrawn by the Minister under s.79 of the SLC. The first respondent owed no duty of care to the 15 appellant in respect of the decision or declaration of the Minister on the said resumption of the land and any alleged loss arising therefrom. [31] The learned judge also found that the failure to issue a proper notice under s.49 of the SLC in respect of the first resumption process was remedied by the first respondent when a second inquiry was held to provide an opportunity to the appellant to present her case for adequate compensation. The appellant attended the inquiry together with her solicitor and valuer and an award was handed down thereafter upon hearing the appellant and her solicitor. The compensation sum was paid and accepted by the appellant under protest. Hence, according to the learned judge, the proper forum to address the appellant’s complaint in respect of the adequacy of the compensation sum is by way of referring the matter to Court under s.56 of the SLC. The Appeal [32] The appellants had advanced several grounds of appeal. Nevertheless we do not wish to respond to each and every ground of appeal. Suffice for us to deliberate only upon the following ground which we think is sufficient to dispose off the appeal: 16 Total failure by the learned judge to address and to conclude on the various declaratory orders sought by the appellant and negligence of the first respondent. [33] Learned counsel for the appellant submitted that the learned judge had erred in law in failing to direct his mind and address the various declaratory orders which the appellant is seeking as pleaded in her statement of claim. The series of mistakes and non-compliance of the relevant provisions of the SLC committed by the first respondent in the resumption process were made plain before the learned judge but yet the learned judge ignored and failed to address those contentious issues before him. Instead, the learned judge went to pronounced that “...in my view, the root of all those claims boils down to the unsatisfactory amount of compensation awarded to the plaintiff which is less than RM1.5 million she paid to purchase the said subject land...” (See – p.8, para 18, Supplementary Record of Appeal (SRA)). [34] We are entirely with the learned counsel for the appellant’s submissions. We were of the view that the matter before the learned judge is not about the inadequacy of the award handed down by the first respondent to the appellant, in which case it should go by way of a land 17 reference under s.56(1) of the SLC. It is apparent that her suit is grounded upon her claim for damages for negligence and nuisance and seeking various declaratory reliefs emanating from the first respondent’s failure to notify her of the date of the first inquiry under s.49 of the SLC, the resultant award made thereunder and the consequent resumption of the subject land to the State involving the removal of her name from the register of title. The appellant claimed that the whole process was against the procedures set down in the SLC and totally in breach of art. 13 of the Federal Constitution (‘FC’). Thereafter, the issues moved to the inappropriate mode of re-registering the subject land back under the appellant’s name, the re-issuing of a fresh notice of inquiry under s.49 of the SLC leading to the second inquiry, the resultant second award and the resumption of the subject land to the State for the second time. As in the earlier instant, the appellant again claimed that the whole process regarding the second resumption was tainted with illegality. We are on common ground with learned counsel that these are the contentious issues before the learned judge, clearly reflected in the declaratory orders sought by the appellant. 18 [35] From the grounds of judgement, it is apparent that the learned judge had acknowledged the fact that the appellant had no knowledge of the first resumption process (dated 9.1.2012) as the first respondent’s notice of the inquiry prior to the resumption process was sent to the appellant at the wrong address. It is also apparent that the learned judge acknowledged that in the absence of the appellant during the inquiry, the first respondent had awarded the appellant the compensation sum of RM811,693.89 vide Award No. 293/2011 (first award) and thereafter the resumption of the subject land to the State. It is also clear that the learned judge was aware that the appellant was seeking various declaratory orders as a result of the alleged impropriety committed by the first respondent, evinced at p.1 paras. 1, 2, SRA. [36] However, it is apparent that the learned judge did not address these issues but instead went elsewhere, immersing himself on the adequacy of the quantum of compensation, which indeed is a subsidiary issue. The learned judge had clearly committed an error of law when he failed to address the contentious issues before him and decide on the issues. 19 [37] In addition, the appellant had sought to address the issue of the inadequacy of the quantum of compensation by requesting the first respondent to have the matter referred to the High Court pursuant to s.56 of the SLC for the Court’s determination, amongst others, on the value of the subject land, evinced in para 3 of her solicitor’s letter dated 12.11.2013 to the first respondent (at pp. 708, 709, Vol. III, RA). It showed that the appellant had chosen the correct course of action to address her dissatisfaction of the quantum of the award handed down to her, a distinct action from the present suit. Nevertheless, up to this date, the first respondent had yet to refer the matter to the High Court as requested by the appellant. [38] We will now examine the first resumption process. The litany of errors committed by the first respondent begun with their failure to observe the requirement of s.49 of the SLC, dragging along its train consequential breach of further statutory provisions. The section provides that: Plan to be made and notices given “49. (1) The Superintendent shall thereupon cause a plan of the land to be made, if none already exists, and shall cause notices to be posted at convenient places on or near the land to be taken stating that the Government intends to take possession thereof and that claims to compensation for all interests therein may be made to him. 20 (2) Every such notice shall state the particulars of the land and shall require all persons interested therein to appear personally or by agent before the Superintendent at a time and place in such notice mentioned, such time not being earlier than twenty-one days after the date of posting of the notice, and to state the nature of their respective interests in the land and the amount and particulars of their claims to compensation for such interests and their objections, if any, to the measurements as surveyed. The Superintendent may in any case require such statement to be made in writing and signed by the party or his agent. (3) The Superintendent shall also serve notice to the same effect on all such persons known or believed to be interested therein, or to be entitled to act for persons so interested, as reside, or have agents authorized to receive service on their behalf, within Sarawak: Provided that, if any such person resides elsewhere and has no such agent, the notice may be sent to him by registered post if his address can be ascertained after reasonable inquiry.” [39] There is no evidence that such notices as required under s.49 of the SLC were posted at convenient places on or near the appellant’s land , stating that the Government intends to take possession of the same and that claims to compensation for all interests therein may be made to the first respondent. There is also no dispute that the notice to the appellant was sent to the wrong address at No. 366, Jalan Abang Ateh when the appellant’s correct address is at Lot No. 336, Jalan Abang Ateh, thus giving rise to a complete failure of service of the said notice upon the appellant in breach of s.49 of the SLC. 21 [40] The corresponding issue is whether the failure to issue and serve the said public notice upon the appellant is fatal and that such failure would render the whole process of resumption of the subject land to the State null and void. Hence, there is a need to ascertain whether the said provision is a mandatory requirement or otherwise. [41] In our view, aside from the Minister’s declaration under s.48 of the SLC, the issuance and service of the notices under s.49 of the same must assumed the upmost importance. Procedurally, it set into motion the inquiry mechanism and award by the first respondent under s.51 of the SLC. The section provides: “Inquiry and award by Superintendent 51. (1) On the day so fixed, or on any other day to which the inquiry has been adjourned, the Superintendent shall proceed to inquire into the objections, if any, which any person interested has state, pursuant to a notice given under section 49, to the measurements as surveyed, and into the value of the land, and into the respective interests of the persons claiming the compensation, and shall make an award under his hand of – (a) where the land has been surveyed to the satisfaction of the Superintendent, the true area or, where the land has not been so surveyed, the approximate area; (b) the compensation which in his opinion should be allowed for the said land in accordance with the directions contained in sections 60 dan 61; and (c) the apportionment of the said compensation among all persons known or believed to be interested in the land of whose claims he has information, whether or not they have respectively appeared before him, being claimants protected by registration under Part VII. 22 (2) In any such inquiry the Superintendent shall have the same power of summoning and enforcing the attendance of witnesses, including the parties interested or any of them, and of compelling the production of documents, by the same means and so far as may be in the same manner as a Magistrate has in civil proceedings. (3) When the amount of compensation has been settled under subsection (1), if any dispute arises as to the apportionment of the same, or any part thereof, or as to the persons to whom the same, or any part thereof, is payable, the Superintendent may refer such dispute for the decision of the Court.” [42] Section 51 envisages the participation of the persons interested in the inquiry to arrive at a just and proper decision. The first respondent shall proceed to inquire into the objections, if any, which any interested person has stated, pursuant to a notice given under s.49, amongst others, into the value of the land and thereafter shall make an award under his hand of the compensation which in his opinion should be allowed for the said land. The person interested in the land, such as the appellant herein, could only participate in the inquiry and had his fair share of his objections being heard only if he is given the right to appear before the inquiry by the proper service of the notices issued under s.49 of the SLC. Without such service the person interested will not have any inkling that his land will consequently be resumed by the State. This is blatantly wrong wherein the appellant was denied access to procedural fairness to appear before the inquiry and participate therein as was intended by the clear wordings of ss.49 and 51 of the SLA. At the end of the day, without the issuance 23 and proper service of the notices, no valid and proper inquiry could be held and no valid award could be handed down either. [43] The person interested will also be deprived of his/her right of access to s.56 of the SLC in the event the adequacy of the award is disputed. The section provides: “Reference to Court 56. (1) Any person interested who has not accepted the award may, by written application to the Superintendent and on payment of the prescribed fee, require that the matter be referred by the Superintendent for the determination of the Court, whether his objection be to the measurement of the land, the amount of the compensation, the persons to whom it is payable or the apportionment of the compensation among the persons interested. (2) The application shall state the grounds on which objection to the award is taken. (3) Every such application shall be made – (a) if the person making it was present or represented before the Superintendent at the time when he made his award, within six weeks from the date of the Superintendent’s award; (b) in other case, within six weeks of the receipt of the copy of the award from the Superintendent under section 52(2) or within six months from the date of the Superintendent’s award, whichever period shall first expire.” [44] Sections 52, 53 and 54 of the SLC relate to the further steps to be taken before the land shall vest in the State. 24 [45] Section 52 provides that the award of the first respondent shall be final and conclusive evidence as between the first respondent and the person interested, whether they have respectively appeared before the first respondent or not, of the true area and value of the land and the apportionment of the compensation among the persons interested. [46] In our view, whether the person interested had appeared before the first respondent or not, must as a matter of necessity, be premised upon the factum of the proper service of the notices under s.49 of the SLC. Otherwise, it makes no logical sense of the finality of the award in the event the award was made in default of a proper service of the notices to the person interested. [47] Section 53 further empowered the first respondent to take possession of the land when the first respondent had made an award under s.51 of the SLC. However, in cases of emergency, whenever the Minister so directs, the first respondent may on the expiration of fifteen days from the date of posting of the notice alluded in s.49, take possession of any land needed for any of the purposes in s.46, although no such award has been made. 25 [48] Section 54 of the SLC deals with the vesting of the land to the State and entries to be made in the register. The section is in the following terms: “Entries to be made in Register 54. (1) When the Superintendent has taken possession of land under section 53, the Registrar shall make an entry in the Register in respect of such land declaring that possession has been taken of the whole or, if a part only, the approximate area thereof and, after such entry has been made, shall serve a notice in writing on the person in possession of the document of title relating to such land requiring him to deliver up the same to the registrar, and such person shall deliver up the issue document of title in accordance with the terms of such notice. (2) Any person failing to comply with a notice served upon him under this section shall be guilty of an offence: Penalty, a fine of Two Thousand Ringgit. (3) Upon such entry being made as in this section provided, the whole of the land or part thereof, as the case may be, shall vest in the Government. (4) The Superintendent shall, in cases where part only of the land has been acquired, cause to be prepared documents of title for the unacquired part or parts of the land and shall, after cancellation of the existing documents of title, issue such documents of title to the persons entitled thereto”. [49] When the first respondent acted upon the provisions of ss.49, 51, 52, 53 and pursuant to s.54 of the SLC, it resulted in the resumption of the subject land to the State vide the registration of Memorandum of Declaration of Resumption No. L 679/2012 dated 9.1.2012 (the first resumption). Unfortunately, it was done without the knowledge or notice of the appellant because the notices under s.49 were wrongly served 26 elsewhere. It then resulted in the first respondent awarding RM811,693.83 vide Award No. 293/2011 (the first award) to the appellant in the absence of the appellant and without the appellant’s knowledge. It also resulted in the finality of the first respondent’s award and the resumption of the appellant’s land (subject land) to the State on 9.1.2012. On both accounts, it was done without the knowledge or notice to the appellant. [50] It is axiomatic that the court must have regard to the intention of the legislature as expressed in the wording of the statute. In Metramac Corporation Sdn. Bhd. v Fawziah Holdings Sdn. Bhd. [2006] 3 CLJ 177, the Federal Court held that: “Thus when the language used in a statute is clear, effect must be given to it. As Higgins J said in Amalgamated Society of Engineers v Adelaide Steamship Co. Ltd 28 CLR 129 at pp. 161-162: The fundamental rule of interpretation, to which all others are subordinate, is that a statute is to be expounded according to the intent of the Parliament that made it, and that intention has to be found by an examination of the language used in the statute as a whole. The question is, what does the language mean; and when we find what the language means in its ordinary and natural sense, it is our duty to obey that meaning even if we think the result to be inconvenient, impolite or improbable. The primary duty of the court is to give effect to the intention of the legislature as expressed in the words used by it and no outside consideration can be called in aid to find another intention (see Nathu Prasad v Singhai Kepurchand [1976] Jab. LJ 340.” 27 [51] Hence, in our view, the operational scheme of s.49 and the attendant sections that follow (ss.51, 52, 53 and 54) warrants a strict interpretation of the said provisions in favour of the persons interested whose property is to be taken away and be vested in the State. The importance of giving the notices and the proper service of the notices to the persons interested cannot be understated. Its non-compliance has a far reaching effect upon the persons interested as exemplified by the injustice and farcicality that had befallen the appellant herein, enumerated in the preceding paragraphs. Therefore, in our view, the proper construction of the legislative intent ought to be that the giving of the notices under s.49 of the SLC and the proper service of the said notices as procedurally provided by law to the persons interested (i.e the appellant in this case) is a mandatory exercise. We were fortified in our view by the fact that the section is littered all over with the word ‘shall’ (not less than five), denoting the legislative intent of wanting to have the fulfillment of the requirement under s.49 a mandatory effect. As such, as a measure of assigning its full effect and meaning, its provision must be strictly interpreted in favour of the person whose property is to be taken away. Its non-compliance, in particular the proper service of the notices upon the person(s) interested, is a breach that cannot be tolerated, rendering the issuance of the notices under s.49 of the SLC to be void. Consequently, the resumption proceedings (including the measures initiated by the first 28 respondent under ss.51, 52, 53 and 54 of the SLC) taken pursuant thereto would equally suffer the same fatality. [52] Learned counsel also submitted that had the learned judge considered that the first respondent had not complied with the provisions of ss.49, 51, 52, 53 and 54, he would thus find that the resumption exercise was unlawful and in violation of a constitutionally guaranteed right under art.13 of the FC, which provides: “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”. [53] We are with him. The provisions of ss. 49, 51, 52, 53 and 54 of the SLC appear to be procedural in nature. Nevertheless, it is covered under the all encompassing expression of ‘law’ in the said art. 13 which includes procedural law (see – In Re Tan Boon Liat [1977] 1 LNS 110). [54] The learned judge in Lee Kwan Woh v PP [2009] 5 CLJ 631 said at p.643, 644: “[16] We next turn to consider the expression ‘law’. It is defined by art.160(2) of the Constitution as follows: 29 ‘Law’ includes written law, the common law in so far as it is in operation in the Federation or any part thereof, and any custom or usage having the force of law in the Federation or any part thereof. ‘Common law’ is defined by s.66 of the Consolidated Interpretation Acts of 1948 & 1967 as follows: ‘Common law’ means the common law of England We resort to s.66 in Part II of the Consolidated Acts as it expressly states that it applies to ‘every written law as hereinafter defined, and in all public documents enacted, made or issued before or after 31 January 1948’. Since the Constitution is a written law that came into force in 1957, that is to say, after 31 January 1948, it is Part II that must be utilized to interpret the supreme law. The rule of law forms part and parcel of the common law of England. And the rules of natural justice which form part of the wider concept of ‘procedural irregularity’ formulated by Lord Diplock in Council of Civil Service Union v. Minister for the Civil Service [1985] AC 374 are an integral part of the rule of law. Accordingly, the rule of law in all its facets and dimensions is included in the expression ‘law’ wherever used in the Constitution.” [55] It is trite and we are clear that it is a fundamental right guaranteed by art. 13 of the FC that no person shall be deprived of his or her property save in accordance with the law. What it means is this – that legislative, administrative and judicial action undertaken by the State against the individual is and must be objectively fair. It should not be done with the arrogance of arbitrariness or tainted with elements of unfairness or done in an excessive manner. Thus, the appellant herein has a constitutionally guaranteed right to receive a fair representation or hearing before the first respondent in the aforesaid inquiry under s.49 of the SLC before her property is resumed to the State. She must have the right to have notice 30 of the inquiry in respect of the resumption of her land. Hence, she must be given the right to attend the said inquiry by the issuance and proper service of the notices issued under the said s.49 upon her. The appellant cannot be deprived of this right although she retained the option to waive it. [56] Clearly, the appellant’s fundamental right to her property guaranteed by art.13 of the FC was violated when her appearance before the first respondent in the inquiry was denied because the notice of the said inquiry was nonchalantly served at the wrong address. [57] As we have mentioned earlier, the first respondent went further by conducting the inquiry and handing down the award in respect of the resumption of the said land in the absence of the appellant and thereafter vesting the said land to the State without the knowledge of the appellant when notice of the same under s.54(1) was not served on the appellant. Clearly, from the entire narrative of the case, the appellant was denied a fair hearing before her land was resumed to the State. Clearly too, the deprivation of the appellant’s land to vest in the State was not done in accordance with law as sacrilegiously protected by art. 13 of the FC. 31 Hence, to give meaning to such constitutional protection, the said provisions must be strictly interpreted in favour of the appellant whose property is to be deprived. The provisions prescribes clear procedures to be followed by the acquiring authority in acquiring a person’s land. As such, any digression therefrom would constitute a violation of art. 13 of the FC. [58] We are further of the considered view that the second inquiry in the second resumption exercise cannot rectify the nullity apparent in the first resumption process. This is grounded upon the fact that at all material times, the subject land was still vested in the State pursuant to the first resumption exercise and there is no evidence of its proper re-alienation to the appellant pursuant to s.13 and/or s.15A of the SLC. We have before us is the appellant’s unrebutted averment that the ownership of the subject land was conveniently re-registered to the appellant less than 2 months after the appellant, through her solicitor, had complained to the first respondent alleging their failure and negligence in not complying with the provisions of the SLC in the resumption exercise of the subject land. 32 [59] In addition, the evidence suggests that the first award (Award No. 293/2011) and the first Memorandum of Declaration of Resumption vide Instrument No. L 679/2012 resulting from the first resumption exercise wherein the subject land was consequently vested to the State, were still intact and in force. [60] From the scheme of events, one can only conclude that there was no proper re-alienation of the subject land to the appellant according to law to pass the ownership of the subject land from the State to the appellant. In our view, the subject land cannot be transferred back to the appellant without first going through the necessary statutory process of re-alienation pursuant to ss. 15A and/or 13 of the SLC, whichever is applicable. [61] Hence, in law, at all material times the subject land was still State land when the second notice of inquiry was issued and served upon the appellant. In our view, in such circumstances the said notice of inquiry is of no effect as the land was still vested in the State, depriving the appellant of any locus standi. As such, it matters not that the appellant had attended the second inquiry and was eventually given an award (Award No. 33 420/2013, dated 11.11.2013, the second award, wherein the appellant was awarded the sum of RM811,693.39 as compensation for the resumption of her land, the same amount awarded in the first award). [62] Thus, in our considered view, the learned judge fell into serious error when he found that the failure to issue a proper notice under s.49 of the SLC to the appellant in respect of the first resumption exercise has been remedied by the first respondent when a second inquiry was properly held. This is simply because the second inquiry is equally smacked of illegality from the very beginning when the subject land was re-registered under the appellant’s title without due regard to statutory provisions (ss. 15A and/or 13 of the SLC). In such event, the corresponding notices, inquiry, Award No. 420/2013 dated 11.11.2013, Memorandum of Declaration of Resumption vide Instrument No. L 202/2014 and the eventual resumption of the subject land to the State would equally have no effect for want of legal basis. [63] We agree that the first respondent did not cause the resumption of the subject land to the State. It was a ministerial decision made for a public purpose. 34 [64] Nevertheless, the first respondent’s duty is crystal clear i.e. to execute the ministerial decision that was embodied and translated in terms of the declaration under s.48 of the SLC to resume the subject land to the State. In executing this duty, the first respondent bears the onerous task to see to it that all the legal niceties in the resumption exercise are complied with. This is the duty of care that the first respondent owed to the appellant as statutorily embedded in the SLC. [65] In our view, the notice due to the appellant under s.49 of the SLC that was nonchalantly served at the wrong address constitute a breach of the said duty of care. It had occasioned a failure to notify the appellant of the date of inquiry. Clearly, it amounted to an omission of discharging the obligatory duty rendered upon the first respondent by s.49 of the SLC. [66] We are also of the view that such failure which bring along its train further consequential non-compliance under ss.51, 52, 53 and 54 of the SLC, is a negligent act which apparently had caused the appellant to suffer damages, distress and deprivation of the use and enjoyment of her land and which had also put the appellant into unnecessary inconveniences and expenses. Thus, the appellant is entitled to pursue 35 and claim for damages arising out of the breach of duty, negligence and errors committed by the first respondent. There can be no doubt that the appellant has proven the liability of the first respondent in the losses and damages suffered by the appellant. Conclusion [67] For all the reasons given, we would allow the appellant’s appeal with costs in the following terms: (a) We allow the prayers enumerated at paras. 19(i) and (ii) above. The status quo of the subject land prior to the first resumption exercise is to be reinstated, meaning the subject land is to be re-alienated to the appellant pursuant to s.15A of the SLC. (b) The Minister is at liberty to impose a fresh s.48 declaration and have it re-gazetted if the State is still interested to acquire the subject land on account that the earlier s.48 declaration gazette on 2.7.2008 affecting the subject land is deemed extinguished and lapsed upon the convening of the first inquiry. 36 (c) The appellant is ordered to make full repayment of the sum of RM811,693.89 to the State (Government of Sarawak) without interest within 30 days from the service of this Order. (d) We allow the prayers enumerated in para. 19(iii), i.e the appellant’s claim for special and general damages with interest. The amount is to be assessed by the learned trial judge. The case is thus transmitted back to the High Court for this purpose. (e) We decline to make further orders in respect of prayers 19(iv), (v), (vi), and (vii) on account of redundancy in view of the orders enumerated in para 67 (a), (b), (c) and (d) above. [68] The respondent is also ordered to pay costs to the appellant in the sum of RM15,000.00. Meanwhile the deposit for the appeal is refunded to the appellant. So ordered. 37 DATED: 27th October 2017 ( AHMADI HAJI ASNAWI ) Judge Court of Appeal, Malaysia Counsel Solicitors:- For the Appellant/Defendant: William Ding Messrs. William Ding & Co. Peguam Bela & Peguamcara For the Respondents: Datuk J.C. Fong bersama Evy Liana Atang State Legal Officer Jabatan Peguam Besar Negeri Sarawak

Tika 2.6.0

W- 02(A)-789-04/2016

PERAYU MOHD ZAMRI BIN ISMAIL … PERAYU RESPONDEN KOPERASI PEKEBUN KECIL GETAH NASIONAL BERHAD … RESPONDEN

Administrative Law — Judicial review — Dismissal without just cause or excuse — Industrial Court found appellant was dismissed without just cause or excuse and ordered Appellant to be paid compensation in lieu of reinstatement and back wages — Respondent filed judicial review — High Court found in favour of respondent and quashed award of Industrial Court — Whether misconduct complained of by the employer has been established — Whether the IC, having decided that misconduct had been proven, is vested with the power to consider if such a misconduct which had been proven merits the punishment of dismissal — Whether decision of the IC can be quashed for want of “proportionality” — Whether the IC was justified in substituting the decision of the respondent employer with its own Award — Whether the decision of judicial review Judge plainly wrong and merits appellate intervention — Industrial Relations Act 1967 [Act 177], section 20

27/10/2017

YA DATO' ASMABI BINTI MOHAMADKorumYA DATUK DR HAJI HAMID SULTAN BIN ABU BACKERYA DATUK DR. PRASAD SANDOSHAM ABRAHAMYA DATO' ASMABI BINTI MOHAMAD

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=44bd767d-99af-4b4e-b2d9-4c68c252012b&Inline=true

1 DALAM MAHKAMAH RAYUAN DI MALAYSIA (BIDANG KUASA RAYUAN) RAYUAN SIVIL NO.W- 02(A)-789-04/2016 ANTARA MOHD ZAMRI BIN ISMAIL …PERAYU DAN KOPERASI PEKEBUN KECIL GETAH NASIONAL BERHAD …RESPONDEN [DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR PERMOHONAN BAGI SEMAKAN KEHAKIMAN No. 25-200-07/2015 Di dalam perkara Mahkamah Perusahaan kes No. 11/4-893/11 (Awad No. 383 Tahun 2015 bertarikh 7 haribulan April 2015) Dan Di dalam perkara suatu Permohonan di bawah Aturan 53 Kaedah-Kaedah MahkamahTinggi Untuk Semakan Kehakiman ANTARA KOPERASI PEKEBUN KECIL GETAH NASIONAL BERHAD …PEMOHON DAN MOHD ZAMRI BIN ISMAIL …RESPONDEN 2 CORAM: HAMID SULTAN ABU BACKER, JCA PRASAD SANDOSHAM ABRAHAM, JCA ASMABI BINTI MOHAMAD, JCA (Asmabi Binti Mohamad JCA, delivering Judgment of the Court) JUDGMENT OF THE COURT INTRODUCTION [1] This is an appeal from the Kuala Lumpur High Court (Special Powers) against the decision of the learned Judge of the said High Court dated 28th March 2016 which allowed the Judicial Review Application (“JR Application”) filed by the Applicant, Koperasi Pekebun Kecil Getah Nasional Berhad for certiorari to be issued to quash the award of the Industrial Court vide Award No.383 of 2015 dated 7th April 2015. [2] We heard this appeal on 1st November 2016. After having read the written submissions as well as hearing the oral arguments on the issues raised, we allowed the appeal with cost of RM5,000.00 to the Respondent. [3] Our reason for doing so now follow. [4] For ease of reference the parties will be referred to as there were described in the High Court. 3 BRIEF BACKGROUND FACTS [5] Briefly the facts of the case are as follows: [6] The Respondent commenced his employment with the Applicant on 1st November 1990 as a Marketing Executive. He continued to work for the Applicant for almost twenty years. His last post was General Manager of the General Business Division and his last drawn salary was RM6,699.38. [7] On 23rd October 2009, the Respondent was issued a show cause letter with five charges having been framed against him. These five charges are as follows: “(a) Bahawa kamu selaku Pengurus Besar Bahagian Perniagaan Am adalah tidak cekap di mana kamu gagal melaksanakan tugas, lalai, melambat-lambatkan dan berlengah-lengah dalam menjalankan tugas yang diamanahkan kepada kamu. (b) Bahawa kamu telah didapati cuai, lalai dan berlengah-lengah dalam menjalankan tugas kamu yang telah menyebabkan Syarikat menanggung kerugian yang amat tinggi apabila dikenakan penalti atau denda kualiti baja Estet Pekebun Kecil Sdn Bhd (ESPEK) kerana baja yang dibekalkan tidak mengikut spesifikasi bagi bekalan baja untuk tahun 2006. (c) Bahawa kamu telah dianggap telah melakukan kesalahan selaku Pengurus Besar Bahagian kerana menyembunyikan dengan niat dari pengetahuan pihak Pengurusan Syarikat dan tidak mengambil sebarang tindakan segera berhubung dengan denda kualiti baja yang dikenakan oleh pihak ESPEK bertarikh 28 Mac 2007 walaupun surat itu telah dihantar dan diakui penerimaannya oleh 4 Bahagian Perniagaan Am pada 9 Januari 2008 yang lalu dan surat tersebut dijumpai oleh pihak pengurusan Syarikat di dalam posesi dan kawalan kamu. (d) Bahawa kamu adalah tidak cekap dimana kamu telah gagal mengambil tindakan yang segera untuk berbincang serta membuat rayuan kepada pihak ESPEK berkenaan dengan denda kualiti baja yang telah dikenakan tersebut sedangkan kamu selaku kaki tangan kanan yang berpengalaman di dalam bidang ini sepatutnya mengetahui akan langkah-langkah segera yang boleh dan perlu diambil berhubung dengan denda kualiti baja yang telah dikenakan tersebut untuk mengelak pihak Syarikat daripada menanggung kerugian yang lebih besar. (e) Bahawa kamu telah menggunakan kepentingan diri sendiri kamu melebihi kepentingan Syarikat dan tidak amanah di dalam melaksanakan tugas kamu dimana kamu telah berkelakuan dengan cara yang menimbulkan syak yang munasabah dan menimbulkan kecurigaan apabila tidak mengambil tindakan serta tidak pernah memaklumkan kepada pihak Syarikat berkaitan dengan surat ASPEK yang bertarikh 28 Disember 2007 tersebut yang telah pun diterima oleh bahagian pengurusan kamu dengan niat untuk menyembunyikan perkara tersebut daripada pengetahuan pihak pengurusan Syarikat yang mana kelakuan kamu tersebut telah menjejaskan imej dan kepercayaan terhadap perkhidmatan kamu sebagai seorang Pengurus Besar dan ekoran dari perbuatan kamu tersebut pihak Syarikat telah menanggung kerugian yang amat tinggi.” [8] On 26th November 2009 the Respondent replied to the charges proffered against him. He stated that he had overlooked the letter from ESPEK dated 28th December 2007 (see page 14 of the Core Bundle (“CB”) (“ESPEK’s Letter”) and he had never intended to conceal the matter from the Applicant’s knowledge. He further claimed that he had no intention to put off and / or delay and / or defer any work given to him 5 especially matters touching compensation or penalty imposed on the Applicant. [9] The Respondent testified that he had been working for the Applicant for over 20 years and for the sake of the survival of the Applicant, he, along with other employees worked hard during the financial crisis as well as for the sake of the fertilizer business. [10] On 25th February 2015, the Respondent was informed that a domestic inquiry that was set up to inquire into the five charges proferred against him had found him guilty of these charges. Based on this finding, the Respondent was dismissed from the employment of the Applicant with effect from the date of the letter. [11] Aggrieved over the action, the Respondent filed a claim for reinstatement with the Industrial Relations Department alleging that his dismissal was without just cause or excuse. Pursuant to Section 20(3) of the Industrial Relations Act 1967(“IRA”), the Honourable Minister referred the matter to the Industrial Court (“IC”) for adjudication. On 7thApril 2015 the IC handed down Award No. 383/2016 dated 7 th April 2015 which found that the Respondent was dismissed without just cause and excuse and that the punishment of dismissal was too harsh in the circumstances of the case. As reinstatement was not an appropriate remedy in the circumstances, the IC made an order for the Respondent to be paid compensation in the sum of RM133, 987.60 (RM6,699.38 x 20 years), in lieu of reinstatement. He was also awarded back wages in the sum of RM80,392.56 (RM6,699.38 x 12). 6 [12] Aggrieved by the said Award, the Applicant moved the High Court by way of the JR Application to quash the Award of the IC. On 28th April 2016, the High Court allowed the Applicant’s JR Application, to quash Award No. 383/2015 with costs of RM3,000.00. A further order was made by the learned Judge for the monies paid to the Respondent to be refunded to the Applicant. AT THE INDUSTRIAL COURT [13] The salient facts before the IC Court were as follows: (a) The action against the Respondent was premised on ESPEK’s Letter. Vide ESPEK’s Letter addressed to “Pengurus Besar Kumpulan” of the Applicant, Estet Pekebun Kecil Sdn Berhad (“ESPEK”) made a claim via Debit Note DN03/12/2007- ESTET from the Applicant in the sum of RM1,174.776.57 as penalty for supplying fertilizer not in accordance with the specification for year 2006. (b) The Applicant contended, due to the Respondent’s failure to act upon the said letter i.e. to appeal against the imposition of penalty in the sum RM1,174,776.57, the Applicant suffered loss in the sum of RM1,174,776.57. (c) The IC was of the view that the Respondent was negligent in not taking action on the said letter and / or in not bringing the 7 said matter to the attention of the Applicant and / or in not appealing to ESPEK for the penalty imposed on the Applicant to be reduced. (d) The IC was of the view, based in the circumstances of the case, the penalty imposed was excessive. The IC further stated that the Applicant had framed five charges based on one act of failing and / or neglecting to act upon the letter. In short there were multiple charges premised only on one single alleged misconduct (see paragraph 17 of the Award (at page 8 of CB)). (e) The Applicant had framed five charges in order to make the disciplinary proceedings against the Respondent appear to be serious and/ or grave despite the fact that the alleged misconduct was based on the alleged act of the Respondent in not taking action on ESPEK’s Letter. (f) With respect to the 5th Charge where the issues of conflict of interest and untrustworthiness were raised against the Respondent, the IC found that despite the issues having been raised, no facts and / or evidence in support of those allegations were proved before the IC. (g) Based on equity and good conscience and within the spirit of IRA, in the circumstances before the IC, the IC was of the view that the five charges framed by the Applicant based only on 8 one single act discussed above was merely to make it appear and or to give the impression to the IC, the Respondent was facing many charges of serious misconducts. This was intentionally done in order to influence the IC to impose heavier penalty on the Respondent. (h) The IC was not satisfied that the Applicant had proved that it was the Respondent who was responsible to have caused the Applicant to lose RM1,174,776.57. From the facts adduced, the Respondent was not accused of causing the Applicant to suffer the penalty for failure to supply fertiliser in accordance with the specification but he was only responsible for not acting upon ESPEK’s Letter. (i) The facts before the IC disclosed that the penalty sum was only RM74,776.57. There was no evidence adduced by the Applicant that the amount of penalty paid was RM1,174.776.57. (j) Premised on the above reasons, the IC was of the view that the penalty in the form of dismissal was too harsh and ought not to be imposed on the Respondent. Hence, the IC viewed the punishment imposed was disproportionate to the misconduct he was charged with. (k) As a reinstatement was not appropriate, in the circumstances of the case, the Respondent ought to be paid compensation in 9 lieu of reinstatement. Back wages too was awarded to the Respondent as he was dismissed without just cause or excuse. AT THE HIGH COURT [14] The findings of the High Court were as follows: (a) The learned Chairman of the IC erred when he decided that there was no evidence that the Applicant had paid RM1,174.776.57 to ESPEK as penalty. If the learned Chairman disbelieved the Applicant’s witnesses pertaining to the payment of the sum of RM1,174.776.57 million, the learned Chairman ought to have held that the witnesses were not credible. (Note: The learned Judge made a finding of fact that there was in fact payment made based on the oral evidence of the witnesses). (b) The IC ought to have considered the reliability and credibility of the evidence given by the witnesses. Unfortunately, this was not done. The IC had made a finding that the loss of RM1,174,776.57 million was not proved merely because there was no evidence tendered. Relying on the case of Norizan Bakar v Panzana Enterprise Sdn Bhd [2013] 9 CLJ 409, the Learned Judge ruled that the IC had taken into consideration irrelevant matter. (Note: The Learned Judge interfered with the finding of the IC) 10 (c) The learned Judge further made a finding that the decision of the IC that the misconduct committed by the Respondent did not merit a dismissal but something lesser, was unreasonable. (d) The Respondent was holding an important post which must come with responsibility. His failure to act upon the said letter was a serious failure especially when the Applicant had incurred substantial loss. (e) The Respondent, with his experience and knowledge of the job, ought to have understood the consequences of his action and ought to have taken the necessary action. (f) The Applicant no longer had confidence in him due to his lack of action. It mattered not whether the Applicant suffered any loss due to the Respondent’s action. The learned Judge ruled that as long as there is potential loss to be suffered by the Respondent at the time the said letter was issued, that sufficed. (g) In view of the aforesaid, the learned Judge was of the opinion that decision of the IC was so unreasonable that no reasonable tribunal similarly circumstanced could have arrived at such decision. 11 OUR DECISION The law [15] We were mindful of the limited role of the appellate court in relation to findings of facts made by the court of first instance. [16] In the course of that, we had sought guidance from the very often quoted case of Lee Ing Chin @ Lee Teck Seng v Gan Yook Chin [2003] 2 MLJ 97 where the Court of Appeal held as follows: “an appellate court will not, generally speaking, intervene unless the trial court is shown to be plainly wrong in arriving at its decision. But appellate interference will take place in cases where there has been no or insufficient judicial appreciation of the evidence.” [17] Reference is also made to the decision of the Federal Court in Gan Yook Chin v Lee Ing Chin @ Lee Teck Seng [2004] 4 CLJ 309 where the Federal Court held that the test of “insufficient judicial appreciation of evidence” adopted by the Court of Appeal was in relation to the process of determining whether or not the trial court had arrived at its decision or findings correctly on the basis of the relevant law and the established evidence. [18] We were also mindful of our role in dealing with the appeal at hand which originated by way of a judicial review application. The issue on the proper approach to deal with the appeal was ventilated by both the 12 respective parties. We do not propose to deal with the law pertaining to the scope of judicial review at great length as the law is trite. We were guided by a plethora of cases which ruled that judicial review is not an appeal from the decision but a review of the manner in which the decision was made and that the High Court in hearing the judicial review is not entitled to consider whether the decision itself, on the merits of the facts, was reasonable and fair. [19] Notwithstanding the above, we were also aware that the law on judicial review had developed so as to give the power to the court hearing a judicial review matter to scrutinize such decision not only for process, but also for substance to determine the reasonableness of the decision. Therefore, the conventional concept that judicial review is concerned only with the review in the manner a decision is made is no longer the correct approach to be adopted by the Court in dealing with judicial review cases. (see R.Ramachandran v. The Industrial Court of Malaysia & Anor [1997] 1 MLJ 145 ; Titular Roman Catholic Archbishop of Kuala Lumpur v Menteri Dalam Negeri & Ors [2014] 8 CLJ 629; Datuk Justine Jinggut v Pendaftar Pertubuhan [2012] 3 MLJ 212 ; Ranjit Kaur S. Gopal Singh v Hotel Excelsior (M) Sdn Bhd [2010] 8 CLJ 629) Ketua Pengarah Hasil Dalam Negeri v Alcatel-Lucent Malaysia Sdn Bhd & Anor [2017] 2 CLJ 1). [20] We were also guided by cases such as Wong Yuen Hock v Syarikat Hong Leong Assurance Sdn Bhd [1995] 2 MLJ 753 ; [1995] 3 CLJ 344 FC (“Hong Leong”) ; Milan Auto Sdn Bhd v Wong She Yen [1995] 4 CLJ 449 ; [1995] 3 MLJ 537 (“Milan Auto”) which provide 13 the guidelines to the Industrial Courts in dealing with dismissal cases involving private sector employees. These two cases stated that the Industrial Courts have to, firstly determine whether the misconduct complained of by the employer has been established, and secondly whether the misconduct which was established constituted just cause or excuse for the dismissal. The Industrial Court, having decided that the misconduct had been proven, is vested with the power to consider if such a misconduct which had been proved merits the punishment of dismissal. [21] We have also considered the principles laid down in Hong Leong; William Jacks & Co. (M) Sdn Bhd v S. Balasingam [1997] 3 CLJ 235 (“William Jacks”) which ruled that generally the High Court is not obliged to interfere with the findings of the IC unless such findings are so unreasonable that no reasonable man could reasonably arrived at such findings. This principle is in line with the spirit and intent of the IRA that the IC must act according to equity and good conscience. Further the court in Vasudevan Vazhappuli Raman v T. Damodaran P.V Raman & Anor [1981] CLJ (REP) 101 ruled that the appellate court must not reverse the judge’s exercise of discretion “on a mere “measuring cast” or on a bare balance as the mere idea of discretion involves room for choice, and for difference in opinion”. The court too “cannot make use of certiorari proceedings as a cloak to entertain, what in truth is, an appeal against findings of fact.” (see William Jacks). [22] Upon perusal of the appeal records, the written submissions of the learned Counsels as well having heard the oral arguments of both parties and based on the facts as presented above, the question that we need 14 to ask is whether the IC could decide if the dismissal of the Respondent was without just cause or excuse by using the doctrine of proportionality of punishment and also decide whether the punishment of dismissal was too harsh in the circumstances when ascertaining the Award under section 20 (3) of the IRA. [23] We need not go further as this very question had been answered in affirmative by the Federal Court in Norizan Bakar v Panzana Enterprise Sdn Bhd [2013] 9 CLJ 409 (FC) (“Norizan”). The Federal Court in Norizan held as follows: “[36] Thus, in reference to the questions posed to us, we are of the view that the Industrial Court has the jurisdiction to decide that the dismissal of the appellant was without just cause or excuse by using the doctrine of proportionality of punishment and also decide whether the punishment of dismissal was too harsh in the circumstances when ascertaining the award under s. 20(3) of the IRA. We are further of the view that the Industrial Court in exercising the aforesaid functions can rely on its powers under s, 30 (5) of the IRA based on the principle of equity, good conscience and substantial merit of the case. [37] Clearly, the reference by the Federal Court in Milan Auto’s decision to the “two fold” test, especially the second fold where the Industrial Court has to decide whether the proven misconduct constitutes just cause and excuse for the dismissal is clear reference to the duty of the Industrial Court to apply the doctrine of proportionality of punishment. This is consistent to what is required of the Industrial Court under s. 30 (6) in making an award which provides: (6) In making its award, the Court shall not be restricted to the specific relief claimed by the parties or to the demands made by the parties in 15 the course of the trade dispute or in the matter of the reference to it under section 20 (3) but may include in the award any matter or thing which it thinks necessary or expedient for the purpose of settling the trade dispute or the reference to it under section 20 (3).” [24] The Federal Court in Norizan acknowledged that within the framework of the IRA, there is already an inbuilt mechanism under Item 5 of the Second Schedule for the Industrial Court to consider the doctrine of proportionality of punishment. [25] Norizan is the authority which permits the Industrial Court to decide whether the misconduct proved warrants the punishment of dismissal. [26] Our next task is to examine the Award of the IC and determine, whether based on the facts as illustrated above, the decision of the IC can be quashed for want of “proportionality”. [27] The facts from the proceedings before the IC were as follows: (a) Although the Respondent was charged with five charges, the undisputed fact is, all these five charges stemmed from the single act in not taking action and / or in not responding to ESPEK’s Letter. (b) The IC was of the view that this was not appropriate and against the doctrine of equity and good conscience for the Applicant to magnify the alleged misconduct so as to influence 16 the IC that the Respondent was charged with many charges consisting of serious misconducts to justify imposition of more severe punishment on the Respondent. (c) The Applicant had included element of conflict of interest and untrustworthiness in the 5th charge, despite no evidence and / or facts being adduced to support these allegations. (d) The IC which conducted the viva voce evidence was satisfied that the Applicant had failed to tender documentary evidence to prove the Applicant had in fact paid the sum of RM1,174,776.57 to ESPEK as claimed. My comments: If it is true as claimed, the Applicant could have easily produced documentary evidence in their possession to prove payments had been made. Hence, there was no reason for the IC to consider the credibility of the witnesses as suggested by the learned Judge, when the facts showed the Applicant did not have any documentary evidence to prove the same. The issue is not credibility of the witness but non-production of documents to prove payment. Hence the learned Judge erred in disturbing the finding of the IC which had the benefit of a viva voce evidence. (e) The alleged misconduct was not based on the fact, the Respondent was responsible for the penalty imposed by ESPEK on the Applicant for supplying the fertilisers not in 17 accordance with the specification but only for his failure to take action on ESPEK’s Letter. (f) The penalty imposed on ESPEK was RM74,776.57. The Applicant had failed to rebut, that payment of penalty was not made by the Applicant. (g) The Respondent had served in the Applicant for about twenty years from 1st November 1990 to 25th February 2010. He had contributed his services diligently. He was awarded the “Promising Young Manager Award 1993” and “Excellent Service Award” in 1993. (h) The Applicant had failed to rebut the Respondent’s evidence that the penalty imposed by ESPEK was not paid by the Applicant. [28] With the above facts placed before us, our next task is to ascertain if the dismissal of the Respondent was without just cause or excuse by using the doctrine of proportionality of punishment. We also have to decide if the punishment of dismissal was too harsh in the circumstances when ascertaining the award under section 20 (3) of the IRA. [29] We are of the view, based on the facts as illustrated above and guided by the authorities we have discussed herein, the decision of the IC could not be termed as so unreasonable that no reasonable tribunal 18 could have arrived at such decision. In Hong Leong, the Federal Court stated as follows: “In exercising judicial review, the High Court was obliged not to interfere with the findings of the Industrial Court unless they were found to be unreasonable, in the sense that no reasonable man could reasonably come to the conclusion. In this case it was perfectly justified for the Industrial to take into consideration Wong’s misconduct as contributory factor towards the assessment of compensation. It was not only consistent with S. 30 (5) of the Act, which requires the Industrial Court to act according to equity and good conscience, but it would also discourage unfair trade practice by motor insurance.” [30] Even assuming, the High Court was of the view, based on the facts before it, the High Court would have come to a different conclusion as indicated in the case of Vasudevan, the High Court must not reverse the said decision “on a mere “measuring cast” or on a bare balance as the idea of discretion involves room for choice, and for different of opinion.” [31] The law is trite, the High Court cannot interfere with the said decision unless if it could be shown that the IC: (a) Had applied the wrong principle; (b) Had taken into consideration irrelevant matters or had not taken into consideration relevant matters; and (c) Handed down an award which is unfair. 19 [32] On the facts of this case, the decision of the Applicant to dismiss the Respondent was disproportionate to the misconduct the Respondent was charged with. It was too harsh and excessive. In view of this the IC was justified in substituting it with its own Award vide Award 383/2015 dated 7th April 2015. Guided by the authorities discussed above, it is within the jurisdiction of the IC to do so. [33] Upon a close scrutiny of the facts before us, we found that the decision of the IC did not suffer from any of the infirmities mentioned above. Therefore, we found no reason for the High Court to interfere with the findings of the IC. CONCLUSION [34] Having examined the appeal records and perused the written submission and having heard the oral arguments, we were constrained to hold that the learned Judge failed to judicially appreciate the evidence and / or the law presented before him so as to render his decision plainly wrong and upon curial scrutiny, it merits our appellate intervention. [35] Based on the aforesaid, we unanimously allowed this appeal with costs of RM5,000.00 to the Respondent subject to payment of allocator fees. The decision of the High Court was set aside and the decision of the Industrial Court was reinstated. The deposit refunded to the Applicant. 20 [36] We therefore ordered accordingly. Dated: 27th October 2017 t.t. (ASMABI BINTI MOHAMAD) Judge Court of Appeal, Malaysia Parties: 1) Messrs A. Sivanesan & Co Advocate & Solicitor For and on Behalf of the Appellant 2-5 (2nd Floor Block 5) No. 30 Jalan Thambypillai Off Jalan Tun Sambanthan 50470 Kuala Lumpur [Ref: AS/E/1292-10/S] … Mr A.Sivanesan Miss M. Kamini 2. Messrs Akmar & Co Advocate & Solicitors For and on Behalf of the Respondent B3A-3, 3rd Floor Block B, Dataran Palma Jalan Selaman 1 Off Jalan Ampang Selangor Darul Ehsan [Ref: No. 983(09) NARSCO/NA/DN/qyla] …Cik Hajjaral Aswani T.Ibrahim Cik Dayang Nur Fathriah Munir

Tika 2.6.0

23NCVC-83-2011

PLAINTIF Sun Media Corporation Sdn Bhd DEFENDAN The Nielsen Company (Malaysia) Sdn Bhd

26/10/2017

YA DATO' LEE SWEE SENG

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=023924e2-d130-4862-b664-bb425251a594&Inline=true

1 IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR IN THE STATE OF WILAYAH PERSEKUTUAN, MALAYSIA (CIVIL DIVISION) SUIT NO: 23NCVC-83-2011 BETWEEN SUN MEDIA CORPORATION SDN BHD (COMPANY NO: 221220-K) ... PLAINTIFF (formerly known as Sun Media Group Sdn Bhd) AND THE NIELSEN COMPANY (MALAYSIA) SDN BHD (COMPANY NO: 10909-V) … DEFENDANT (formerly known as (AC Nielsen (Malaysia) Sdn Bhd) (Main Suit) THE NIELSEN COMPANY (MALAYSIA) SDN BHD (COMPANY NO: 10909-V) … PLAINTIFF (formerly known as (AC Nielsen (Malaysia) Sdn Bhd) AND SUN MEDIA CORPORATION SDN BHD (COMPANY NO: 221220-K) … DEFENDANT (formerly known as Sun Media Group Sdn Bhd) (Counterclaim) 2 JUDGMENT OF Y.A. LEE SWEE SENG [1] The Plaintiff is Sun Media Corporation Sdn Bhd (“Sun Media”). It publishes a national newspaper called “theSun”. It started out as a paid newspaper but in 2002, the newspaper was circulated without any charge. Its circulation is mainly in the Kuala Lumpur/Petaling Jaya (KL/PJ) area with pockets of concentration also in the other big cities in Peninsular Malaysia like Georgetown and Johor Bahru. [2] The Defendant, The Nielsen Company (Malaysia) Sdn Bhd (“Nielsen”), is part of a global group of companies operating under the “Nielsen” brand. They represent themselves as being a global leader in media, consumer and market research. [3] Among the media players and stakeholders, the Defendant is known for its annual syndicated survey called the Nielsen Media Index or “NMI”. It is a wide-ranging survey that seeks to measure the consumption of different print and electronic media, viewership of satellite TV channels, listenership of radio channels and product and service consumption habits of the general population as well as a host of consumer products and 3 services such as telecommunication, credit cards, insurances and banking services, shopping, fast food and beverage consumption, automotive, holidays and travels and the like. The national survey since 1968 is conducted quarterly with the results being published on a biannual basis and available only to paid subscribers with qualifications on the results available, restrictions on usage and disclaimer of liabilities. Problem [4] For quite a while the Plaintiff has been nursing a nagging suspicion that the Defendant has been negligently, or worse still, maliciously under- representing the readership of theSun by its flawed design, methodology and conduct of its NMI Survey. [5] What seems to irk the Plaintiff more than anything else is that going by the results extractable (“Data”) from the NMI Survey and based on the circulation figures of the Audit Bureau of Circulation (“ABC”), the Plaintiff’s newspaper theSun would end up with a readership of less than 1 i.e. 0.8 for the year 2008 and that cannot but be ridiculously false! [6] There were meetings between the parties held to address some of the concerns of the Plaintiff but to no abatement of the Plaintiff brewing discontent. Despite Sun Media’s disapproval of Nielsen’s NMI Survey 4 Methodology, it decided to commission Nielsen to do a syndicated survey in 2008 called the Prime Media Index Survey (“Prime Survey”) of its readership in the Klang Valley from Nielsen’s existing database of online respondents with input and questions contributed by Sun Media. [7] According to Sun Media, the results of the Prime Survey showed that the NMI Survey results cannot be relied on, and is false, as in persistently under-representing the readership of theSun especially amongst the “affluent”. Pleadings and Prayers [8] Perhaps emboldened by the findings and conclusions of this Prime Survey, Sun Media then launched this suit against Nielsen in 2011. It framed 3 causes of action against Nielsen for Negligence, Defamation and Malicious Falsehood. The period of complaint of Sun Media is for the years 2006-2010 of the NMI Survey. [9] Sun Media contended that Nielsen had stubbornly and strenuously refused to accept that there were flaws in the design of the NMI, its methodology and the manner in which the NMI was conducted such that the results of the NMI Survey yielded an under-represented readership 5 (“Offending Publication”) to the detriment of its advertising revenue and consequential loss of profits. [10] According to learned counsel for Sun Media, his client was constrained to publish two articles dated 2.3.2011 and 3.3.2011 (“Offending Articles”) in theSun newspaper in which Sun Media took issue with the accuracy of the NMI. [11] Reacting to the said two articles published in theSun as contended by Sun Media though Nielsen would see it as a case of responding to the said two articles, Nielsen published their letter of 8.3.2011 (“Offending Letter”) to its subscribers and customers by which Nielsen sought to provide its clarification on the 2 articles published in theSun and to allay fears that its subscribers may have with respect to the reliability and validity of the readership figures in the NMI. [12] It prayed inter alia for general damages to be assessed for the Offending Publication in the NMI Survey and in the said Offending Letter of Nielsen to their subscribers. It also prayed for special damages of RM303.52 million for loss of profit from advertisements. There was also prayers for a Declaration that the readership data published in the NMI Survey Report from 2006-2010 in respect of theSun newspaper is false, 6 inaccurate and misleading and some related injunctive reliefs besides interest and costs. [13] Nielsen on the other hand counterclaimed inter alia for damages for defamation based on the 2 Offending Articles that Sun Media carries in theSun. [14] By consent this trial was bifurcated with the trial being confined to findings on liability first. Principles Whether the Defendant owes the Plaintiff a Duty or Care [15] First I shall deal with Sun Media’s claim for negligence. [16] It must be stated at the outset that we are not dealing with personal injury arising out of the negligent act of another person who stands in a proximate relationship with the person who has suffered a personal injury arising out of the action or inaction of the tortfeasor which damage in the personal injury is reasonably foreseeable as in a running down case. [17] Those categories of cases are more settled by the law of negligence in the application of the neighbour principle propounded since the seminal case of Donoghue v Stevenson [1932] UKHL 100. 7 [18] Neither are we dealing with a relationship of a professional with a client where there is reliance on the advice given by the professional whether for a fee or gratuitously, and some economic loss ensued as a result of the advice given. There is a legion of cases governing negligence of professionals like accountants, lawyers, architects, fund managers, bankers and the like. [19] Very importantly we are also not dealing with a case where advice, findings and conclusions are given in the context of a contractual relationship where there are clear terms expressed as to the limitations of the survey methodology, restrictions on use of the survey results. That would apply to the subscribers of NMI Survey of which Sun Media is not one during period in question i.e. 2006-2010. It is important to mention this, at this juncture both for analysis and analogous comparison and extension of new categories of a duty of care. [20] Where there is sought to be recognized a new category of a duty of care where contractual relationship is missing and the reliance is on pure statements made or which can be inferred and a so-called economic loss arising out of reliance on such a statement, then the Courts must tread 8 more cautiously and more so when there would be some remedies available under some other causes of action. [21] When there is no precedent to fall back on and where there is only the guiding light from principles previously stated in the law of negligence, one can appreciate the dilemma expressed by the Law Lords in Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465, where the neighbour principle was extended to cover negligent misstatement. Lord Hodson said, at p. 514: "I do not think it is possible to catalogue the special features which must be found to exist before the duty of care will arise in a given case." [22] Lord Devlin in sounding the depths said, at pp. 529-530: "I do not think it possible to formulate with exactitude all the conditions under which the law will in a specific case imply a voluntary undertaking any more than it is possible to formulate those in which the law will imply a contract." [23] Ultimately it is for the Court to decide on whether or not there is a duty of care as in a tortious duty in a given factual matrix that does not quite fit into the traditional pigeon holes of personal injuries, professional 9 relationships, and contractual relationship where the act complained of is in the nature of statements made and the loss is purely economic loss. [24] From decided cases in our Courts, the position is that the Court should be slow in extending the categories of duty of care in cases involving pure economic loss and statements or advice given when or where there is no privity of contract or proximity of relationship between the parties. [25] 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, 2. the parties must be in a relationship of proximity and 3. it must be fair, just and reasonable to impose liability. 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 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.” 10 [26] In Caparo Industries case (supra) the House of Lord held that the auditor who prepared the accounts of a target company, Fidelity plc, does not owe a duty of care to a shareholder like Caparo who had some shares in Fidelity plc and subsequently increased it in reliance on the audited accounts of Dickman, the auditor. It turned out that the accounts showing profits was false and that Fidelity had in fact made a loss. That was not all as after Caparo Industries had taken control of Fidelity plc, the company was in a worse state than had been revealed by the directors or the auditors. It sued Dickman for negligence in preparing the accounts and sought to recover its losses. This was the difference in value between the company as it had and what it would have had if the accounts had been accurate. [27] Human enterprise as we know it, and with that business and commerce, encompasses a myriad of human relationships permitting of various permutations such that it would be easier to ask the question of whether the parties are in a proximate relationship than it is to give an answer. 11 [28] Be that as it may, one must endeavor to apply the “three fold test” with a view to discern if there is a duty of care that the law should impose or that liability should be assumed by the party said to be in breach. [29] With respect to harm that must be reasonably foreseeable, it may be said that a duty of care is owed to those who are subscribers of the NMI Survey who are mainly advertising agencies and advertisers. If the results are false or misleading, perhaps unwise and ineffective decisions may be made by advertising with certain media but then again, advertising agencies and advertisers deal with a multitude of factors with respect to placement of advertisements such as target audience, reach of the media, language of the media, costs, preference of clients themselves and feedback from the respondents to the advertisement as to how they had come to know of a certain product or services being advertised and the like. It would be quite difficult to say what are the determinative factors in matters of this nature with respect to where to place client’s advertisement. If at all there is, then it would be a case where there is perhaps a cause of action in negligence by the advertising agencies or the advertisers who had spent unnecessary costs on advertising in what may be regarded as ineffective print media. 12 [30] However with respect to advertising agencies and advertisers who made decisions on where to advertise it would be difficult to identify the loss or damage that is foreseeable for in such matters it is difficult if not impossible to attribute loss to having recommended for clients to advertise in an ineffective medium. [31] More than that those who subscribe are subject to the contractually agreed disclaimer and exemption from liability where the use of the information derived from the NMI is concerned. [32] As for non-subscribers they do not have access to such information in the NMI and any access must be by means of unauthorized sharing or disclosure of the NMI Survey results. That aside it is difficult to foresee how it can be said that there would be a clear loss of advertising revenue for the simple reason that advertising decisions are the results of a whole bunch of variables. Whilst reliance of the NMI Survey is one factor to be considered, it certainly cannot be, the be all and end all of all advertising decision- making. In dealing with an increasingly sophisticated audience, media agencies are as astute as they are anxious of getting the maximum mileage for their clients, stretching every advertising ringgit to its limit. 13 [33] It is a fact that Sun Media was not a subscriber to Nielsen’s NMI Survey for the period in which they leveled their attack of under- representation of their readership, i.e. 2006-2010. It had subscribed to the NMI Survey from 1995-2000. [34] Where proximity of relationship is concerned it is certainly not a contractual one and the only proximity is that the print media itself is the subject matter of the NMI Survey. The dicta of Lord Devlin in Hedley Byrne (supra) at pages 530-531 is worthy of reference and reproduction as follows: “I shall ... content myself with the proposition that wherever there is a relationship equivalent to contract, there is a duty of care. Such a relationship may be either general or particular. Examples of a general relationship are those of solicitor and client and of banker and customer ... Where there is a general relationship of this sort, it is unnecessary to do more than prove its existence and the duty follows. Where, as in the present case, what is relied on is a particular relationship created ad hoc, it will be necessary to examine the particular facts to see whether there is an express or implied undertaking of responsibility. I regard this proposition 14 as an application of the general conception of proximity. Cases may arise in the future in which a new and wider proposition, quite independent of any notion of contract, will be needed.” (emphasis added) [35] If at all there is “proximity”, it is that theSun was one of the 23 newspapers being surveyed under the NMI Survey. The fact that media companies in general are interested in how they fare or are perceived would not by itself be sufficient for the Court to say that there is an assumption of liability where the results of the NMI Survey is concerned. [36] There is merit in Nielsen’s submission that Sun Media, not been a subscriber of the NMI for the period it claimed to have suffered pecuniary loss, is not a user of the data and further has not shown how it had relied on the NMI Data to its detriment. On the contrary, the documents show quite clearly that from 2001 onwards Sun Media has been challenging the reliability of the NMI data (See Sun Media’s letter dated 22.2.2001 CBD1 at pg.1). The General Manager - Marketing wrote as follows: “Re: The ACNielsen Media Index I write to confirm that we will not be subscribing for year 2001. 15 You will recall our meeting just before the Chinese New Year where we expressed our disappointment and disagreement with the survey results. This particularly in connection with the total number of readers of the Sun. We understand that surveys are like “streetlights” and certainly not microscopes. We also understand that it is not necessary to have direct correlations between circulation and readership trends. But, we are now in a situation where your survey results depict trends that is in direct contradiction to our actual circulation returns.” [37] There is no room for one to say that Nielsen has by its conduct assumed responsibility or that there is justification to impose liability on Nielsen. Nielsen specifically restricts its subscriber/customer from publication or unauthorized use of the data under Clauses 1.3 to 1.6. These restrictions are applicable to Advertising Agency, Advertiser and Media Owner so that there would not be further reproduction or sharing of those data with others and non-subscriber except under limited cases in 1.3(a) to 1.3(e). [38] More importantly, learned counsel for Nielsen highlighted that Nielsen has expressed the following limits to their liability under Clause 3.1 to 3.3: 16 “3. ACCURACY 3.1 The Customer shall recognize that the Data are estimates derived from sample surveys carried out in accordance with market research methodology and as such are subject to limits of statistical error. 3.2 ACNielsen shall use its best endeavor to ensure the accuracy of the Data but does not warrant the accuracy of any Data provided, nor does it accept responsibility for any error contained in or any omission from the Data or in any event any loss damage or injury suffered directly or otherwise arising therefrom. 3.3 ACNielsen is not responsible for any use to which the Data are put or for any interpretation placed upon them and the Customer undertakes to indemnify ACNielsen against any legal proceeding or law suits claims for damages or costs which may be taken against or incurred by ACNielsen pertaining or relating in any way or form to the Data” (emphasis added). [39] It would not be unreasonable for Nielsen to ask the rhetorical question that bearing in mind that Sun Media was not a subscriber of the 17 NMI Survey at the material time, and thus could not even rely on the Data to its detriment, can Nielsen be said to owe such a duty in a vague legal situation, when in contract it would not? Is this then not indicative of Nielsen adopting a ‘non-assumption of responsibility position’? [40] The fear that should one’s study published concerning a certain company’s product or services arising out of a survey undertaken with all its limitations and the disclaimers that come with it would expose one to suits of negligence would very likely dampen the spirit of research and study and the statistical method is a method of quantitative research which is open to criticism and even vilification as finally there is the court of informed users of these data and not forgetting the court of public opinion. [41] If there are defects and deficiencies that affects reputation and character then there is the existing law of defamation designed to address and redress the ensuing damage to character, if any, arising from the publication of the NMI Survey. If there is a misrepresentation of the print media that lowers its standing in the eyes of the fair-reader then perhaps there is a case for defamation or even malicious falsehood. [42] Here is a case where if the Court were to extend the category of negligence, it would create an incongruent and anomalous situation where 18 a non-subscriber would have better rights in tort compared to a subscriber whose cause of action is in contract with restrictions on the ability of the subscriber to sue under contract. This would be a fit and proper case where it would not be fair, just and reasonable to impose liability. [43] Realistically, in this case, those affected directly would be advertising agencies and advertisers who rely on perhaps the findings in the NMI Survey to help them make decisions resulting in foreseeable losses that they are able to prove and where one can easily and readily anticipate. There is no evidence that those who had advertised have shunned Sun Media or had advertised less with them based on the advice of the advertising agencies whose advice, Sun Media said, is predominantly drawn from the NMI Survey. Costs and circulation and preference of customers and target groups that the media/customer wants to reach out to would be relevant considerations. [44] On the other hand, media owners, who also would be interested in the NMI Survey results would be interested more for the purposes of planning and strategizing and marketing to their target audience [45] I can understand where Sun Media is coming from in their argument that since 2002, and with the shift to the free-newspaper model, Sun 19 Media’s revenue from theSun has been almost entirely dependent on the advertisement rates and the volume of advertising purchased in theSun. It was forcefully put forward that Sun Media’s case is that the NMI Survey has a direct impact on its advertising revenue. It is more a case where unsuspecting advertising agencies and advertisers had relied on the NMI Survey resulting in loss of advertising revenue to Sun Media. [46] However the evidence adduced showed that advertising revenue has, on the contrary, increased during the years complained of in 2006-2010. Are we then to say that this is a case of “in spite of” rather than “because of” under-representation of theSun readership? There is simply no evidence of a direct correlation between the results of the NMI Survey and the allegation of loss of advertising revenue. Being a relatively late comer to the print media industry compared to the other 2 major English national newspapers there is always the costs differentiating factor that can be harnessed to good use and the fact that it is distributed free would perhaps put the newspaper within reach of those young executives who perhaps would not be keen to spend on newsprint but would rather go for free online or hardcopies version of newspapers made available in theSun’s receptacles placed at strategic places such as commuters’ stations. 20 [47] It would not be out of place to say that the “Y” and millennial generations gather their news from various sources streamed to their hand phone, which appliance one would not leave home without. The handphone from which the younger generation store and capture everything and read the news is likened to an extension of the human anatomy. In an unanimous opinion of the United States Supreme Court on the need for a warrant before a search may be done on a cellphone of an arrested person, Chief Justice John Roberts of the United States Supreme Court in Riley v California 573 U.S. (2014) at page 9 observed rather wittily of a cellphone “which are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.” [48] The Court should be slow to extend categories of negligence to cover economic loss from a non-subscriber of the NMI Survey where the loss is not foreseeable as in showing the correlation between loss in advertising revenue and the alleged under-representation of the readership of theSun where if there is any damage to reputation, the law of defamation, which in our jurisdiction has been fully developed considering the fertile field of litigation in this area, would be more than able to attend to it. 21 [49] To impose liability would not only stifle research via the statistical method but would also expose a person like the Defendant "to a liability in an indeterminate amount for an indeterminate time to an indeterminate class,” to borrow the enduring words from the pen of Cardozo C.J. of the United States Supreme Court in Ultramares Corporation v Touche, 174 N.E. 441, 444. The prospect of that problem would be enough to weigh heavily, probably conclusively, against the imposition of a duty of care where there is no personal injury, no contractual or other relationship of proximity and where there is an available remedy in the tort of defamation or malicious falsehood. [50] Policy-wise in cases where contractually the use of the results in restricted to only the subscriber and even then with disclaimer of liability, this Court would also be slow to extend such new categories of negligence. [51] Learned counsel for the Nielsen referred to the Federal Court’s Decision in CIMB Bank Bhd v Maybank Trustees Bhd and Other appeals [2014] 3 MLJ 169 at pg. 187 & 190-192. There the Federal Court had to deal with a case of negligence pleaded against an arranger in a bond placement exercise. In the Information Memorandum issued there was a disclaimer on the part of the arranger. The disclaimer in the form of 22 an ‘important notice’ is at para 35 of the judgment at pg. 187 of the report. The Federal Court in deciding on whether the arranger owed a duty of care to bondholders who purchased the bonds on the strength of what was stated in the Information Memorandum came to the conclusion that the arranger did not owe a duty of care. The Federal Court was not convinced that there was that degree of proximity or a ‘special relationship’ to indicate a duty of care and also because of the disclaimer. [52] His Lordship Ariffin Zakaria Chief Justice (as His Lordship then was) at para 48 of the judgment took a cautious approach and observed as follows: “It is also worth noting that both the High Court and the Court of Appeal, without considering the special facts and circumstances of the case, simply ruled that there existed a duty of care on the principles of ‘foreseeability’, ‘proximity’, ‘neighborhood’ and ‘fairness’. In applying those general phrases, it is important to bear in mind the warning given by Lord Roskill in Caparo Industries plc v Dickman [1990] 2 AC 605 where he said: ‘But ... such phrases are not precise definitions. At best they are but labels or phrases descriptive of the very different factual 23 situations which can exist in particular cases and which must be carefully examined in each case before it can be pragmatically determined whether a duty of care exists and, if so, what is the scope and extent of that duty’”. See also the case of Dato’ Ariff Wan Hamzah & Ors v Hwang DBS Investment Bank Bhd & Anor [2013] 1 MLJ 526 at pg.548. [53] Looking at the whole circumstances of this case where the Plaintiff suing is not a subscriber of the NMI Survey and where the party most affected economically are perhaps the advertising agencies and advertisers and seeing the restrictions placed even on subscribers, this Court would hold that there is no duty of care owed by the Defendant Nielsen to the Plaintiff Sun Media in the circumstances of this case. Whether there has been a breach of that Duty of Care in the Design, Methodology and Conduct of the NMI Survey [54] Assuming for a moment that there is a Duty of Care, I shall now consider whether there has been a breach of that Duty. [55] It is said that there are flaws in the NMI Survey methodology such that there is an under-representation of the upper Social Economic Segment (SES) group of income earners in the KL/PJ area and the 24 inevitable error was that theSun’s readership in the years 2006-2010 had been under-represented. Sun Media postulated that this is caused by the barriers in interviewing respondents from this category. [56] Sun Media stopped subscribing to the NMI Survey starting 2001. It had disagreed with the NMI Survey results. Nielsen had in response to Sun Media’s complaint, offered to take Sun Media through its NMI Survey Methodology. Several meetings were held between the parties in 2007 to clarify and discuss Sun Media’s queries. [57] It must not be forgotten that a survey is not a census. No two surveys conducted at different times will yield same results. There are statistical errors within a range that is acceptable in the industry. The NMI Survey Methodology [58] I am satisfied that steps have been taken to ensure that the methodology employed meet the acceptable standards of statistical research method in a survey of this nature where one is concerned with the issue of reliability and validity. As stated the NMI Survey seeks to measure the readership of newspapers and other print and electronic media including viewership of satellite TV and listenership of radio and a whole host of consumer products and services. Where print media is concerned it 25 is close to about 30 of them including weekly publications. It covers the general population of the whole of Peninsular Malaysia. [59] It will of course suffer from deficiencies from the point of view of those who are keen on the same consumer habits or perhaps even readership of a particular segment of the population in a particular area like the KL/PJ area. For that the party concerned would have to commission a customized survey with the input of the parameters the party wants such as the Prime Survey 2008 that Sun Media did commission Nielsen to do. [60] All Survey methodologies suffer from some inherent weaknesses and limitations and Nielsen has informed all their subscribers of these through the NMI Agreement, NMI brochure and the NMI & IMS client training materials (See CBD 1 at pg.83-86 and pg.87-90, CBD 7 at pg.4233 - 4291 and pg.4394-4400). [61] To begin with the sample size would be quite important. The annual sample size is about 10,000 with surveys done every quarter and the results published twice a year on a 12-month basis for the periods of a July-June and January-December. The subscribers may access the results of the NMI Survey through the use of the Interactive Market Systems (“IMS”) software and/or its predecessor, Periscope. The IMS software is a 26 data analysis program that allows the NMI subscribers to produce readable data relating to their target segments by demographics, media consumption and product usage. It contains data analysis functions such as Cross Tabulation, Average Issue Readership, Reach Accumulation, Gross Reach, Net Reach, Average Frequency, and Gross Opportunity to See (See para 10 of the Statement of Agreed Facts). [62] The contents of the IMS database for each subscriber varies depending on the subscription package. [63] In other words one can extract as much information from the Data by way of input of parameters for each particular print medium or a combination by way of comparison coupled with other permutations that a subscriber might be keen in for example young working adults in the KL/PJ area who reads an English daily, is a graduate and own a house and a car who go for holidays overseas once a year. Its versatility lies in the fact that the data is malleable enough to be crunched to yield different permutations that are permissible within the parameters surveyed! [64] Sun Media was a subscriber to the NMI Survey for 6 consecutive years from 1995-2000 and was aware of the terms of the NMI Agreement and the limitations and disclaimers on the usage of the data. 27 [65] The survey is done in a face-to-face interview. There is no suggestion that this sample size is inadequate for the population of Peninsular Malaysia though of course, the bigger the sample size the more accurate perhaps the findings but then that has to be balanced by the costs factor of the survey. The sampling population consists of Malaysian citizens aged 15 years and above and projected to the population estimates of Peninsular Malaysia according to the numbers obtained from the Malaysian Department of Statistics (“DOS”). There is sufficient randomness in the sampling method of stratified and systematic random sampling by use of the Primary Sampling Units or PSU. [66] Miss Wong Mae Suen, DW2 had explained this stratified random sampling process in her witness statement (DW2-WS) as follows: “19. Q: Please explain the NMI sampling plan. A: The NMI sampling plan contains information on the number of sampling points (also known as sampling areas or PSUs or maps) for each survey quarter, the target interviews to be achieved by ethnic group and each of the 12 locations and the sampling procedure. ... 22. Q: What happens after the preparation of the NMI sampling plan? 28 A: The next step is the selection of PSUs/maps for interviews. This is Stage 1 of Nielsen’s 3 stage stratified random sampling procedure for the selection of the NMI respondents. For 2006-2010, the maps were selected through Nielsen’s master sampling frame.” 23. Q: What is a master sampling frame? A: A master sampling frame is a database of maps or areas used for the NMI Survey Nielsen first purchased these hand-drawn maps from the Department of Statistics sometime during the 1970s and they have been maintained and updated by Nielsen until today. The number of maps may vary from year to year, depending on whether there are any new areas of development or demolished areas within Peninsular Malaysia. In 2006, there were approximately 15,500 maps and by 2009, there were about 18,000 maps in the frame. Each map contains approximately 220 DUs [Dwelling Units] (CBD 1 Tab 52, p. 94-107). ... 28. Q: How is a PSU/map selected for the NMI Survey? A: From the master sampling frame, each PSU is classified as low/medium/high density in respect of the ethnic/racial composition of 29 the DUs within that PSU. The PSU classification is set out in the sampling pans, see for example CBD 5(1) p.723, as follows: PSU Classification Low Between 20 to 60 DUs of the targeted ethnic group Medium Between 61 to 120 DUs of the targeted ethnic group. High Above 120 DUs of the targeted ethnic group. a) First Step – a PSU frame by Ethnic Group is created. For example, a Malay Frame would consist of all PSUs within a minimum of 20 Malay DUs. The PSUs are classified as Low Malay, Medium Malay and High Malay. This is to determine the DU skipping interval to be used by fieldworkers later during fieldwork. b) Second Step – PSU selection. The PSU selection is done by Ethnic Group, i.e. based on the number of PSUs required for each Ethnic Group and Location in the sampling plan. Taking the earlier Q2 of 2008 sampling plan, a total of 5 PSUs are to be selected from the Penang Market Centre (PG MC) Malay frame. This 30 process then repeated for the Chinese and Indian frames.” (emphasis added) [67] With respect to the use of geographical maps as the basis of sample selection she explained in Q&A 24 of her witness statement (DW2-WS) as follows: “24. Q: Why does the NMI use geographical maps as the basis for its sample selection? A: The main reason for using PSU maps is that we do not have a complete and accurate list of all members of the population. Dividing the country into small geographical units serves as a sampling frame because the entire population can be mapped to one and only one of these geographical areas.” [68] The estimation of ethnic composition of each PSU map. As she stated in Q&A 25 of her witness statement (DW2-WS): “25. Q: How does Nielsen estimate the ethnic composition of each PSU map? A: When a PSU map is created, the number of DUs by ethnic group in each PSU is estimated through physical observation and counting. 31 The ethnic group for each DU is determined through visual observation such as Quranic verses hung outside a Malay home, Chinese altar outside a Chinese home or mango leaves hung at the doorstep of an Indian home. For unidentifiable homes, the neighbours are asked.” [69] It is representative and random enough of the various categories of consumers surveyed in a nationwide survey where regard must be had to the projection to the population based on the latest data available from the DOS and then weighting to be done according to age, race, gender, location and income bracket. It is acknowledged that there are difficulties with respect to conducting face-to-face interviews with people in the affluent top income category and sufficient use of boosters have been put in place to create any sedimentation as it were. [70] Each side has called their own Expert Witness; Mr Suresh Nimbalkar (PW7) from India for the Plaintiff, Sun Media, and Mr Jonathan Jephcott (DW6) from Australia for the Defendant, Nielsen. Much has been submitted on by learned counsel for both sides against the other Expert Witness where competencies and credibility is concerned. 32 [71] Mr Jephcott’s experience seems to be broader and his expertise deeper where statistical survey methods and analysis is concerned compared to Mr Nimbalkar whose experience is more confined to that of India alone. Mr Jephcott has a BA (Econs) Hons. in Economics, Maths & Statistics from the University of Sheffield and has a diploma from the Institute of Statisticians (Market Research) (See Mr. Jephcott’s CV at Annexure 1 D-RER). Mr Jephcott has more than 50 years of experience in market and media research and has worked in no less than 25 countries globally in a leadership role. His various publications and professional achievements are set out in his CV. [72] Mr. Jephcott also possesses various professional qualifications and memberships such as Fellow of the Royal Statistical Society, Chartered Statistician and member of ESOMAR. More recently from about 2008, he was the founder of ARF Online Research Council (ORQC), Chairman, ARF ORQC Online Quality Metrics committee, member of ESOMAR’s On-line best practice committee, member of the Professional Development Committee of the AMSRS and Examiner for AMSRS PQMR qualification. [73] Mr Nimbalkar’s tertiary education is a Bachelor’s degree in Chemical Engineering and a Master’s degree in Management Studies. I agree that 33 these are unrelated qualifications to market research or applied statistics. He appeared rather defensive when questioned on his educational background and conceded that where relevant professional studies is concerned he had only studied managerial statistics as a subject and taken some related lectures but did not see it as necessary to set out in his CV as he did not like talking about himself. [74] Mr Nimbalkar conceded that he is not a member of any international research body outside India. His relevant experience seems to have been derived from his involvement in the Indian Readership Survey (“IRS”) for about 8 years when he was with the Hansa Research in Mumbai from 2006 to April 2016. He confirmed that Hansa lost the IRS Contract in 2013 to Nielsen India. He had tried to give the impression that Hansa did not lose the contract but had declined the contract. However, upon further questioning, he then disclosed that Hansa together with another research company IPSOS actually bid for the contract but subsequently “opted out” due to certain disagreement on the pre-conditions. [75] Much was said about Mr Jephcott’s previous association with Nielsen Group. It was Mr. Jephcott himself who volunteered information on his previous employment with Nielsen. During 1991-1998, he had a regional 34 role and was involved in TV audience measurement in Malaysia. He testified that he worked out of Australia and apart from an audit of all the systems and media in Asia which would have included the NMI, he had no prior direct involvement in the NMI in Malaysia (See Notes of Proceedings 9.11.2016 pg.26 line 23 - pg. 29 line 16). More importantly, he had spent more years working for other major competitor companies such as AGB, TNS and Synovate before and after his tenure with Nielsen. He was consulted by many others in this business including IPSOS, the survey company that now Sun Media has used in recent years after the filing of this suit to give an alternative presentation of the circulation and readership of theSun. [76] Learned counsel for Nielsen had referred to Zulhasnimar bt Hassan Basri & Ors v Dr Kuppu Velumani P & Ors [2016] 3 MLJ 625 at pg. 645- 646, on the proposition that there is no issue even when expert is an ex- colleague. Even non-disclosure of conflict of interest does not automatically disqualify an expert as was held in Toth v Jarman [2006] EWCA Civ 1028. The key question is whether opinion is independent. [77] I am satisfied that his previous association with Nielsen has not impaired his independence in any way in the way in which he was not 35 reticent to express his disagreement with the other witnesses of Nielsen. I am prepared to accept both the expert witnesses as experts in their own right and where their opinions are at variance I shall state the reason for my preference. [78] Whilst Mr Nimbalkar had attempted to poke holes and pour water on the credibility of the NMI Survey such as the sample size, the rejection rates, the frequency of updates of the PSUs, the mechanism to ensure that personal biases are minimized, the problem with sedimentation and the perennial problem of challenges in reaching respondents in condominium and gated and guarded communities and the like, they are not of such seriousness as to undermine the NMI Survey from what is general and approved practice in a national survey statistical method. [79] Much criticism was also directed at the fact that Mr Jephcott, the media research expert for Nielsen, had expressed that the “NMI has changed little in design and implementation since its establishment...”. I do not think that fundamentals in terms of size of sampling units and randomness of sampling have changed much through the years and this is a field of research where like all things, if it is not broken then there is no good reason to fix it. Where there is change of demography there has been 36 an update of the population sample and Nielsen has put in place mechanisms to avoid sampling biases and to address sedimentation issues in sampling. [80] Sun Media also took umbrage with Nielsen that the raw data as in the questionnaires were destroyed 2 years after they were filled up and a year after the release of the NMI Survey results. Mr Liao Peng Guan DW4, the IT head of Nielsen, had referred to the ICC/ESOMAR International Code (On Market and Social Research) and to Article 7(c) thereof where it was recommended as follows: “Personal information collected and held in accordance with this Code shall be: ... Preserved no longer than is required for the purpose for which the information was collected or further processed” [81] There is no evidence of any suppression of evidence on the part of Nielsen where the keying in of the data into the software is concerned. Neither had Sun Media put Nielsen on Notice that these questionnaires should not be destroyed as they would be proceeding with a discovery application on it. Therefore there is no room to suggest that there should be 37 any adverse inference drawn merely because the raw data as in the questionnaires could not be available for examination or audit. The Prime Survey 2008 [82] It was argued for Sun Media that the falsity of the NMI Survey with respect to readership of theSun when compared to the other English dailies like the Star and NST can be proved by way of the findings in the Prime Survey 2008 which Sun Media commissioned Nielsen in November 2007 to undertake with respect to parameters supplied by Sun Media and agreed to by Nielsen. The main objective of the Prime Survey was to provide Sun Media with an accurate and up-to-date picture (understanding) of the readership of affluent Malaysians and determine their attitude towards theSun newspaper and its major competitors. The results of the Prime Survey were intended to be used by Sun Media as its marketing tool (See CBD 5(8) at pg.3788). [83] This Prime Survey was conducted between January to March 2008 by inviting certain online respondents of the following characteristics to participate and complete the online questionnaires – (a) Residing in KL/ PJ; (b) Aged 20 and above; 38 (c) Personal income of RM2500 or more per month; (d) Engaged in a white-collar occupation; and (e) Used the internet. [84] The Prime survey was conducted online and in English only with a total sample of 2521 potential respondents selected from Nielsen’s online panel. The total responses received for this Prime survey was 888. It cannot be overemphasized that unlike the NMI Survey, the Prime Survey was not a national readership survey of the random population in Peninsular Malaysia. Instead, the Prime Survey was based on a selected sub-population of online respondents selected from Nielsen’s online panel. Comparison of NMI Survey to Prime Survey [85] Sun Media contended that the market share of theSun is appreciably higher than the one surveyed under the NMI Survey and as such the NMI Survey must be unreliable and indeed false and wrong. [86] The table on comparative readership between the NMI Survey and Prime Survey is as set out in para 10B.5 of the Amended Statement of Claim (“ASOC”) is set out below: 39 [87] Taking the readership figure from the 2 Surveys and dividing that with the circulation figure from the Audit Bureau of Circulation (“ABC”), one would get a readership per copy or RPC score of 0.9 under the NMI Survey for 2008. It is admitted that this has been derived from an additional information from another source i.e. the ABC figures which Nielsen does not include in its Data. The RPC of theSun then is a conclusion that is arrived at outside of the available Data that is extractable by a subscriber. This is called “Inferred RPC” as submitted by learned counsel for SunMedia. 40 [88] The ABC is an independent non-profit bureau with a membership that consists of various members from the media industry such as representatives from newspaper publishers (including theSun, NST and The Star), the Malaysian Advertisers Association, the Association of Accredited Advertising Agents Malaysia and the Media Specialists Association of Selangor and Wilayah Persekutuan. [89] I accept that the role of the ABC is to report the audited circulation data of newspapers and magazines of its members for the benefit of the Marketing Communications Industry of Malaysia. [90] There was a question introduced by Sun Media into the Prime Survey in helping Sun Media understand the perception of a respondent as to how many persons read the respondent’s copy of a daily (English) newspaper. The question was as follows: “Approximately how many other people read YOUR copy of the DAILY NEWSPAPER which you read?” [91] This is called the perceived pass-on rate and from that figure one then proceeds in the same manner to calculate the “Perceived RPC” of 2.9 from the Prime Survey 2008. The RPC number is a useful estimate of the popularity, or reach, of a particular newspaper. 41 [92] The readership figures of theSun published by Nielsen, in the period between 2006 and 2010, are set out in paragraphs 11A to 11D of the ASOC (the “NMI Figures”). As explained by Nielsen, “Readership” is not synonymous with “Circulation”. They are different concepts and distinct measurements. They are not comparable especially in the case of theSun being a free newspaper. “Readership” looks at the number of people who claim to have read the newspaper yesterday. [93] There are clearly material differences between the Prime Survey 2008 and the NMI annual survey such that it would not be reasonable to compare one to the other with respect to yielding the same results where readership is concerned. There are differences in the Population Profile, Size and Projection to the national population. Here are some of the differences between NMI and Prime such that a comparison with the conclusion that NMI is wrong and would not be logical nor reasonable. [94] First, NMI is a syndicated survey nationwide whereas Prime is customized and focused on the KL/PJ area. NMI does not target the readership of theSun or any other media or publications. The NMI Survey covers more than 30 different types of media, product and services and 42 readership of newspapers and magazines is only but one part of the entire Survey. [95] As explained by Mr. Richard Hall, Nielsen’s Managing Director, in his evidence (See Examination-in-chief of Mr. Richard Hall DW1-WS Q&A 32): “I say so because the NMI is a national survey, which methodology is not skewed in favour of any one particular client or product, and which is not intended to provide a deep analysis of any particular product or market segment. The targeting of a specified market or product would be done through customized research such as the Prime survey and not a syndicated survey of national level readership (and other consumption) like the NMI. A feature of a national level readership and consumption survey is that the same research methodology and sample design is used across the board for all the titles (and other products and services) that form part of the survey, and that the survey occurs on an ongoing basis. This ensures that the consumption of all products within the survey is measured against the same parameters and that they are data trends.” (emphasis added) 43 [96] In NMI there is a stratified random sampling whereas in Prime it is preselected from a sub-population of the Defendant’s online profile; more of a dipstick survey for a more particular point in time rather a survey throughout the 4 quarters of a year. [97] Profile is also different of their population surveyed in that for NMI it is consisting of citizens only, 15 years old and above, face-to-face interview, against all income levels and the closest to Prime Survey where income is concerned is the RM3,000 per month salary. [98] The Profile in the Prime Survey included non-citizens like expatriates, hotel guests and would cover foreign workers as well; all earning RM2,500.00 and above per month, 20 years old and above, white collar workers who are CEOs, directors, professionals, executives, managers, businessmen (“PEMBs”), internet users and English speaking. [99] Sample size wise that of NMI is 10,000 whereas that of Prime is about 888 that responded. [100] NMI is projected to the whole population of Peninsular Malaysia based on age, gender, race and region where weighting is concerned whereas for the Prime Survey the sample is projected to a universe of 403,000, which is Nielsen’s estimate of the population of Top Management 44 and Affluent Consumers in the KL/PJ area. As there were no available Government statistics for this target group, the universe estimate was obtained by using the 2003 Nielsen’s Asian Target Market Survey (“ATMS”) base. ATMS is a survey across 7 Asian cities, namely Hong Kong, Singapore, Kuala Lumpur, Taipei, Manila, Bangkok and Jakarta using both telephone as well as face-to-face interview. [101] As explained by DW3 Miss Andrea Douglas who was the Executive Director who did Market Research in Nielsen Malaysia in 2007 when the Prime Survey was commissioned: “The weighting and projection of the Prime results was also different from the NMI. The Prime sample was rim weighted and projected to the estimated population of top management and affluent consumers (as defined in the Prime survey proposal at p. 4004 of the Common Bundle of Documents (“CBD”) 5(8)) living in Kuala Lumpur/Petaling Jaya whereas the NMI sample was cell weighted and projected to the general population of Peninsular Malaysia aged 15 and above.” [102] The Plaintiff has no problem accepting the results of the NMI Survey that are in its favour in its presentation in 2007 to its stakeholders. Some of these results are for instance steady growth of readership in the KL/PJ 45 area, higher income profile, urban concentration, university education, decision makers and laptop owners. [103] I think one cannot cherry pick the favourable from the less favourable for the conclusions are drawn from the same common pool of Data that are extracted from NMI by use of the software given to subscribers which allows for various permutations to be generated based on the parameters that one may input. The brunt of Sun Media’s complaint [104] Perhaps the sore point in Sun Media’s complaint is that if one were to compare the Readership Per Copy (RPC) of theSun vis-a-vis that of the other 2 English dailies in the Star and the NST, one sees that the RPC is less than one. It goes without saying that when one is not comparing like to like with the same parameters then one should not be surprised that the results may differ though there are other findings that are the same and Sun Media is not complaining. Sun Media maintained that their suspicion of under-representation of its readership in the KL/PJ area among high income earners or RM3,000 per month salary and above has been proved right in the Prime Survey for the readership figure increases substantially and even surpasses that of NST. 46 [105] However Nielsen does not calculate or rely on the RPC where its results is concerned. It does not claim to and does not measure RPC for the newspapers. It makes no reference and does not take into consideration the circulation figures available from the ABC. It only measures readership by the number of readers as projected to the total population. [106] The RPC is derived from dividing the readership figure with the number copies in circulation. Here is where the difference and divergence lie in the audit method of paid newspapers compared to free newspapers. Whilst one can expect a paid readership to have at least one reader per newspaper subscribed, if not more as would be the likely if the newspaper is subscribed for office or home reading. It is a reasonable inference drawn from why people would pay for a newspaper if not for the purpose of reading, both in keeping abreast with the news and for general information and the sheer joy of reading things of interest. [107] However, the same cannot be said of a free newspaper. Unless all of it is handed out by a staff of the media company normally at strategic places where there is high human traffic like at commuter stations where waiting time for the commuter and commuting can be usefully occupied 47 flipping through the pages of the newspaper or even glancing at the caption to pictures therein and that would have been considered under the Survey method as having read, there is bound to be leakages and copies not picked up and read and picked up but for other purposes other than for reading. [108] The circulation figures are supplied by Audit Bureau of Circulation (“ABC”) and from the evidence, we see that there is very restricted audit where circulation is concerned for a free newspaper like theSun in this instance. As gathered from the evidence that emerged from the cross- examination of the Plaintiff’s witnesses, the ABC does not audit what is not picked up at the end of the day from the various pick-up points. What they audit, and even then confining only to copies made available for collection at the pick-up points were covering only hardly 1% or so of the total number of pick-up points. [109] Sun Media further relied on its own stock count report. That report also does not refer to copies left behind at the end of the day. There are times when copies are left untouched or taken for other purposes other than reading as testified by the Defendant’s witnesses. It would not be unfair to say that there are times when more than a copy is picked up 48 because it is relatively thinner when compared to the other 2 main English dailies. [110] Surely one can take cognizance of the fact that there is an industry of second-hand or recycled newspapers in Malaysia. It would be different if Sun Media actually engages workers to physically hand out all copies published every day. It can then be said that the RPC would be close to 1 on the assumption that the one who stretches out his hand to collect from the staff of Sun Media would read it for a minute or so at least based on the agreed definition of recently read copy. The word for it is “commuter newspaper” presumably read more by commuters when they are waiting for public transport and during their journey. [111] To have an RPC of less than 1, which information is not provided by Nielsen but rather derived from the circulation figures furnished by ABC, is not necessarily alarming or indicative of the fact that the NMI Survey results as complained by Sun Media is inaccurate. The fact of leakages is real as borne out by the stock count report and the propensity of human nature to take sometimes more than what is required for purposes other than for reading. 49 [112] The traditional model of paid subscription on the other hand is audited by the ABC based on receipts of payments and it is generally accepted that a house or office that subscribes it would have at least 1 person reading it with the likelihood that others at home or in the office would be reading it as well. [113] To say that the NMI Data complained of is inaccurate and an under- representation, one would have to believe that almost every copy that the Plaintiff publishes of theSun that is being distributed as being effectively picked up and read by at least one person. The Plaintiff has not shown any evidence that that is the case and it is merely speculation that every copy left at the pick-up points is being taken for the purpose of reading. [114] This is what Sun Media expects which is that the readership of theSun to be at least 1 in that every copy is being picked up for reading. That has not been borne out by the evidence. No doubt the Prime Survey serves a limited though useful purpose; to test whether one’s strategy in reaching out to one’s target audience has been successful and to see a discernible trend in the reading habits and preference of the High-income earners in the KL/PJ area. It was designed to provide a picture of the readership of the Sun vis-à-vis its major competitors by testing against a 50 pool, not necessarily representative, of readers in the KL/PJ area drawn from the respondents with the criteria specified. [115] To compare NMI Survey to Prime Survey where the ratio of readership and RPC are concerned would be to compare an apple to an orange. I agree with the Defendant’s learned counsel that they differ in many ways in terms of design and universe, survey methodology and objectives. They are not comparable and certainly would not be any indicator of the correctness or falsity of one or the other. [116] It must also be noted that because Prime Survey is a customized survey as opposed to a syndicated nationwide survey, it has in its questionnaires asked question online of its respondents with respect to perceived pass-on rates. The question of those who responded as having read theSun yesterday is the question of who they think would also have read the same copy of theSun newspaper. It is a pure guesstimate and not even an estimate at that. Surely guesstimate figures cannot be relied on too much as compared to the figures in the NMI Survey which does not take into account this perceived pass-on rate. [117] The Prime Survey is not a random survey and indeed all the complaints that Sun Media’s Expert Witness Mr Nimbalkar has on the NMI 51 for its so-called lack of randomness can most appropriately be leveled at the Prime Survey 2008. It is precisely what a survey is not, though it is good to test one’s theory or hunch with respect to what one has in mind on effectiveness of one’s targeting strategy. [118] There is the related complaint that the middle to upper income segment of the population has not been sufficiently surveyed such that when projected to the population in Peninsular the end result is skewed against these target audience of Sun Media. This group do people have come to be referred to in literature as the PMEBs (Professionals, Managers, Executives and Businessmen). However the NMI as a national survey measures readership across all income levels and it does not discriminate the respondents by profession or designation. As stated, the only qualifying criteria is that a Respondent is 15 years and is a Malaysian citizen. [119] As pointed out by Nielsen, there is no official statistics or government records of any defined “middle to upper income Group” or “PMEBs” which would be necessary as a benchmark for measurement. About the only one page document produced by the Plaintiff and not a complete one at that during Submission is the income level of this category of people closest to 52 the PMEBs but then their criteria for monthly income includes more than just their salaries and includes the value of rent for their homes as well. It certainly cannot be relied on for comparison purpose. [120] Nielsen does recognize that there would always be the “harder to reach” respondents given their social economic status (“SES”) or demographics. That is a perennial problem for all Survey work undertaken at a national level for all income groups and across different dwellings and here the problem arises from the strict protocols where security is concerned for those who stay in condominiums and gated and guarded communities. [121] Mr Nimbalkar, Sun Media’s Expert, took umbrage with Nielsen’s Survey Methodology and Design here as he concluded that there was an over sampling of the lower income group and retirees and an under sampling of the higher income group and the PEMBs. Nielsen acknowledged these challenges in a national survey compounded further by the fact that listing in the White Pages phone directory has dropped by more than 50% in 2007 and if I may say, with greater concerns now for issues of privacy and contact numbers and even emails. 53 [122] No viable alternative methods have been proffered by Mr Nimbalkar and even if some hybrid method of pure internet Survey is conducted, again one cannot run away from the fact that it may then well lack the element of randomness as those who would to respond are already drawn from a pool of those internet users who consents to be interviewed. As I said before no method is perfect and free from deficiencies and like all survey results, one would have to interpret it with some measure of discernment and discretion. [123] Mr Nimbalkar then said that a pure online Survey is acceptable though it might lack the randomness that he complained of with respect to the use of the PSUs. At paragraph 12.18 of Mr Nimbalkar’s third expert report (P- RER 2), he reproduced relevant excerpts from an article titled “Report of the AAPOR Task Force on Non-Probability Sampling” released in June 2013. The article acknowledged that “Sampling methods used with opt-in panels have evolved significantly over time, and, as a result, research aimed at evaluating the validity of survey estimates from these sample sources should focus on sampling methods rather than the panel themselves”. 54 [124] Mr Nimbalkar noted that “On page 13 of the AAPOR report, the task force has noted quite a few instances of use of non-probability sampling (panel) that have yielded results that are as good or better than probability based surveys when measured against an external criterion”. [125] Mr Nimbalkar was thus emboldened to conclude that “In summary, the AAPOR report says that due to difficulties faced (entry barrier, refusals etc.), costs and time, pure probability sampling is becoming more and more difficult. As a result, panels have become very popular. A panel study could be used for population inferences provided it is corrected for biases either prior to the survey (e.g.by using quotas) or after the survey (e.g.by using weighting)”. [126] I must say that in countries like Hong Kong and New Zealand where internet penetration is high and where privacy issues are of prime consideration, an online interview might be the next best alternative though there would still be the problem of insufficient randomness and with that the problem of how representative it would be with the perennial problem of biases that have to be addressed from a pre-selected list of internet addresses. There is also no known directory of internet users and where one breaks down in dwelling units and location, as well as ethnicity and 55 income groupings, there will be many other media owners that would have a bone to pick with Nielsen! [127] Mr Andrew Whitney, DW5, Nielsen’s regional measurement science leader for Media, confirmed that internet survey has been used by Nielsen in Hong Kong for about 10 years already and that Nielsen will be doing that in 2017. However he was quite satisfied that the booster method has tackled this problem of sedimentation and that the problem is offset or adjusted by the booster. For the period 2006 to 2010 Mr Whitney had overall responsibility for the sample design and weighting strategy applied to both the NMI survey and Prime Survey. [128] I am satisfied that this challenge has been sufficiently addressed with the use of booster samples to be achieved on a quarterly basis (See CBD 5(1) at page 839) as follows: Main sample – 2200 Male booster – 75 Upper SES booster – 125 Location booster – 100 Total sample – 2500 quarterly (10,000 yearly) 56 The Main sample is split 65% urban and 35% rural. All booster samples are from urban areas with higher SES and are set with target achievements of this by location/ market centers and dwelling types such as bungalow/ SemiD, Condominium/ luxury apartments. [129] Miss Wong Mae Suen DW2 in Q&A 20-21 of her Witness Statement has explained the booster sample as follows: 20. Q:What is a booster sample? A: A booster sample is a supplementary/additional sample that is used to complement or increase the response for a particular demographic or geographic part of the population. In the case of the NMI, interviews from locations, and males from upper socio-economic status locations were likely to have lower response rates and therefore target samples for these segments were set and were referred to as the “booster sample”. The total booster sample for each NMI quarter was 300. 21. Q: Why did the NMI have a booster sample size of only 300 out of the total sample of 2,500 per quarter? 57 A: 300 out of the total sample of 2500 per quarter is 12%, which is roughly the incidence of upper social economic status segment of the population. The 300 booster samples were meant to off-set low response rates from the demographic segments identified above. The main and booster samples per quarter are combined before the total sample of 2,500 is weighted by gender, ethnic group, age and the 12 locations.” (emphasis added) [130] Learned counsel for Nielsen had summed up the conclusions from its expert Mr. Jonathan Jephcott (See para 10-13 D-ER) as follows: “10. In the period of 2006 to 2010, the NMI survey conformed with global best practice for a national multi-media survey. There is no evidence to suggest that NMI results for theSun for this period were deficient as a result of the survey design. ▪ TheSun’s circulation figures not comparable to NMI readership figures 11. TheSun’s circulation figures are not comparable to the NMI readership results reported for the paper. As detailed below, the circulation figures reported for theSun measure the number of copies 58 of the paper that delivered to fixed distribution points as determined by Sun Media, from which they can be picked up by passers-by. The readership of theSun is estimated from the results derived from the NMI, a national randomly selected sample who, when interviewed claimed to have read the paper the previous day, which is then projected to the population estimates from the Malaysian Department of Statistics. 12. The sampling design for the NMI conforms to statistical best practice as regards a general national survey. The disparity between the NMI readership results and theSun’s circulation figures does not mean that one of the two measures must be wrong or deficient within the context of their collection and compilation. TheSun is the only free newspaper in Peninsular Malaysia and unlike paid newspapers the circulation for theSun is the claimed average number of copies delivered (distributed) to various unmanned collection points. This number is not an indication of its readership nor is it necessarily, comparable with circulation information based on sale receipts. 13. TheSun’s allegation that the NMI should take into consideration theSun’s special position as a free newspaper is irrelevant, misplaced 59 and runs contrary to the concept of a national media survey. There is no recognised print readership methodology that explicitly takes into account circulation figures. Such figures are sometimes used as an informal sense check on survey based estimates but its value in this role is controversial. Even if a special method existed that would equate readership to circulation, NMI, has a duty to its subscribers to be even-handed in catering to a broad range of subscribers titles.” [131] I would agree with Mr Jephcott’s assessment and analysis of the data from NMI when compared with that of the Prime Survey where theSun’s readership is concerned. There is no evidence that Nielsen has arrived at the figures for theSun readership contrary to globally acceptable National Survey research method or that the design is faulty or that the conduct of the NMI Survey is flawed. [132] It is of course easy to criticize but no alternative constructive suggestions have been put forward which can help this Court in assessing whether there has been a breach of a duty of care on Nielsen’s methodology, design and execution of the NMI Survey, assuming for a moment that there is a duty of care to begin with. 60 [133] I find Mr Jephcott’s final conclusion as both measured and mature, mellowed by years of experience in market survey research across different jurisdictions in para 74 of D-RER: “74. TheSun’s Report attempts to challenge the quality of the NMI survey at a detailed level, not by reference to published research standards but rather by appeal to the author’s experience whilst operating the IRS on behalf of Hansa Research. Where technical opinions are offered, they are largely based on unsubstantiated assertion. (a) As stated in the body of this Rebuttal Report, the premise of theSun’s Report is compromised by significant misunderstandings of the NMI methodology and in particular by its treatment of the ethnic stratification of PSUs. (b) The Report speculates in several places that the NMI results are tarnished by corrupt influence from competitive publishers who have manipulated the survey’s fieldworkers. There is no evidence to support this speculation. Indeed, in my opinion the probability of this happening and not being caught is negligible given the QC procedures employed by Nielsen across the survey stages. Whilst 61 such behaviour as suggested by theSun’s expert may take place in some markets, I have never experienced this and, if there are genuine concerns on this front I would have to believe that they should be investigated and substantiated. I do not believe that claims of likely corruption without some serious evidence are something that should be included in an expert report. (c) TheSun has made much of the size of the NMI readership estimates compared to the Malaysian ABC estimates of distribution/circulation. In theSun’s Report, this argument has focussed on the RPC statistic which because of its apparent range across titles, is offered as supposedly clear evidence of errors in the NMI survey. (d) As I have stated above and in my Report dated 24.5.2016, the greater part of published research in this area shows claimed circulation to be an unreliable correlate of readership and therefore the RPC is not a robust concept. No attempt is made in theSun’s Report to either justify the quality of neither the claimed circulation estimates nor more relevantly to justify the 62 claimed circulation figures for theSun involving an untested method for this particular title. (e) The final issue of note relates to theSun’s expert’s contention that the Prime survey both validates theSun’s claim of under- reporting and highlights a superior method of measuring readership in Malaysia. I believe both points have been demonstrated in this Rebuttal to be false and misleading. (f) For my part, I would stand by my contention that NMI complies with what was recognised as best practice in the period 2006 to 2010 and that there is no evidence to suggest that the NMI results for theSun for the relevant period were deficient as a result of the survey design.” (emphasis added) [134] Perhaps the best evidence of the fact that the NMI is generally reliable is provided by the evidence of Mr Prashun Dutt, a marketing specialist with Sun Media, who admitted rather sheepishly that he had used the many favorable aspects of the NMI Survey results in a promotional blitz undertaken by him during the period of 2007-2008 in his PowerPoint presentation to their stakeholders. 63 [135] As a marketing consultant then, he compiled and prepared a power- point presentation by analysing the NMI data (a document disclosed at trial), among others, and the following was used by Sun Media in its advertising presentation in December 2007 (See EIC of Mr. Prashun Dutt PW6-WS Q&A 4-5): “Pg.6 (NMI Q3 ’06 – Q2 ’07 vs. Q1- Q4 ’06) Readership Growth (AIR/ Read Yesterday) ▪ Sun is the ONLY English Newspaper which has registered GROWTH in Total Readership (24%), especially in the critical KL/ PJ area (28%) and in the White Collar/ Affluent Sector (20%) Pg. 7 (NMI Q3 ’06 – Q2 ’07 vs. Q1- Q4 ’06) Readership Growth (Read Past Week) ▪ Sun has also registered significantly Higher Growth in Past Week Readership (38%) -> from 371,000 to 512,000 Pg.9 (NMI Q3 ’06 – Q2 ’07) Readership Profile (Income) 64 ▪ NMI reconfirms that readers of the Sun have a Higher Income Profile compared to Star, NST and the Average of Any English Daily. ▪ 76.2% of the Sun’s readers reflect RM3,000+ monthly income, 54.6% reflect RM5,000 and 38.5% RM8,000+ monthly income. Obviously Sun is not attracting “lower income” free- loaders ▪ Sun Readers reflect much HIGHER AVERAGE INCOME and would thus have HIGHER PURCHASING POWER. Pg.10 (NMI Q3 ’06 – Q2 ’07) Readership Profile (University Education) ▪ NMI also reflects that readers of the Sun have a HIGHER EDUCATION PROFILE compared to the STAR, NST and the Average for Any English Daily. (NST and M Mail are even lower than the English Daily Average) ▪ 57% of the Sun’s readers have University education, compared to 50% of Star readers. ▪ SUN Readers reflect much HIGHER SOCIO-ECONOMIC PROFILE (Higher Average Income x Higher Education Profile). 65 Obviously SUN is Not attracting “lower income”/ lower SEC free- loaders. Pg. 11 (NMI Q3 ’06 – Q2 ’07) Readership Profile (Urban Bias) ▪ NMI reflects that >87% of THE SUN Readership is concentrated in the Large Urban Centres. The Sun there has a significantly higher URBAN BIASED readership compared to STAR, NST and the Average for Any English Daily. ▪ 81% of the Sun’s readership is CONCENTRATED in the KL/ PJ area – Malaysia’s largest urban agglomeration which also generates >75% of the country’s consumer expenditure. Pg. 21 (NMI Q3 ’06 – Q2 ’07) Readership Profile (Shopping Habits) ▪ The Sun’s Urban Bias Readership and Married ‘family-profile’ also influences Shopping Habits. ▪ >85.3% of SUN readers shop in Hypermarkets and nearly 95% visit Shopping Malls. 66 ▪ This is a significantly higher percentage compared to STAR, NST, Malay Mail and the Average for Any English Daily. ▪ The Sun’s readers are thus most likely to be purchasers of premium brands, lifestyle products, clothes and fashion items. Pg.22 (NMI Q3’ 06 – Q2 ’07) Readership Profile (Decision Makers RM5K+) ▪ THE SUN Reflects the highest percentage of readers who are Decision-Makers earning RM5,000+. ▪ This is a significantly higher percentage compared to STAR, NST, Malay Mail and the Average for Any English Daily. ▪ SUN readers are thus most likely to be purchasers of premium brands, lifestyle products, clothes and fashion items. Pg.23 (NMI Q3’ 06 – Q2 ’07) Product Ownership (PC/ Laptop/ Notebook) ▪ The Sun’s readers reflect the highest percentage ownership of Computers (PC/Laptop/Notebook). 67 ▪ This is a higher percentage compared to STAR, NST, Malay mail and the Average for Any English Daily. ▪ The Sun’s readers are most like to be purchasers of premium brands, lifestyle products, clothes and fashion items.” (emphasis added) [136] Mr. Prashun Dutt admitted that this promotional exercise, aided and augmented by the NMI was beneficial to the revenues of the Sun newspaper (See EIC of Mr. Prashun Dutt PW6-WS Q&A 5A). He was candid in confessing that under cross-examination: “5A. Q: What was the effect of these presentations? A: With those presentations, Sun Media was able to provide its clients/ advertisers and advertising and media specialist agencies a better understanding of the true profile of theSun newspaper’s reach and relevance in the market. Ultimately, this resulted in Sun Media’s advertisement revenue from theSun.” [137] From 2011 onwards Nielsen stopped reporting on theSun newspaper. There was no need to for a media company that had taken the uncompromising stand of Nielsen had persistently under represented its readership to its detriment and loss. 68 [138] On or about 2014 or earlier Sun Media then engaged another survey company known as IPSOS to carry out a customised survey for their own marketing purposes. They went on a huge marketing blitz with the IPSOS Survey 2014 by full page advertisements in the Sun since year end of 2014 with their own claimed readership and circulation information (See DBD 9 at pg.99-100). Sun Media is perfectly entitled to do so and leverage every advantage to the fullest as it owns theSun and so is in a position to mould public perception or misperception of its readership and the efficacy of its reach to the affluent and high-income earners. [139] The point that Nielsen wanted to drive home was that Sun Media had not relied on the NMI Survey during the period in contention, to their detriment or loss. [140] It is said that a spring cannot produce both fresh water and salt water at the same time; having being derived from the same source! Neither can a salt spring produce fresh water. It is unlike the human mouth out of which may pour forth both praises and curses. The fact that Sun Media was able to extract valuable and favorable survey data from the NMI and used them in their marketing in 2007-2008 when it suited them, speaks volume on the credibility of the NMI Survey. The fact that the pool of NMI Data when used 69 with the IMS software allows such a detailed drilling that distills useful information to help Sun Media discern trends and discover correlation between their product and the people who consume them, would underscore the integrity of the NMI Data. [141] Assuming for a moment that there is a duty of care, I am constrained to conclude and indeed convinced that there is no evidence before the Court to show that there has been a breach of that duty. Whether the Damage here is foreseeable from the point of liability [142] I should also consider foreseeability with respect to liability only and not from the point of view of assessment of damages as parties had agreed that this trial is first to determine liability and only after liability has been determined then should a further date be fixed for assessment of damages. Even assuming that there is a breach, the damage caused here is too remote. [143] From the evidence adduced the Plaintiff’s revenue has been consistent throughout the years in question. PW1 Mr Chan Kian Seng the Managing Director of Sun Media offered not an iota of evidence to show that Sun Media’s advertising revenue has been impaired by the readership data of the NMI. His evidence taken as a whole is that theSun’s advertising 70 has been driven by factors such as circulation, rate increase or marketing strategy. As pointed out by Nielsen when it stopped publishing theSun’s readership information since 2011, Sun Media’s still maintained its revenue trend of about RM50million from 2011 to 2015. [144] As stated it is the subscribers who would suffer if at all it can be shown that they had spent unnecessarily on advertising with Sun Media’s competitors instead of with theSun. Advices are also drawn, as we hear, from the evidence from the survey results of other sources. There are a myriad of factors influencing one’s decision to advertise and one must of course take into consideration clients’ own preferences and the advertising rates and charges and the target audience of one’s products and services and not just circulation and readership. [145] No evidence has been led as to how the advertisers have lost in terms of revenue or profit which is attributable to NMI Survey or that the Plaintiff has suffered which is linked to the NMI Data or results in question. [146] Sun Media’s argument is that based on the evidence of the 2 marketing witnesses called by them, there is a correlation between where the media agencies would recommend their clients to advertise and the results of the NMI Survey. To put it more bluntly Sun Media’s complaint is 71 that because Nielsen had under-represented the readership of theSun, the natural consequence is that advertising agencies and advertisers would prefer to advertise in the Star and the NST. [147] However PW4 Mr Mirza Mohamad whilst wanting the Court to believe that the NMI was have an impact on theSun’s business potential, finally admitted under cross-examination that it is the circulation figures that have a role to play in advertising agencies deciding the strategy for their client. [148] He confessed under cross-examination that he had once written in a publication when he was the Chairman of the Audit Committee of the ABC as follows: “ABC Media has championed industry issues concerning media data and remains the sole supervisory body that upholds standardisation, accountability and veracity of circulation figures. In short, they provide the ultimate yardstick which forms the basis of planning and buying media for advertisers and the starting point of publishers’ sales pictures.” (emphasis added) [149] No advertising agencies or advertisers have come forward to say on behalf of the Plaintiff, Sun Media that they had actually made a wrong decision to advertise in the Star or NST instead of theSun and that had 72 there been no under-representation they would have recommended more advertisements to be placed in theSun. I do not think advertising agencies are so powerful to decide on where to advertise without the concurrence of their clients. All clients have their advertising budget and depending on the target audience with respect to consumption of products and services they may well spread their advertising ringgit amongst the media that they perceive would help them reach their target audience more effectively bearing in mind there is also a host of competing print and digital media where advertising eyeball is concerned. The clients themselves would have their way of tracking their prospects with respect to from which source they had heard of the products or services marketed. [150] I would say that in a competitive industry like the advertising industry, the advertising agencies are people with their ears on the ground and that they are discerning enough, relying on both statistical method and their own perception, with respect to where they should put their advertising money. [151] In fact another media marketing specialist called by the Plaintiff, PW5 Faraz Khan, admitted that every advertising agency would have their own proprietary research to rely on in advising clients including his own. When 73 asked what materials he would refer to and rely on after Nielsen stopped publishing data on theSun since 2011, he confirmed that he had used his own research and the circulation information. [152] If where they had put their money is not yielding results, they would be prepared to try other media. One must not forget to mention that different newspapers would differentiate themselves differently where comparative and competitive advantage is concerned; where rates, coverage, circulation and target audience are concerned, not to mention that their own marketing specialists and staff too would play a key role in grossing in the advertising revenue. [153] Whilst the Star and NST are published every day theSun has no publication on Saturday and Sunday and depending on perception of the advertisers and advertising agencies, some might think that being non- working days the average reader would have more time to linger longer with the Saturday and Sunday edition of the dailies. [154] There are just so many factors and variables that it would not be reasonable to say as a media company that one has suffered a loss of advertising revenue merely because of under-representation of the affluent 74 and with that the relative high-spender who would have a deeper pocket for all new-fangled products and services that may be rolled out. [155] It would not be unfair to extrapolate that high income earners would not be that affected where spending on print media is concerned and either their company and their home would perhaps have a paid subscription of a national newspaper. While they may read theSun and I have no doubt that they would, they will also be the likelihood of them reading one or both of the 2 other newspapers in the Star and the NST if they are English educated. [156] It is true that perception is reality until that reality is changed and no greater power and control can be given to Survey companies and their Survey results than the one controlling the advertising budget would want to give them. Here we have to admit that the one controlling the purse would have the final say and they are often surrounded by many specialists and experts who are not easily beguiled by Survey Reports. [157] I would agree with Nielsen that the factors affecting Sun Media’s advertising revenue were mainly due to its own activities and business decisions. It has little or nothing to do with the NMI or NMI data. This is proved by Sun Media’s own evidence and revenue trend. It follows that its 75 claim for loss of profit attributable to the NMI Data to be far too remote and wholly unsustainable. [158] The Plaintiff’s claim for negligence is thus dismissed for the reasons given above. Whether there is publication of the NMI Survey readership result (the Offending Publication) [159] I now move to consider Sun Media’s claim for defamation. [160] The question is whether there is publication in the format for which the claim is made. I understand that these results are extractable from the pool of NMI Data made electronically available to the subscribers depending on the package subscribed. The software provided by Nielsen to its subscribers is called the IMS software. [161] By inputting the necessary parameters one would be able to generate the permutations that one is interested in. However it must be pointed out that these are cold data with no commentaries. The circulation figures derived from ABC of the various newspapers are not available in the NMI Data. 76 [162] In para 11 of the ASOC, Sun Media set out the Offending Publication which they had extracted from the NMI Survey and NMI Data, albeit without the proper authorization of Nielsen because Sun Media was not a subscriber for the period of 2006-2010 in question, as follows: 77 78 79 [163] Nielsen’s argument is that the NMI Data complained of are found in the IMS system. It is a data analysis program that allows the NMI subscribers to produce readable data relating to their target segments by demographics, media consumption and product usage. There is no evidence whatsoever to suggest that the NMI Data complained of was extracted or published in the pleaded manner. Nielsen’s argument is that Sun Media’s claim is doomed to fail. [164] I agree with Nielsen that this is not an ordinary case of reading of an article published in a newspaper or magazine. This is rather a set of figures found in the IMS system to only its subscribers which requires among others, cross-tabulation to derive to the data which Sun Media now alleged to be defamatory of it. [165] The issue of publication is fundamental in a claim for defamation. Nielsen argued that Sun Media has failed to prove publication of its pleaded NMI Data complained of. As the NMI Data and its extraction and cross-tabulation are only available to subscribers who have contractually agreed to the terms of access, use and the non-sharing of the Data, there is also strictly speaking no evidence before this Court on which subscribers 80 of the NMI or third party that has knowledge or read the NMI Data complained of and understood that they were defamatory of Sun Media. [166] However the law must not be interpreted anachronistically in total apathy to the advancement in technology. I am prepared to say, that by way of inference, there is publication of this kind when data are made available and extractable. Whilst there could be numerous permutations as one may have interest in, it is not too fanciful and indeed quite reasonable that a subscriber would be generally interested in the readership of those who read the 3 major English daily newspapers in Malaysia namely the Sun, Star and NST. At any rate the circulation, readership and revenue generated and reach of these media would be where the income is. [167] Learned counsel for Sun Media had referred this Court to the case of Soh Chun Seng v CTOS-emr Sdn Bhd [2012] 5 MLJ 208. I would thus agree that it is more than a fair probability that subscribers would be keen on the data as depicted in Sun Media Amended Statement of Claim and indeed a natural inference to be made though in the CTOS case, the information printed out was more direct by inputting the particulars of the person whose credit-worthiness is being searched. 81 [168] The difficulty involved in the present case is not so much that the information extracted is convoluted but that one can generate as much as one would like to with respect to the 30 over media and other product and services that have been surveyed with respect to its consumption habits and patterns and the profile of people using those products, service or reading those dailies. [169] So long as the Offending Data is extractable to all subscribers who are minded to obtain such information by way of comparing the circulation figures with respect to the Star, NST and theSun, that would be sufficient publication for otherwise one would have an artificial situation in which no information is considered published when one can extract the information by way of specific focus for purposes of comparison in a cross-tabulation. [170] That cannot be right nor reasonable just because the versatility of the NMI Data is such that it can be “manipulated” and “crunched” to yield as many permutations as one is interested in depending on one’s interest. That would be to allow new-fangled technological advancement and innovation to escape the long arm of the law at least where the claim for defamation is concerned. 82 [171] The tremendous reach of the software must go in tandem with the responsibility that comes with it not unlike the aphorism that with great power comes great responsibility, attributed often to Spider-Man in the August 1962 issue of the comic book “Amazing Fantasy”. Whether the words published are defamatory of the Plaintiff [172] I move to next consider whether the words are defamatory. I agree with learned counsel for Nielsen that to determine whether the words complained of are defamatory of Sun Media one should follow a 2-pronged test in that - a) Question of law – It is the task of the Court to determine upon proper construction of the words complained of, whether they are capable of conveying defamatory meaning as pleaded by the Plaintiff; (b) Only upon the satisfaction of the Court that the words complained of are capable of bearing a defamatory meaning, the Court is to make further enquiry i.e. question of fact - whether the words complained of are in fact defamatory. This is a question of fact, dependent upon the circumstances of each particular case. See the case of Chok Foo Choo @ Chok Kee Lian v The China Press Bhd [1999] 1 MLJ 371 at pg.374-377. 83 [173] In determining whether the words complained of are defamatory of the Plaintiff, this Court needs to determine the natural and ordinary meaning of the Article. What amounts to a ‘natural and ordinary’ meaning, can be seen in the case of Jones v Skelton [1963] 3 All ER 952 at pg.958: “The ordinary and natural meaning of words may be either the literal meaning or it may be an implied or inferred or an indirect meaning: any meaning that does not require the support of extrinsic facts passing beyond general knowledge but is a meaning which is capable of being detected in the language used can be a part of the ordinary and natural meaning of words...” (emphasis added) [174] I agree with Nielsen that the Offending Material does not in any way convey the meaning of theSun being inferior in quality or coverage of news or that it is no longer popular, reliable and cannot be relied upon for advertising purposes. The NMI figures do not refer, indicate or mention poor readership or deterioration of the readership of theSun newspaper as pleaded by Sun Media in para 13 a), h) and i) of the Amended Statement of Claim (“ASOC”). [175] Neither does it imply or suggest that theSun has low pass-on rate or popularity/reliability of theSun for advertising purpose as alleged in para 13 84 c) of the ASOC. The NMI Data does not measure circulation figures of theSun and so this defeats the allegation of Sun Media in para 13e) and l) of the ASOC. Much less does it refer or imply the incompetence of theSun as a newspaper business as alleged in para 13f), g) and k) of the ASOC. In fact the Managing Director of Sun Media PW1 Mr Chan Kien Seng coyly conceded this though not without some reluctance during cross- examination. [176] I would agree with Nielsen that the NMI Data complained of does not disparage theSun as a newspaper or lower its reputation and a reading of the data does not suggest the defamatory meanings as alleged by Sun Media. It is my finding as set out below that the words which are purely figures here are not capable of conveying a defamatory meaning. [177] As I said before, these are cold data shorn of any emotive elements. It bears no description and no adjectives or adverbs are employed. It is not being unlike one who is listed as last in class. Somebody has to be last and the class might well consists of geniuses in the making. It is just a tabulation of marks. So too in this case, it is a comparison that one may draw on the number of readers or readership amongst the 3 main English newspapers and nothing of any comments, whether it be with respect to 85 why some respondents had preferred one newspaper to the other or certainly nothing to do with one’s ability or the lack of it in managing a media company or business. [178] I do appreciate that under defamatory material is given a wide definition under Section 2 of the Defamation Act 1957 to encompass any material capable of conveying a meaning. Section 2 defines “words” to include “pictures, visual images, gestures and other methods of signifying meaning”. [179] Section 3 of the Interpretation Acts 1948 and 1967 defines the meaning of “words” to include “figures and symbols”. Speaking of the section in the context of admissibility of short messaging system text messages in one handphone, Suriyadi FCJ said in Yam Kong Seng & Anor v Yee Weng Kai [2014] 4 MLJ 478 at 489 as follows: “[25] ... Parliament is not unmindful of the march of time as s. 3 of the Interpretation Acts 1948 and 1967 even legislated that 'writing' or 'written' includes electronic storage or transmission or any other method of recording information or fixing information in a form capable of being preserved... ” 86 [180] Whilst figures bundled together with words may be defamatory, they seldom are standing alone. Whilst they allow for comparison to be made they are not caustic nor condemnatory. Whilst they allow conclusion to be drawn they leave that to the subscriber to form their own opinion for they are not in the business of promoting or demoting anyone. [181] Whenever any comparison is done, a subscriber extracting the relevant Data would of course be able to conclude with respect to readership number how one is compared to the other two. One may say that readership is highest in the Star, followed by the NST and then theSun. That is not to say that theSun comes in last because there is no ranking that comes with the Data extracted and what one has is the raw data. The Data that is extractable may potentially be used for purposes of comparing one media with another. The conclusion is left to the subscriber to form and none has been called bearing in mind that the results of the NMI Survey are only available to subscribers only. [182] I would say that the results generated consisting purely of figures are in the context of this case not defamatory of Sun Media or that any innuendo might be arrived at that is of a defamatory nature. In fact with respect to this curiosity of the Sun Media on the people’s perception of the 87 quality of its contents and other reasons why some readers would prefer other publications are precisely what a Prime Survey would do and that too have been captured in the Prime Survey 2008 results and findings. [183] Nielsen’s submission is that contrary to the purported defamatory meanings ascribed by Sun Media, a reading of the NMI Data complained of instead bear the alternative meanings pleaded by Nielsen at para 12A to 12D of the Amended Defence, that is the NMI Data complained of provides the – (a) Estimated readership estimates for Sun Media, the Star and NST for period of January to December 2006 and July 2006 to June 2007; (b) Estimated readership estimates for Sun Media, the Star and NST in KL/PJ for the period of January to December 2006 and June 2006 to July 2007; and (c) Cross tabulation of the NMI results for the period of July 2007 to June 2008, July 2008 to June 2009 and July 2009 to June 2010. [184] I agree with Nielsen’s submission that they have justified the alternative meanings as set out above, as required to establish the Lucas- Box plea of justification. 88 [185] In the Federal Court case of Syarikat Bekalan Air Selangor Sdn Bhd v Tony Pua Kiam Wee [2015] 6 MLJ 187 at pg.209 in adopting the case of Lucas-Box observed as follows: “[51] In substance, the Lucas-Box plea of justification as decided by the English Court of Appeal is as follows: (a) If a plaintiff, in its defamation pleadings, gives a natural and ordinary meaning to the impugned words, the defendant may then rely on stating in his defence what he alleged was the natural and ordinary meaning of the words complained of; and (b) A defendant in defamation proceedings who wishes to rely on a plea of justification must make clear in the particulars of justification the case which he is seeking to set up and must accordingly state clearly and explicitly the meaning which he seeks to justify” [186] Sun Media had also pleaded innuendo. However none of the particulars of innuendo pleaded by Sun Media has been proved in Court. [187] In Lewis v Daily Telegraph Ltd [1964] A.C. 234 at pg.264 it was held that a plaintiff may plead an innuendo in establishing that because 89 there were extrinsic facts which were known to readers of the words, such readers would be reasonably induced to understand the words in a defamatory sense which went beyond or which altered their natural and ordinary meaning [188] I agree with Nielsen that without any evidence from Sun Media to prove that the subscribers or any third party has knowledge of any extrinsic facts pleaded by Sun Media in para 13A of the ASOC, there can be no innuendo meanings ascribed to the NMI Data complained of. [189] I state that in the absence of such a critical evidence before this Court, there is no reason that this Court should allow or even entertain the possibility of an innuendo meaning to the NMI Data complained of. Whether the Defence of Qualified Privilege is available to Nielsen [190] Assuming that the words were defamatory, I hold that the defence of qualified privilege would apply in this case. [191] I agree with learned counsel for Nielsen that the following facts as established by Nielsen form the basis for the defence of qualified privilege– 90 (a) Nielsen is an established information and measurement company, part of a global group of companies headquartered in the United States with a presence in approximately 100 countries; (b) Nielsen delivers media and marketing information and analytics about what consumers watch and read and what consumers buy in Malaysia; (c) The NMI Survey is a long-standing continuous Survey conducted by Nielsen since 1968. The results of the NMI Survey are currently reported twice a year on a 12 month basis for the periods of July-June and January-December; (d) The NMI Survey is a wide-ranging Survey and estimates among others, the readership of newspapers, viewership of free-to-air and satellite TV channels, listenership of radio channels and the product/service consumption habits of the general population in Peninsular Malaysia; (e) The NMI Survey applied the best practice methodologies in data collection, sampling procedures, quality control and weighting to estimate necessary information; 91 (f) The NMI data are derived from sample-based Surveys. The NMI Survey uses an annual sample of 10,000 random individuals aged 15 years and above in Peninsular Malaysia to collate the relevant information for this Survey; (g) Nielsen only makes the NMI Survey findings available to its clients who are subscribers of the Survey; (h) The NMI Data complained of was part of the NMI Survey findings which contained information that was of interest to the subscribers of the NMI Survey at that material time. (i) Nielsen was therefore under a legal duty to furnish and make available the NMI data to its subscribers in accordance with the Nielsen Agreement entered into between Nielsen and its subscribers; (j) The subscribers to the NMI Survey had a similar and corresponding interest to receive and be informed of the findings of the NMI Survey; and (k) The NMI Survey was not targeted at any particular newspaper publication and reported only estimates of among others, the readership estimates for the newspapers in Peninsular Malaysia for 92 the material period. In fact, the NMI Surveys no less than 23 newspapers! [192] The circumstance under which the defence of qualified privilege may be invoked has been considered in Adam v Ward [1917] AC 309 at pg.318 & 334, where it was held that the publication of a letter in the British and Colonial Press was made on an occasion of qualified privilege when it was sent by the Army Council to protect an army officer who had been falsely attacked in Parliament. The defence of qualified privilege is available under the following circumstance: “...a privileged occasion is, in reference to qualified privilege, an occasion where the person who makes a communication has an interest or a duty, legal, social, or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it. This reciprocity is essential.” [193] For a case more directly relevant in the context of publication to subscribers, learned counsel for Nielsen cited the case of Rex Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5 at pg.9-11 93 where in holding that the defence of qualified privilege is available the Court observed as follows: “...What set the respondent’s Bulletin apart from some other paid publications was the narrow focus of both its subject matter and its readership. Because its subscribers were only those responsible for occupational health and safety matters, and because it dealt only with those matters, there was that reciprocity of duty or interest between maker and recipient which attracted qualified privilege.” (emphasis added) [194] In order to defeat this defence of qualified privilege, Sun Media must establish malice on the part of Nielsen, which malice must be expressed or actual. As support for this proposition the case of Hoe Thean Sun & Anor v Lim Tee Keng [1999] 3 MLJ 138 at pg.142 was referred to where it was held that the onus lies on the plaintiff to prove malice and not the defendant to his bona fides or absence of malice. When the occasion is privileged, the bona fides of the defendant is always presumed. [195] I agree with Nielsen that in this case, whether in pleadings or throughout the course of the trial, Sun Media has failed to discharge the 94 onus to prove malice in para 16C of the ASOC. There has been absolutely no intrinsic or extraneous evidence of actual malice against Nielsen. [196] In fact learned counsel for Sun Media accepts the fact that there are results extractable from the NMI Survey that are in favour of theSun in its presentation in 2007 to its stakeholders including advertising agencies and advertisers. Some of these results are for instance steady growth of readership in the KL/PJ area, higher income profile, urban concentration, university education, decision makers and laptop owners as part of its readership profile. The NMI Data were used by Sun Media’s own witness, Mr. Prashun Dutt (PW-6) in his power point presentation to Sun Media’s clients and advertisers in December 2007 (See PBD 7 pg.1–74). [197] This fact was also conceded by Sun Media’s witness, Mr. Prashun Dutt during his cross-examination by Mr Robert Lazar (“RBL”) (See Notes of Proceedings 27.7.2016 pg. 38, line 22-36 & pg. 39 line 1-31) as follows: “RBL Now, Question 5 in your witness statement. You were asked this question. ‘Can you share some of your critical findings and summarise the outcome of your efforts during October, 2007 to June, 2008?’ PRASHUN Yes Sir. 95 RBL So this would be the period before the findings of the Prime Survey. PRASHUN Before the Prime was activated for commission. RBL Ok. And then you say in your answer that you then collated information from several available sources and databases including Nielsen’s NMI. Yes? PRASHUN Yes Sir. RBL Right. And then, in the third paragraph, you prepared a PowerPoint presentation and this was presented to clients and advertisers. Clients, advertisers, advertising and media specialist agencies in December, 2007. PRASHUN That is true Sir. RBL Yes ok. So this is the marketing part of your - PRASHUN theSun’s marketing. RBL Yes. theSun’s marketing. Ok, fine. So you prepared the PowerPoint presentation. PRASHUN I also did the presentation. 96 RBL You did the presentation. PRASHUN At the Hilton. RBL Ok fine. And then over the page, you then say that the findings from these sources including the NMI. PRASHUN Yes Sir. RBL Including the NMI, you summarised it in five sub- segments. Which you then set out at page 11. PRASHUN Yes Sir.” (emphasis added) [198] As a result of the 2007 power point presentation, it was conceded by Mr Prashun Dutt, who exuded no exhilaration that would normally accompany such a positive disclosure, that Sun Media’s advertising revenue had increased. See Notes of Proceedings on 27.7.2016 pg.47 line 20-36 & pg.48, line 1-17 as follows: “RBL And then you summarise this with your answer in Question 5A. As a result of this presentation, you say this resulted in an increase in theSun Media’s advertising revenue. That is your evidence, Mr Prashun. 97 PRASHUN Yes there was an increase. RBL There was an increase. PRASHUN A little bit, not much but there was an increase. RBL Ok, right. Now, we haven't got the final details on the advertising income. But that is something that - PRASHUN You can use the ADEX and use other factors. RBL We did try and do that. PRASHUN There was some increase, yes. RBL We will get the evidence from the right people. PRASHUN No, but your statement is right. There was some increase. RBL There was, yes. No, it’s your evidence. PRASHUN No, there was some increase. RBL Yes, right. Ok. PRASHUN Let me confirm that. RBL Yes. 98 PRASHUN As the consequence of using all this.” (emphasis added) [199] I accept the submission of learned counsel for Sun Media that it does not quite matter that there may be 10 laudatory validly drawn conclusions that are extractable from the NMI Survey but so long as there is 1 defamatory statement, that would be sufficient to found a cause of action in defamation. Whilst that may be so, I would say that in the overall context of this case, the laudatory conclusions and the positive results extractable from the NMI Survey would lend assurance to and indeed underscore the fact that there is no malice on the part of Nielsen in the publication of the NMI Survey. [200] In fact the way the software is designed is such that after the input of the raw data there is hardly any human interference that can be effected on the pool of Data and depending on the parameters that one would input there could well be as many permutations as one may have a proclivity and penchant for. The end result may well be that some may not be as favorable as one would like to have it but that is no justification for a defamation action. 99 [201] In Seray-Wurie v Charity Commission of England and Wales [2008] All ER (D) 311 at para 35 it was held that a mere assertion of malice is insufficient. [202] Halsbury’s Laws of Malaysia, 2014 Reissue at pg.155 has this helpful passage: “What is malice? Express or actual malice is ill will or spite towards the plaintiff or any indirect or improper motive in the defendant’s mind at the time of the publication, which is his sole or dominant motive for publishing the words complained of.” (emphasis added) [203] I would therefore hold that the qualified privilege is available and no malice has been shown by Sun Media on the part of Nielsen where the publication of the Data in the form extracted by Sun Media is concerned, derived as it is from a national research carried out with no particular emphasis and much less targeting any particular newspaper like theSun here. Whether Sun Media has proved, that the Offending Letter sent out by Nielsen to their clients to clarify Sun Media’s assertion that the NMI Survey is unreliable, is defamatory 100 [204] With respect to the Sun Media’s claim for defamation for the Offending Letter sent out by Nielsen to their subscribers arising out of 2 publications in theSun, learned counsel for Nielsen raised a preliminary point in that the claim by Sun Media ought to be dismissed by reason of its failure to plead with sufficient particularity the words complained of. [205] I agree with Nielsen that it is trite law that in a libel claim, it requires special treatment in so far as the drafting of the pleadings are concerned. The seminal works of Bullen & Leake & Jacobs's Precedents of Pleadings (17th Edition) at pg. 636 explained as follows: “Pleading the statement of claim Libel. The words must be set out verbatim in the statement of claim. It is not enough to set out their substance or effect (Harris v Warre (1879) 4 CPD 125 at p 127; Coffins v Jones (1955) 1 QB 564). Where the defamatory words form only part of a longer article or programme, the claimant must set out in his statement of claim only the particular passages of which he complains as being defamatory of him (DDSA Pharmaceuticals Ltd v Times Newspapers Ltd (1973) 1 QB 21, CA). Question and answer must be set out if 101 the libel is contained in both together (Bromage v Prosser (1825) 4 B & C 247).” (emphasis added) Gatley on Libel and Slander, Twelfth Edition, Sweet & Maxwell at para 26.11 pg. 989-992, deals with this strict requirement as follows: “Setting out words complained of: libel. In a libel claim the words used are material facts and they must therefore be set out verbatim in the particulars of claim, preferably in the form of a quotation: it is not enough to describe their substance, purport or effect. (emphasis added) [206] Decided cases exemplify this principle as in the case of DDSA Pharmaceuticals Ltd v Times Newspaper Ltd and another [1972] 3 All ER 417 (Court of Appeal) at pg.419 where Lord Denning MR observed as follows: “In the second place, the pleading is defective because it throws—and I use that word deliberately—on to the defendant a long article without picking out the parts said to be defamatory. Some of the article is not defamatory of anyone at all. It describes only the method of importing drugs. Other parts of the article are defamatory of some unnamed chemists, but not of the plaintiffs at all. 102 Yet other parts may be defamatory of the plaintiffs. To throw an article of that kind at the defendants and indeed at the court— without picking out the particular passages, is highly embarrassing. Master Bickford Smith put it very sensibly: 'It is tremendously embarrassing to claim the whole of the article as a libel. There is a tremendous amount of the article which is not defamatory of [the plaintiffs]. You must pick out the particular bits and rely on the rest as extrinsic or surrounding facts giving a defamatory meaning to the words.' That ruling is in accord with the practice as it has been known for many years. The plaintiffs must specify the particular parts defamatory of them. For instance in this particular case there is a reference to a 'London-based operation'. If the plaintiffs say that it means the plaintiffs, they should say so. They should insert 'meaning thereby the plaintiffs'.” (emphasis added) [207] There is merit in this preliminary point raised by Nielsen as Sun Media in its ASOC merely reproduced the entire Nielsen letter complained of and failed to sufficiently identify and plead the words purportedly 103 defamatory of Sun Media. That preliminary point alone is sufficient for this Court to dismiss Sun Media’s claim for defamation based on the 2 clarification letters sent out by Nielsen to their clients. [208] It can be seen particularly from paragraph 3 to 5 of Nielsen’s Offending Letter complained of that these merely concerned Nielsen’s explanation concerning the NMI including its methodologies as well as the ABC circulation. Para 5 merely state that the subscribers may contact the Nielsen account manager should they need additional details of the NMI methodologies. I agree that these cannot be defamatory of the Sun Media. [209] I hold that the words used were not defamatory for it merely seeks to provide its side of the story as to why there is no cause for concern on the issues raised by theSun. [210] At any rate the defence of qualified privilege would apply. Nielsen was under a duty and interest to convey the contents of the Nielsen letter complained of to its clients at that material time and the clients of Nielsen had a corresponding duty and interest to receive and be informed of the contents of the Nielsen letter complained of. [211] The Nielsen letters complained of was prompted by and in response to Sun Media’s “public attack” through its newspaper front page coverage 104 of its articles entitled “Absurd figure” in theSun newspaper dated 2.3.2011 and “Need to evolve way audiences are measured: MSA” dated 3.3.2011. [212] I would thus dismiss the Plaintiff’s claim for defamation. Whether the Plaintiff has proved malicious falsehood on the part of the Defendant in the publication of the NMI Survey [213] In Ratus Mesra Sdn Bhd v Shaik Osman Majid & Ors [1999] 3 MLJ 529 at pg.542 it was held that to establish the tort of malicious falsehood, the plaintiff has to prove that – (1) the defendant has published about the plaintiff words which are false; (2) they were published maliciously; and (3) special damage has followed as the direct and natural result of the publication save when section 6 of the Defamation Act applies. See Ratcliffe v Evans [1892] 2 QB 524 at pg.527-528 and Mak Khuin Weng v Melawangi Sdn Bhd [2016] 5 MLJ 314 at pg.320- 321. [214] Likewise Gatley in para 21.1 at pg. 811 expressed the elements of the claim as follows: 105 “At common law the claimant may maintain an action for malicious falsehood if he can show that: (1) the defendant published to third parties words which are false; (2) that they refer to the claimant or his property or his business; (3) that they were published maliciously; and (4) that special damage has followed as a direct and natural results of their publication” (emphasis is ours) [215] Looking at the evidence adduced in totality, it has not been proved the NMI Survey is false and that the same were published with malicious intent. In fact Nielsen has ceased to include theSun as part of its NMI Survey for subsequent years from 2011 onwards, thus avoiding any future possible conflict with Sun Media, who according to Nielsen, had chosen not to believe its NMI Survey when it comes to readership. [216] I do not see the decision to stop including theSun in the NMI Survey as an admission of guilt and liability but rather a decision taken to avoid being embroiled in unnecessary litigation where no amount of convincing and persuasion is possible for someone who does not believe the NMI Survey for its reliability and validity. 106 [217] In Spring v Guardian Assurance plc and others [1993] 2 All ER 273 at pg. 288, it was held that the test of malice in the tort of malicious falsehood is the same as the test in relation to the torts of libel and slander. Thus, it will not be sufficient for Sun Media to establish Nielsen’s malicious intent simply because there were inaccuracies in the NMI Data complained of. [218] Sun Media’s allegation of malice on the part of Nielsen is also untenable as it has been proved by its Media Presentation in 2007 and Mr. Prashun Dutt PW6 that there is value in the data favourable to the Sun. Sun Media has utilised this information for its marketing and to increase its advertising revenue. Mr Prashun admitted under cross-examination, though not without some reluctance, that the advertising revenue had increased. (See Notes of Proceedings on 27.7.2016 pg.47 line 20-36 & pg.48, line 1- 17) [219] As pointed out there were laudatory and favorable conclusions that could be drawn from the NMI Survey which Sun Media had sought to harness in its Media Presentation in 2007 to its stakeholders and such Survey results is hardly the handiwork of one who is bent on spreading malicious falsehood. It is when one chooses to cherry-pick the results that 107 one becomes guilty of skewing the results with the danger of distorting the big picture. [220] What is more is that Sun Media has failed to lead any evidence as to why Nielsen’s NMI Survey methodology is skewed in favour of the Star or NST and to the specific detriment of Sun Media. There is simply no reason for any Survey error to coalesce and as it were concentrate on theSun newspaper as one would expect any deficiencies in the Survey Methodology to cut right across the board. Even if there are errors leading to inaccuracies in the NMI Survey that would not be sufficient to establish malicious intent. [221] The expert witness of Nielsen, Mr. Jonathan Jephcott had given evidence that all survey measurements are by their very nature “estimates”, and are subject to errors and variations of several types including selection bias. The objective of survey-based research is not one of pretending to deliver absolute accuracy but of maximizing relative accuracy. Surveys are not meant to be absolute truths (See para 38-39 D-ER). [222] Learned counsel for Nielsen was careful to highlight that it was never Nielsen’s case that the NMI Survey results is absolutely accurate. Even from the inception through the NMI Agreement, Nielsen has qualified the 108 NMI Survey results to be estimates, and subject to statistical errors. This very fact is known to Sun Media and it was expressly acknowledged by its own letter dated 22.02.2001 stating that “We understand surveys are like ‘streetlights’ and certainly not microscope.” (See Sun Media’s letter dated 22.2.2001 CBD1 at pg.1) [223] As I had earlier found that there is no malice proved that would defeat the defence of qualified privilege, that same absence of malice would apply equally to defeat Sun Media’s claim for malicious falsehood. See Ratus Mesra Sdn Bhd v Shaik Osman Majid & Ors [1999] 3 MLJ 529 at pg. 542 where it was observed as follows: “Since I have found against the plaintiff in his claim in libel, logically therefore I ought to dismiss this claim for malicious falsehood”. See also Raub Australian Gold Mining Sdn Bhd v Mkini Dotcom Sdn Bhd & Ors [2016] 12 MLJ 470 at para [31]. Whether the Plaintiff’s publication of the 2 Offending Articles on the Defendant’s NMI Survey is defamatory [224] With respect to Nielsen’s counterclaim for the 2 Offending Articles published in theSun by Sun Media, I hold that the words used, though expressed in strong language and even perhaps a condemnatory tone, is 109 not so caustic as to be defamatory of Nielsen. Nielsen as a survey company must surely be made of tougher material and that criticisms should be welcomed as being good and positive for the industry as a whole. [225] It would not be unfair to say that this is a case where even if “you are right it does not mean that I am wrong.” Where research from survey results are concerned there must be a free flow of arguments for and against that should be allowed both to promote intellectual rigor and resilience as well as to expose weakness and highlight areas of improvement. [226] No survey result especially a national survey published to subscribers only, with clear statements of limitations and disclaimer, is ever perfect and at the end of the day the consumer of the survey results would be the best judge of the reliability and validity of it. [227] I would also dismiss Nielsen’s Counterclaim for defamation. [228] As there is no appeal by Nielsen on the dismissal of their Counterclaim, I shall not labour the matter any further. 110 Pronouncement [229] To recapitulate, the whole of the Plaintiff’s Claims in Negligence, Defamation and Malicious Falsehood are dismissed with costs for the reasons given above. The Defendant’s Counterclaim for defamation is also dismissed. [230] It remains for me to decide on costs. Based on the submission prepared by both sides on the kind of quantum of out-of-pocket expenses spent by the Defendant and also the length of trial, the novelty of the issues and the various interlocutory applications and the number of witnesses and having in mind the seniority of counsel and the fact that this is not a case that can be considered a walk in the park but rather complicated, I would order costs to follow the event and award a single costs covering both getting-up and out-of-pocket expenses of RM600,000.00 to be paid by the Plaintiff to the Defendant and allocatur as provided for in the Rules of Court 2012 to be paid to Court before the party who prepares the order for costs may extract it. 111 [231] I would like to put on record my gratitude to all the counsel who have most ably conducted this trial and also the scholarship that has gone into the various of submissions and further submissions and clarification. Dated: 26 October 2017. Sgd Y.A. LEE SWEE SENG Judge High Court Malaya Kuala Lumpur For the Plaintiff : Malik Imtiaz together with Clinton Tan (Messrs Thomas Philip) For the Defendant : Robert Lazar together with Yee Mei Ken and Teh Soo Jin (Messrs Shearn Delamore & Co) Date of decision: 27 February 2017

Tika 2.6.0

62JS-45-11/2016

PENDAKWARAYAPUAN SUHAILA BINTI SHAFIUDIN TERTUDUH ALI USMAN

25/10/2017

TN KAMARUDIN BIN KAMSUN

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=c44f58c6-08db-4fe0-82cb-31d832d42b6f&Inline=true

DALAM MAHKAMAH SESYEN DI JOHOR BAHRU DALAM NEGERI, JOHOR PERBICARAAN JENAYAH NO: 62J – 45 – 11/2016 ANTARA PENDAKWA RAYA LAWAN ALI USMAN (PP: C 1011459) ALASAN KEPUTUSAN A. PENGENALAN. 1. Di dalam kes ini, OKT telah dituduh dengan 3 pertuduhan sebagai mana berikut:- Tuduhan Pertama; “Bahawa kamu pada 24/10/2016 jam lebih kurang 15.48 Hrs di rumah alamat nombor 33 Jalan Nusaria 6/7, Taman Nusantara, Gelang Patah Johor, dalam daerah Nusajaya dalam negeri Johor, telah melakukan rogol terhadap Siti Maryani Binti Mohd Yusof, KPT: 880307-01-6006, 28 tahun dan oleh itu, kamu telah melakukan suatu kesalahan yang boleh dihukum di bawah sekyen 376 Kanun Keseksaan.” Tuduhan Kedua; “Bahawa kamu pada 24/10/2016 jam lebih kurang 15.48 Hrs di rumah alamat nombor 33 Jalan Nusaria 6/7, Taman Nusantara, Gelang Patah Johor, dalam daerah Nusajaya dalam negeri Johor, telah melakukan persetubuhan yang bertentangan dengan aturan tabii terhadap Siti Maryani Binti Mohd Yusof, KPT: 880307-01-6006, 28 tahun dan oleh itu, kamu telah melakukan suatu kesalahan yang boleh dihukum di bawah sekyen 377 Kanun Keseksaan.” Tuduhan Ketiga; “Bahawa kamu pada 24/10/2016 jam lebih kurang 15.48 Hrs di rumah alamat nombor 33 Jalan Nusaria 6/7, Taman Nusantara, Gelang Patah, dalam daerah Nusajaya dalam negeri Johor, bukan sebagai seorang warganegara Malaysia telah didapati berada di Malaysia tanpa pas dan permit yang sah, oleh yang demikian kamu telah melakukan satu kesalahan di bawah seksyen 6(1)(c) Akta Imigresen 1959/63 yang boleh dihukum di bawah seksyen 6(3) Akta Imigresen 1959/63.” Terhadap ketiga-tiga pertuduhan tersebut, OKT telah mengaku bersalah dan telah didapati bersalah dan disabitkan dengan pertuduhan dan dijatuhi hukuman penjara sebagaimana berikut;- Tuduhan pertama – penjara 15 tahun dari tarikh tangkap dan 3 kali sebatan. Tuduhan Kedua – penjara 10 tahun dari tarikh tangkap dan 2 kali sebatan. Tuduhan Ketiga – penjara 3 tahun dari tarikh tangkap, Kesemua hukuman penjara di jalankan serentak. 2. Terhadap keputusan tersebut pihak OKT telah tidak berpuashati dan membuat rayuan terhadap Hukuman dan Sabitan. B. TERHADAP SABITAN DAN FAKTA KES PENDAKWAAN. 3. Kesemua Pertuduhan dan Fakta kes telah dibacakan dan diterangkan kepada OKT di dalam bahasa ibunda OKT iaitu Bahasa Urdu. 4. Pada sebutan kali pertama iaitu pada 29.11.2016, ketiga-tiga pertuduhan telah di bacakan kepadanya oleh seorang jurubahasa Urdu iaitu Madam Simren Deep kaur Ji. Untuk pertuduhan pertama dan kedua, OKT minta dibicarakan manakala bagi pertuduhan ketiga OKT telah mengaku salah dan faham sifat dan akibat pengakuannya. 5. Lanjutan dari itu suatu perbicaraan telah di adakan pada 21.6.2017 dan seorang saksi telah dipanggil iaitu anggota tangkapan (Polis) memberikan keterangan dan setelah itu kes ditangguhkan untuk sambung bicara. 6. Pada tarikh sambung bicara iaitu pada 22.8.2017, OKT telah dibacakan semula ketiga-tiga pertuduhan kepadanya dan beliau telah mengaku bersalah terhadap ketiga-tiga pertuduhan tersebut. 7. Pertuduhan itu adalah dibacakan oleh seorang jurubahasa Urdu iaitu Madam Satvinder Kaur A/P Jaswant Singh dari bahasa Malaysia ke bahasa Urdu dan telah di terangkan dan difahami sifat dan akibat pengakuannya oleh jurubahasa kepada OKT. 8. Begitu juga segala prosedur pengemukaan fakta kes dan ekhibit telah dilakukan dan diterjemahkan segalanya di dalam bahasa Malaysia ke dalam bahasa Urdu dan telah difahami dengan jelas oleh OKT segala maksud, kesan dan akibat dari pengakuan bersalahnya tersebut. 9. Rayuan sebelum hukuman oleh OKT juga telah diterjemahkan dari bahasa Urdu ke dalam bahasa Malaysia dan kesemua pihak telah memahami kedudukan dan keadaan kes masing-masing. 10. Mahkamah ini dengan itu merasakan bahawa sabitan yang dikenakan ke atas OKT adalah selamat dan tidak pernah memprejudiskan OKT dimana OKT faham segala apa yang berlaku di dalam mahkamah dan faham sifat dan akibat dari pengakuannya, yang mana beliau telah diterangkan segala sebab, sifat dan akibat dari pengakuannya, bentuk hukuman yang menunggunya dan apa yang boleh dikenakan terhadapnya dan beliau sedia menghadapinya. Maka adalah tidak relevan untuk sekarang sekiranya beliau mempertikaikan sabitan yang telah dibuat keatasnya atas apa jua alasan lain melainkan beliau sendiri dengan rela hati telah membuat pengakuan bersalah terhadap kesalahan yang telah dipertuduhkan ke atasnya. 11. Selanjutnya, sebagaimana yang telah dikemukakan oleh pihak pendakwaan menerusi ekhibit P3, fakta kes ini adalah sebagaimana berikut. 12. Pada 24.10.2016 jam lebih kurang 3.48 petang semasa Mohd Firdaus berada di Pusat Kawalan Polis IPD Iskandar Puteri telah menerima satu panggilan telefon daripada orang awam seorang perempuan melayu bernama Siti Marini iaitu mangsa yang memaklumkan beliau telah dirogol di alamat no. 33 Jalan Nusaria 6/7, Taman Nusantara Gelang Patah. 13. Pada tarikh yang sama anggota ronda MPV telah menghala ke alamat yang diberitahu oleh mangsa dan telah berjumpa dengan seorang lelaki India muslim iaitu suami kepada mangsa dan telah menunjukkan kepada polis satu lelaki bangsa Pakistan iaitu OKT yang telah ditangkap oleh orang awam. 14. Pada tarikh tersebut, ketika mangsa berada di dalam bilik di tingkat atas dan baru selesai mandi. Biliknya telah diketuk oleh OKT dan bertanyakan mengenai suaminya. Selepas pintu dibuka, OKT terus menolak pintu dan memeluk mangsa. Mangsa terkejut dan takut dan telah menjerit meminta tolong tetapi OKT telah menutup mulut mangsa dan telah mencekik bahagian leher mangsa. 15. OKT telah mengheret mangsa ke tilam di dalam bilik dan telah membuka dan menarik seluar dalam mangsa. Kemudian OKT membuka seluarnya dan dalam keadaan berbogel. Mangsa merayu dan menangis untuk tidak diapa-apakan tetapi OKT mengugut untuk mencederakan dan membunuh mangsa dan telah memasukkan kemaluannya secara paksa sehingga mangsa mengerang kesakitan. 16. OKT telah memasukkan kemaluannya selama 2 ke 3 minit dan mangsa nampak OKT telah memancutkan air mani ke atas tilam dan lantai. OKT memaksa mangsa untuk mandi di bilik air dan mengawal mangsa. Selepas itu mangsa dirogol sekali lagi dan OKT telah memasukkan kemaluannya ke dalam dubur mangsa dan semasa OKT memasukkan kemaluannya, mangsa menangis dan menjerit kesakitan. 17. OKT terus beredar dari rumah dan mangsa telah menghubungi polis dan suami mangsa. Suami mangsa yang menerima panggilan telefon tersebut mendengar suara mangsa dalam tangisan teresak-esak dan telah balik ke rumah dan cuba mencari OKT. Mangsa dan suami mangsa mengenali OKT kerana OKT merupakan kawan kepada suami mangsa dan tinggal sekali di rumah tersebut lebih kurang seminggu sebelum kejadian. 18. Mangsa telah dibawa ke Hospital Sultanah Aminah pada hari yang sama dan doktor mengesahkan terdapat kesan bruises pada leher mangsa dan terdapat external haemorrhoid dan multiple superficial linear tears with slow oozing blood di dubur mangsa dan semasa kejadian di dapati mangsa di dalam kehamilan awal. Terdapat koyakan pada hymen iaitu “blunt penetration”. 19. Cadar tilam berwarna oren berbintik hitam terdapat kesan air mani dan darah dan seluar panjang warna putih milik OKT dirampas dan telah dihantar ke Jabatan Kimia untuk mendapatkan pengesahan dan hasil laporan kimia mendapati DNA semen stain dari cadar dan seluar yang dirampas adalah daripada OKT dan mangsa. 20. OKT telah ditangkap red-handed oleh orang awam dan suami mangsa dan telah diserahkan kepada pihak polis pada hari yang sama kejadian berlaku. 21. OKT mengaku salah sepertimana pertuduhan. C. FAKTOR DAN PRINSIP PENGHUKUMAN. 22. Undang-undang tidak pernah membuat suatu penetapan hukuman ke atas suatu kes tertentu tetapi hanya meletakkan suatu hukuman maksima terhadapnya dan ini tidak bermakna bahawa suatu hukuman maksima hendaklah sentiasa dikenakan di dalam setiap kes mengenainya ( Mohd Jalani bin Saliman v PP [1997] 5 MLJ 551), maka terpulanglah kepada mahkamah tersebut mengenakan suatu hukuman yang dirasakan sesuai dalam lingkungan julat hukuman yang dibenarkan tertakluk kepada fakta dan keadaan kes masing-masing. Adalah menjadi tugas mahkamah untuk mengenakan suatu hukuman yang mana hukuman tersebut dapat mencerminkan keseriusan suatu kesalahan yang telah dilakukan (PP v Khairudin [1982] 1 MLJ 331). Tujuan meletakkan budibicara kepada Penghukum adalah bagi membenarkan Penghukum memberikan hukuman yang dirasakan paling sesuai di dalam setiap satu kes secara berasingan dan apa-apa kecenderungan untuk menyeragamkan hukuman bagi sesuatu kesalahan hendaklah dielakkan kerana itu bermakna pesalah tersebut dihukum bukan atas fakta kesnya tetapi disebabkan oleh jenis kesalahan yang telah dilakukannya ( Abdul Karim v R; Sundra Singh v R; Loh Kai Hoi v R [1954] MLJ 86). 23. Suatu pertimbangan yang adil perlu dilihat dan dibuat antara keperluan kepada suatu hukuman yang mencegah dan juga peluang kepada tertuduh untuk dipulihkan (Kesavan Senderan v PP [1999] 1 CLJ 343). Setiap penghukuman hendaklah bersifat ekslusif dan peribadi tergunapakai hanya kepada pesalah tersebut sahaja yang dilaras kepada keadaan moral dan kewangannya juga kepada sifat suatu kesalahan tersebut ( Low Oi Lin v R [1949] MLJ 210 ). 24. Di dalam menjatuhkan suatu hukuman, pertimbangan yang diambilkira sebelum hukuman dijatuhkan ialah kepentingan awam, keadaan suatu kesalahan tersebut dan juga latarbelakang pesalah berkenaan. Suka ditekankan bahawa menurut kes R v Sargeant (1974) 60 Cr App R 74, merumuskan bahawa “Society, through the courts, must show its abhorrence for the occurrence of particular types of crime and the only way which the courts can show this is by the sentences they pass. The courts act as a vehicle to show abhorrence for particular types of criminal conduct. However, the courts do not have to reflect public opinion. On the other hand, court could not disregard it. Perhaps the main duty of the court is to lead public opinion.”(ulasan oleh penulis buku “The process of criminal justice”). Oleh itu, mahkamahlah yang sepatutnya melaraskan dan melakarkan apa kehendak yang patut dibentuk oleh masyarakat menerusi hukuman yang dibuatnya. 25. Prinsip klasik di dalam menilai suatu hukuman yang bakal dikenakan terhadap pesalah ialah sebagaimana diputuskan dalam kes R v Sargeant, supra, iaitu: “retribution, deterrence, prevention and rehabilitation.” Kes R v Sargeant, supra, juga turut mengariskan apakah panduan di dalam menentukan suatu tempohmasa pemenjaraan yang sesuai yang patut dikenakan terhadap pesalah yang mana antara lainnya ialah; sifat dan keseriusan suatu kesalahan tersebut, keadaan dimana kesalahan tersebut dilakukan, diskaun kepada keinsafan dan akhirnya imbangan diantara kepentingan awam di dalam mencegah kesalahan tersebut dan peluang pesalah memulakan kehidupan yang baru. D. ANALISA DAN KEPUTUSAN MAHKAMAH. 26. Pada pendapat mahkamah, hukuman yang diberikan ke atas ketiga-tiga pertuduhan ini adalah setimpal dan wajar serta mengikut lunas-lunas yang telah ditetapkan oleh undang-undang. 27. Seksyen 376 Kanun Keseksaan memperuntukkan; Section 376. Punishment for rape. (1) Subject to subsections (2), (3) and (4), whoever commits rape shall be punished with imprisonment for a term which may extend to twenty years, and shall also be punished with whipping. [Am. Act A1536/2017] (2) Whoever commits rape on a woman under any of the following circumstances: (a) at the time of, or immediately before or after the commission of the offence causes hurt to her or to any other person; (b) at the time of, or immediately before or after the commission of the offence, puts her in fear of death or hurt to herself or any other person; (c) the offence was committed in the company of or in the presence of any other person; (d) without her consent, when she is under sixteen years of age; (e) with or without her consent, when she is under twelve years of age; (f) with her consent, when the consent is obtained by using his position of authority over her or because of professional relationship or other relationship of trust in relation to her;                       [(f) Am.Act A1471/2014] (g) at the time of the offence the woman was pregnant;                                [(g) Am.Act A1471/2014]  (h) when by reason or on occasion of the rape, the woman becomes insane; (i) when he knows that he is afflicted with the Human Immuno-Deficiency Virus (HIV)/Acquired Immune Deficiency Syndrome (AIDS) or any other sexually transmissible disease and the virus or disease is or may be transmitted to the woman;   (j) when by reason or on occasion of the rape, the woman commits suicide; or   (k) when he knew of the mental disability, emotional disorder or physical handicap of the woman at the time of the commission of the crime,                          [(h), (i), (j), (k) Ins.Act A1471/2014] shall be punished with imprisonment for a term of not less than ten years and not more than thirty years and shall also be punished with whipping.                      [Am. Act A1536/2017]; [Am.Act A1471/2014] 28. Seksyen 377 KK pula memperuntukkan; Section 377B. Punishment for committing carnal intercourse against the order of nature. Whoever voluntarily commits carnal intercourse against the order of nature shall be punished with imprisonment for a term which may extend to twenty years, and shall also be punished with whipping. 29. Makala seksyen 6(3) Akta Imigresen memperuntukkan; Section 6 . Control of entry into Malaysia. (1) No person other than a citizen shall enter Malaysia unless- (a) he is in possession of a valid Entry Permit lawfully issued to him under section 10; [Am. Act A985: s.4] (b) his name is endorsed upon a valid Entry Permit in accordance with section 12, and he is in the company of the holder of the Permit; [Am. Act A985: s.4] (c) he is in possession of a valid Pass lawfully issued to him to enter Malaysia; or (d) he is exempted from this section by an order made under section 55. (2) (Repealed by Act 27 of 1963). (3) Any person who contravenes subsection (1) shall be guilty of an offence and shall, on conviction, be liable to a fine not exceeding ten thousand ringgit or to imprisonment for a term not exceeding five years or to both, and shall also be liable to whipping of not more than six strokes. [Am. Act A 1154:s.4] 30. Hukuman pemenjaraan yang dibenarkan oleh undang-undang yang boleh dikenakan ke atas OKT bagi kesemua kesalahan secara keseluruhannya jumlahnya itu boleh mencapai kepada 30 tahun penjara maksima dan berserta jumlah maksima sebatan. 31. Di dalam kes ini, kes ini telah diambilkira sebagai panduan; kes Mahkamah Agong ketika itu di dalam kes Mohd Abdullah Ang Swee Kang (1987) CLJ (rep) 209; yang mengatakan;- Held: [1] The Supreme Court agreed with the principle laid down in Reg.v. Barrick that in breach of trust cases in general a term of immediate imprisonment would be inevitable, save in very exceptional circumstances or where the amount of money involved was small. This must be the current sentencing policy even if the accused pleaded guilty. In the Supreme Court's view, the approach of assessing sentence adopted by the learned Judge supposedly based on English authorities by harmonising them with the maximum sentence of 20 years in s. 409 of the Penal Code,was not only misleading but was wrong in principle. When the legislature fixed a maximum penalty for an offence, the discretion of the Court in determining the extent to which in a particular case the punishment should be awarded must be exercised judicially. [2] In assessing the length of custodial sentence, the Court must look at the overall picture in perspective by considering firstly, the gravity of the type of offence committed; secondly, the facts in the commission of the offence; thirdly, the presence or absence of mitigating factors, and fourthly, the sentence that have been imposed in the past for similar offences to determine the trend of sentencing policy, if any. The fact that a sentence of imprisonment is imposed as a deterrence does not justify the sentencer in passing a sentence of greater length than the facts of the offence warrant. The gravity of the type of offence involved must be considered in the light of the particular facts of the offence. [3] A sentencer must give sufficient discount for all extenuating circumstances pertaining to the degree of culpability or criminality involved which must necessarily vary from case to case apart from other mitigating factors. Unless there is a proper reason for withholding such credits, failure to do so may result in the sentence not exercising his or her discretion judicially in assessing the level of custodial sentence. The sentence imposed on the appellant was manifestly excessive. It is generally accepted that the extent of reduction on account of a plea of guilty would be between ¼ and 1/3 of what otherwise would have been the sentence. In this particular case, apart from plea of guilty, the sentence must also be discounted to reflect the full restitution made and other mitigating factors. [4] Although the learned Judge indicated in his judgment that he had given the necessary discounts they were not reflected at all in the sentence imposed, as it was imposed without regard to the particular facts of this case and without giving the appellant any or sufficient credit for all the mitigating circumstances. The recommended prison terms in Barrick were not meant for pleading guilty cases. If the learned Judge had not fallen into error in misreading the facts and the law in Barrick and Davies he would probably have found that a 4 year sentence would adequately fit the crime which by any standard was severe enough to satisfy the justice of this case. [5] Since full restitution had been made and the appellant had not enriched himself personally by the crime, the Supreme Court found no purpose in imposing a fine in addition to custodial sentence. 32. Kesemua faktor yang dilandaskan di dalam kes tersebut telah mahkamah ini ambilkira dan diselaraskan dengan Fakta kes di hadapan kita ini sebelum mahkamah ini menjatuhkan hukuman. 33. OKT telah mengaku bersalah dan pengakuan bersalahnya ini perlu diambilkira sebagai satu faktor peringanan utama. Paling utama ialah suatu sabitan telah diperolehi tanpa kesemua pihak yang terlibat khasnya pihak pendakwaan perlu bersusah payah membuktikan kes melampaui keraguan yang munasabah mengambilkira fakta kes pada masa kejadian pelbagai kemungkinan boleh terjadi. Begitu juga banyak penjimatan masa dan kos semua pihak khasnya saksi-saksi termasuk pengelakkan faktor “humiliation” terhadap mangsa telah diperolehi dengan pengakuan salah OKT ini. OKT juga tidak mempunyai apa-apa rekod lampau. Di dalam rayuannya, OKT memohon maaf di atas kesalahannya. Beliau telah kesal dan insaf. Mempunyai 10 orang adik beradik dan membantu keluarganya. Berjanji tidak akan mengulangi lagi kesalahannya dan ingin balik ke Negara asalnya. 34. Hujahan pemberatan oleh pihak pendakwaan juga telah mahkamah ini ambilkira kesemuanya dimana faktor kepentingan awam adalah faktor utama di dalam pertimbangan untuk memberikan hukuman paling setimpal untuk OKT. Kes Pannani Bin Amat Selar v PP (2008) MLJU 793 adalah dirujuk. Mahkamah juga diingatkan bahawa OKT mempunyai 3 pertuduhan yang serius dan satu hukuman yang berbentuk pengajaran perlu diberikan kepada OKT agar ianya dapat menjadi hukuman dan pengajaran kepada OKT dan mana-mana bakal pesalah lain. 35. Victim Impact Statement juga telah dikemukakan oleh mangsa sendiri yang mahukan OKT dikenakan hukuman yang setimpal dikenakan ke atas OKT dan beliau mengatakan telah trauma dengan tidak dapat melupakan tragedi yang berlaku itu dan sehingga kini ketakutan sekiranya tinggal keseorangan di rumah. 36. Oleh yang demikian, tempoh pemenjaraan selama 15 tahun tersebut adalah dirasakan setimpal dengan jenayah kejam dan hina yang telah dilakukan oleh OKT (kos sarahidup OKT (yang bukan warganegara) selama tempoh pemenjaraan itu juga perlu dilihat dan diambilkira secara ekonomi) dimana disamping hukuman pemenjaraan itu OKT juga telah dikenakan hukuman 5 kali sebatan yang mana mahkamah merasakan cukup dan setimpal dengan kesalahan tersebut. Suatu tempoh pemenjaraan yang panjang wajar dikenakan sebagai hukuman terhadap OKT dimana beliau perlu diasingkan dari masyarakat dan perlu diperbetulkan landasan dan laras kemanusiaannya. OKT telah merogol isteri sahabatnya sendiri. Sahabat yang telah sanggup menumpangkan beliau dirumahnya. Sungguh keji dan sifat yang tidak boleh diterima akal oleh masyarakat kita. Sanggup dan tergamak juga mengugut untuk membunuh mangsa. Merogol mangsa dan melakukan hubungan luar tabii dengan memasukkan kemaluannya ke dalam dubur mangsa sehingga berdarah dan mendatangkan kecederaan kepada mangsa. Manusia jenis apakah OKT ini?. Mahkamah sangat berharap agar sifat kemanusiaannya dapat dinilai dan dipulihkan semasa di dalam tempoh pemenjaraan nanti. 37. Tingkah laku OKT yang datang dan masuk ke Negara ini secara haram dan kemudiannya melakukan kesalahan jenayah adalah suatu perlakuan yang tidak boleh diterima dengan langsung tidak menghormati dan meremehkan undang-undang tegas Negara ini dan oleh itu hendaklah dikenakan hukuman yang lebih keras dan sepadan. 38. Selain dari itu, OKT juga dikenakan hukuman 3 sebatan lagi bagi pertuduhan Pertama dan 2 sebatan bagi tuduhan Kedua (menjadikan kesemuanya beliau menerima 5 libas sebatan) dan mahkamah berharap OKT telah benar-benar insaf dan dapat menerima hukuman yang telah dijatuhi terhadapnya. Walaupun pertuduhan Ketiga memperuntukkan hukuman sebatan, namun ianya tidak dikenakan memandangkan mahkamah merasakan telah mencukupi lelasan yang bakal di rasai oleh OKT dipunggungnya sebagai hukuman yang setimpal. 39. Mengambilkira kesemua pertuduhan berlaku pada masa yang sama, maka mahkamah telah membenarkan agar hukuman dijalankan serentak. Semoga tempoh pemenjaraan yang lama ini dapat manjadi iktibar kepada OKT dan mengubah OKT menjadi insan yang lebih baik dan mulia setelah dibebaskan kelak selain kesan parut dari luka kulit punggungnya yang tersiat akibat sebatan rotan nanti dapat mengingatkan OKT dan yang paling penting kepada mana-mana bakal pesalah lain dari melakukan kesalahan dan jenayah yang sama di masa hadapan. E. KESIMPULAN. 40. Setelah mengambilkira prinsip dan kesemua faktor yang perlu di dalam menjatuhkan hukuman, maka mahkamah ini berpendapat bahawa sabitan yang dikenakan terhadap OKT adalah selamat dan hukuman yang diberikan adalah adil, setimpal, wajar dan mengikut undang-undang. Sekian. Disediakan oleh; KAMARUDIN BIN KAMSUN, Hakim, Mahkamah Sesyen Jenayah 1, Johor Bahru. Bertarikh: 22 Ogos 2017. Pendakwa Raya: Puan Suhaila Safiudin. Timbalan Pendakwa Raya Johor. OKT mewakili diri sendiri. 7

Tika 2.6.0

62JS-45-11/2016

PENDAKWARAYAPUAN SUHAILA BINTI SHAFIUDIN TERTUDUH ALI USMAN

25/10/2017

TN KAMARUDIN BIN KAMSUN

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=c44f58c6-08db-4fe0-82cb-31d832d42b6f&Inline=true

DALAM MAHKAMAH SESYEN DI JOHOR BAHRU DALAM NEGERI, JOHOR PERBICARAAN JENAYAH NO: 62J – 45 – 11/2016 ANTARA PENDAKWA RAYA LAWAN ALI USMAN (PP: C 1011459) ALASAN KEPUTUSAN A. PENGENALAN. 1. Di dalam kes ini, OKT telah dituduh dengan 3 pertuduhan sebagai mana berikut:- Tuduhan Pertama; “Bahawa kamu pada 24/10/2016 jam lebih kurang 15.48 Hrs di rumah alamat nombor 33 Jalan Nusaria 6/7, Taman Nusantara, Gelang Patah Johor, dalam daerah Nusajaya dalam negeri Johor, telah melakukan rogol terhadap Siti Maryani Binti Mohd Yusof, KPT: 880307-01-6006, 28 tahun dan oleh itu, kamu telah melakukan suatu kesalahan yang boleh dihukum di bawah sekyen 376 Kanun Keseksaan.” Tuduhan Kedua; “Bahawa kamu pada 24/10/2016 jam lebih kurang 15.48 Hrs di rumah alamat nombor 33 Jalan Nusaria 6/7, Taman Nusantara, Gelang Patah Johor, dalam daerah Nusajaya dalam negeri Johor, telah melakukan persetubuhan yang bertentangan dengan aturan tabii terhadap Siti Maryani Binti Mohd Yusof, KPT: 880307-01-6006, 28 tahun dan oleh itu, kamu telah melakukan suatu kesalahan yang boleh dihukum di bawah sekyen 377 Kanun Keseksaan.” Tuduhan Ketiga; “Bahawa kamu pada 24/10/2016 jam lebih kurang 15.48 Hrs di rumah alamat nombor 33 Jalan Nusaria 6/7, Taman Nusantara, Gelang Patah, dalam daerah Nusajaya dalam negeri Johor, bukan sebagai seorang warganegara Malaysia telah didapati berada di Malaysia tanpa pas dan permit yang sah, oleh yang demikian kamu telah melakukan satu kesalahan di bawah seksyen 6(1)(c) Akta Imigresen 1959/63 yang boleh dihukum di bawah seksyen 6(3) Akta Imigresen 1959/63.” Terhadap ketiga-tiga pertuduhan tersebut, OKT telah mengaku bersalah dan telah didapati bersalah dan disabitkan dengan pertuduhan dan dijatuhi hukuman penjara sebagaimana berikut;- Tuduhan pertama – penjara 15 tahun dari tarikh tangkap dan 3 kali sebatan. Tuduhan Kedua – penjara 10 tahun dari tarikh tangkap dan 2 kali sebatan. Tuduhan Ketiga – penjara 3 tahun dari tarikh tangkap, Kesemua hukuman penjara di jalankan serentak. 2. Terhadap keputusan tersebut pihak OKT telah tidak berpuashati dan membuat rayuan terhadap Hukuman dan Sabitan. B. TERHADAP SABITAN DAN FAKTA KES PENDAKWAAN. 3. Kesemua Pertuduhan dan Fakta kes telah dibacakan dan diterangkan kepada OKT di dalam bahasa ibunda OKT iaitu Bahasa Urdu. 4. Pada sebutan kali pertama iaitu pada 29.11.2016, ketiga-tiga pertuduhan telah di bacakan kepadanya oleh seorang jurubahasa Urdu iaitu Madam Simren Deep kaur Ji. Untuk pertuduhan pertama dan kedua, OKT minta dibicarakan manakala bagi pertuduhan ketiga OKT telah mengaku salah dan faham sifat dan akibat pengakuannya. 5. Lanjutan dari itu suatu perbicaraan telah di adakan pada 21.6.2017 dan seorang saksi telah dipanggil iaitu anggota tangkapan (Polis) memberikan keterangan dan setelah itu kes ditangguhkan untuk sambung bicara. 6. Pada tarikh sambung bicara iaitu pada 22.8.2017, OKT telah dibacakan semula ketiga-tiga pertuduhan kepadanya dan beliau telah mengaku bersalah terhadap ketiga-tiga pertuduhan tersebut. 7. Pertuduhan itu adalah dibacakan oleh seorang jurubahasa Urdu iaitu Madam Satvinder Kaur A/P Jaswant Singh dari bahasa Malaysia ke bahasa Urdu dan telah di terangkan dan difahami sifat dan akibat pengakuannya oleh jurubahasa kepada OKT. 8. Begitu juga segala prosedur pengemukaan fakta kes dan ekhibit telah dilakukan dan diterjemahkan segalanya di dalam bahasa Malaysia ke dalam bahasa Urdu dan telah difahami dengan jelas oleh OKT segala maksud, kesan dan akibat dari pengakuan bersalahnya tersebut. 9. Rayuan sebelum hukuman oleh OKT juga telah diterjemahkan dari bahasa Urdu ke dalam bahasa Malaysia dan kesemua pihak telah memahami kedudukan dan keadaan kes masing-masing. 10. Mahkamah ini dengan itu merasakan bahawa sabitan yang dikenakan ke atas OKT adalah selamat dan tidak pernah memprejudiskan OKT dimana OKT faham segala apa yang berlaku di dalam mahkamah dan faham sifat dan akibat dari pengakuannya, yang mana beliau telah diterangkan segala sebab, sifat dan akibat dari pengakuannya, bentuk hukuman yang menunggunya dan apa yang boleh dikenakan terhadapnya dan beliau sedia menghadapinya. Maka adalah tidak relevan untuk sekarang sekiranya beliau mempertikaikan sabitan yang telah dibuat keatasnya atas apa jua alasan lain melainkan beliau sendiri dengan rela hati telah membuat pengakuan bersalah terhadap kesalahan yang telah dipertuduhkan ke atasnya. 11. Selanjutnya, sebagaimana yang telah dikemukakan oleh pihak pendakwaan menerusi ekhibit P3, fakta kes ini adalah sebagaimana berikut. 12. Pada 24.10.2016 jam lebih kurang 3.48 petang semasa Mohd Firdaus berada di Pusat Kawalan Polis IPD Iskandar Puteri telah menerima satu panggilan telefon daripada orang awam seorang perempuan melayu bernama Siti Marini iaitu mangsa yang memaklumkan beliau telah dirogol di alamat no. 33 Jalan Nusaria 6/7, Taman Nusantara Gelang Patah. 13. Pada tarikh yang sama anggota ronda MPV telah menghala ke alamat yang diberitahu oleh mangsa dan telah berjumpa dengan seorang lelaki India muslim iaitu suami kepada mangsa dan telah menunjukkan kepada polis satu lelaki bangsa Pakistan iaitu OKT yang telah ditangkap oleh orang awam. 14. Pada tarikh tersebut, ketika mangsa berada di dalam bilik di tingkat atas dan baru selesai mandi. Biliknya telah diketuk oleh OKT dan bertanyakan mengenai suaminya. Selepas pintu dibuka, OKT terus menolak pintu dan memeluk mangsa. Mangsa terkejut dan takut dan telah menjerit meminta tolong tetapi OKT telah menutup mulut mangsa dan telah mencekik bahagian leher mangsa. 15. OKT telah mengheret mangsa ke tilam di dalam bilik dan telah membuka dan menarik seluar dalam mangsa. Kemudian OKT membuka seluarnya dan dalam keadaan berbogel. Mangsa merayu dan menangis untuk tidak diapa-apakan tetapi OKT mengugut untuk mencederakan dan membunuh mangsa dan telah memasukkan kemaluannya secara paksa sehingga mangsa mengerang kesakitan. 16. OKT telah memasukkan kemaluannya selama 2 ke 3 minit dan mangsa nampak OKT telah memancutkan air mani ke atas tilam dan lantai. OKT memaksa mangsa untuk mandi di bilik air dan mengawal mangsa. Selepas itu mangsa dirogol sekali lagi dan OKT telah memasukkan kemaluannya ke dalam dubur mangsa dan semasa OKT memasukkan kemaluannya, mangsa menangis dan menjerit kesakitan. 17. OKT terus beredar dari rumah dan mangsa telah menghubungi polis dan suami mangsa. Suami mangsa yang menerima panggilan telefon tersebut mendengar suara mangsa dalam tangisan teresak-esak dan telah balik ke rumah dan cuba mencari OKT. Mangsa dan suami mangsa mengenali OKT kerana OKT merupakan kawan kepada suami mangsa dan tinggal sekali di rumah tersebut lebih kurang seminggu sebelum kejadian. 18. Mangsa telah dibawa ke Hospital Sultanah Aminah pada hari yang sama dan doktor mengesahkan terdapat kesan bruises pada leher mangsa dan terdapat external haemorrhoid dan multiple superficial linear tears with slow oozing blood di dubur mangsa dan semasa kejadian di dapati mangsa di dalam kehamilan awal. Terdapat koyakan pada hymen iaitu “blunt penetration”. 19. Cadar tilam berwarna oren berbintik hitam terdapat kesan air mani dan darah dan seluar panjang warna putih milik OKT dirampas dan telah dihantar ke Jabatan Kimia untuk mendapatkan pengesahan dan hasil laporan kimia mendapati DNA semen stain dari cadar dan seluar yang dirampas adalah daripada OKT dan mangsa. 20. OKT telah ditangkap red-handed oleh orang awam dan suami mangsa dan telah diserahkan kepada pihak polis pada hari yang sama kejadian berlaku. 21. OKT mengaku salah sepertimana pertuduhan. C. FAKTOR DAN PRINSIP PENGHUKUMAN. 22. Undang-undang tidak pernah membuat suatu penetapan hukuman ke atas suatu kes tertentu tetapi hanya meletakkan suatu hukuman maksima terhadapnya dan ini tidak bermakna bahawa suatu hukuman maksima hendaklah sentiasa dikenakan di dalam setiap kes mengenainya ( Mohd Jalani bin Saliman v PP [1997] 5 MLJ 551), maka terpulanglah kepada mahkamah tersebut mengenakan suatu hukuman yang dirasakan sesuai dalam lingkungan julat hukuman yang dibenarkan tertakluk kepada fakta dan keadaan kes masing-masing. Adalah menjadi tugas mahkamah untuk mengenakan suatu hukuman yang mana hukuman tersebut dapat mencerminkan keseriusan suatu kesalahan yang telah dilakukan (PP v Khairudin [1982] 1 MLJ 331). Tujuan meletakkan budibicara kepada Penghukum adalah bagi membenarkan Penghukum memberikan hukuman yang dirasakan paling sesuai di dalam setiap satu kes secara berasingan dan apa-apa kecenderungan untuk menyeragamkan hukuman bagi sesuatu kesalahan hendaklah dielakkan kerana itu bermakna pesalah tersebut dihukum bukan atas fakta kesnya tetapi disebabkan oleh jenis kesalahan yang telah dilakukannya ( Abdul Karim v R; Sundra Singh v R; Loh Kai Hoi v R [1954] MLJ 86). 23. Suatu pertimbangan yang adil perlu dilihat dan dibuat antara keperluan kepada suatu hukuman yang mencegah dan juga peluang kepada tertuduh untuk dipulihkan (Kesavan Senderan v PP [1999] 1 CLJ 343). Setiap penghukuman hendaklah bersifat ekslusif dan peribadi tergunapakai hanya kepada pesalah tersebut sahaja yang dilaras kepada keadaan moral dan kewangannya juga kepada sifat suatu kesalahan tersebut ( Low Oi Lin v R [1949] MLJ 210 ). 24. Di dalam menjatuhkan suatu hukuman, pertimbangan yang diambilkira sebelum hukuman dijatuhkan ialah kepentingan awam, keadaan suatu kesalahan tersebut dan juga latarbelakang pesalah berkenaan. Suka ditekankan bahawa menurut kes R v Sargeant (1974) 60 Cr App R 74, merumuskan bahawa “Society, through the courts, must show its abhorrence for the occurrence of particular types of crime and the only way which the courts can show this is by the sentences they pass. The courts act as a vehicle to show abhorrence for particular types of criminal conduct. However, the courts do not have to reflect public opinion. On the other hand, court could not disregard it. Perhaps the main duty of the court is to lead public opinion.”(ulasan oleh penulis buku “The process of criminal justice”). Oleh itu, mahkamahlah yang sepatutnya melaraskan dan melakarkan apa kehendak yang patut dibentuk oleh masyarakat menerusi hukuman yang dibuatnya. 25. Prinsip klasik di dalam menilai suatu hukuman yang bakal dikenakan terhadap pesalah ialah sebagaimana diputuskan dalam kes R v Sargeant, supra, iaitu: “retribution, deterrence, prevention and rehabilitation.” Kes R v Sargeant, supra, juga turut mengariskan apakah panduan di dalam menentukan suatu tempohmasa pemenjaraan yang sesuai yang patut dikenakan terhadap pesalah yang mana antara lainnya ialah; sifat dan keseriusan suatu kesalahan tersebut, keadaan dimana kesalahan tersebut dilakukan, diskaun kepada keinsafan dan akhirnya imbangan diantara kepentingan awam di dalam mencegah kesalahan tersebut dan peluang pesalah memulakan kehidupan yang baru. D. ANALISA DAN KEPUTUSAN MAHKAMAH. 26. Pada pendapat mahkamah, hukuman yang diberikan ke atas ketiga-tiga pertuduhan ini adalah setimpal dan wajar serta mengikut lunas-lunas yang telah ditetapkan oleh undang-undang. 27. Seksyen 376 Kanun Keseksaan memperuntukkan; Section 376. Punishment for rape. (1) Subject to subsections (2), (3) and (4), whoever commits rape shall be punished with imprisonment for a term which may extend to twenty years, and shall also be punished with whipping. [Am. Act A1536/2017] (2) Whoever commits rape on a woman under any of the following circumstances: (a) at the time of, or immediately before or after the commission of the offence causes hurt to her or to any other person; (b) at the time of, or immediately before or after the commission of the offence, puts her in fear of death or hurt to herself or any other person; (c) the offence was committed in the company of or in the presence of any other person; (d) without her consent, when she is under sixteen years of age; (e) with or without her consent, when she is under twelve years of age; (f) with her consent, when the consent is obtained by using his position of authority over her or because of professional relationship or other relationship of trust in relation to her;                       [(f) Am.Act A1471/2014] (g) at the time of the offence the woman was pregnant;                                [(g) Am.Act A1471/2014]  (h) when by reason or on occasion of the rape, the woman becomes insane; (i) when he knows that he is afflicted with the Human Immuno-Deficiency Virus (HIV)/Acquired Immune Deficiency Syndrome (AIDS) or any other sexually transmissible disease and the virus or disease is or may be transmitted to the woman;   (j) when by reason or on occasion of the rape, the woman commits suicide; or   (k) when he knew of the mental disability, emotional disorder or physical handicap of the woman at the time of the commission of the crime,                          [(h), (i), (j), (k) Ins.Act A1471/2014] shall be punished with imprisonment for a term of not less than ten years and not more than thirty years and shall also be punished with whipping.                      [Am. Act A1536/2017]; [Am.Act A1471/2014] 28. Seksyen 377 KK pula memperuntukkan; Section 377B. Punishment for committing carnal intercourse against the order of nature. Whoever voluntarily commits carnal intercourse against the order of nature shall be punished with imprisonment for a term which may extend to twenty years, and shall also be punished with whipping. 29. Makala seksyen 6(3) Akta Imigresen memperuntukkan; Section 6 . Control of entry into Malaysia. (1) No person other than a citizen shall enter Malaysia unless- (a) he is in possession of a valid Entry Permit lawfully issued to him under section 10; [Am. Act A985: s.4] (b) his name is endorsed upon a valid Entry Permit in accordance with section 12, and he is in the company of the holder of the Permit; [Am. Act A985: s.4] (c) he is in possession of a valid Pass lawfully issued to him to enter Malaysia; or (d) he is exempted from this section by an order made under section 55. (2) (Repealed by Act 27 of 1963). (3) Any person who contravenes subsection (1) shall be guilty of an offence and shall, on conviction, be liable to a fine not exceeding ten thousand ringgit or to imprisonment for a term not exceeding five years or to both, and shall also be liable to whipping of not more than six strokes. [Am. Act A 1154:s.4] 30. Hukuman pemenjaraan yang dibenarkan oleh undang-undang yang boleh dikenakan ke atas OKT bagi kesemua kesalahan secara keseluruhannya jumlahnya itu boleh mencapai kepada 30 tahun penjara maksima dan berserta jumlah maksima sebatan. 31. Di dalam kes ini, kes ini telah diambilkira sebagai panduan; kes Mahkamah Agong ketika itu di dalam kes Mohd Abdullah Ang Swee Kang (1987) CLJ (rep) 209; yang mengatakan;- Held: [1] The Supreme Court agreed with the principle laid down in Reg.v. Barrick that in breach of trust cases in general a term of immediate imprisonment would be inevitable, save in very exceptional circumstances or where the amount of money involved was small. This must be the current sentencing policy even if the accused pleaded guilty. In the Supreme Court's view, the approach of assessing sentence adopted by the learned Judge supposedly based on English authorities by harmonising them with the maximum sentence of 20 years in s. 409 of the Penal Code,was not only misleading but was wrong in principle. When the legislature fixed a maximum penalty for an offence, the discretion of the Court in determining the extent to which in a particular case the punishment should be awarded must be exercised judicially. [2] In assessing the length of custodial sentence, the Court must look at the overall picture in perspective by considering firstly, the gravity of the type of offence committed; secondly, the facts in the commission of the offence; thirdly, the presence or absence of mitigating factors, and fourthly, the sentence that have been imposed in the past for similar offences to determine the trend of sentencing policy, if any. The fact that a sentence of imprisonment is imposed as a deterrence does not justify the sentencer in passing a sentence of greater length than the facts of the offence warrant. The gravity of the type of offence involved must be considered in the light of the particular facts of the offence. [3] A sentencer must give sufficient discount for all extenuating circumstances pertaining to the degree of culpability or criminality involved which must necessarily vary from case to case apart from other mitigating factors. Unless there is a proper reason for withholding such credits, failure to do so may result in the sentence not exercising his or her discretion judicially in assessing the level of custodial sentence. The sentence imposed on the appellant was manifestly excessive. It is generally accepted that the extent of reduction on account of a plea of guilty would be between ¼ and 1/3 of what otherwise would have been the sentence. In this particular case, apart from plea of guilty, the sentence must also be discounted to reflect the full restitution made and other mitigating factors. [4] Although the learned Judge indicated in his judgment that he had given the necessary discounts they were not reflected at all in the sentence imposed, as it was imposed without regard to the particular facts of this case and without giving the appellant any or sufficient credit for all the mitigating circumstances. The recommended prison terms in Barrick were not meant for pleading guilty cases. If the learned Judge had not fallen into error in misreading the facts and the law in Barrick and Davies he would probably have found that a 4 year sentence would adequately fit the crime which by any standard was severe enough to satisfy the justice of this case. [5] Since full restitution had been made and the appellant had not enriched himself personally by the crime, the Supreme Court found no purpose in imposing a fine in addition to custodial sentence. 32. Kesemua faktor yang dilandaskan di dalam kes tersebut telah mahkamah ini ambilkira dan diselaraskan dengan Fakta kes di hadapan kita ini sebelum mahkamah ini menjatuhkan hukuman. 33. OKT telah mengaku bersalah dan pengakuan bersalahnya ini perlu diambilkira sebagai satu faktor peringanan utama. Paling utama ialah suatu sabitan telah diperolehi tanpa kesemua pihak yang terlibat khasnya pihak pendakwaan perlu bersusah payah membuktikan kes melampaui keraguan yang munasabah mengambilkira fakta kes pada masa kejadian pelbagai kemungkinan boleh terjadi. Begitu juga banyak penjimatan masa dan kos semua pihak khasnya saksi-saksi termasuk pengelakkan faktor “humiliation” terhadap mangsa telah diperolehi dengan pengakuan salah OKT ini. OKT juga tidak mempunyai apa-apa rekod lampau. Di dalam rayuannya, OKT memohon maaf di atas kesalahannya. Beliau telah kesal dan insaf. Mempunyai 10 orang adik beradik dan membantu keluarganya. Berjanji tidak akan mengulangi lagi kesalahannya dan ingin balik ke Negara asalnya. 34. Hujahan pemberatan oleh pihak pendakwaan juga telah mahkamah ini ambilkira kesemuanya dimana faktor kepentingan awam adalah faktor utama di dalam pertimbangan untuk memberikan hukuman paling setimpal untuk OKT. Kes Pannani Bin Amat Selar v PP (2008) MLJU 793 adalah dirujuk. Mahkamah juga diingatkan bahawa OKT mempunyai 3 pertuduhan yang serius dan satu hukuman yang berbentuk pengajaran perlu diberikan kepada OKT agar ianya dapat menjadi hukuman dan pengajaran kepada OKT dan mana-mana bakal pesalah lain. 35. Victim Impact Statement juga telah dikemukakan oleh mangsa sendiri yang mahukan OKT dikenakan hukuman yang setimpal dikenakan ke atas OKT dan beliau mengatakan telah trauma dengan tidak dapat melupakan tragedi yang berlaku itu dan sehingga kini ketakutan sekiranya tinggal keseorangan di rumah. 36. Oleh yang demikian, tempoh pemenjaraan selama 15 tahun tersebut adalah dirasakan setimpal dengan jenayah kejam dan hina yang telah dilakukan oleh OKT (kos sarahidup OKT (yang bukan warganegara) selama tempoh pemenjaraan itu juga perlu dilihat dan diambilkira secara ekonomi) dimana disamping hukuman pemenjaraan itu OKT juga telah dikenakan hukuman 5 kali sebatan yang mana mahkamah merasakan cukup dan setimpal dengan kesalahan tersebut. Suatu tempoh pemenjaraan yang panjang wajar dikenakan sebagai hukuman terhadap OKT dimana beliau perlu diasingkan dari masyarakat dan perlu diperbetulkan landasan dan laras kemanusiaannya. OKT telah merogol isteri sahabatnya sendiri. Sahabat yang telah sanggup menumpangkan beliau dirumahnya. Sungguh keji dan sifat yang tidak boleh diterima akal oleh masyarakat kita. Sanggup dan tergamak juga mengugut untuk membunuh mangsa. Merogol mangsa dan melakukan hubungan luar tabii dengan memasukkan kemaluannya ke dalam dubur mangsa sehingga berdarah dan mendatangkan kecederaan kepada mangsa. Manusia jenis apakah OKT ini?. Mahkamah sangat berharap agar sifat kemanusiaannya dapat dinilai dan dipulihkan semasa di dalam tempoh pemenjaraan nanti. 37. Tingkah laku OKT yang datang dan masuk ke Negara ini secara haram dan kemudiannya melakukan kesalahan jenayah adalah suatu perlakuan yang tidak boleh diterima dengan langsung tidak menghormati dan meremehkan undang-undang tegas Negara ini dan oleh itu hendaklah dikenakan hukuman yang lebih keras dan sepadan. 38. Selain dari itu, OKT juga dikenakan hukuman 3 sebatan lagi bagi pertuduhan Pertama dan 2 sebatan bagi tuduhan Kedua (menjadikan kesemuanya beliau menerima 5 libas sebatan) dan mahkamah berharap OKT telah benar-benar insaf dan dapat menerima hukuman yang telah dijatuhi terhadapnya. Walaupun pertuduhan Ketiga memperuntukkan hukuman sebatan, namun ianya tidak dikenakan memandangkan mahkamah merasakan telah mencukupi lelasan yang bakal di rasai oleh OKT dipunggungnya sebagai hukuman yang setimpal. 39. Mengambilkira kesemua pertuduhan berlaku pada masa yang sama, maka mahkamah telah membenarkan agar hukuman dijalankan serentak. Semoga tempoh pemenjaraan yang lama ini dapat manjadi iktibar kepada OKT dan mengubah OKT menjadi insan yang lebih baik dan mulia setelah dibebaskan kelak selain kesan parut dari luka kulit punggungnya yang tersiat akibat sebatan rotan nanti dapat mengingatkan OKT dan yang paling penting kepada mana-mana bakal pesalah lain dari melakukan kesalahan dan jenayah yang sama di masa hadapan. E. KESIMPULAN. 40. Setelah mengambilkira prinsip dan kesemua faktor yang perlu di dalam menjatuhkan hukuman, maka mahkamah ini berpendapat bahawa sabitan yang dikenakan terhadap OKT adalah selamat dan hukuman yang diberikan adalah adil, setimpal, wajar dan mengikut undang-undang. Sekian. Disediakan oleh; KAMARUDIN BIN KAMSUN, Hakim, Mahkamah Sesyen Jenayah 1, Johor Bahru. Bertarikh: 22 Ogos 2017. Pendakwa Raya: Puan Suhaila Safiudin. Timbalan Pendakwa Raya Johor. OKT mewakili diri sendiri. 7

Tika 2.6.0

W-02(IM)(NCC)-271-02/2016

PERAYU 1. LING TOWI SING @ LING CHOOI SIENG 2. NG CHUNG SAN 3. LENA IRENE CHENG LENG NG 4. IRIS NG TSE MIN (Bertindak dalam kapasiti Jawatankuasa Estet Ng Kong Yeam) … PERAYU - PERAYU RESPONDEN SINO-AMERICA TOURS CORPORATION PTE. LTD. (No. Syarikat: 197400193H) … RESPONDEN

Civil Procedure — Appeal — Striking out — Whether suit to be struck out — Whether claim statute barred — Determining when cause of action accruing — Locus standi — Want of authority — Rules of Court 2012, Order 18 Rule 19 (1) (a) and / or (b) and / or (d), Order 92 Rule 4

25/10/2017

YA DATO' ASMABI BINTI MOHAMADKorumYA DATUK DR HAJI HAMID SULTAN BIN ABU BACKERYA DATUK DR. PRASAD SANDOSHAM ABRAHAMYA DATO' ASMABI BINTI MOHAMAD

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=8d385d25-6f63-4de5-84f7-9e844770fb90&Inline=true

DALAM MAHKAMAH RAYUAN DI MALAYSIA (DALAM BIDANG KUASA RAYUAN) RAYUAN SIVIL NO. W-02(IM)(NCC)-271-02/2016 ANTARA 1. LING TOWI SING @ LING CHOOI SIENG 2. NG CHUNG SAN 3. LENA IRENE CHENG LENG NG 4. IRIS NG TSE MIN (Bertindak dalam kapasiti Jawatankuasa Estet Ng Kong Yeam) …PERAYU-PERAYU DAN SINO-AMERICA TOURS CORPORATION PTE. LTD. (No. Syarikat: 197400193H) …RESPONDEN (Dalam Mahkamah Tinggi Malaya di Kuala Lumpur (Bahagian Dagang) Writ Saman No. 22NCC-188-06/2015 ANTARA 1. Ling Towi Sing @ Ling Chooi Sieng 2. Ng Chung San 3. Lena Irene Cheng Leng Ng 4. Iris Ng Tse Min (Bertindak dalam kapasiti Jawatankuasa Estet Ng Kong Yeam) …Plaintif-Plaintif DAN Sino-America Tours Corporation Pte. Ltd. (No. Syarikat: 197400193H) …Defendan) CORAM: HAMID SULTAN ABU BACKER, JCA PRASAD SANDOSHAM ABRAHAM, JCA ASMABI BINTI MOHAMAD, JCA (Asmabi Binti Mohamad JCA, delivering Judgment of the Court) JUDGMENT OF THE COURT INTRODUCTION [1] This is an appeal from the Kuala Lumpur High Court (NCC) against the decision of the learned Judge of the said High Court dated 18th January 2016 which allowed the Respondent’s application to strike out the Writ dated 29th April 2015 and Statement of Claim dated 28th April 2015 under Order 18 Rule 19 (1) (a) and / or (b) and / or (d) of the Rules of Court 2012 (“RoC”) and / or Order 92 Rule 4 of RoC with costs of RM3,000.00. [2] After having perused the appeal records, the written submissions of the respective parties as well as hearing the oral arguments on the issues raised, we allowed the appeal with no order as to cost. [3] Our reason for doing so now follow. [4] For ease of reference the parties will be referred to as they were described in the High Court. BRIEF BACKGROUND FACTS [5] The 1st Plaintiff is the lawful wife of Dato’ Ng Kong Yeam. The 2nd to 4th Plaintiffs are their children. Dato’ Ng Kong Yeam (“NKY”) was a businessman and a lawyer by profession. NKY has properties and business concerns in Malaysia as well as Singapore. [6] NKY suffered from acute dementia and is not able to manage himself and his affairs due to his mental disorder. All the Plaintiffs moved the Court under sections 52 and 58 of the Mental Health Act 2001 (“Act 615”) and obtained the order dated 6th December 2013 appointing them as the Committee of the Estate of said Dato’ Ng Kong Yeam to manage NKY as well as his affairs (“the Order”) (see page 93 of Appeal Record Bahagian B & Bahagian C). [7] After obtaining the Order, the Plaintiffs, acting as the Committee of the Estate of NKY filed this Suit against the Defendant, Sino America Tours Corporation Pte Ltd to recover the sum of RM5,313,000.00 with interest and costs, being the purchase price of shares of NKY in Pahlawan Sdn Bhd which was sold to the Defendant pursuant to Sale of Shares Agreement dated 16th October 2006. The Plaintiffs claim that the Defendant had not paid the purchase price of the shares to NKY. [8] The Defendant then applied to strike out the Plaintiff’s claim on the following grounds: (a) The Plaintiffs’ action is time barred by the provisions of section 6 (1) (a) of Limitation Act 1953 (“Limitation Act”); and (b) There is non-compliance with Order 76 of RoC. The Plaintiffs lack the locus standi to commence the Suit as they are not the litigation representative as required by Order 76 Rule 2 (1) of the RoC. AT THE HIGH COURT [9] Before the High Court learned Counsel for the Defendant submitted the following: (a) All the transactions for the purchase of shares in Pahlawan Sdn Bhd, happened sometime in 2006 and 2007, as such the cause of action of the Plaintiffs against the Defendant was more than six (6) years. When the shares were sold, NKY was in full mental health. After full payment had been made in 2007, Form of Transfer of Securities and Certificates of Shares were issued on 15th November 2007 and 18th December 2007 respectively. (b) The Plaintiffs’ Suit was filed on 28th April 2015. Therefore, section 6 (1) (a) of the Limitation Act could be triggered against the Plaintiffs. The date of the Agreement was 16th October 2006 and or the date the Form of Transfer of Securities was executed was on 18th December 2007. The Defendant argued that taking either date, the Plaintiffs would be out of time to commence this Suit against the Defendant. The dateline to file the action would be either sometime in 2012 or latest 2013. As the Plaintiff had filed this action on 29th April 2015, the Plaintiffs were barred from filing this case pursuant to section 6 (a) of the Limitation Act. (c) The Plaintiffs could not file the Suit as the filing is contrary to Order 76 Rule 2 (1) of the RoC. [10] Learned Counsel for the Plaintiffs on the other hand submitted the following: (a) The Defendant had not been specific under which limbs of Order 18 Rule 19 of the RoC, the Application was being moved. The Defendants ought to identify with clarity the limb they were relying on to mount the attack on the Suit. (b) If the Defendant was relying on Order 18 Rule 19 (a) of the RoC then the affidavit evidence ought not to be considered. (c) There is no basis for the Defendant to raise the issue of limitation as the cause of action only began when the order was given on 6th December 2013. (d) It is not opened to the Defendant to raise Order 76 Rule 2 (1) of the RoC as the same ought to have been raised when the Order dated 6th December 2013 was made. FINDINGS OF THE LEARNED JUDGE [11] The learned Judge made the following findings: (a) There was non-compliance with the provision of Order 76 Rule 2 (1) of the RoC as the Plaintiffs are not the litigation representatives of NKY as required under this Order. They were merely next friend or guardian ad litem of NKY. (b) The limitation period under section 6 1 (a) of the Limitation Act should run from the date the Order was obtained by the Plaintiffs around 2013. The Plaintiffs action was commenced within the limitation period. Hence, the time bar is a non-issue. (c) Although it seemed harsh, the Defendant must not be deprived of the right to raise this argument to strike out the Plaintiffs’ Suit. On the ground that there was noncompliance of the provision of Order 76 Rule 2 (1) of the RoC alone, the Plaintiffs Suit ought to be struck out. OUR DECISION [12] The law on striking out pleadings is trite. There is a plethora of cases on point to guide the court on how to exercise its discretion when faced with cases of this nature. Both learned Counsels for the Plaintiff and the Defendant had highlighted to us the relevant cases applicable to the factual matrix of the case and we have noted the principles enunciated in the cases highlighted to us (see Bandar Builder Sdn. Bhd. & 2 ORS [1998] 4 CLJ 7 ; Harapan Permai Sdn Bhd v Sabah Forest Industries Sdn Bhd [2011] 2 MLJ 192 ; Wesma Rubber Products v CIMB Bank Berhad [2014] 6 MLRA 438). [13] As there was no appeal filed by the Defendant with respect to the learned Judge’s decision on the issue of limitation, we consider this issue a non-issue before us. That will leave us only with one issue to consider, whether this matter ought to be struck out because the Plaintiffs herein had not complied with the provision of Order 76 Rule 2 (1) of RoC. Pursuant to this order a person under disability must sue by litigation representative. Order 76 Rule 2 (3) further provides that a litigation representative of a person under disability shall act by a solicitor. [14] There is a specific mechanism provided by the Act 615 for a committee or committee of persons to be appointed by the Court to manage the mentally disordered person who is incapable of managing himself and his affairs due to his mental disorder (Part X, Sections 51 to 75 of the Act 615). [15] In this case, the Plaintiffs had obtained an Order which empowered the Plaintiff to act as the next friend of NKY in legal proceedings to be instituted against such person who may be liable to NKY or his estate and to act as next friend or guardian ad litem of NKY in legal proceedings generally. [16] We now reproduce paragraph 2 of the said Order as follows: “IT IS HEREBY ORDERED that the Applicants’ Application is granted as follows: (a) That the said Dato’ Ng Kong Yeam is found to be of unsound of mind and incapable of managing himself and / or his affairs due to such mental disorder, the abovenamed Applicants are appointed as the Committee of the Estate of the said Dato’ Ng Kong Yeam; (b) That the said Applicants are empowered to manage the asset and estate of the said Dato’ Ng Kong Yeam save that the power granted hereby shall not extend to the sale or charge by way mortgage of such assets or estate or any part thereof or to the letting of any immovable property, unless for a term not exceeding three years, with liberty to apply; (c) That the said Applicants are appointed to act as the next friend of the said Dato’ Ng Kong Yeam in legal proceedings to be instituted against such person or persons or company or companies who may be liable to Dato’ Ng Kong Yeam or his estate and to act as the next friend or guardian ad litem of the said Dato’ Ng Kong Yeam in legal proceedings generally.” (emphasis added) [17] From the above, it is crystal clear that the Plaintiffs are empowered by the said Order to institute this case against the Defendants. There is a valid order made by a Court of competent jurisdiction pursuant to an Act of Parliament empowering the Plaintiffs to commence the action for and on behalf of the Estate of NKY. The learned Judge was plainly wrong in making a ruling that the Plaintiffs has no locus to file the case against the Defendant as they are not the litigation representative as envisaged by Order 76 Rule 2 (1) of the RoC but merely a next friend or guardian ad litem appointed by the Court under the Act. [18] We are of the view, the provisions of the substantive law, Act 615, which is an Act of Parliament which permits the Court to appoint the Plaintiffs to be Committee of the Estate of Dato’ NKY and to initiate proceedings for and on behalf of a mentally disordered person who is incapable of managing himself and his affairs due to such mental disorder must prevail over a subsidiary legislation in the form of Order 76 Rule 2 (1) of the Rules of Court 2012 which is only procedural law. [19] The Order, unless set aside is a valid and good order and ought to be honoured by the Court. We also find no reason for the Order to be set aside as it was validly and legally made pursuant to the Act 615. [20] We were also guided by the Court of Appeal case of Ziko Abbo v Ketua Polis Daerah Bau, Kuching, Sarawak [2011] 3 CLJ 76 (“Ziko”) where the Court of Appeal observed that Order 76 Rule 2 (1) was not to create obstacles or to cause obstructions as the said Order 76 RoC was intended to give access to justice especially to the person who is not able to manage himself or his affairs in view of his mental disorder. The Court of Appeal went further to rule that the Order “belongs to a species of social legislation which must be construed literally in favour of the patient”. [21] In view of the aforesaid, and in the spirit that Order 76 being “a species of social legislation” as the Court of Appeal in Ziko described it, we found that the learned Judge was plainly wrong in striking out the Plaintiff’s case based on the sole ground that the Plaintiffs were not clothed with the necessary locus to initiate the proceedings due to non-compliance of the provisions of Order 76 Rule 2 (1) of the RoC. CONCLUSION [22] Having examined the appeal record and perused the written submissions and heard the oral arguments, we were constrained to hold that the learned Judge erred in law in striking out the Plaintiff’s suit and upon curial scrutiny merits our appellate intervention. [23] Based on the aforesaid, we unanimously allowed this appeal with no order as to cost. The decision of the High Court was set aside and the Suit to be remitted to the High Court for case management. The deposit to be refunded to the Plaintiffs. [24] We therefore ordered accordingly. Dated: 25th October 2017. signed (ASMABI BINTI MOHAMAD) Judge Court of Appeal, Malaysia Parties: 1. Messrs Ling & Mok Advocate & Solicitor For and on Behalf of the Appellant 33-12, Q-Sentral 2A Jalan Stesen Sentral 2 KL Sentral 50470 Kuala Lumpur [Ref: 1520008/maz] … Mr HK Ling Mr Mohamad Khairil Abidin 2. Messrs Nadzarin Kuok Puthucheary & Tan Advocate & Solicitors For and on Behalf of the Respondent Suite 8.3, Level 8, Menara Pelangi Jalan Kuning, Taman Pelangi 80400 Johor Bahru, Johor [Ref: K&P.2336.5639.16.JP.AMY.mi] … Mr Johanan Puthucheary Cik Azlina Md Yusof 10

Tika 2.6.0

W-02(IM)(NCC)-271-02/2016

PERAYU 1. LING TOWI SING @ LING CHOOI SIENG 2. NG CHUNG SAN 3. LENA IRENE CHENG LENG NG 4. IRIS NG TSE MIN (Bertindak dalam kapasiti Jawatankuasa Estet Ng Kong Yeam) … PERAYU - PERAYU RESPONDEN SINO-AMERICA TOURS CORPORATION PTE. LTD. (No. Syarikat: 197400193H) … RESPONDEN

Civil Procedure — Appeal — Striking out — Whether suit to be struck out — Whether claim statute barred — Determining when cause of action accruing — Locus standi — Want of authority — Rules of Court 2012, Order 18 Rule 19 (1) (a) and / or (b) and / or (d), Order 92 Rule 4

25/10/2017

YA DATO' ASMABI BINTI MOHAMADKorumYA DATUK DR HAJI HAMID SULTAN BIN ABU BACKERYA DATUK DR. PRASAD SANDOSHAM ABRAHAMYA DATO' ASMABI BINTI MOHAMAD

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=8d385d25-6f63-4de5-84f7-9e844770fb90&Inline=true

DALAM MAHKAMAH RAYUAN DI MALAYSIA (DALAM BIDANG KUASA RAYUAN) RAYUAN SIVIL NO. W-02(IM)(NCC)-271-02/2016 ANTARA 1. LING TOWI SING @ LING CHOOI SIENG 2. NG CHUNG SAN 3. LENA IRENE CHENG LENG NG 4. IRIS NG TSE MIN (Bertindak dalam kapasiti Jawatankuasa Estet Ng Kong Yeam) …PERAYU-PERAYU DAN SINO-AMERICA TOURS CORPORATION PTE. LTD. (No. Syarikat: 197400193H) …RESPONDEN (Dalam Mahkamah Tinggi Malaya di Kuala Lumpur (Bahagian Dagang) Writ Saman No. 22NCC-188-06/2015 ANTARA 1. Ling Towi Sing @ Ling Chooi Sieng 2. Ng Chung San 3. Lena Irene Cheng Leng Ng 4. Iris Ng Tse Min (Bertindak dalam kapasiti Jawatankuasa Estet Ng Kong Yeam) …Plaintif-Plaintif DAN Sino-America Tours Corporation Pte. Ltd. (No. Syarikat: 197400193H) …Defendan) CORAM: HAMID SULTAN ABU BACKER, JCA PRASAD SANDOSHAM ABRAHAM, JCA ASMABI BINTI MOHAMAD, JCA (Asmabi Binti Mohamad JCA, delivering Judgment of the Court) JUDGMENT OF THE COURT INTRODUCTION [1] This is an appeal from the Kuala Lumpur High Court (NCC) against the decision of the learned Judge of the said High Court dated 18th January 2016 which allowed the Respondent’s application to strike out the Writ dated 29th April 2015 and Statement of Claim dated 28th April 2015 under Order 18 Rule 19 (1) (a) and / or (b) and / or (d) of the Rules of Court 2012 (“RoC”) and / or Order 92 Rule 4 of RoC with costs of RM3,000.00. [2] After having perused the appeal records, the written submissions of the respective parties as well as hearing the oral arguments on the issues raised, we allowed the appeal with no order as to cost. [3] Our reason for doing so now follow. [4] For ease of reference the parties will be referred to as they were described in the High Court. BRIEF BACKGROUND FACTS [5] The 1st Plaintiff is the lawful wife of Dato’ Ng Kong Yeam. The 2nd to 4th Plaintiffs are their children. Dato’ Ng Kong Yeam (“NKY”) was a businessman and a lawyer by profession. NKY has properties and business concerns in Malaysia as well as Singapore. [6] NKY suffered from acute dementia and is not able to manage himself and his affairs due to his mental disorder. All the Plaintiffs moved the Court under sections 52 and 58 of the Mental Health Act 2001 (“Act 615”) and obtained the order dated 6th December 2013 appointing them as the Committee of the Estate of said Dato’ Ng Kong Yeam to manage NKY as well as his affairs (“the Order”) (see page 93 of Appeal Record Bahagian B & Bahagian C). [7] After obtaining the Order, the Plaintiffs, acting as the Committee of the Estate of NKY filed this Suit against the Defendant, Sino America Tours Corporation Pte Ltd to recover the sum of RM5,313,000.00 with interest and costs, being the purchase price of shares of NKY in Pahlawan Sdn Bhd which was sold to the Defendant pursuant to Sale of Shares Agreement dated 16th October 2006. The Plaintiffs claim that the Defendant had not paid the purchase price of the shares to NKY. [8] The Defendant then applied to strike out the Plaintiff’s claim on the following grounds: (a) The Plaintiffs’ action is time barred by the provisions of section 6 (1) (a) of Limitation Act 1953 (“Limitation Act”); and (b) There is non-compliance with Order 76 of RoC. The Plaintiffs lack the locus standi to commence the Suit as they are not the litigation representative as required by Order 76 Rule 2 (1) of the RoC. AT THE HIGH COURT [9] Before the High Court learned Counsel for the Defendant submitted the following: (a) All the transactions for the purchase of shares in Pahlawan Sdn Bhd, happened sometime in 2006 and 2007, as such the cause of action of the Plaintiffs against the Defendant was more than six (6) years. When the shares were sold, NKY was in full mental health. After full payment had been made in 2007, Form of Transfer of Securities and Certificates of Shares were issued on 15th November 2007 and 18th December 2007 respectively. (b) The Plaintiffs’ Suit was filed on 28th April 2015. Therefore, section 6 (1) (a) of the Limitation Act could be triggered against the Plaintiffs. The date of the Agreement was 16th October 2006 and or the date the Form of Transfer of Securities was executed was on 18th December 2007. The Defendant argued that taking either date, the Plaintiffs would be out of time to commence this Suit against the Defendant. The dateline to file the action would be either sometime in 2012 or latest 2013. As the Plaintiff had filed this action on 29th April 2015, the Plaintiffs were barred from filing this case pursuant to section 6 (a) of the Limitation Act. (c) The Plaintiffs could not file the Suit as the filing is contrary to Order 76 Rule 2 (1) of the RoC. [10] Learned Counsel for the Plaintiffs on the other hand submitted the following: (a) The Defendant had not been specific under which limbs of Order 18 Rule 19 of the RoC, the Application was being moved. The Defendants ought to identify with clarity the limb they were relying on to mount the attack on the Suit. (b) If the Defendant was relying on Order 18 Rule 19 (a) of the RoC then the affidavit evidence ought not to be considered. (c) There is no basis for the Defendant to raise the issue of limitation as the cause of action only began when the order was given on 6th December 2013. (d) It is not opened to the Defendant to raise Order 76 Rule 2 (1) of the RoC as the same ought to have been raised when the Order dated 6th December 2013 was made. FINDINGS OF THE LEARNED JUDGE [11] The learned Judge made the following findings: (a) There was non-compliance with the provision of Order 76 Rule 2 (1) of the RoC as the Plaintiffs are not the litigation representatives of NKY as required under this Order. They were merely next friend or guardian ad litem of NKY. (b) The limitation period under section 6 1 (a) of the Limitation Act should run from the date the Order was obtained by the Plaintiffs around 2013. The Plaintiffs action was commenced within the limitation period. Hence, the time bar is a non-issue. (c) Although it seemed harsh, the Defendant must not be deprived of the right to raise this argument to strike out the Plaintiffs’ Suit. On the ground that there was noncompliance of the provision of Order 76 Rule 2 (1) of the RoC alone, the Plaintiffs Suit ought to be struck out. OUR DECISION [12] The law on striking out pleadings is trite. There is a plethora of cases on point to guide the court on how to exercise its discretion when faced with cases of this nature. Both learned Counsels for the Plaintiff and the Defendant had highlighted to us the relevant cases applicable to the factual matrix of the case and we have noted the principles enunciated in the cases highlighted to us (see Bandar Builder Sdn. Bhd. & 2 ORS [1998] 4 CLJ 7 ; Harapan Permai Sdn Bhd v Sabah Forest Industries Sdn Bhd [2011] 2 MLJ 192 ; Wesma Rubber Products v CIMB Bank Berhad [2014] 6 MLRA 438). [13] As there was no appeal filed by the Defendant with respect to the learned Judge’s decision on the issue of limitation, we consider this issue a non-issue before us. That will leave us only with one issue to consider, whether this matter ought to be struck out because the Plaintiffs herein had not complied with the provision of Order 76 Rule 2 (1) of RoC. Pursuant to this order a person under disability must sue by litigation representative. Order 76 Rule 2 (3) further provides that a litigation representative of a person under disability shall act by a solicitor. [14] There is a specific mechanism provided by the Act 615 for a committee or committee of persons to be appointed by the Court to manage the mentally disordered person who is incapable of managing himself and his affairs due to his mental disorder (Part X, Sections 51 to 75 of the Act 615). [15] In this case, the Plaintiffs had obtained an Order which empowered the Plaintiff to act as the next friend of NKY in legal proceedings to be instituted against such person who may be liable to NKY or his estate and to act as next friend or guardian ad litem of NKY in legal proceedings generally. [16] We now reproduce paragraph 2 of the said Order as follows: “IT IS HEREBY ORDERED that the Applicants’ Application is granted as follows: (a) That the said Dato’ Ng Kong Yeam is found to be of unsound of mind and incapable of managing himself and / or his affairs due to such mental disorder, the abovenamed Applicants are appointed as the Committee of the Estate of the said Dato’ Ng Kong Yeam; (b) That the said Applicants are empowered to manage the asset and estate of the said Dato’ Ng Kong Yeam save that the power granted hereby shall not extend to the sale or charge by way mortgage of such assets or estate or any part thereof or to the letting of any immovable property, unless for a term not exceeding three years, with liberty to apply; (c) That the said Applicants are appointed to act as the next friend of the said Dato’ Ng Kong Yeam in legal proceedings to be instituted against such person or persons or company or companies who may be liable to Dato’ Ng Kong Yeam or his estate and to act as the next friend or guardian ad litem of the said Dato’ Ng Kong Yeam in legal proceedings generally.” (emphasis added) [17] From the above, it is crystal clear that the Plaintiffs are empowered by the said Order to institute this case against the Defendants. There is a valid order made by a Court of competent jurisdiction pursuant to an Act of Parliament empowering the Plaintiffs to commence the action for and on behalf of the Estate of NKY. The learned Judge was plainly wrong in making a ruling that the Plaintiffs has no locus to file the case against the Defendant as they are not the litigation representative as envisaged by Order 76 Rule 2 (1) of the RoC but merely a next friend or guardian ad litem appointed by the Court under the Act. [18] We are of the view, the provisions of the substantive law, Act 615, which is an Act of Parliament which permits the Court to appoint the Plaintiffs to be Committee of the Estate of Dato’ NKY and to initiate proceedings for and on behalf of a mentally disordered person who is incapable of managing himself and his affairs due to such mental disorder must prevail over a subsidiary legislation in the form of Order 76 Rule 2 (1) of the Rules of Court 2012 which is only procedural law. [19] The Order, unless set aside is a valid and good order and ought to be honoured by the Court. We also find no reason for the Order to be set aside as it was validly and legally made pursuant to the Act 615. [20] We were also guided by the Court of Appeal case of Ziko Abbo v Ketua Polis Daerah Bau, Kuching, Sarawak [2011] 3 CLJ 76 (“Ziko”) where the Court of Appeal observed that Order 76 Rule 2 (1) was not to create obstacles or to cause obstructions as the said Order 76 RoC was intended to give access to justice especially to the person who is not able to manage himself or his affairs in view of his mental disorder. The Court of Appeal went further to rule that the Order “belongs to a species of social legislation which must be construed literally in favour of the patient”. [21] In view of the aforesaid, and in the spirit that Order 76 being “a species of social legislation” as the Court of Appeal in Ziko described it, we found that the learned Judge was plainly wrong in striking out the Plaintiff’s case based on the sole ground that the Plaintiffs were not clothed with the necessary locus to initiate the proceedings due to non-compliance of the provisions of Order 76 Rule 2 (1) of the RoC. CONCLUSION [22] Having examined the appeal record and perused the written submissions and heard the oral arguments, we were constrained to hold that the learned Judge erred in law in striking out the Plaintiff’s suit and upon curial scrutiny merits our appellate intervention. [23] Based on the aforesaid, we unanimously allowed this appeal with no order as to cost. The decision of the High Court was set aside and the Suit to be remitted to the High Court for case management. The deposit to be refunded to the Plaintiffs. [24] We therefore ordered accordingly. Dated: 25th October 2017. signed (ASMABI BINTI MOHAMAD) Judge Court of Appeal, Malaysia Parties: 1. Messrs Ling & Mok Advocate & Solicitor For and on Behalf of the Appellant 33-12, Q-Sentral 2A Jalan Stesen Sentral 2 KL Sentral 50470 Kuala Lumpur [Ref: 1520008/maz] … Mr HK Ling Mr Mohamad Khairil Abidin 2. Messrs Nadzarin Kuok Puthucheary & Tan Advocate & Solicitors For and on Behalf of the Respondent Suite 8.3, Level 8, Menara Pelangi Jalan Kuning, Taman Pelangi 80400 Johor Bahru, Johor [Ref: K&P.2336.5639.16.JP.AMY.mi] … Mr Johanan Puthucheary Cik Azlina Md Yusof 10

Tika 2.6.0

W-02(IM)(NCC)-271-02/2016

PERAYU 1. LING TOWI SING @ LING CHOOI SIENG 2. NG CHUNG SAN 3. LENA IRENE CHENG LENG NG 4. IRIS NG TSE MIN (Bertindak dalam kapasiti Jawatankuasa Estet Ng Kong Yeam) … PERAYU - PERAYU RESPONDEN SINO-AMERICA TOURS CORPORATION PTE. LTD. (No. Syarikat: 197400193H) … RESPONDEN

Civil Procedure — Appeal — Striking out — Whether suit to be struck out — Whether claim statute barred — Determining when cause of action accruing — Locus standi — Want of authority — Rules of Court 2012, Order 18 Rule 19 (1) (a) and / or (b) and / or (d), Order 92 Rule 4

25/10/2017

YA DATO' ASMABI BINTI MOHAMADKorumYA DATUK DR HAJI HAMID SULTAN BIN ABU BACKERYA DATUK DR. PRASAD SANDOSHAM ABRAHAMYA DATO' ASMABI BINTI MOHAMAD

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=8d385d25-6f63-4de5-84f7-9e844770fb90&Inline=true

DALAM MAHKAMAH RAYUAN DI MALAYSIA (DALAM BIDANG KUASA RAYUAN) RAYUAN SIVIL NO. W-02(IM)(NCC)-271-02/2016 ANTARA 1. LING TOWI SING @ LING CHOOI SIENG 2. NG CHUNG SAN 3. LENA IRENE CHENG LENG NG 4. IRIS NG TSE MIN (Bertindak dalam kapasiti Jawatankuasa Estet Ng Kong Yeam) …PERAYU-PERAYU DAN SINO-AMERICA TOURS CORPORATION PTE. LTD. (No. Syarikat: 197400193H) …RESPONDEN (Dalam Mahkamah Tinggi Malaya di Kuala Lumpur (Bahagian Dagang) Writ Saman No. 22NCC-188-06/2015 ANTARA 1. Ling Towi Sing @ Ling Chooi Sieng 2. Ng Chung San 3. Lena Irene Cheng Leng Ng 4. Iris Ng Tse Min (Bertindak dalam kapasiti Jawatankuasa Estet Ng Kong Yeam) …Plaintif-Plaintif DAN Sino-America Tours Corporation Pte. Ltd. (No. Syarikat: 197400193H) …Defendan) CORAM: HAMID SULTAN ABU BACKER, JCA PRASAD SANDOSHAM ABRAHAM, JCA ASMABI BINTI MOHAMAD, JCA (Asmabi Binti Mohamad JCA, delivering Judgment of the Court) JUDGMENT OF THE COURT INTRODUCTION [1] This is an appeal from the Kuala Lumpur High Court (NCC) against the decision of the learned Judge of the said High Court dated 18th January 2016 which allowed the Respondent’s application to strike out the Writ dated 29th April 2015 and Statement of Claim dated 28th April 2015 under Order 18 Rule 19 (1) (a) and / or (b) and / or (d) of the Rules of Court 2012 (“RoC”) and / or Order 92 Rule 4 of RoC with costs of RM3,000.00. [2] After having perused the appeal records, the written submissions of the respective parties as well as hearing the oral arguments on the issues raised, we allowed the appeal with no order as to cost. [3] Our reason for doing so now follow. [4] For ease of reference the parties will be referred to as they were described in the High Court. BRIEF BACKGROUND FACTS [5] The 1st Plaintiff is the lawful wife of Dato’ Ng Kong Yeam. The 2nd to 4th Plaintiffs are their children. Dato’ Ng Kong Yeam (“NKY”) was a businessman and a lawyer by profession. NKY has properties and business concerns in Malaysia as well as Singapore. [6] NKY suffered from acute dementia and is not able to manage himself and his affairs due to his mental disorder. All the Plaintiffs moved the Court under sections 52 and 58 of the Mental Health Act 2001 (“Act 615”) and obtained the order dated 6th December 2013 appointing them as the Committee of the Estate of said Dato’ Ng Kong Yeam to manage NKY as well as his affairs (“the Order”) (see page 93 of Appeal Record Bahagian B & Bahagian C). [7] After obtaining the Order, the Plaintiffs, acting as the Committee of the Estate of NKY filed this Suit against the Defendant, Sino America Tours Corporation Pte Ltd to recover the sum of RM5,313,000.00 with interest and costs, being the purchase price of shares of NKY in Pahlawan Sdn Bhd which was sold to the Defendant pursuant to Sale of Shares Agreement dated 16th October 2006. The Plaintiffs claim that the Defendant had not paid the purchase price of the shares to NKY. [8] The Defendant then applied to strike out the Plaintiff’s claim on the following grounds: (a) The Plaintiffs’ action is time barred by the provisions of section 6 (1) (a) of Limitation Act 1953 (“Limitation Act”); and (b) There is non-compliance with Order 76 of RoC. The Plaintiffs lack the locus standi to commence the Suit as they are not the litigation representative as required by Order 76 Rule 2 (1) of the RoC. AT THE HIGH COURT [9] Before the High Court learned Counsel for the Defendant submitted the following: (a) All the transactions for the purchase of shares in Pahlawan Sdn Bhd, happened sometime in 2006 and 2007, as such the cause of action of the Plaintiffs against the Defendant was more than six (6) years. When the shares were sold, NKY was in full mental health. After full payment had been made in 2007, Form of Transfer of Securities and Certificates of Shares were issued on 15th November 2007 and 18th December 2007 respectively. (b) The Plaintiffs’ Suit was filed on 28th April 2015. Therefore, section 6 (1) (a) of the Limitation Act could be triggered against the Plaintiffs. The date of the Agreement was 16th October 2006 and or the date the Form of Transfer of Securities was executed was on 18th December 2007. The Defendant argued that taking either date, the Plaintiffs would be out of time to commence this Suit against the Defendant. The dateline to file the action would be either sometime in 2012 or latest 2013. As the Plaintiff had filed this action on 29th April 2015, the Plaintiffs were barred from filing this case pursuant to section 6 (a) of the Limitation Act. (c) The Plaintiffs could not file the Suit as the filing is contrary to Order 76 Rule 2 (1) of the RoC. [10] Learned Counsel for the Plaintiffs on the other hand submitted the following: (a) The Defendant had not been specific under which limbs of Order 18 Rule 19 of the RoC, the Application was being moved. The Defendants ought to identify with clarity the limb they were relying on to mount the attack on the Suit. (b) If the Defendant was relying on Order 18 Rule 19 (a) of the RoC then the affidavit evidence ought not to be considered. (c) There is no basis for the Defendant to raise the issue of limitation as the cause of action only began when the order was given on 6th December 2013. (d) It is not opened to the Defendant to raise Order 76 Rule 2 (1) of the RoC as the same ought to have been raised when the Order dated 6th December 2013 was made. FINDINGS OF THE LEARNED JUDGE [11] The learned Judge made the following findings: (a) There was non-compliance with the provision of Order 76 Rule 2 (1) of the RoC as the Plaintiffs are not the litigation representatives of NKY as required under this Order. They were merely next friend or guardian ad litem of NKY. (b) The limitation period under section 6 1 (a) of the Limitation Act should run from the date the Order was obtained by the Plaintiffs around 2013. The Plaintiffs action was commenced within the limitation period. Hence, the time bar is a non-issue. (c) Although it seemed harsh, the Defendant must not be deprived of the right to raise this argument to strike out the Plaintiffs’ Suit. On the ground that there was noncompliance of the provision of Order 76 Rule 2 (1) of the RoC alone, the Plaintiffs Suit ought to be struck out. OUR DECISION [12] The law on striking out pleadings is trite. There is a plethora of cases on point to guide the court on how to exercise its discretion when faced with cases of this nature. Both learned Counsels for the Plaintiff and the Defendant had highlighted to us the relevant cases applicable to the factual matrix of the case and we have noted the principles enunciated in the cases highlighted to us (see Bandar Builder Sdn. Bhd. & 2 ORS [1998] 4 CLJ 7 ; Harapan Permai Sdn Bhd v Sabah Forest Industries Sdn Bhd [2011] 2 MLJ 192 ; Wesma Rubber Products v CIMB Bank Berhad [2014] 6 MLRA 438). [13] As there was no appeal filed by the Defendant with respect to the learned Judge’s decision on the issue of limitation, we consider this issue a non-issue before us. That will leave us only with one issue to consider, whether this matter ought to be struck out because the Plaintiffs herein had not complied with the provision of Order 76 Rule 2 (1) of RoC. Pursuant to this order a person under disability must sue by litigation representative. Order 76 Rule 2 (3) further provides that a litigation representative of a person under disability shall act by a solicitor. [14] There is a specific mechanism provided by the Act 615 for a committee or committee of persons to be appointed by the Court to manage the mentally disordered person who is incapable of managing himself and his affairs due to his mental disorder (Part X, Sections 51 to 75 of the Act 615). [15] In this case, the Plaintiffs had obtained an Order which empowered the Plaintiff to act as the next friend of NKY in legal proceedings to be instituted against such person who may be liable to NKY or his estate and to act as next friend or guardian ad litem of NKY in legal proceedings generally. [16] We now reproduce paragraph 2 of the said Order as follows: “IT IS HEREBY ORDERED that the Applicants’ Application is granted as follows: (a) That the said Dato’ Ng Kong Yeam is found to be of unsound of mind and incapable of managing himself and / or his affairs due to such mental disorder, the abovenamed Applicants are appointed as the Committee of the Estate of the said Dato’ Ng Kong Yeam; (b) That the said Applicants are empowered to manage the asset and estate of the said Dato’ Ng Kong Yeam save that the power granted hereby shall not extend to the sale or charge by way mortgage of such assets or estate or any part thereof or to the letting of any immovable property, unless for a term not exceeding three years, with liberty to apply; (c) That the said Applicants are appointed to act as the next friend of the said Dato’ Ng Kong Yeam in legal proceedings to be instituted against such person or persons or company or companies who may be liable to Dato’ Ng Kong Yeam or his estate and to act as the next friend or guardian ad litem of the said Dato’ Ng Kong Yeam in legal proceedings generally.” (emphasis added) [17] From the above, it is crystal clear that the Plaintiffs are empowered by the said Order to institute this case against the Defendants. There is a valid order made by a Court of competent jurisdiction pursuant to an Act of Parliament empowering the Plaintiffs to commence the action for and on behalf of the Estate of NKY. The learned Judge was plainly wrong in making a ruling that the Plaintiffs has no locus to file the case against the Defendant as they are not the litigation representative as envisaged by Order 76 Rule 2 (1) of the RoC but merely a next friend or guardian ad litem appointed by the Court under the Act. [18] We are of the view, the provisions of the substantive law, Act 615, which is an Act of Parliament which permits the Court to appoint the Plaintiffs to be Committee of the Estate of Dato’ NKY and to initiate proceedings for and on behalf of a mentally disordered person who is incapable of managing himself and his affairs due to such mental disorder must prevail over a subsidiary legislation in the form of Order 76 Rule 2 (1) of the Rules of Court 2012 which is only procedural law. [19] The Order, unless set aside is a valid and good order and ought to be honoured by the Court. We also find no reason for the Order to be set aside as it was validly and legally made pursuant to the Act 615. [20] We were also guided by the Court of Appeal case of Ziko Abbo v Ketua Polis Daerah Bau, Kuching, Sarawak [2011] 3 CLJ 76 (“Ziko”) where the Court of Appeal observed that Order 76 Rule 2 (1) was not to create obstacles or to cause obstructions as the said Order 76 RoC was intended to give access to justice especially to the person who is not able to manage himself or his affairs in view of his mental disorder. The Court of Appeal went further to rule that the Order “belongs to a species of social legislation which must be construed literally in favour of the patient”. [21] In view of the aforesaid, and in the spirit that Order 76 being “a species of social legislation” as the Court of Appeal in Ziko described it, we found that the learned Judge was plainly wrong in striking out the Plaintiff’s case based on the sole ground that the Plaintiffs were not clothed with the necessary locus to initiate the proceedings due to non-compliance of the provisions of Order 76 Rule 2 (1) of the RoC. CONCLUSION [22] Having examined the appeal record and perused the written submissions and heard the oral arguments, we were constrained to hold that the learned Judge erred in law in striking out the Plaintiff’s suit and upon curial scrutiny merits our appellate intervention. [23] Based on the aforesaid, we unanimously allowed this appeal with no order as to cost. The decision of the High Court was set aside and the Suit to be remitted to the High Court for case management. The deposit to be refunded to the Plaintiffs. [24] We therefore ordered accordingly. Dated: 25th October 2017. signed (ASMABI BINTI MOHAMAD) Judge Court of Appeal, Malaysia Parties: 1. Messrs Ling & Mok Advocate & Solicitor For and on Behalf of the Appellant 33-12, Q-Sentral 2A Jalan Stesen Sentral 2 KL Sentral 50470 Kuala Lumpur [Ref: 1520008/maz] … Mr HK Ling Mr Mohamad Khairil Abidin 2. Messrs Nadzarin Kuok Puthucheary & Tan Advocate & Solicitors For and on Behalf of the Respondent Suite 8.3, Level 8, Menara Pelangi Jalan Kuning, Taman Pelangi 80400 Johor Bahru, Johor [Ref: K&P.2336.5639.16.JP.AMY.mi] … Mr Johanan Puthucheary Cik Azlina Md Yusof 10

Tika 2.6.0

BA-25-133-09/2016

PEMOHON NIK MOHD YUSRI BIN IBRAHIM (NO RF/KPL 130245, NO KP:740312-03-5645) ... PEMOHON RESPONDEN 1. SAC DATO’ MOHD RODZI BIN ISMAIL PENGERUSI LEMBAGA TATATERTIB BRIGED TENGAH, PASUKAN GERAKAN AM, PDRM, CHERAS, SELANGOR 2. LEMBAGA TATATERTIB BRIGED TENGAH, PASUKAN AM, PDRM, CHERAS, SELANGOR 3. KETUA POLIS NEGARA … RESPONDEN - 4. KERAJAAN MALAYSIA RESPONDEN

25/10/2017

YA DATO' HAJI MOHD YAZID BIN HAJI MUSTAFA

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1 DI DALAM PERKARA MAHKAMAH TINGGI MALAYA DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN SEMAKAN KEHAKIMAN NO: BA-25-133-09/2016 Dalam perkara satu permohonan oleh NIK MOHD YUSRI BIN IBRAHIM (NO RF/KPL 130245, NO KP:740312-03-5645) untuk memohon satu Perintah Deklarasi dan/atau Certiorari Dan Dalam perkara keputusan yang dibuat oleh Lembaga Tatatertib Briged Tengah Pasukan Gerakan Am, Cheras, Selangor berkuatkuasa pada 16.05.2016 Dan Dalam perkara Perintah-Perintah Am Bad Defendan; Peraturan-Peraturan Pegawai Awam (Kelakuan dan Tatatertib) 1993 dan Peraturan- Peraturan Pegawai Awam (Kelakuan dan Tatatertib) (Pindaan 2002), Perintah Am Bab F:Perubatan 1974 dan Peraturan-Peraturan Lembaga Tatatertib Perkhidmatan Awam 1993 Dan 2 Dalam Perkara 5, 7, 8 dan 135 Perlembagaan Persekutuan Dan Dalam Perkara Aturan 53 Kaedah- Kaedah Mahkamah 2012 ANTARA NIK MOHD YUSRI BIN IBRAHIM (NO RF/KPL 130245, NO KP:740312-03-5645) ... PEMOHON DAN 1. SAC DATO’ MOHD RODZI BIN ISMAIL PENGERUSI LEMBAGA TATATERTIB BRIGED TENGAH, PASUKAN GERAKAN AM, PDRM, CHERAS, SELANGOR 2. LEMBAGA TATATERTIB BRIGED TENGAH, PASUKAN AM, PDRM, CHERAS, SELANGOR 3. KETUA POLIS NEGARA … RESPONDEN- 4. KERAJAAN MALAYSIA RESPONDEN ALASAN PENGHAKIMAN PENGENALAN 1. Pemohon melalui Notis Permohonan Lampiran 11, memohon untuk mendapatkan perintah bahawa Responden-Responden dikehendaki mengemukakan dan /atau menzahirkan 13 dokumen yang dikatakan berada dalam milikan /jagaan / kuasa Responden- Responden untuk pemeriksaan oleh pihak Pemohon serta 3 membekalkan sesalinan dokumen-dokumen berikut kepada pihak Pemohon. 2. Alasan-alasan yang dikemukakan oleh Pemohon bagi menyokong permohonannya, pertama, dokumen-dokumen tersebut diperlukan untuk tujuan pemeriksaan bagi Pemohon menfailkan affidavit balasan kepada affidavit jawapan Responden-Responden. Keduanya, Pemohon juga menyatakan bahawa beliau mempunyai “tangible interest” terhadap dokumen-dokumen tersebut kerana dokumen-dokumen tersebut adalah relevan dan dapat membantu menyelesaikan kes Pemohon secara adil dan saksama. 3. Pada 04.07.2017, saya telah menolak permohonan Pemohon di Lampiran 11 dan ekoran itu Pemohon telah menfailkan Notis Rayuan kepada Mahkamah Rayuan terhadap keseluruhan keputusan tersebut. FAKTA KES 4. Pemohon telah mula berkhidmat sebagai Konstabel dengan Polis DiRaja Malaysia mulai 01.11.1996. 5. Pada 22.02.2016, Pemohon telah menerima surat tunjuk sebab dengan tujuan untuk dibuang kerja atau turun pangkat atas empat (4) pertuduhan iaitu atas kesalahan kelewatan mengemukakan permohonan untuk cuti sakit (2 pertuduhan) dan atas kesalahan tidak membawa Borang POL 62 -penyataan sakit semasa menjalani rawatan (2 pertuduhan). 6. Pemohon telah mengemukakan surat representasi bertarikh 10.03.2016. 4 7. Pada 13.06.2016, Pemohon telah menerima satu surat dari Responden Pertama bertarikh 26.05.2016 memaklumkan keputusan hukuman tatatertib iaitu hukuman buang kerja terhadap keempat-empat pertuduhan berkuatkuasa mulai 16.05.2016. 8. Pihak-pihak telah menfailkan hujahan bertulis dan pihak-pihak juga telah mengemukakan hujahan lisan pada tarikh perbicaraan. 9. Meneliti Notis Permohonan, affidavit-affidavit yang difailkan, hujahan bertulis pihak-pihak dan hujahan lisan pihak-pihak, saya menolak permohonan Pemohon di Lampiran 11 untuk penzahiran dokumen dibawah Aturan 24 Kaedah-Kaedah Mahkamah 2012 dengan kos RM3,000.00. Berikut adalah alasan-alasan kenapa Notis Permohonan Pemohon di Lampiran 11 ditolak dengan kos RM3,000.00. 10. Aturan 24 Kaedah 3 Kaedah-Kaedah Mahkamah 2012 menyatakan, Mahkamah boleh ada bila-bila masa memerintahkan mana-mana pihak untuk memberikan penzahiran dengan membuat dan menyampaikan kepada mana-mana pihak lain satu senarai dokumen yang berada atau pernah berada dalam milikan, jagaan atau kuasanya. 11. Aturan 24 Kaedah 7 (3) Kaedah-Kaedah Mahkamah 2012 memperuntukkan; (3) Suatu permohonan minta suatu perintah di bawah kaedah ini hendaklah disokong dengan suatu afidavit menyatakan kepercayaan deponen bahawa pihak yang daripadanya penzahiran diminta di bawah kaedah ini ada, atau pada suatu masa tertentu ada, dalam milikan, jagaan atau kuasanya dokumen itu, atau kelas dokumen, yang dinyatakan atau diperihalkan dalam permohonan itu, dan bahawa termasuk di dalam satu daripada perihalan yang berikut: 5 (a) suatu dokumen yang pihak itu bersandar atau yang akan bersandar padanya; (b) dokumen yang akan — (i) menjejaskan kesnya sendiri; (ii) menjejaskan kes pihak lain; atau (iii) menyokong kes pihak lain; dan (c) suatu dokumen yang boleh membawa pihak yang mencari penzahiran suatu dokumen itu kepada suatu siri siasatan yang mengakibatkannya memperoleh maklumat yang boleh — (i) menjejaskan kesnya sendiri; (ii) menjejaskan kes pihak lain; atau (iii) menyokong kes pihak lain 12. Aturan 24 Kaedah 12 dan 13 (1) Kaedah-Kaedah Mahkamah 2012 memperuntukkan 12. (1) Pada mana-mana peringkat prosiding dalam apa-apa kausa atau perkara Mahkamah boleh, tertakluk kepada kaedah 13(1), memerintahkan mana-mana pihak untuk mengemukakan kepada Mahkamah apa-apa dokumen dalam milikannya,jagaannya atau kuasanya yang berhubungan dengan mana-mana perkara dalam persoalan dalam kausa atau perkara itu yang termasuk di dalam satu daripada perihalan berikut: (a) dokumen yang pihak itu bersandar atau yang akan bersandarkan padanya; dan (b) dokumen yang akan — (i) menjejaskan kes suatu pihak; atau (ii) menyokong kes suatu pihak; dan (c) dokumen yang boleh membawa kepada suatu siri siasatan yang mengakibatkannya memperoleh maklumat yang boleh — (i) menjejaskan kes suatu pihak; atau (ii) menyokong kes suatu pihak. 6 13. (1) Suatu perintah bagi pengemukaan apa-apa dokumen untuk pemeriksaan atau kepada Mahkamah tidak boleh dibuat di bawah mana-mana kaedah yang tersebut di atas melainkan jika Mahkamah berpendapat bahawa perintah itu adalah perlu sama ada untuk menyelesaikan secara adil kausa atau perkara itu atau untuk menjimatkan kos. 13. Dalam kes Yakembaran Marimuthu, Edhar Joseph Jr H menyatakan; The essential element for an order for discovery are threefold; namely, first, there must be a “document”, secondly, the document must be “relevant” and thirdly, the document must be or have been in the “possession, custody or power” of the party against whom the order for discovery is sought;” [Bold ditekankan] As to “relevance”, our Rules of High Court limit discovery to documents which are “relevant to” or “relate “to the factual issues in dispute”. 14. Dalam kes Carlow Kilkeny Radio Ltd v. Broadcasting Commission [2003] 3 I.R. 528] di muka surat 573 Geoghegan J menyatakan; “…discover will not normally be regarded as necessary if the judicial review application is based on procedural impropriety as ordinarily that can be established without benefit of discovery. Likewise, of the application for judicial review is on the basis that the decision being impugned was a wholly unreasonable one in the Wednesbury sense, discovery will again not normally be necessary because if the decision is clearly wrong it is not necessary is where there is a clearly wrong it is not necessary to ascertain how it is arrived at. Where discovery will be necessary is where there is a clear factual dispute on the affidavits that would have to be resolved in order properly to adjudicate on the application or where there is a prima facie evidence to the effect, either that a document which ought to have been before the deciding body 7 was not before it or that a document which ought not to have been before the deciding body was before it …” 15. Berpandukan Aturan 24 Kaedah-Kaedah yang dirujuk di atas serta kes-kes di perenggan 13 dan 14, saya mendapati bagi kes semakan kehakiman, untuk mendapatkan penzahiran dan pemeriksaan dokumen, ianya tidak semudah kes-kes semakan kehakiman lain. Hak sedia ada bagi penzahiran yang mana wujud dalam kebanyakan dalam kes-kes lain tidaklah sebegitu bagi kes- kes semakan kehakiman. Bagi cabaran berasaskan prinsip Wednesbury, penzahiran total bagi undang-undang persendirian amat jarang dibenarkan. Namun begitu, penzahiran dibenarkan bagi memastikan keadilan kes. Walaubagaimanapun, penzahiran hendaklah terhad kepada perkara yang berkaitan dengan isu-isu yang dipertikaikan. 16. Pemohon menfailkan permohonan penzahiran dokumen ini atas alasan-alasan, antaranya, “untuk tujuan pemeriksaan kerana dokumen-dokumen yang dipohon menjadi teras kepada pembelaan Pemohon dan adalah perlu bagi Pemohon menfailkan affidavit balasan Pemohon kepada affidavit jawapan Responden .” 17. Isu yang perlu diputuskan adalah sama ada Pemohon telah memenuhi syarat-syarat yang dinyatakan dibawah Aturan 24 dan prinsip-prinsip penzahiran dalam kes kes-kes di perenggan 13 dan 14. 18. Saya mendapati Pemohon telah gagal memenuhi syarat-syarat tersebut berdasarkan alasan-alasan berikut. 8 i. Pemohon mengakui kesalahan ke atas keempat-empat pertuduhan (rujuk perenggan 2 surat representasi Pemohon bertarikh 10.03.2016- Ekshibit NIK-2) ii. Pemohon tidak memohon sebarang salinan dokumen untuk penyediaaan representasi beliau. (Rujuk perenggan 45 affidavit jawapan Responden) iii. Tindakan Pemohon memohon dokumen melalui Lampiran 11 atas alasan “untuk menfailkan affidavit balasan kepada affidavit jawapan Responden-Responden” adalah tindakan yang sudah terlewat kerana Pemohon mengaku ke atas keempat-empat pertuduhan terhadapnya. iv. Pemohon mungkin mempunyai “tangible interest” jika Pemohon tidak mengaku salah tetapi “tangible interest” tersebut adalah tertakluk kepada pembuktian dan dalam permohonan ini tiada keperluan pembuktian kerana Pemohon tidak boleh lagi mencabar atau menukar pengakuan tersebut. v. Cabaran ala-Wednesbury oleh Pemohon tidak memerlukan penzahiran. 19. Saya seterusnya bersetuju dengan hujahan SFC bahawa permohonan penzahiran di Lampiran 11 adalah menjurus kepada mempertikaikan asas bagaimana keputusan dicapai dan bukan setakat mencabar proses membuat keputusan. 20. Berasaskan fakta permohonan ini dan alasan-alasan di atas, saya memutuskan dokumen-dokumen yang dimohon adalah tidak lagi 9 relevan kerana Pemohon telah menyatakan pengakuan salah secara semasa mengemukakan representasi bertulis. 21. Undang-undang adalah mantap bahawa permohonan semakan kehakiman is not concerned with the correctness the decision but rather with the manner the decision was made. YA DATO’ HAJI MOHD YAZID BIN HAJI MUSTAFA HAKIM LJC MAHKAMAH TINGGI SHAH ALAM 25 OKTOBER 2017 Pihak-pihak PP: Pn Ebrina binti Zubir daripada Tetuan Maniam Nair & Co PR: Pn Zaliha binti Mohd Janis (Peguam Kanan Persekutuan) daripada Kamar Penasihat Undang-Undang Negeri Selangor

Tika 2.6.0

62JS-45-11/2016

PENDAKWARAYAPUAN SUHAILA BINTI SHAFIUDIN TERTUDUH ALI USMAN

25/10/2017

TN KAMARUDIN BIN KAMSUN

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DALAM MAHKAMAH SESYEN DI JOHOR BAHRU DALAM NEGERI, JOHOR PERBICARAAN JENAYAH NO: 62J – 45 – 11/2016 ANTARA PENDAKWA RAYA LAWAN ALI USMAN (PP: C 1011459) ALASAN KEPUTUSAN A. PENGENALAN. 1. Di dalam kes ini, OKT telah dituduh dengan 3 pertuduhan sebagai mana berikut:- Tuduhan Pertama; “Bahawa kamu pada 24/10/2016 jam lebih kurang 15.48 Hrs di rumah alamat nombor 33 Jalan Nusaria 6/7, Taman Nusantara, Gelang Patah Johor, dalam daerah Nusajaya dalam negeri Johor, telah melakukan rogol terhadap Siti Maryani Binti Mohd Yusof, KPT: 880307-01-6006, 28 tahun dan oleh itu, kamu telah melakukan suatu kesalahan yang boleh dihukum di bawah sekyen 376 Kanun Keseksaan.” Tuduhan Kedua; “Bahawa kamu pada 24/10/2016 jam lebih kurang 15.48 Hrs di rumah alamat nombor 33 Jalan Nusaria 6/7, Taman Nusantara, Gelang Patah Johor, dalam daerah Nusajaya dalam negeri Johor, telah melakukan persetubuhan yang bertentangan dengan aturan tabii terhadap Siti Maryani Binti Mohd Yusof, KPT: 880307-01-6006, 28 tahun dan oleh itu, kamu telah melakukan suatu kesalahan yang boleh dihukum di bawah sekyen 377 Kanun Keseksaan.” Tuduhan Ketiga; “Bahawa kamu pada 24/10/2016 jam lebih kurang 15.48 Hrs di rumah alamat nombor 33 Jalan Nusaria 6/7, Taman Nusantara, Gelang Patah, dalam daerah Nusajaya dalam negeri Johor, bukan sebagai seorang warganegara Malaysia telah didapati berada di Malaysia tanpa pas dan permit yang sah, oleh yang demikian kamu telah melakukan satu kesalahan di bawah seksyen 6(1)(c) Akta Imigresen 1959/63 yang boleh dihukum di bawah seksyen 6(3) Akta Imigresen 1959/63.” Terhadap ketiga-tiga pertuduhan tersebut, OKT telah mengaku bersalah dan telah didapati bersalah dan disabitkan dengan pertuduhan dan dijatuhi hukuman penjara sebagaimana berikut;- Tuduhan pertama – penjara 15 tahun dari tarikh tangkap dan 3 kali sebatan. Tuduhan Kedua – penjara 10 tahun dari tarikh tangkap dan 2 kali sebatan. Tuduhan Ketiga – penjara 3 tahun dari tarikh tangkap, Kesemua hukuman penjara di jalankan serentak. 2. Terhadap keputusan tersebut pihak OKT telah tidak berpuashati dan membuat rayuan terhadap Hukuman dan Sabitan. B. TERHADAP SABITAN DAN FAKTA KES PENDAKWAAN. 3. Kesemua Pertuduhan dan Fakta kes telah dibacakan dan diterangkan kepada OKT di dalam bahasa ibunda OKT iaitu Bahasa Urdu. 4. Pada sebutan kali pertama iaitu pada 29.11.2016, ketiga-tiga pertuduhan telah di bacakan kepadanya oleh seorang jurubahasa Urdu iaitu Madam Simren Deep kaur Ji. Untuk pertuduhan pertama dan kedua, OKT minta dibicarakan manakala bagi pertuduhan ketiga OKT telah mengaku salah dan faham sifat dan akibat pengakuannya. 5. Lanjutan dari itu suatu perbicaraan telah di adakan pada 21.6.2017 dan seorang saksi telah dipanggil iaitu anggota tangkapan (Polis) memberikan keterangan dan setelah itu kes ditangguhkan untuk sambung bicara. 6. Pada tarikh sambung bicara iaitu pada 22.8.2017, OKT telah dibacakan semula ketiga-tiga pertuduhan kepadanya dan beliau telah mengaku bersalah terhadap ketiga-tiga pertuduhan tersebut. 7. Pertuduhan itu adalah dibacakan oleh seorang jurubahasa Urdu iaitu Madam Satvinder Kaur A/P Jaswant Singh dari bahasa Malaysia ke bahasa Urdu dan telah di terangkan dan difahami sifat dan akibat pengakuannya oleh jurubahasa kepada OKT. 8. Begitu juga segala prosedur pengemukaan fakta kes dan ekhibit telah dilakukan dan diterjemahkan segalanya di dalam bahasa Malaysia ke dalam bahasa Urdu dan telah difahami dengan jelas oleh OKT segala maksud, kesan dan akibat dari pengakuan bersalahnya tersebut. 9. Rayuan sebelum hukuman oleh OKT juga telah diterjemahkan dari bahasa Urdu ke dalam bahasa Malaysia dan kesemua pihak telah memahami kedudukan dan keadaan kes masing-masing. 10. Mahkamah ini dengan itu merasakan bahawa sabitan yang dikenakan ke atas OKT adalah selamat dan tidak pernah memprejudiskan OKT dimana OKT faham segala apa yang berlaku di dalam mahkamah dan faham sifat dan akibat dari pengakuannya, yang mana beliau telah diterangkan segala sebab, sifat dan akibat dari pengakuannya, bentuk hukuman yang menunggunya dan apa yang boleh dikenakan terhadapnya dan beliau sedia menghadapinya. Maka adalah tidak relevan untuk sekarang sekiranya beliau mempertikaikan sabitan yang telah dibuat keatasnya atas apa jua alasan lain melainkan beliau sendiri dengan rela hati telah membuat pengakuan bersalah terhadap kesalahan yang telah dipertuduhkan ke atasnya. 11. Selanjutnya, sebagaimana yang telah dikemukakan oleh pihak pendakwaan menerusi ekhibit P3, fakta kes ini adalah sebagaimana berikut. 12. Pada 24.10.2016 jam lebih kurang 3.48 petang semasa Mohd Firdaus berada di Pusat Kawalan Polis IPD Iskandar Puteri telah menerima satu panggilan telefon daripada orang awam seorang perempuan melayu bernama Siti Marini iaitu mangsa yang memaklumkan beliau telah dirogol di alamat no. 33 Jalan Nusaria 6/7, Taman Nusantara Gelang Patah. 13. Pada tarikh yang sama anggota ronda MPV telah menghala ke alamat yang diberitahu oleh mangsa dan telah berjumpa dengan seorang lelaki India muslim iaitu suami kepada mangsa dan telah menunjukkan kepada polis satu lelaki bangsa Pakistan iaitu OKT yang telah ditangkap oleh orang awam. 14. Pada tarikh tersebut, ketika mangsa berada di dalam bilik di tingkat atas dan baru selesai mandi. Biliknya telah diketuk oleh OKT dan bertanyakan mengenai suaminya. Selepas pintu dibuka, OKT terus menolak pintu dan memeluk mangsa. Mangsa terkejut dan takut dan telah menjerit meminta tolong tetapi OKT telah menutup mulut mangsa dan telah mencekik bahagian leher mangsa. 15. OKT telah mengheret mangsa ke tilam di dalam bilik dan telah membuka dan menarik seluar dalam mangsa. Kemudian OKT membuka seluarnya dan dalam keadaan berbogel. Mangsa merayu dan menangis untuk tidak diapa-apakan tetapi OKT mengugut untuk mencederakan dan membunuh mangsa dan telah memasukkan kemaluannya secara paksa sehingga mangsa mengerang kesakitan. 16. OKT telah memasukkan kemaluannya selama 2 ke 3 minit dan mangsa nampak OKT telah memancutkan air mani ke atas tilam dan lantai. OKT memaksa mangsa untuk mandi di bilik air dan mengawal mangsa. Selepas itu mangsa dirogol sekali lagi dan OKT telah memasukkan kemaluannya ke dalam dubur mangsa dan semasa OKT memasukkan kemaluannya, mangsa menangis dan menjerit kesakitan. 17. OKT terus beredar dari rumah dan mangsa telah menghubungi polis dan suami mangsa. Suami mangsa yang menerima panggilan telefon tersebut mendengar suara mangsa dalam tangisan teresak-esak dan telah balik ke rumah dan cuba mencari OKT. Mangsa dan suami mangsa mengenali OKT kerana OKT merupakan kawan kepada suami mangsa dan tinggal sekali di rumah tersebut lebih kurang seminggu sebelum kejadian. 18. Mangsa telah dibawa ke Hospital Sultanah Aminah pada hari yang sama dan doktor mengesahkan terdapat kesan bruises pada leher mangsa dan terdapat external haemorrhoid dan multiple superficial linear tears with slow oozing blood di dubur mangsa dan semasa kejadian di dapati mangsa di dalam kehamilan awal. Terdapat koyakan pada hymen iaitu “blunt penetration”. 19. Cadar tilam berwarna oren berbintik hitam terdapat kesan air mani dan darah dan seluar panjang warna putih milik OKT dirampas dan telah dihantar ke Jabatan Kimia untuk mendapatkan pengesahan dan hasil laporan kimia mendapati DNA semen stain dari cadar dan seluar yang dirampas adalah daripada OKT dan mangsa. 20. OKT telah ditangkap red-handed oleh orang awam dan suami mangsa dan telah diserahkan kepada pihak polis pada hari yang sama kejadian berlaku. 21. OKT mengaku salah sepertimana pertuduhan. C. FAKTOR DAN PRINSIP PENGHUKUMAN. 22. Undang-undang tidak pernah membuat suatu penetapan hukuman ke atas suatu kes tertentu tetapi hanya meletakkan suatu hukuman maksima terhadapnya dan ini tidak bermakna bahawa suatu hukuman maksima hendaklah sentiasa dikenakan di dalam setiap kes mengenainya ( Mohd Jalani bin Saliman v PP [1997] 5 MLJ 551), maka terpulanglah kepada mahkamah tersebut mengenakan suatu hukuman yang dirasakan sesuai dalam lingkungan julat hukuman yang dibenarkan tertakluk kepada fakta dan keadaan kes masing-masing. Adalah menjadi tugas mahkamah untuk mengenakan suatu hukuman yang mana hukuman tersebut dapat mencerminkan keseriusan suatu kesalahan yang telah dilakukan (PP v Khairudin [1982] 1 MLJ 331). Tujuan meletakkan budibicara kepada Penghukum adalah bagi membenarkan Penghukum memberikan hukuman yang dirasakan paling sesuai di dalam setiap satu kes secara berasingan dan apa-apa kecenderungan untuk menyeragamkan hukuman bagi sesuatu kesalahan hendaklah dielakkan kerana itu bermakna pesalah tersebut dihukum bukan atas fakta kesnya tetapi disebabkan oleh jenis kesalahan yang telah dilakukannya ( Abdul Karim v R; Sundra Singh v R; Loh Kai Hoi v R [1954] MLJ 86). 23. Suatu pertimbangan yang adil perlu dilihat dan dibuat antara keperluan kepada suatu hukuman yang mencegah dan juga peluang kepada tertuduh untuk dipulihkan (Kesavan Senderan v PP [1999] 1 CLJ 343). Setiap penghukuman hendaklah bersifat ekslusif dan peribadi tergunapakai hanya kepada pesalah tersebut sahaja yang dilaras kepada keadaan moral dan kewangannya juga kepada sifat suatu kesalahan tersebut ( Low Oi Lin v R [1949] MLJ 210 ). 24. Di dalam menjatuhkan suatu hukuman, pertimbangan yang diambilkira sebelum hukuman dijatuhkan ialah kepentingan awam, keadaan suatu kesalahan tersebut dan juga latarbelakang pesalah berkenaan. Suka ditekankan bahawa menurut kes R v Sargeant (1974) 60 Cr App R 74, merumuskan bahawa “Society, through the courts, must show its abhorrence for the occurrence of particular types of crime and the only way which the courts can show this is by the sentences they pass. The courts act as a vehicle to show abhorrence for particular types of criminal conduct. However, the courts do not have to reflect public opinion. On the other hand, court could not disregard it. Perhaps the main duty of the court is to lead public opinion.”(ulasan oleh penulis buku “The process of criminal justice”). Oleh itu, mahkamahlah yang sepatutnya melaraskan dan melakarkan apa kehendak yang patut dibentuk oleh masyarakat menerusi hukuman yang dibuatnya. 25. Prinsip klasik di dalam menilai suatu hukuman yang bakal dikenakan terhadap pesalah ialah sebagaimana diputuskan dalam kes R v Sargeant, supra, iaitu: “retribution, deterrence, prevention and rehabilitation.” Kes R v Sargeant, supra, juga turut mengariskan apakah panduan di dalam menentukan suatu tempohmasa pemenjaraan yang sesuai yang patut dikenakan terhadap pesalah yang mana antara lainnya ialah; sifat dan keseriusan suatu kesalahan tersebut, keadaan dimana kesalahan tersebut dilakukan, diskaun kepada keinsafan dan akhirnya imbangan diantara kepentingan awam di dalam mencegah kesalahan tersebut dan peluang pesalah memulakan kehidupan yang baru. D. ANALISA DAN KEPUTUSAN MAHKAMAH. 26. Pada pendapat mahkamah, hukuman yang diberikan ke atas ketiga-tiga pertuduhan ini adalah setimpal dan wajar serta mengikut lunas-lunas yang telah ditetapkan oleh undang-undang. 27. Seksyen 376 Kanun Keseksaan memperuntukkan; Section 376. Punishment for rape. (1) Subject to subsections (2), (3) and (4), whoever commits rape shall be punished with imprisonment for a term which may extend to twenty years, and shall also be punished with whipping. [Am. Act A1536/2017] (2) Whoever commits rape on a woman under any of the following circumstances: (a) at the time of, or immediately before or after the commission of the offence causes hurt to her or to any other person; (b) at the time of, or immediately before or after the commission of the offence, puts her in fear of death or hurt to herself or any other person; (c) the offence was committed in the company of or in the presence of any other person; (d) without her consent, when she is under sixteen years of age; (e) with or without her consent, when she is under twelve years of age; (f) with her consent, when the consent is obtained by using his position of authority over her or because of professional relationship or other relationship of trust in relation to her;                       [(f) Am.Act A1471/2014] (g) at the time of the offence the woman was pregnant;                                [(g) Am.Act A1471/2014]  (h) when by reason or on occasion of the rape, the woman becomes insane; (i) when he knows that he is afflicted with the Human Immuno-Deficiency Virus (HIV)/Acquired Immune Deficiency Syndrome (AIDS) or any other sexually transmissible disease and the virus or disease is or may be transmitted to the woman;   (j) when by reason or on occasion of the rape, the woman commits suicide; or   (k) when he knew of the mental disability, emotional disorder or physical handicap of the woman at the time of the commission of the crime,                          [(h), (i), (j), (k) Ins.Act A1471/2014] shall be punished with imprisonment for a term of not less than ten years and not more than thirty years and shall also be punished with whipping.                      [Am. Act A1536/2017]; [Am.Act A1471/2014] 28. Seksyen 377 KK pula memperuntukkan; Section 377B. Punishment for committing carnal intercourse against the order of nature. Whoever voluntarily commits carnal intercourse against the order of nature shall be punished with imprisonment for a term which may extend to twenty years, and shall also be punished with whipping. 29. Makala seksyen 6(3) Akta Imigresen memperuntukkan; Section 6 . Control of entry into Malaysia. (1) No person other than a citizen shall enter Malaysia unless- (a) he is in possession of a valid Entry Permit lawfully issued to him under section 10; [Am. Act A985: s.4] (b) his name is endorsed upon a valid Entry Permit in accordance with section 12, and he is in the company of the holder of the Permit; [Am. Act A985: s.4] (c) he is in possession of a valid Pass lawfully issued to him to enter Malaysia; or (d) he is exempted from this section by an order made under section 55. (2) (Repealed by Act 27 of 1963). (3) Any person who contravenes subsection (1) shall be guilty of an offence and shall, on conviction, be liable to a fine not exceeding ten thousand ringgit or to imprisonment for a term not exceeding five years or to both, and shall also be liable to whipping of not more than six strokes. [Am. Act A 1154:s.4] 30. Hukuman pemenjaraan yang dibenarkan oleh undang-undang yang boleh dikenakan ke atas OKT bagi kesemua kesalahan secara keseluruhannya jumlahnya itu boleh mencapai kepada 30 tahun penjara maksima dan berserta jumlah maksima sebatan. 31. Di dalam kes ini, kes ini telah diambilkira sebagai panduan; kes Mahkamah Agong ketika itu di dalam kes Mohd Abdullah Ang Swee Kang (1987) CLJ (rep) 209; yang mengatakan;- Held: [1] The Supreme Court agreed with the principle laid down in Reg.v. Barrick that in breach of trust cases in general a term of immediate imprisonment would be inevitable, save in very exceptional circumstances or where the amount of money involved was small. This must be the current sentencing policy even if the accused pleaded guilty. In the Supreme Court's view, the approach of assessing sentence adopted by the learned Judge supposedly based on English authorities by harmonising them with the maximum sentence of 20 years in s. 409 of the Penal Code,was not only misleading but was wrong in principle. When the legislature fixed a maximum penalty for an offence, the discretion of the Court in determining the extent to which in a particular case the punishment should be awarded must be exercised judicially. [2] In assessing the length of custodial sentence, the Court must look at the overall picture in perspective by considering firstly, the gravity of the type of offence committed; secondly, the facts in the commission of the offence; thirdly, the presence or absence of mitigating factors, and fourthly, the sentence that have been imposed in the past for similar offences to determine the trend of sentencing policy, if any. The fact that a sentence of imprisonment is imposed as a deterrence does not justify the sentencer in passing a sentence of greater length than the facts of the offence warrant. The gravity of the type of offence involved must be considered in the light of the particular facts of the offence. [3] A sentencer must give sufficient discount for all extenuating circumstances pertaining to the degree of culpability or criminality involved which must necessarily vary from case to case apart from other mitigating factors. Unless there is a proper reason for withholding such credits, failure to do so may result in the sentence not exercising his or her discretion judicially in assessing the level of custodial sentence. The sentence imposed on the appellant was manifestly excessive. It is generally accepted that the extent of reduction on account of a plea of guilty would be between ¼ and 1/3 of what otherwise would have been the sentence. In this particular case, apart from plea of guilty, the sentence must also be discounted to reflect the full restitution made and other mitigating factors. [4] Although the learned Judge indicated in his judgment that he had given the necessary discounts they were not reflected at all in the sentence imposed, as it was imposed without regard to the particular facts of this case and without giving the appellant any or sufficient credit for all the mitigating circumstances. The recommended prison terms in Barrick were not meant for pleading guilty cases. If the learned Judge had not fallen into error in misreading the facts and the law in Barrick and Davies he would probably have found that a 4 year sentence would adequately fit the crime which by any standard was severe enough to satisfy the justice of this case. [5] Since full restitution had been made and the appellant had not enriched himself personally by the crime, the Supreme Court found no purpose in imposing a fine in addition to custodial sentence. 32. Kesemua faktor yang dilandaskan di dalam kes tersebut telah mahkamah ini ambilkira dan diselaraskan dengan Fakta kes di hadapan kita ini sebelum mahkamah ini menjatuhkan hukuman. 33. OKT telah mengaku bersalah dan pengakuan bersalahnya ini perlu diambilkira sebagai satu faktor peringanan utama. Paling utama ialah suatu sabitan telah diperolehi tanpa kesemua pihak yang terlibat khasnya pihak pendakwaan perlu bersusah payah membuktikan kes melampaui keraguan yang munasabah mengambilkira fakta kes pada masa kejadian pelbagai kemungkinan boleh terjadi. Begitu juga banyak penjimatan masa dan kos semua pihak khasnya saksi-saksi termasuk pengelakkan faktor “humiliation” terhadap mangsa telah diperolehi dengan pengakuan salah OKT ini. OKT juga tidak mempunyai apa-apa rekod lampau. Di dalam rayuannya, OKT memohon maaf di atas kesalahannya. Beliau telah kesal dan insaf. Mempunyai 10 orang adik beradik dan membantu keluarganya. Berjanji tidak akan mengulangi lagi kesalahannya dan ingin balik ke Negara asalnya. 34. Hujahan pemberatan oleh pihak pendakwaan juga telah mahkamah ini ambilkira kesemuanya dimana faktor kepentingan awam adalah faktor utama di dalam pertimbangan untuk memberikan hukuman paling setimpal untuk OKT. Kes Pannani Bin Amat Selar v PP (2008) MLJU 793 adalah dirujuk. Mahkamah juga diingatkan bahawa OKT mempunyai 3 pertuduhan yang serius dan satu hukuman yang berbentuk pengajaran perlu diberikan kepada OKT agar ianya dapat menjadi hukuman dan pengajaran kepada OKT dan mana-mana bakal pesalah lain. 35. Victim Impact Statement juga telah dikemukakan oleh mangsa sendiri yang mahukan OKT dikenakan hukuman yang setimpal dikenakan ke atas OKT dan beliau mengatakan telah trauma dengan tidak dapat melupakan tragedi yang berlaku itu dan sehingga kini ketakutan sekiranya tinggal keseorangan di rumah. 36. Oleh yang demikian, tempoh pemenjaraan selama 15 tahun tersebut adalah dirasakan setimpal dengan jenayah kejam dan hina yang telah dilakukan oleh OKT (kos sarahidup OKT (yang bukan warganegara) selama tempoh pemenjaraan itu juga perlu dilihat dan diambilkira secara ekonomi) dimana disamping hukuman pemenjaraan itu OKT juga telah dikenakan hukuman 5 kali sebatan yang mana mahkamah merasakan cukup dan setimpal dengan kesalahan tersebut. Suatu tempoh pemenjaraan yang panjang wajar dikenakan sebagai hukuman terhadap OKT dimana beliau perlu diasingkan dari masyarakat dan perlu diperbetulkan landasan dan laras kemanusiaannya. OKT telah merogol isteri sahabatnya sendiri. Sahabat yang telah sanggup menumpangkan beliau dirumahnya. Sungguh keji dan sifat yang tidak boleh diterima akal oleh masyarakat kita. Sanggup dan tergamak juga mengugut untuk membunuh mangsa. Merogol mangsa dan melakukan hubungan luar tabii dengan memasukkan kemaluannya ke dalam dubur mangsa sehingga berdarah dan mendatangkan kecederaan kepada mangsa. Manusia jenis apakah OKT ini?. Mahkamah sangat berharap agar sifat kemanusiaannya dapat dinilai dan dipulihkan semasa di dalam tempoh pemenjaraan nanti. 37. Tingkah laku OKT yang datang dan masuk ke Negara ini secara haram dan kemudiannya melakukan kesalahan jenayah adalah suatu perlakuan yang tidak boleh diterima dengan langsung tidak menghormati dan meremehkan undang-undang tegas Negara ini dan oleh itu hendaklah dikenakan hukuman yang lebih keras dan sepadan. 38. Selain dari itu, OKT juga dikenakan hukuman 3 sebatan lagi bagi pertuduhan Pertama dan 2 sebatan bagi tuduhan Kedua (menjadikan kesemuanya beliau menerima 5 libas sebatan) dan mahkamah berharap OKT telah benar-benar insaf dan dapat menerima hukuman yang telah dijatuhi terhadapnya. Walaupun pertuduhan Ketiga memperuntukkan hukuman sebatan, namun ianya tidak dikenakan memandangkan mahkamah merasakan telah mencukupi lelasan yang bakal di rasai oleh OKT dipunggungnya sebagai hukuman yang setimpal. 39. Mengambilkira kesemua pertuduhan berlaku pada masa yang sama, maka mahkamah telah membenarkan agar hukuman dijalankan serentak. Semoga tempoh pemenjaraan yang lama ini dapat manjadi iktibar kepada OKT dan mengubah OKT menjadi insan yang lebih baik dan mulia setelah dibebaskan kelak selain kesan parut dari luka kulit punggungnya yang tersiat akibat sebatan rotan nanti dapat mengingatkan OKT dan yang paling penting kepada mana-mana bakal pesalah lain dari melakukan kesalahan dan jenayah yang sama di masa hadapan. E. KESIMPULAN. 40. Setelah mengambilkira prinsip dan kesemua faktor yang perlu di dalam menjatuhkan hukuman, maka mahkamah ini berpendapat bahawa sabitan yang dikenakan terhadap OKT adalah selamat dan hukuman yang diberikan adalah adil, setimpal, wajar dan mengikut undang-undang. Sekian. Disediakan oleh; KAMARUDIN BIN KAMSUN, Hakim, Mahkamah Sesyen Jenayah 1, Johor Bahru. Bertarikh: 22 Ogos 2017. Pendakwa Raya: Puan Suhaila Safiudin. Timbalan Pendakwa Raya Johor. OKT mewakili diri sendiri. 7

Tika 2.6.0

62JS-45-11/2016

PENDAKWARAYAPUAN SUHAILA BINTI SHAFIUDIN TERTUDUH ALI USMAN

25/10/2017

TN KAMARUDIN BIN KAMSUN

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=c44f58c6-08db-4fe0-82cb-31d832d42b6f&Inline=true

DALAM MAHKAMAH SESYEN DI JOHOR BAHRU DALAM NEGERI, JOHOR PERBICARAAN JENAYAH NO: 62J – 45 – 11/2016 ANTARA PENDAKWA RAYA LAWAN ALI USMAN (PP: C 1011459) ALASAN KEPUTUSAN A. PENGENALAN. 1. Di dalam kes ini, OKT telah dituduh dengan 3 pertuduhan sebagai mana berikut:- Tuduhan Pertama; “Bahawa kamu pada 24/10/2016 jam lebih kurang 15.48 Hrs di rumah alamat nombor 33 Jalan Nusaria 6/7, Taman Nusantara, Gelang Patah Johor, dalam daerah Nusajaya dalam negeri Johor, telah melakukan rogol terhadap Siti Maryani Binti Mohd Yusof, KPT: 880307-01-6006, 28 tahun dan oleh itu, kamu telah melakukan suatu kesalahan yang boleh dihukum di bawah sekyen 376 Kanun Keseksaan.” Tuduhan Kedua; “Bahawa kamu pada 24/10/2016 jam lebih kurang 15.48 Hrs di rumah alamat nombor 33 Jalan Nusaria 6/7, Taman Nusantara, Gelang Patah Johor, dalam daerah Nusajaya dalam negeri Johor, telah melakukan persetubuhan yang bertentangan dengan aturan tabii terhadap Siti Maryani Binti Mohd Yusof, KPT: 880307-01-6006, 28 tahun dan oleh itu, kamu telah melakukan suatu kesalahan yang boleh dihukum di bawah sekyen 377 Kanun Keseksaan.” Tuduhan Ketiga; “Bahawa kamu pada 24/10/2016 jam lebih kurang 15.48 Hrs di rumah alamat nombor 33 Jalan Nusaria 6/7, Taman Nusantara, Gelang Patah, dalam daerah Nusajaya dalam negeri Johor, bukan sebagai seorang warganegara Malaysia telah didapati berada di Malaysia tanpa pas dan permit yang sah, oleh yang demikian kamu telah melakukan satu kesalahan di bawah seksyen 6(1)(c) Akta Imigresen 1959/63 yang boleh dihukum di bawah seksyen 6(3) Akta Imigresen 1959/63.” Terhadap ketiga-tiga pertuduhan tersebut, OKT telah mengaku bersalah dan telah didapati bersalah dan disabitkan dengan pertuduhan dan dijatuhi hukuman penjara sebagaimana berikut;- Tuduhan pertama – penjara 15 tahun dari tarikh tangkap dan 3 kali sebatan. Tuduhan Kedua – penjara 10 tahun dari tarikh tangkap dan 2 kali sebatan. Tuduhan Ketiga – penjara 3 tahun dari tarikh tangkap, Kesemua hukuman penjara di jalankan serentak. 2. Terhadap keputusan tersebut pihak OKT telah tidak berpuashati dan membuat rayuan terhadap Hukuman dan Sabitan. B. TERHADAP SABITAN DAN FAKTA KES PENDAKWAAN. 3. Kesemua Pertuduhan dan Fakta kes telah dibacakan dan diterangkan kepada OKT di dalam bahasa ibunda OKT iaitu Bahasa Urdu. 4. Pada sebutan kali pertama iaitu pada 29.11.2016, ketiga-tiga pertuduhan telah di bacakan kepadanya oleh seorang jurubahasa Urdu iaitu Madam Simren Deep kaur Ji. Untuk pertuduhan pertama dan kedua, OKT minta dibicarakan manakala bagi pertuduhan ketiga OKT telah mengaku salah dan faham sifat dan akibat pengakuannya. 5. Lanjutan dari itu suatu perbicaraan telah di adakan pada 21.6.2017 dan seorang saksi telah dipanggil iaitu anggota tangkapan (Polis) memberikan keterangan dan setelah itu kes ditangguhkan untuk sambung bicara. 6. Pada tarikh sambung bicara iaitu pada 22.8.2017, OKT telah dibacakan semula ketiga-tiga pertuduhan kepadanya dan beliau telah mengaku bersalah terhadap ketiga-tiga pertuduhan tersebut. 7. Pertuduhan itu adalah dibacakan oleh seorang jurubahasa Urdu iaitu Madam Satvinder Kaur A/P Jaswant Singh dari bahasa Malaysia ke bahasa Urdu dan telah di terangkan dan difahami sifat dan akibat pengakuannya oleh jurubahasa kepada OKT. 8. Begitu juga segala prosedur pengemukaan fakta kes dan ekhibit telah dilakukan dan diterjemahkan segalanya di dalam bahasa Malaysia ke dalam bahasa Urdu dan telah difahami dengan jelas oleh OKT segala maksud, kesan dan akibat dari pengakuan bersalahnya tersebut. 9. Rayuan sebelum hukuman oleh OKT juga telah diterjemahkan dari bahasa Urdu ke dalam bahasa Malaysia dan kesemua pihak telah memahami kedudukan dan keadaan kes masing-masing. 10. Mahkamah ini dengan itu merasakan bahawa sabitan yang dikenakan ke atas OKT adalah selamat dan tidak pernah memprejudiskan OKT dimana OKT faham segala apa yang berlaku di dalam mahkamah dan faham sifat dan akibat dari pengakuannya, yang mana beliau telah diterangkan segala sebab, sifat dan akibat dari pengakuannya, bentuk hukuman yang menunggunya dan apa yang boleh dikenakan terhadapnya dan beliau sedia menghadapinya. Maka adalah tidak relevan untuk sekarang sekiranya beliau mempertikaikan sabitan yang telah dibuat keatasnya atas apa jua alasan lain melainkan beliau sendiri dengan rela hati telah membuat pengakuan bersalah terhadap kesalahan yang telah dipertuduhkan ke atasnya. 11. Selanjutnya, sebagaimana yang telah dikemukakan oleh pihak pendakwaan menerusi ekhibit P3, fakta kes ini adalah sebagaimana berikut. 12. Pada 24.10.2016 jam lebih kurang 3.48 petang semasa Mohd Firdaus berada di Pusat Kawalan Polis IPD Iskandar Puteri telah menerima satu panggilan telefon daripada orang awam seorang perempuan melayu bernama Siti Marini iaitu mangsa yang memaklumkan beliau telah dirogol di alamat no. 33 Jalan Nusaria 6/7, Taman Nusantara Gelang Patah. 13. Pada tarikh yang sama anggota ronda MPV telah menghala ke alamat yang diberitahu oleh mangsa dan telah berjumpa dengan seorang lelaki India muslim iaitu suami kepada mangsa dan telah menunjukkan kepada polis satu lelaki bangsa Pakistan iaitu OKT yang telah ditangkap oleh orang awam. 14. Pada tarikh tersebut, ketika mangsa berada di dalam bilik di tingkat atas dan baru selesai mandi. Biliknya telah diketuk oleh OKT dan bertanyakan mengenai suaminya. Selepas pintu dibuka, OKT terus menolak pintu dan memeluk mangsa. Mangsa terkejut dan takut dan telah menjerit meminta tolong tetapi OKT telah menutup mulut mangsa dan telah mencekik bahagian leher mangsa. 15. OKT telah mengheret mangsa ke tilam di dalam bilik dan telah membuka dan menarik seluar dalam mangsa. Kemudian OKT membuka seluarnya dan dalam keadaan berbogel. Mangsa merayu dan menangis untuk tidak diapa-apakan tetapi OKT mengugut untuk mencederakan dan membunuh mangsa dan telah memasukkan kemaluannya secara paksa sehingga mangsa mengerang kesakitan. 16. OKT telah memasukkan kemaluannya selama 2 ke 3 minit dan mangsa nampak OKT telah memancutkan air mani ke atas tilam dan lantai. OKT memaksa mangsa untuk mandi di bilik air dan mengawal mangsa. Selepas itu mangsa dirogol sekali lagi dan OKT telah memasukkan kemaluannya ke dalam dubur mangsa dan semasa OKT memasukkan kemaluannya, mangsa menangis dan menjerit kesakitan. 17. OKT terus beredar dari rumah dan mangsa telah menghubungi polis dan suami mangsa. Suami mangsa yang menerima panggilan telefon tersebut mendengar suara mangsa dalam tangisan teresak-esak dan telah balik ke rumah dan cuba mencari OKT. Mangsa dan suami mangsa mengenali OKT kerana OKT merupakan kawan kepada suami mangsa dan tinggal sekali di rumah tersebut lebih kurang seminggu sebelum kejadian. 18. Mangsa telah dibawa ke Hospital Sultanah Aminah pada hari yang sama dan doktor mengesahkan terdapat kesan bruises pada leher mangsa dan terdapat external haemorrhoid dan multiple superficial linear tears with slow oozing blood di dubur mangsa dan semasa kejadian di dapati mangsa di dalam kehamilan awal. Terdapat koyakan pada hymen iaitu “blunt penetration”. 19. Cadar tilam berwarna oren berbintik hitam terdapat kesan air mani dan darah dan seluar panjang warna putih milik OKT dirampas dan telah dihantar ke Jabatan Kimia untuk mendapatkan pengesahan dan hasil laporan kimia mendapati DNA semen stain dari cadar dan seluar yang dirampas adalah daripada OKT dan mangsa. 20. OKT telah ditangkap red-handed oleh orang awam dan suami mangsa dan telah diserahkan kepada pihak polis pada hari yang sama kejadian berlaku. 21. OKT mengaku salah sepertimana pertuduhan. C. FAKTOR DAN PRINSIP PENGHUKUMAN. 22. Undang-undang tidak pernah membuat suatu penetapan hukuman ke atas suatu kes tertentu tetapi hanya meletakkan suatu hukuman maksima terhadapnya dan ini tidak bermakna bahawa suatu hukuman maksima hendaklah sentiasa dikenakan di dalam setiap kes mengenainya ( Mohd Jalani bin Saliman v PP [1997] 5 MLJ 551), maka terpulanglah kepada mahkamah tersebut mengenakan suatu hukuman yang dirasakan sesuai dalam lingkungan julat hukuman yang dibenarkan tertakluk kepada fakta dan keadaan kes masing-masing. Adalah menjadi tugas mahkamah untuk mengenakan suatu hukuman yang mana hukuman tersebut dapat mencerminkan keseriusan suatu kesalahan yang telah dilakukan (PP v Khairudin [1982] 1 MLJ 331). Tujuan meletakkan budibicara kepada Penghukum adalah bagi membenarkan Penghukum memberikan hukuman yang dirasakan paling sesuai di dalam setiap satu kes secara berasingan dan apa-apa kecenderungan untuk menyeragamkan hukuman bagi sesuatu kesalahan hendaklah dielakkan kerana itu bermakna pesalah tersebut dihukum bukan atas fakta kesnya tetapi disebabkan oleh jenis kesalahan yang telah dilakukannya ( Abdul Karim v R; Sundra Singh v R; Loh Kai Hoi v R [1954] MLJ 86). 23. Suatu pertimbangan yang adil perlu dilihat dan dibuat antara keperluan kepada suatu hukuman yang mencegah dan juga peluang kepada tertuduh untuk dipulihkan (Kesavan Senderan v PP [1999] 1 CLJ 343). Setiap penghukuman hendaklah bersifat ekslusif dan peribadi tergunapakai hanya kepada pesalah tersebut sahaja yang dilaras kepada keadaan moral dan kewangannya juga kepada sifat suatu kesalahan tersebut ( Low Oi Lin v R [1949] MLJ 210 ). 24. Di dalam menjatuhkan suatu hukuman, pertimbangan yang diambilkira sebelum hukuman dijatuhkan ialah kepentingan awam, keadaan suatu kesalahan tersebut dan juga latarbelakang pesalah berkenaan. Suka ditekankan bahawa menurut kes R v Sargeant (1974) 60 Cr App R 74, merumuskan bahawa “Society, through the courts, must show its abhorrence for the occurrence of particular types of crime and the only way which the courts can show this is by the sentences they pass. The courts act as a vehicle to show abhorrence for particular types of criminal conduct. However, the courts do not have to reflect public opinion. On the other hand, court could not disregard it. Perhaps the main duty of the court is to lead public opinion.”(ulasan oleh penulis buku “The process of criminal justice”). Oleh itu, mahkamahlah yang sepatutnya melaraskan dan melakarkan apa kehendak yang patut dibentuk oleh masyarakat menerusi hukuman yang dibuatnya. 25. Prinsip klasik di dalam menilai suatu hukuman yang bakal dikenakan terhadap pesalah ialah sebagaimana diputuskan dalam kes R v Sargeant, supra, iaitu: “retribution, deterrence, prevention and rehabilitation.” Kes R v Sargeant, supra, juga turut mengariskan apakah panduan di dalam menentukan suatu tempohmasa pemenjaraan yang sesuai yang patut dikenakan terhadap pesalah yang mana antara lainnya ialah; sifat dan keseriusan suatu kesalahan tersebut, keadaan dimana kesalahan tersebut dilakukan, diskaun kepada keinsafan dan akhirnya imbangan diantara kepentingan awam di dalam mencegah kesalahan tersebut dan peluang pesalah memulakan kehidupan yang baru. D. ANALISA DAN KEPUTUSAN MAHKAMAH. 26. Pada pendapat mahkamah, hukuman yang diberikan ke atas ketiga-tiga pertuduhan ini adalah setimpal dan wajar serta mengikut lunas-lunas yang telah ditetapkan oleh undang-undang. 27. Seksyen 376 Kanun Keseksaan memperuntukkan; Section 376. Punishment for rape. (1) Subject to subsections (2), (3) and (4), whoever commits rape shall be punished with imprisonment for a term which may extend to twenty years, and shall also be punished with whipping. [Am. Act A1536/2017] (2) Whoever commits rape on a woman under any of the following circumstances: (a) at the time of, or immediately before or after the commission of the offence causes hurt to her or to any other person; (b) at the time of, or immediately before or after the commission of the offence, puts her in fear of death or hurt to herself or any other person; (c) the offence was committed in the company of or in the presence of any other person; (d) without her consent, when she is under sixteen years of age; (e) with or without her consent, when she is under twelve years of age; (f) with her consent, when the consent is obtained by using his position of authority over her or because of professional relationship or other relationship of trust in relation to her;                       [(f) Am.Act A1471/2014] (g) at the time of the offence the woman was pregnant;                                [(g) Am.Act A1471/2014]  (h) when by reason or on occasion of the rape, the woman becomes insane; (i) when he knows that he is afflicted with the Human Immuno-Deficiency Virus (HIV)/Acquired Immune Deficiency Syndrome (AIDS) or any other sexually transmissible disease and the virus or disease is or may be transmitted to the woman;   (j) when by reason or on occasion of the rape, the woman commits suicide; or   (k) when he knew of the mental disability, emotional disorder or physical handicap of the woman at the time of the commission of the crime,                          [(h), (i), (j), (k) Ins.Act A1471/2014] shall be punished with imprisonment for a term of not less than ten years and not more than thirty years and shall also be punished with whipping.                      [Am. Act A1536/2017]; [Am.Act A1471/2014] 28. Seksyen 377 KK pula memperuntukkan; Section 377B. Punishment for committing carnal intercourse against the order of nature. Whoever voluntarily commits carnal intercourse against the order of nature shall be punished with imprisonment for a term which may extend to twenty years, and shall also be punished with whipping. 29. Makala seksyen 6(3) Akta Imigresen memperuntukkan; Section 6 . Control of entry into Malaysia. (1) No person other than a citizen shall enter Malaysia unless- (a) he is in possession of a valid Entry Permit lawfully issued to him under section 10; [Am. Act A985: s.4] (b) his name is endorsed upon a valid Entry Permit in accordance with section 12, and he is in the company of the holder of the Permit; [Am. Act A985: s.4] (c) he is in possession of a valid Pass lawfully issued to him to enter Malaysia; or (d) he is exempted from this section by an order made under section 55. (2) (Repealed by Act 27 of 1963). (3) Any person who contravenes subsection (1) shall be guilty of an offence and shall, on conviction, be liable to a fine not exceeding ten thousand ringgit or to imprisonment for a term not exceeding five years or to both, and shall also be liable to whipping of not more than six strokes. [Am. Act A 1154:s.4] 30. Hukuman pemenjaraan yang dibenarkan oleh undang-undang yang boleh dikenakan ke atas OKT bagi kesemua kesalahan secara keseluruhannya jumlahnya itu boleh mencapai kepada 30 tahun penjara maksima dan berserta jumlah maksima sebatan. 31. Di dalam kes ini, kes ini telah diambilkira sebagai panduan; kes Mahkamah Agong ketika itu di dalam kes Mohd Abdullah Ang Swee Kang (1987) CLJ (rep) 209; yang mengatakan;- Held: [1] The Supreme Court agreed with the principle laid down in Reg.v. Barrick that in breach of trust cases in general a term of immediate imprisonment would be inevitable, save in very exceptional circumstances or where the amount of money involved was small. This must be the current sentencing policy even if the accused pleaded guilty. In the Supreme Court's view, the approach of assessing sentence adopted by the learned Judge supposedly based on English authorities by harmonising them with the maximum sentence of 20 years in s. 409 of the Penal Code,was not only misleading but was wrong in principle. When the legislature fixed a maximum penalty for an offence, the discretion of the Court in determining the extent to which in a particular case the punishment should be awarded must be exercised judicially. [2] In assessing the length of custodial sentence, the Court must look at the overall picture in perspective by considering firstly, the gravity of the type of offence committed; secondly, the facts in the commission of the offence; thirdly, the presence or absence of mitigating factors, and fourthly, the sentence that have been imposed in the past for similar offences to determine the trend of sentencing policy, if any. The fact that a sentence of imprisonment is imposed as a deterrence does not justify the sentencer in passing a sentence of greater length than the facts of the offence warrant. The gravity of the type of offence involved must be considered in the light of the particular facts of the offence. [3] A sentencer must give sufficient discount for all extenuating circumstances pertaining to the degree of culpability or criminality involved which must necessarily vary from case to case apart from other mitigating factors. Unless there is a proper reason for withholding such credits, failure to do so may result in the sentence not exercising his or her discretion judicially in assessing the level of custodial sentence. The sentence imposed on the appellant was manifestly excessive. It is generally accepted that the extent of reduction on account of a plea of guilty would be between ¼ and 1/3 of what otherwise would have been the sentence. In this particular case, apart from plea of guilty, the sentence must also be discounted to reflect the full restitution made and other mitigating factors. [4] Although the learned Judge indicated in his judgment that he had given the necessary discounts they were not reflected at all in the sentence imposed, as it was imposed without regard to the particular facts of this case and without giving the appellant any or sufficient credit for all the mitigating circumstances. The recommended prison terms in Barrick were not meant for pleading guilty cases. If the learned Judge had not fallen into error in misreading the facts and the law in Barrick and Davies he would probably have found that a 4 year sentence would adequately fit the crime which by any standard was severe enough to satisfy the justice of this case. [5] Since full restitution had been made and the appellant had not enriched himself personally by the crime, the Supreme Court found no purpose in imposing a fine in addition to custodial sentence. 32. Kesemua faktor yang dilandaskan di dalam kes tersebut telah mahkamah ini ambilkira dan diselaraskan dengan Fakta kes di hadapan kita ini sebelum mahkamah ini menjatuhkan hukuman. 33. OKT telah mengaku bersalah dan pengakuan bersalahnya ini perlu diambilkira sebagai satu faktor peringanan utama. Paling utama ialah suatu sabitan telah diperolehi tanpa kesemua pihak yang terlibat khasnya pihak pendakwaan perlu bersusah payah membuktikan kes melampaui keraguan yang munasabah mengambilkira fakta kes pada masa kejadian pelbagai kemungkinan boleh terjadi. Begitu juga banyak penjimatan masa dan kos semua pihak khasnya saksi-saksi termasuk pengelakkan faktor “humiliation” terhadap mangsa telah diperolehi dengan pengakuan salah OKT ini. OKT juga tidak mempunyai apa-apa rekod lampau. Di dalam rayuannya, OKT memohon maaf di atas kesalahannya. Beliau telah kesal dan insaf. Mempunyai 10 orang adik beradik dan membantu keluarganya. Berjanji tidak akan mengulangi lagi kesalahannya dan ingin balik ke Negara asalnya. 34. Hujahan pemberatan oleh pihak pendakwaan juga telah mahkamah ini ambilkira kesemuanya dimana faktor kepentingan awam adalah faktor utama di dalam pertimbangan untuk memberikan hukuman paling setimpal untuk OKT. Kes Pannani Bin Amat Selar v PP (2008) MLJU 793 adalah dirujuk. Mahkamah juga diingatkan bahawa OKT mempunyai 3 pertuduhan yang serius dan satu hukuman yang berbentuk pengajaran perlu diberikan kepada OKT agar ianya dapat menjadi hukuman dan pengajaran kepada OKT dan mana-mana bakal pesalah lain. 35. Victim Impact Statement juga telah dikemukakan oleh mangsa sendiri yang mahukan OKT dikenakan hukuman yang setimpal dikenakan ke atas OKT dan beliau mengatakan telah trauma dengan tidak dapat melupakan tragedi yang berlaku itu dan sehingga kini ketakutan sekiranya tinggal keseorangan di rumah. 36. Oleh yang demikian, tempoh pemenjaraan selama 15 tahun tersebut adalah dirasakan setimpal dengan jenayah kejam dan hina yang telah dilakukan oleh OKT (kos sarahidup OKT (yang bukan warganegara) selama tempoh pemenjaraan itu juga perlu dilihat dan diambilkira secara ekonomi) dimana disamping hukuman pemenjaraan itu OKT juga telah dikenakan hukuman 5 kali sebatan yang mana mahkamah merasakan cukup dan setimpal dengan kesalahan tersebut. Suatu tempoh pemenjaraan yang panjang wajar dikenakan sebagai hukuman terhadap OKT dimana beliau perlu diasingkan dari masyarakat dan perlu diperbetulkan landasan dan laras kemanusiaannya. OKT telah merogol isteri sahabatnya sendiri. Sahabat yang telah sanggup menumpangkan beliau dirumahnya. Sungguh keji dan sifat yang tidak boleh diterima akal oleh masyarakat kita. Sanggup dan tergamak juga mengugut untuk membunuh mangsa. Merogol mangsa dan melakukan hubungan luar tabii dengan memasukkan kemaluannya ke dalam dubur mangsa sehingga berdarah dan mendatangkan kecederaan kepada mangsa. Manusia jenis apakah OKT ini?. Mahkamah sangat berharap agar sifat kemanusiaannya dapat dinilai dan dipulihkan semasa di dalam tempoh pemenjaraan nanti. 37. Tingkah laku OKT yang datang dan masuk ke Negara ini secara haram dan kemudiannya melakukan kesalahan jenayah adalah suatu perlakuan yang tidak boleh diterima dengan langsung tidak menghormati dan meremehkan undang-undang tegas Negara ini dan oleh itu hendaklah dikenakan hukuman yang lebih keras dan sepadan. 38. Selain dari itu, OKT juga dikenakan hukuman 3 sebatan lagi bagi pertuduhan Pertama dan 2 sebatan bagi tuduhan Kedua (menjadikan kesemuanya beliau menerima 5 libas sebatan) dan mahkamah berharap OKT telah benar-benar insaf dan dapat menerima hukuman yang telah dijatuhi terhadapnya. Walaupun pertuduhan Ketiga memperuntukkan hukuman sebatan, namun ianya tidak dikenakan memandangkan mahkamah merasakan telah mencukupi lelasan yang bakal di rasai oleh OKT dipunggungnya sebagai hukuman yang setimpal. 39. Mengambilkira kesemua pertuduhan berlaku pada masa yang sama, maka mahkamah telah membenarkan agar hukuman dijalankan serentak. Semoga tempoh pemenjaraan yang lama ini dapat manjadi iktibar kepada OKT dan mengubah OKT menjadi insan yang lebih baik dan mulia setelah dibebaskan kelak selain kesan parut dari luka kulit punggungnya yang tersiat akibat sebatan rotan nanti dapat mengingatkan OKT dan yang paling penting kepada mana-mana bakal pesalah lain dari melakukan kesalahan dan jenayah yang sama di masa hadapan. E. KESIMPULAN. 40. Setelah mengambilkira prinsip dan kesemua faktor yang perlu di dalam menjatuhkan hukuman, maka mahkamah ini berpendapat bahawa sabitan yang dikenakan terhadap OKT adalah selamat dan hukuman yang diberikan adalah adil, setimpal, wajar dan mengikut undang-undang. Sekian. Disediakan oleh; KAMARUDIN BIN KAMSUN, Hakim, Mahkamah Sesyen Jenayah 1, Johor Bahru. Bertarikh: 22 Ogos 2017. Pendakwa Raya: Puan Suhaila Safiudin. Timbalan Pendakwa Raya Johor. OKT mewakili diri sendiri. 7

Tika 2.6.0

WA-24-25-05/2017

PEMOHON TRANSMARCO CONCEPTS SDN BHD (Company No. 185981 – W) … PLAINTIF F DEFENDAN DIRECTOR GENERAL OF CUSTOMS AND EXCISE … DEFENDAN T

25/10/2017

YA DATUK HAJJAH AZIZAH BINTI HAJI NAWAWI

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=f5417e4d-8335-4e57-a739-8d0bc9da9a9d&Inline=true

1 IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR IN THE FEDERAL TERRITORY, MALAYSIA ORIGINATING SUMMONS NO: WA-24-25-05/2017 In the matter of an application by Transmarco Concepts Sdn Bhd for an application for an extension of time to apply for leave to commence judicial review proceedings And In the matter of the letter of the Director General of the Royal Malaysian Customs and Excise Department dated 6.12.2016 And In the matter of Order 3, Order 53 and Order 92 rule 4 of the Rules of Court 2012 And In the matter of Section 191 of the Goods and Service Tax 2014 BETWEEN TRANSMARCO CONCEPTS SDN BHD (Company No. 185981 – W) … PLAINTIFF AND DIRECTOR GENERAL OF CUSTOMS AND EXCISE … DEFENDANT 2 Grounds of Decision Azizah Nawawi, J: Application [1] The plaintiff’s application is for an extension of time to apply for leave to commence judicial review proceedings against the defendant’s decision vide letter dated 6.12.2016. [2] The grounds of the application are: (i) that the plaintiff’s delay (if any) in applying for leave is both unavoidable and unintentional and/or without bad faith; and (ii) that the plaintiff has a prima facie case against the defendant, that is, the plaintiff’s application is not frivolous and vexatious. [3] Having considered the application and the submission of the parties, this court has dismissed the plaintiff’s application with costs. The Salient Facts [4] The plaintiff is a private limited company that is involved in the footwear industry. The defendant is the Director General of the Customs Department empowered by the Goods and Service Tax Act 2014 (the ‘GST Act’) to have supervision over the said GST Act. 3 [5] On 28.9.2015, the plaintiff submitted a claim for special refund of sales tax pursuant to s.191 of the GST Act via the Taxpayer Access Point (‘TAP System’) for an a sum of RM1,016,593.93 (the Claim). The special refund under sections 190 and 191 of the GST Act is a refund of the sales tax duly paid under the Sales Tax Act 1972. [6] The TAP System is an electronic service provided by the defendant pursuant to section 166 of the GST Act to enable any registered user to file or furnish any application, return, declaration, or any document and for the service of any notice, direction, order, permit, receipt or any document. A registered user is a person who has registered with the defendant’s department under section 21 of the GST Act and is therefore authorized by the defendant to gain access to and use the electronic service. [7] By a letter dated 6.12.2016 uploaded on the TAP System, the defendant informed the plaintiff that the plaintiff’ Claim was rejected based on the decision of the Director General. No explanation was given for the rejection in the said letter. [8] The plaintiff only discovered the letter dated 6.12.2016 on 20.1.2017 by chance, when accessing the TAP System to file its goods and services tax for December 2016. [9] By letters dated 24.1.2017 and 27.2.2017, the plaintiff sought for a meeting with the defendant to discuss the rejection of the applicant’s request for the special refund. 4 [10] On 28.2.2017, the plaintiff had a meeting with the defendant’s officer. After the said meeting, the plaintiff issued a letter dated 27.3.2017 to the defendant explaining why it had computed the Claim on the Free On Board (“FOB”) basis instead of Cost Insurance and Freight (“CIF”). In the said letter, the plaintiff also asked the defendant to approve its claim for special refund as soon as possible. [11] As the plaintiff did not received any response from the defendant, the plaintiff wanted to pursue a judicial review of the defendant’s decision to reject the plaintiff’s claim. In an abundance of caution, the plaintiff filed this application for an extension of time. The Findings of the Court [12] Order 53 r 3(6) of the Rules of Court 2012 (the ‘ROC 2012’) provides that an application for judicial review must be made promptly, within three months from the date when the grounds of application first arose or when the decision is first communicated to the applicant. [13] In Seruan Gemilang Makmur Sdn Bhd v Pegawai Kewangan Negeri Pahang [2016] 4 CLJ 100, the Court of Appeal held that: 5 “[79] The settled law is that the operative time for the ground to have arisen, and which set the timeline which the application is to be made, is the date when the decision was first communicated to the applicant.” [14] In this case, the decision of the defendant which the plaintiff intends to review is dated 6.12.2016. Under Order 53 r 3 (6) of the ROC 2012, the last date to file an application for judicial review is 5.3.2017. From the date of the filing of this application (3.5.2017) for an extension of time, there is clearly a delay of more than 2 months (about 5 months from the date of the decision). [15] However, it is the contention of the plaintiff that the decision that it seeks to challenge was not communicated to them until the meeting on 28.2.2017. The plaintiff submits that the letter dated 6.12.2016 cannot be deemed as communication of the defendant’s decision to the plaintiff as the plaintiff had no notice of it, and therefore had no actual knowledge of the same. [16] The plaintiff relied on the case of Tunku Yaacob Holdings Sdn Bhd v Pentadbir Tanah Kedah & Ors [2016] 1 MLJ 200, where Justice Ramly Ali FCJ held at follows: “[24] … The question that arose pertaining to whether the application by the appellant was out of time vis-a-vis the said decision was communicated to the appellant. This would determine when the 6 prescribed 40 days’ period for the filing of the application for judicial review under O 53 r 3(6) of the RHC 1980 should begin to run. [25] The word ‘communicate’ is not expressly defined in the RHC 1980. It is also not expressly defined in the LAA. In the New Shorter Oxford English Dictionary, the verb ‘communicate’ is given the meaning of ‘convey or exchange information etc succeed in invoking understanding’. The Oxford Advanced Learner’s Dictionary defines ‘communicate’ as ‘to make something known to somebody’; ‘to pass something on; to transmit something’; ‘to make one’s idea feelings etc clear to the others…’ …….. [60] In the present case before we are interpreting O 53 r 3(6) of the RHC 1980, where the key words under consideration are ‘when the decision is first communicated to the applicant’. The wordings of the Order must be read together with the specific mandatory provisions in the LAA, particularly ss 10, 11, 52 and 53, relating to service of notification or declaration on acquisition of land by the state authority in form E on the registered proprietor, the occupier of such land, or any other interested persons. The clear effect of those provisions is that the relevant notice or declaration relating to the acquisition must be 7 brought to the actual knowledge (as opposed to constructive notice by way of a publication in the Gazette) of the persons concerned; only then, the interested party can exercise their right to challenge the acquisition decision by way of judicial review proceedings under O 53 r 3(6) of the RHC 1980 within the prescribed time period. [61] …. The appellant cannot be expected to apply for leave to commence judicial review to challenge the deprivation of its rights to the property unless it has knowledge or is made aware of such deprivation and this could only happen when the appellant is served with the actual or express notice that its right has been infringed…. [62] There are a number of authorities to support the above findings ie in applying O 53 r 3(6) of the RHC 1980, the time would start to run against an applicant for judicial review when the applicant had actual knowledge of the relevant decision or that the applicant had been served with the relevant notices in accordance with the relevant provisions of the LAA.” (emphasis added) [17] Applying the reasoning in Tunku Yaacob Holdings Sdn Bhd case, this court will have to read Order 53 r 3(6) of the ROC with the relevant provisions in the GST Tax in order to determine when the 8 prescribed three (3) months period for the filing of the application for judicial review under O 53 r 3(6) of the ROC 2012 should begin to run. [18] The TAP System is provided by section 166 of the GST Act, which reads: “Use of electronic service 166. (1) Notwithstanding any other provision of this Act and subject to regulations made under this Act, the Director General may provide an electronic service to any registered user for – (a) the filing or furnishing of any application, return or declaration or any other document; and (b) the service of any document, direction, order, permit, receipt or any other document. (2) … (3) Any electronic notice made and transmitted by the registered user shall be deemed to have been filed, furnished or served at the time the electronic notice is received by the Director General. 9 (4) For the purposes of this section, “registered user” means any person who is authorized in writing by the Director General to gain access to and use the electronic service.” [19] Section 167 of the GST Act provides three options to the taxpayer on the manner of the service of the notices issued by the defendant. The three (3) option under section 167(1) are personal service, sending by registered post or by electronic service. Under subsection 167(3), it is provided that where a taxpayer has given his consent for a notice to be served on him through the electronic service, then the notice shall be deemed to have been served ‘at the time when the electronic notice is transmitted to his account through the electronic service.’ [20] Therefore under subsection 167(3) of the GST Act, where a taxpayer has given his consent for a notice to be served on him through the electronic service, then the notice shall be deemed to have been served at the time when the electronic notice is transmitted to his account through the electronic service. As such, the clear effect of reading section 167 of the GST Act with Order 53 r 3(6) of the ROC 2012 means that in respect of service of a decision where the taxpayer has opted for electronic service, the taxpayer is deemed to have knowledge of the notice once the notice had been transmitted to his account through the electronic service. 10 [21] In the present case, it is not in dispute that the plaintiff is a registered user (see ZY-1(a)). On the option of service, the plaintiff had chosen notification by electronic service, via email and by letter. In fact, the plaintiff’s application for the special refund was also made online via the electronic service, the TAP System. [22] However, the plaintiff submits that the ‘publication’ or uploading on the letter dated 6.12.2016 onto the TAP System does not constitutes ‘communication’ under Order 53 rule 3(6) of the ROC 2012 as it was not brought to the actual notice of the plaintiff. Therefore, the plaintiff submits that it did not have actual knowledge of the defendant’s decision. Thus, the 3-month period for the challenge of the decision cannot commence on 6.12.2016 (see paragraph 22 of the plaintiff’s written submission). [23] I am of the considered opinion and I agree with learned Senior Federal Counsel for the defendant that the decision dated 6.12.2016 had been communicated to the applicant via uploading it into the plaintiff’s TAP System account on 6.12.2016 (see exhibit ZY-3). A notification was also sent by an email on the same date. The email address was provided by the plaintiff upon registering on the TAP System. Therefore, pursuant to subsection 167(3), the letter dated 6.12.2016 shall be deemed to have been served at the time when the electronic notice is transmitted to the plaintiff’s account through the electronic service, which was on 6.12.2016. 11 [24] With regards to the plaintiff’s complaint that the decision was not communicated vide a physical letter which was also the plaintiff’s chosen correspondence preference, I agree with the defendant that section 167 of the GST Act must be read disjunctively as the said provision uses the word ‘or’ after each option. Therefore, even though the plaintiff had given two (2) preferences, under s. 167, the defendant is only legally required to serve the decision vide any one of the options provided. [25] The plaintiff also submits that when the plaintiff discovered the letter (dated 6.12.2016) on 20.1.2017, there were no grounds provided by the defendant. Therefore, the plaintiff takes the position that there was no communication of the decision that the plaintiff could challenge until the meeting on 28.2.2017 where the decision to reject the plaintiff’s Claim was effectively communicated. [26] However, a plain reading of section 190 and 191 of the GST Act does not require the defendant to provide the reasons for his decision. Therefore, it cannot be said that there is no effective communication of the defendant’s letter dated 6.12.2016. [27] Under Order 53 r 3(7) ROC 2012, the court may extend time to apply for judicial review if the court considers that there is a good reason for doing so. 12 [28] In Tengku Anoomshah bin Tengku Zainal Abidin & Anor v. Collector Land Revenue, North – East District, Penang & Anor [1995] 3 CLJ 434, the court held that: “On general principles, this court has no inherent jurisdiction to extend time, except where suh power is expressly given to it under the provision of the law ... However, the words “or, ...Except where the delay is accounted for to the satisfaction of the court or judge to whom the application for leave is made “ in Order 53 r 1A, which deals with the applications, would sufficiently clothe the court with powers to extend the time to enable the aggreived party to apply for leave to issue an order of certiorari. But though the court has an unferred discretion to grant or refuse an extension of time, the rules of court must prima facie be obeyed; and in order to justify an extension of time, there must be some material on which the court can exercise its discretion in favour of the applicant. For otherwise the party in breach would have un fettered right to extension of time which would defeat the very purpose and object of the rules of limitation period. See Ong Guan Teck & Ors v. Hijjas [1982] 1 MLJ 105.” (emphasis added) 13 [29] The grounds given by the plaintiff are not good reasons for an extension of time as the plaintiff takes the position that there was no effective communication of the decision in the first place. The said reasons are not good reasons as to why the plaintiff did not file the review application within the three (3) from the date of the decision, despite having knowledge as early as 20.1.2017 when accessing the TAP System to file its goods and service tax for December 2016. [30] The plaintiff’s contention that the ‘delay (if any)’ is both unavoidable and unintentional is not acceptable to this court because the plaintiff’s complaints have been the lack of reasons for the defendant’s decision. However, from the meeting on 28.2.2017, the plaintiff was informed of the reasons for the decision by the defendant’s officer, that is on the issue of computation premised on FOB and not CIF. Yet, the plaintiff did not file the application to review. What the plaintiff did after the meeting was another attempt to make the respondent change his decision vide the letter dated 27.3.2017. [31] When the plaintiff did not received a response from the defendant after 27.3.2017, the plaintiff did not take any action at all, until the filing of this application about two (2) months later. [32] The plaintiff also referred to the case of Tunku Yaacob Holdings Sdn Bhd (supra) where Zaleha Zahari FCJ took into account the 14 respondent’s failure to reply to the appellant’s letter and allowed the application for an extension of time. [33] However, in this case in paragraph 17 of his affidavit in support, the director of the plaintiff states as follows: “17. In any event, the decision of the Customs and the basis of the same having been communicated to the Plaintiff, the Plaintiff was prepared to fi le the Claim afresh on a CIF computation. However, the Respresentative were informed by the abovenamed Deputy Director of Customs during the meeting that any changes to the Claim would not be entertained, and if the Plaintiff was dissatisfied with the Custom’s decision, the Plaintiff could refer the matter to Court.” (emphasis added) [34] Therefore, from the meeting on 28.2.2017, the plaintiff already knew that the defenda nt will not change his decision, and that if the plaintiff was dissatisfied with the defendant’s decision, the plaintiff could refer the matter to Court. The plaintiff already knew the position taken by the defendant, yet the plaintiff continued to impress the defendant to change his decision. As such, it cannot be said that failure to reply to the letter dated 27.3.2017 is a good reason to allow the extension of time. 15 [35] With regards to the plaintiff’s contention that it has a good case in respect of the application for special refund, premised on the cases of Mersing Omnibus Co Sdn Bhd v. Minister of Labour and Manpower [1983] 2 MLJ 54, Ravindran v. Malaysian Examinations Council [1984] 1 MLJ 168 and Wong Kin Hoong & Anor (suing for themselves and on behalf all of the occupants of Kampung Bukit Koman, Raub, Pahang) v. Ketua Pengarah Jabatan Alam Sekitar & Anor [2013] 4 MLJ 161, the merits of the plaintiff’s case for special refund is not relevant. For the purpose of this application, this court is only concerned as to whether there are good reasons to extend time. [36] Having considered the application and the affidavits, I am of the considered opinion that there are no good reasons for me to exercise my discretion in the plaintiff’s favour. As such the application for extension of time is dismissed with costs. (AZIZAH BINTI HAJI NAWAWI) JUDGE HIGH COURT MALAYA (Appellate and Special Powers Division 2) KUALA LUMPUR Dated: 25 October 2017 16 For the Plaintiff : Shanti Mogan and Wong Lien Lien Messrs Shearn Delamore & Co Kuala Lumpur For the Defendant : Farah Ezlin (SFC) and Goh Hsiao Tung Jabatan Kastam Diraja Malaysia Putrajaya.

Tika 2.6.0

BA-12ANCC-31-10/2016

PERAYU TAN KIAN SOON RESPONDEN MD ZUKRI BIN SALLLEH (NO.K/P: 581211-03-5499)

24/10/2017

YA DATIN ZALITA BINTI DATO' HJ. ZAIDAN (PK)

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=f5d1eb32-76be-4f04-8150-801b0783850e&Inline=true

DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN, MALAYSIA RAYUAN NO.: BA-12ANCC-31-10/2016 ANTARA TAN KIAN SOON … PERAYU DAN MD ZUKRI BIN SALLLEH … RESPONDEN (NO.K/P: 581211-03-5499) (DALAM PERKARA MAHKAMAH SESYEN DI SHAH ALAM GUAMAN NO: BA-B52NCC-49-05/2016) ANTARA TAN KIAN SOON … PLAINTIF DAN MD ZUKRI BIN SALLEH … DEFENDAN) (NO.K/P: 581211-03-5499) GROUND OF JUDGMENT Introduction [1] This is an appeal by the Appellant who is the Plaintiff, against the Sessions Court’s decision in dismissing the Appellant’s Notice of Application to strike out the Respondent’s (the Defendant), Counterclaim under Order 18 rule 19 ROC 2012 on 25.11.2016. [2] The Respondent filed a counterclaim against the Appellant a sum of RM2,600,000.00 for the alleged undertaking by the Appellant for successfully obtaining the listed projects and honorary on Defendant’s assistance. [3] This appeal is heard together with another appeal, case number BA-12ANCC-25-10/2016 between the same parties, where the Appellant is appealing against the Sessions Court’s decision which dismissed the Appellant’s Notice of Application for summary judgment for the sum of RM518,203.00. [4] For ease of reference, in this judgment, the parties will be referred to as they were in the Sessions Court. Facts [5] The relevant factual background giving rise to this appeal based on the written submissions and pleadings may be briefly stated as follows: (a) Based on the appeal case number BA-12ANCC-25-10/2016, the Plaintiff filed a claim against the Defendant for a summary judgment for the sum of RM518,203.00 for the alleged premium payment for a piece of land for the Defendant. This is as narrated where Plaintiff claimed that by a letter of 9.4.2012 from the Pejabat Pengarah Tanah dan Galian, Wilayah Persekutuan (the “Local Authority”) to the Defendant, the Local Authority had agreed to grant a title of a piece of land, Lot 165, Jalan Jelatek, Seksyen 88, Bandar Kuala Lumpur (the said Land) to the Defendant. According to the Plaintiff, in accordance with Form 5A, the Plaintiff advanced the sum RM518,203.00 on Defendant’s request, on or around 8.10.2012 and the Form dated 9.4.2012 was issued to the Defendant. (b) The Plaintiff claimed that as the arrangement for the monetary advancement failed, the Plaintiff claimed for the return of his monetary advancement of RM518, 203.00. (c) The Defendant on the other hand, denied that the Defendant had agreed to any monetary advancement and never agreed to sign any formal agreement nor directed the Plaintiff to advance the amount of RM518,203.00 for the said Land. The Defendant claimed that, in the alternative, the Plaintiff may on its own personal capacity or willingness advanced the RM518,203.00 to the Defendant without the Defendant’s knowledge in order to get Defendant’s assistance for other projects or the Plaintiff felt obliged to repay for Defendant’s assistance in getting the projects to which the Defendant counterclaimed for RM2,600,000.00 the alleged undertaking made by the Plaintiff. (d) The Defendant claimed that the Plaintiff had agreed during one negotiation between the Plaintiff and the Defendant in the presence of one Tengku Ibrahim that the Plaintiff will pay the Defendant RM1,000,000.00 as full settlement but the Plaintiff had failed to pay and Defendant is claiming for the RM260,000.00. (e) The Defendant claimed that the Plaintiff had received Defendant’s assistance in getting the project for the construction of six oil tanks through the good relationship between the Defendant and the Chief Executive Officer’s Company, Eastern Pacific Industrial Corporation Berhad (EPIC) that was introduced to the Plaintiff. (f) The Defendant had filed an originating summons to transfer the Defendant’s Counterclaim on 10.2.2017, to the Shah Alam High Court. (g) The Plaintiff on the other hand claimed that out of the projects listed in Defendant’s Defence and Counterclaim, only one project for the construction of six oil tanks was successfully obtained by way of tender process, awarded by EPIC to the Plaintiff. The Plaintiff also claimed that if there is any truth about the alleged undertaking, the Plaintiff’s application for striking out under Order 18 rule 19 of ROC 2012 should be allowed as the alleged undertaking cannot be enforced. Plaintiff’s Submission [6] The learned counsel for the Plaintiff submitted that only one project for the construction of six oil tanks was successfully obtained by way of tender process where the Plaintiff was awarded by Eastern Pacific Properties Sdn Bhd, a wholly owned subsidiary of EPIC, a Terengganu State Government Linked Company (paragraph 4 Plaintiff’s Affidavit In Support, page 55 of Appeal Record) and that the Defendant did not dispute that the Plaintiff only obtained one project out of the list of projects. [7] The Plaintiff’s counsel averred that the alleged undertaking by the Defendant will be invalid under section 24 and section 25 of Contracts Act 1950 as such undertaking is an illegal consideration and would be against public policy as it would amount to manipulation of tender process. In relation to this, the Plaintiff’s counsel relied on the Federal Court case of Merong Mahawangsa Sdn Bhd v Dato’ Shazryl Eskay bin Abdullah [2015] 5 MLJ 619 where the question before the Federal Court was, ‘Whether an agreement to provide services to influence the decision of a public decision maker to award a contract is a contract opposed to public policy as defined under s. 24 of the Contracts Act 1950 (‘the Act’) and is therefore void?’. The Plaintiff’s counsel submitted that the Federal Court’s case of Merong Mahawangsa (supra) decided unanimously in the affirmative and based on Merong Mahawangsa case (supra) which is similar to the facts of the current case, where the procurement of the bridge project was based on respondent’s close relationship with Government of Malaysia and one Dato’ Seri Megat Junid, the alleged undertaking or promise in the current case would be contrary to public policy and should be null and void. [8] The Plaintiff’s counsel also relied on the Court of Appeal case of China Road & Bridge Corp v DCX Technologies Sdn Bhd [2014] 5 MLJ 1 in relation to section 24 of Contracts Act 1950, that it would be for the Court to consider whether the consideration or object of an agreement is void on the grounds of public policy irrespective of whether parties have pleaded it or not or the issue was taken at the trial court. [9] The counsel for the Plaintiff asserted that the project awarded to the Plaintiff was through a proper tender process based on the letter from Easter Pacific Properties Sdn Bhd dated 27.12.2012 (pages 79 – 82 of Appeal Record). It was submitted that the Defendant has not proven that such award was obtained through his assistance and submitted that if there was any truth, the Defendant had failed to perform his part of the promise and is therefore not entitled to claim the alleged promises amount of RM2,600,000.00 (paragraph 4 of Plaintiff’s Affidavit In Support, page 55 of Appeal Record). The Plaintiff’s counsel submitted that the Defendant’s claim is scandalous, frivolous or vexatious and/or it may prejudice, embarrass or delay the fair trial of the action and/or is an abuse of Court’s process and that the application under Order 18 rule 19 ROC 2012 be allowed. Defendant’s Submission [10] Briefly, the learned counsel for the Defendant advanced several grounds and the main argument that the Plaintiff’s application should be dismissed is that the Plaintiff had failed to prove that Defendant’s Counterclaim falls under any of the four limbs of Order 18 rule 19 ROC 2012 and that the issue raised could be decided at a full trial. [11] The Defendant’s counsel averred relying on the case of Utusan Melayu (Malaysia) Berhad v Dato’s Sri Diraja Haji Adnan bin Haji Yaakob [2016] MLJU 302, submitted that the burden to prove under Order 18 rule 19 ROC 2012 application rests on the Plaintiff. It was submitted that the Plaintiff failed to argue at all material times to support its striking out application. It was also asserted that based on the case of Harapan Permai Sdn Bhd v Sabah Forest Industries Sdn Bhd [2011] 1 CLJ 285, the Defendant’s Counterclaim is not an abuse of the process of the Court and that the Defendant has a reasonable cause of action against the Plaintiff. THE SESSIONS COURT’S DECISION [12] The Sessions Court dismissed the Plaintiff’s application under Order 18 rule 19 ROC 2012 with cost and the decision is partly reproduced for ease of reference: “6. Plaintif telah memfailkan permohonan bagi Penghakiman Terus namun Mahkamah telah menolak permohonan tersebut kerana Mahkamah berpendapat isu-isu yang dibangkitkan tidak sesuai untuk diputuskan secara perbicaraan melalui affidavit. Mahkamah berpendapat saksi-saksi perlu dipanggil untuk menentukan isu yang dibangkitkan. Alasan Penghakiman juga telah pun disediakan dan dikutip oleh peguam. Mahkamah mendapati Tuntutan Balas ini merupakan kesinambungan daripada tuntutan plaintif terhadap defendan. Mahkamah mendapati terdapat merit dalam isu yang ditimbulkan dalam pembelaan dan tuntutan balas defendan tersebut. Isu yang perlu diputuskan oleh Mahkamah ialah isu “perjanjian” yang dimasuki oleh plaintif dan defendan (samada lisan/formal) hendaklah dibuktikan. 7. Mahkamah juga perlu meneliti samada perjanjian tersebut merupakan perjanjian yang telah dicapai secara bersama dan suka rela (tiada unsur paksaan) kerana defendan menafikan alegasi plaintif. Defendan sebaliknya menyatakan ianya dicapai secara perbincangan dan persetujuan bersama. Pada peringkat ini, Mahkamah tidak dapat menentukan kewujudan unsur paksaan/rasuah yang didakwa itu hanya melalui pengataan-pengataan dalam affidavit. Isu samada perjanjian itu sah/bertentangan dari segi undang-undang juga akan hanya dapat dinilai melaui perbicaraan penuh. Segala bukti dokumentari dan saksi-saksi yang dirujuk dalam pliding masing-masing hendaklah dipanggil. Mahkamah pada peringkat ini tidak dapat memastikan apakah yang sebenarnya yang telah dicapai dan dipersetujui oleh pihak-pihak semasa perbincangan tersebut. Namun jika terdapatnya unsur-unsur menyalahi mana-mana peruntukan undang-undang janayah, maka plaintif hendaklah membuat laporan polis dan melakukan tindakan sewajarnya. Mahkamah ini bukanlah forum yang sesuai untuk menentukan perkara tersebut. 8. Berdasarkan fakta plaintif, Mahkamah mendapati sememangnya wujud transaksi-transaksi seperti jual beli tanah, perjanjian formal (walaupun tidak ditandatangani oleh defendan), Surat Kuasa Wakil, serta persetujuan-persetujuan seperti pembahagian hasil jualan hartanah. Persoalannya, apakah hubungan plaintif dengan defendan dan mengapakah terdapat transaksi-transaksi sebegini? Mengapakah plaintif bersetuju membayar wang pendahuluan dengan jumlah sebegitu besar sedangkan tanah itu didaftar atas nama defendan? Mengapakah hasil jualan dibahagikan juga kepada defendan? Apakah peranan defendan dalam transaksi tersebut. Fakta itu sedikit sebanyak menunjukkan seperti terdapat persetujuan bersama dan suka rela dalam perkara-perkara yang tertentu. 9. Fakta-fakta yang dibangkitkan dalam Penyata Tuntutan plaintif ini menjurus kepada sesuatu perjanjian yang telah dicapai di antara mereka. Defendan pula dalam Penyata Pembelaan menyatakan bahawa plaintif telah berhutang sejumlah wang bagi usaha/bantuan defendan untuk pemerolehan beberapa projek seperti mana yang dijanjikan. Oleh itu, Mahkamah perlu meneliti dan mempertimbangkan apakah kandungan Perjanjian Formal yang dinyatakan dalam pliding plaintif tersebut. Oleh kerana tuntutan plaintif dan tuntutan balas defendan saling berkaitan, maka Mahkamah berpendapat ianya hendaklah dibicarakan bersekali atas merit tuntutan masing-masing. Bagi tuntutan balas defendan, maka defendan hendaklah membuktikan isu yang dibangkitkan itu samada bermerit atau pun sebaliknya. ………. Di atas alasan-alasan ini, Mahkamah menolak permohonan plaintif di bawah A 18 K 19(1)(b), (c) dan (d) dengan kos RM3000-00.” THE COURT’S FINDING [13] The burden to prove that the case is obviously unsustainable based on any of the four limbs stipulated under parts (a) or (b) or (c) or (d) of Order 18 rule 19 ROC 2012 rests with the applicant. There is an abundant of authorities on this where the decision of the Federal Court in the case of Bandar Builder Sdn Bhd & Ors v United Malayan Banking Corporation Bhd [1993] 3 MLJ 3 as referred by the Defendant’s counsel in a recent Court of Appeal case of Utusan Melayu (Malaysia) Berhad v Dato’ Sri Diraja Haji Adnan bin Haji Yaakob [2016] MLJU 302 (Tab B of Respondent’s Bundle of Authorities), and a High Court decision of Direct Express (M) Sdn Bhd v Affin Bank Berhad [2016] MLJU 69, that such application under Order 18 rule 19 ROC 2012 should only be allowed in plain and obvious cases: “This summary procedure can only be adopted when it can be clearly seen that a claim or answer is on the face of it obviously unsustainable.” [14] The burden to prove lies with the applicant was also endorsed in a recent case by the Court of Appeal in the case of Tan Boon Huat v Tan Boon Lee Civil Appeal No.: A-02(IM)(NCVC)-644-04/2016. Therefore, the Defendant’s Counterclaim to which this Court had treated it as a separate action from Plaintiff’s application for summary judgment, would now be for the Plaintiff to prove that the Defendant’s Counterclaim is unsustainable. To decide whether the counterclaim is ‘obviously unsustainable’ must be scrutinised not on the word ‘unsustainable’ but rather the word ‘obviously’ which denotes that on the face of it, the claim must be plainly or evidently unsustainable in law: Pet Far Eastern (M) Sdn Bhd v Tay Young Huat [1999] 5 MLJ 558. [15] Moving on to Order 18 rule 19(1) of the ROC 2012 on striking out pleadings and endorsements, it provides that, “19(1) The Court may at any stage of the proceedings order to be struck out or amended any pleading or the endorsement, of any writ in the action, or anything in any pleading or in the endorsement, on the ground that – (a) It discloses no reasonable cause of action or defence, as the case may be; (b) It is scandalous, frivolous or vexatious; (c) It may prejudice, embarrass or delay the fair trial of the action; or (d) It is an otherwise an abuse of the process of the Court, And may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be. (2) No evidence shall be admissible on an application under subparagraph(1)(a). (3) This rule shall, as far as applicable, apply to an originating summons as if it were a pleading.” [16] This Court holds the view that the heart of the matter is the alleged promise or undertaking and that it was connected to the Plaintiff’s application for summary judgement which was allowed by this Court. Reason being, this Court viewed that the main issue pertaining to both appeals, the summary judgment and striking out applications by the Plaintiff, is the issue of the conduct in paying money whether as an advancement or commission. Therefore whether such promise or undertaking to pay had been breached could not be regarded as no reasonable cause of action or defence, nor could it be scandalous, frivolous or vexatious. In addition, whether such undertaking is legal or otherwise must be decided in trial and cannot be determined by this Court simply by looking at the affidavit evidence. [17] There are a number of authorities to support this view. As correctly referred by the Defendant’s counsel in Harapan Permai Sdn Bhd v Sabah Forest Industries Sdn Bhd [2011] 1 CLJ 285, the Court of Appeal decided that it would be unsafe to conclude that the Plaintiff’s claim to strike out Defendant’s Counterclaim as an abuse of process of court as the issues raised would involve the evidence to be adduced through the process of examination-in-chief, cross-examination and re-examination. [18] Nor can a trial be used as a fishing expedition to elicit evidence but for a claim, in this case counterclaim, to be obviously unsustainable, it cannot be exercised by a minute examination of the documents and facts of the case: Cepatwawasan Group Bhd v Tengku Dato’ Kamal Ibni Sultan Sir Abu Bakar [2008] 2 MLJ 915. Therefore, on the issue raised that such promise of undertaking is unlawful or illegal under section 24 and section 25 of the Contracts Act 1950 where the issue of credibility is involved, as the Defendant averred in its affidavit that Plaintiff alleged such undertaking as unlawful is defamatory to the Defendant (paragraph 9.1, Defendant’s Affidavit In Reply, page 59 of Appeal Record), this matter could be dealt with at discovery or by cross-examination. [19] This Court viewed that the Defendant’s Counterclaim should be sit down for argument notwithstanding that the chances of success are minimal. Furthermore, issues as to whether there was a promise to pay as commission should be dealt in a trial as was dealt with in Merong Mahawangsa (supra). The Court of Appeal’s case of China Road & Bridge Corp (supra) as referred by the Plaintiff’s counsel had lay down the principle that it would be for this Court to consider whether the consideration or object of a promise is void on the grounds of public policy irrespective of whether parties have pleaded it or not, is an issue to be taken at the trial court. [20] I too stand to be guided by the Supreme Court’s case of Bandar Builder (supra) which decided that where the claim did raise some question fit to be decided by a Judge, the mere fact the case may be weak or not likely to succeed at the trial is no ground for the pleadings to be struck out. In light of the above reasons, I dismiss the Plaintiff’s appeal. Dated: 24 October 2017 (ZALITA BINTI DATO’ ZAIDAN) Judicial Commissioner Shah Alam High Court SOLICITORS FOR THE APPELLANT: P.Y. CHONG LEE MAN HENG Tetuan H.M. Lee P-O3-01, Impian Meridian Commerze Jalan Subang 1, USJ 1 47600 Subang Jaya Selangor Darul Ehsan [Rujukan: 1948/JM/16/L] Tel: 03-5891 6810 Fax: 03-5891 6820 SOLICITORS FOR THE RESPONDENT: ASHMADI BIN OTHMAN Tetuan Zulpadli & Edham No. 24, Jalan Perumahan Gurney 54000 Kuala Lumpur [Rujukan: ZE(E)/L/1704/16] Tel: 03-2694 6979/ 03-2694 6997 Fax: 03-2691 1107 1

Tika 2.6.0

BA-12ANCC-31-10/2016

PERAYU TAN KIAN SOON RESPONDEN MD ZUKRI BIN SALLLEH (NO.K/P: 581211-03-5499)

24/10/2017

YA DATIN ZALITA BINTI DATO' HJ. ZAIDAN (PK)

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=f5d1eb32-76be-4f04-8150-801b0783850e&Inline=true

DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN, MALAYSIA RAYUAN NO.: BA-12ANCC-31-10/2016 ANTARA TAN KIAN SOON … PERAYU DAN MD ZUKRI BIN SALLLEH … RESPONDEN (NO.K/P: 581211-03-5499) (DALAM PERKARA MAHKAMAH SESYEN DI SHAH ALAM GUAMAN NO: BA-B52NCC-49-05/2016) ANTARA TAN KIAN SOON … PLAINTIF DAN MD ZUKRI BIN SALLEH … DEFENDAN) (NO.K/P: 581211-03-5499) GROUND OF JUDGMENT Introduction [1] This is an appeal by the Appellant who is the Plaintiff, against the Sessions Court’s decision in dismissing the Appellant’s Notice of Application to strike out the Respondent’s (the Defendant), Counterclaim under Order 18 rule 19 ROC 2012 on 25.11.2016. [2] The Respondent filed a counterclaim against the Appellant a sum of RM2,600,000.00 for the alleged undertaking by the Appellant for successfully obtaining the listed projects and honorary on Defendant’s assistance. [3] This appeal is heard together with another appeal, case number BA-12ANCC-25-10/2016 between the same parties, where the Appellant is appealing against the Sessions Court’s decision which dismissed the Appellant’s Notice of Application for summary judgment for the sum of RM518,203.00. [4] For ease of reference, in this judgment, the parties will be referred to as they were in the Sessions Court. Facts [5] The relevant factual background giving rise to this appeal based on the written submissions and pleadings may be briefly stated as follows: (a) Based on the appeal case number BA-12ANCC-25-10/2016, the Plaintiff filed a claim against the Defendant for a summary judgment for the sum of RM518,203.00 for the alleged premium payment for a piece of land for the Defendant. This is as narrated where Plaintiff claimed that by a letter of 9.4.2012 from the Pejabat Pengarah Tanah dan Galian, Wilayah Persekutuan (the “Local Authority”) to the Defendant, the Local Authority had agreed to grant a title of a piece of land, Lot 165, Jalan Jelatek, Seksyen 88, Bandar Kuala Lumpur (the said Land) to the Defendant. According to the Plaintiff, in accordance with Form 5A, the Plaintiff advanced the sum RM518,203.00 on Defendant’s request, on or around 8.10.2012 and the Form dated 9.4.2012 was issued to the Defendant. (b) The Plaintiff claimed that as the arrangement for the monetary advancement failed, the Plaintiff claimed for the return of his monetary advancement of RM518, 203.00. (c) The Defendant on the other hand, denied that the Defendant had agreed to any monetary advancement and never agreed to sign any formal agreement nor directed the Plaintiff to advance the amount of RM518,203.00 for the said Land. The Defendant claimed that, in the alternative, the Plaintiff may on its own personal capacity or willingness advanced the RM518,203.00 to the Defendant without the Defendant’s knowledge in order to get Defendant’s assistance for other projects or the Plaintiff felt obliged to repay for Defendant’s assistance in getting the projects to which the Defendant counterclaimed for RM2,600,000.00 the alleged undertaking made by the Plaintiff. (d) The Defendant claimed that the Plaintiff had agreed during one negotiation between the Plaintiff and the Defendant in the presence of one Tengku Ibrahim that the Plaintiff will pay the Defendant RM1,000,000.00 as full settlement but the Plaintiff had failed to pay and Defendant is claiming for the RM260,000.00. (e) The Defendant claimed that the Plaintiff had received Defendant’s assistance in getting the project for the construction of six oil tanks through the good relationship between the Defendant and the Chief Executive Officer’s Company, Eastern Pacific Industrial Corporation Berhad (EPIC) that was introduced to the Plaintiff. (f) The Defendant had filed an originating summons to transfer the Defendant’s Counterclaim on 10.2.2017, to the Shah Alam High Court. (g) The Plaintiff on the other hand claimed that out of the projects listed in Defendant’s Defence and Counterclaim, only one project for the construction of six oil tanks was successfully obtained by way of tender process, awarded by EPIC to the Plaintiff. The Plaintiff also claimed that if there is any truth about the alleged undertaking, the Plaintiff’s application for striking out under Order 18 rule 19 of ROC 2012 should be allowed as the alleged undertaking cannot be enforced. Plaintiff’s Submission [6] The learned counsel for the Plaintiff submitted that only one project for the construction of six oil tanks was successfully obtained by way of tender process where the Plaintiff was awarded by Eastern Pacific Properties Sdn Bhd, a wholly owned subsidiary of EPIC, a Terengganu State Government Linked Company (paragraph 4 Plaintiff’s Affidavit In Support, page 55 of Appeal Record) and that the Defendant did not dispute that the Plaintiff only obtained one project out of the list of projects. [7] The Plaintiff’s counsel averred that the alleged undertaking by the Defendant will be invalid under section 24 and section 25 of Contracts Act 1950 as such undertaking is an illegal consideration and would be against public policy as it would amount to manipulation of tender process. In relation to this, the Plaintiff’s counsel relied on the Federal Court case of Merong Mahawangsa Sdn Bhd v Dato’ Shazryl Eskay bin Abdullah [2015] 5 MLJ 619 where the question before the Federal Court was, ‘Whether an agreement to provide services to influence the decision of a public decision maker to award a contract is a contract opposed to public policy as defined under s. 24 of the Contracts Act 1950 (‘the Act’) and is therefore void?’. The Plaintiff’s counsel submitted that the Federal Court’s case of Merong Mahawangsa (supra) decided unanimously in the affirmative and based on Merong Mahawangsa case (supra) which is similar to the facts of the current case, where the procurement of the bridge project was based on respondent’s close relationship with Government of Malaysia and one Dato’ Seri Megat Junid, the alleged undertaking or promise in the current case would be contrary to public policy and should be null and void. [8] The Plaintiff’s counsel also relied on the Court of Appeal case of China Road & Bridge Corp v DCX Technologies Sdn Bhd [2014] 5 MLJ 1 in relation to section 24 of Contracts Act 1950, that it would be for the Court to consider whether the consideration or object of an agreement is void on the grounds of public policy irrespective of whether parties have pleaded it or not or the issue was taken at the trial court. [9] The counsel for the Plaintiff asserted that the project awarded to the Plaintiff was through a proper tender process based on the letter from Easter Pacific Properties Sdn Bhd dated 27.12.2012 (pages 79 – 82 of Appeal Record). It was submitted that the Defendant has not proven that such award was obtained through his assistance and submitted that if there was any truth, the Defendant had failed to perform his part of the promise and is therefore not entitled to claim the alleged promises amount of RM2,600,000.00 (paragraph 4 of Plaintiff’s Affidavit In Support, page 55 of Appeal Record). The Plaintiff’s counsel submitted that the Defendant’s claim is scandalous, frivolous or vexatious and/or it may prejudice, embarrass or delay the fair trial of the action and/or is an abuse of Court’s process and that the application under Order 18 rule 19 ROC 2012 be allowed. Defendant’s Submission [10] Briefly, the learned counsel for the Defendant advanced several grounds and the main argument that the Plaintiff’s application should be dismissed is that the Plaintiff had failed to prove that Defendant’s Counterclaim falls under any of the four limbs of Order 18 rule 19 ROC 2012 and that the issue raised could be decided at a full trial. [11] The Defendant’s counsel averred relying on the case of Utusan Melayu (Malaysia) Berhad v Dato’s Sri Diraja Haji Adnan bin Haji Yaakob [2016] MLJU 302, submitted that the burden to prove under Order 18 rule 19 ROC 2012 application rests on the Plaintiff. It was submitted that the Plaintiff failed to argue at all material times to support its striking out application. It was also asserted that based on the case of Harapan Permai Sdn Bhd v Sabah Forest Industries Sdn Bhd [2011] 1 CLJ 285, the Defendant’s Counterclaim is not an abuse of the process of the Court and that the Defendant has a reasonable cause of action against the Plaintiff. THE SESSIONS COURT’S DECISION [12] The Sessions Court dismissed the Plaintiff’s application under Order 18 rule 19 ROC 2012 with cost and the decision is partly reproduced for ease of reference: “6. Plaintif telah memfailkan permohonan bagi Penghakiman Terus namun Mahkamah telah menolak permohonan tersebut kerana Mahkamah berpendapat isu-isu yang dibangkitkan tidak sesuai untuk diputuskan secara perbicaraan melalui affidavit. Mahkamah berpendapat saksi-saksi perlu dipanggil untuk menentukan isu yang dibangkitkan. Alasan Penghakiman juga telah pun disediakan dan dikutip oleh peguam. Mahkamah mendapati Tuntutan Balas ini merupakan kesinambungan daripada tuntutan plaintif terhadap defendan. Mahkamah mendapati terdapat merit dalam isu yang ditimbulkan dalam pembelaan dan tuntutan balas defendan tersebut. Isu yang perlu diputuskan oleh Mahkamah ialah isu “perjanjian” yang dimasuki oleh plaintif dan defendan (samada lisan/formal) hendaklah dibuktikan. 7. Mahkamah juga perlu meneliti samada perjanjian tersebut merupakan perjanjian yang telah dicapai secara bersama dan suka rela (tiada unsur paksaan) kerana defendan menafikan alegasi plaintif. Defendan sebaliknya menyatakan ianya dicapai secara perbincangan dan persetujuan bersama. Pada peringkat ini, Mahkamah tidak dapat menentukan kewujudan unsur paksaan/rasuah yang didakwa itu hanya melalui pengataan-pengataan dalam affidavit. Isu samada perjanjian itu sah/bertentangan dari segi undang-undang juga akan hanya dapat dinilai melaui perbicaraan penuh. Segala bukti dokumentari dan saksi-saksi yang dirujuk dalam pliding masing-masing hendaklah dipanggil. Mahkamah pada peringkat ini tidak dapat memastikan apakah yang sebenarnya yang telah dicapai dan dipersetujui oleh pihak-pihak semasa perbincangan tersebut. Namun jika terdapatnya unsur-unsur menyalahi mana-mana peruntukan undang-undang janayah, maka plaintif hendaklah membuat laporan polis dan melakukan tindakan sewajarnya. Mahkamah ini bukanlah forum yang sesuai untuk menentukan perkara tersebut. 8. Berdasarkan fakta plaintif, Mahkamah mendapati sememangnya wujud transaksi-transaksi seperti jual beli tanah, perjanjian formal (walaupun tidak ditandatangani oleh defendan), Surat Kuasa Wakil, serta persetujuan-persetujuan seperti pembahagian hasil jualan hartanah. Persoalannya, apakah hubungan plaintif dengan defendan dan mengapakah terdapat transaksi-transaksi sebegini? Mengapakah plaintif bersetuju membayar wang pendahuluan dengan jumlah sebegitu besar sedangkan tanah itu didaftar atas nama defendan? Mengapakah hasil jualan dibahagikan juga kepada defendan? Apakah peranan defendan dalam transaksi tersebut. Fakta itu sedikit sebanyak menunjukkan seperti terdapat persetujuan bersama dan suka rela dalam perkara-perkara yang tertentu. 9. Fakta-fakta yang dibangkitkan dalam Penyata Tuntutan plaintif ini menjurus kepada sesuatu perjanjian yang telah dicapai di antara mereka. Defendan pula dalam Penyata Pembelaan menyatakan bahawa plaintif telah berhutang sejumlah wang bagi usaha/bantuan defendan untuk pemerolehan beberapa projek seperti mana yang dijanjikan. Oleh itu, Mahkamah perlu meneliti dan mempertimbangkan apakah kandungan Perjanjian Formal yang dinyatakan dalam pliding plaintif tersebut. Oleh kerana tuntutan plaintif dan tuntutan balas defendan saling berkaitan, maka Mahkamah berpendapat ianya hendaklah dibicarakan bersekali atas merit tuntutan masing-masing. Bagi tuntutan balas defendan, maka defendan hendaklah membuktikan isu yang dibangkitkan itu samada bermerit atau pun sebaliknya. ………. Di atas alasan-alasan ini, Mahkamah menolak permohonan plaintif di bawah A 18 K 19(1)(b), (c) dan (d) dengan kos RM3000-00.” THE COURT’S FINDING [13] The burden to prove that the case is obviously unsustainable based on any of the four limbs stipulated under parts (a) or (b) or (c) or (d) of Order 18 rule 19 ROC 2012 rests with the applicant. There is an abundant of authorities on this where the decision of the Federal Court in the case of Bandar Builder Sdn Bhd & Ors v United Malayan Banking Corporation Bhd [1993] 3 MLJ 3 as referred by the Defendant’s counsel in a recent Court of Appeal case of Utusan Melayu (Malaysia) Berhad v Dato’ Sri Diraja Haji Adnan bin Haji Yaakob [2016] MLJU 302 (Tab B of Respondent’s Bundle of Authorities), and a High Court decision of Direct Express (M) Sdn Bhd v Affin Bank Berhad [2016] MLJU 69, that such application under Order 18 rule 19 ROC 2012 should only be allowed in plain and obvious cases: “This summary procedure can only be adopted when it can be clearly seen that a claim or answer is on the face of it obviously unsustainable.” [14] The burden to prove lies with the applicant was also endorsed in a recent case by the Court of Appeal in the case of Tan Boon Huat v Tan Boon Lee Civil Appeal No.: A-02(IM)(NCVC)-644-04/2016. Therefore, the Defendant’s Counterclaim to which this Court had treated it as a separate action from Plaintiff’s application for summary judgment, would now be for the Plaintiff to prove that the Defendant’s Counterclaim is unsustainable. To decide whether the counterclaim is ‘obviously unsustainable’ must be scrutinised not on the word ‘unsustainable’ but rather the word ‘obviously’ which denotes that on the face of it, the claim must be plainly or evidently unsustainable in law: Pet Far Eastern (M) Sdn Bhd v Tay Young Huat [1999] 5 MLJ 558. [15] Moving on to Order 18 rule 19(1) of the ROC 2012 on striking out pleadings and endorsements, it provides that, “19(1) The Court may at any stage of the proceedings order to be struck out or amended any pleading or the endorsement, of any writ in the action, or anything in any pleading or in the endorsement, on the ground that – (a) It discloses no reasonable cause of action or defence, as the case may be; (b) It is scandalous, frivolous or vexatious; (c) It may prejudice, embarrass or delay the fair trial of the action; or (d) It is an otherwise an abuse of the process of the Court, And may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be. (2) No evidence shall be admissible on an application under subparagraph(1)(a). (3) This rule shall, as far as applicable, apply to an originating summons as if it were a pleading.” [16] This Court holds the view that the heart of the matter is the alleged promise or undertaking and that it was connected to the Plaintiff’s application for summary judgement which was allowed by this Court. Reason being, this Court viewed that the main issue pertaining to both appeals, the summary judgment and striking out applications by the Plaintiff, is the issue of the conduct in paying money whether as an advancement or commission. Therefore whether such promise or undertaking to pay had been breached could not be regarded as no reasonable cause of action or defence, nor could it be scandalous, frivolous or vexatious. In addition, whether such undertaking is legal or otherwise must be decided in trial and cannot be determined by this Court simply by looking at the affidavit evidence. [17] There are a number of authorities to support this view. As correctly referred by the Defendant’s counsel in Harapan Permai Sdn Bhd v Sabah Forest Industries Sdn Bhd [2011] 1 CLJ 285, the Court of Appeal decided that it would be unsafe to conclude that the Plaintiff’s claim to strike out Defendant’s Counterclaim as an abuse of process of court as the issues raised would involve the evidence to be adduced through the process of examination-in-chief, cross-examination and re-examination. [18] Nor can a trial be used as a fishing expedition to elicit evidence but for a claim, in this case counterclaim, to be obviously unsustainable, it cannot be exercised by a minute examination of the documents and facts of the case: Cepatwawasan Group Bhd v Tengku Dato’ Kamal Ibni Sultan Sir Abu Bakar [2008] 2 MLJ 915. Therefore, on the issue raised that such promise of undertaking is unlawful or illegal under section 24 and section 25 of the Contracts Act 1950 where the issue of credibility is involved, as the Defendant averred in its affidavit that Plaintiff alleged such undertaking as unlawful is defamatory to the Defendant (paragraph 9.1, Defendant’s Affidavit In Reply, page 59 of Appeal Record), this matter could be dealt with at discovery or by cross-examination. [19] This Court viewed that the Defendant’s Counterclaim should be sit down for argument notwithstanding that the chances of success are minimal. Furthermore, issues as to whether there was a promise to pay as commission should be dealt in a trial as was dealt with in Merong Mahawangsa (supra). The Court of Appeal’s case of China Road & Bridge Corp (supra) as referred by the Plaintiff’s counsel had lay down the principle that it would be for this Court to consider whether the consideration or object of a promise is void on the grounds of public policy irrespective of whether parties have pleaded it or not, is an issue to be taken at the trial court. [20] I too stand to be guided by the Supreme Court’s case of Bandar Builder (supra) which decided that where the claim did raise some question fit to be decided by a Judge, the mere fact the case may be weak or not likely to succeed at the trial is no ground for the pleadings to be struck out. In light of the above reasons, I dismiss the Plaintiff’s appeal. Dated: 24 October 2017 (ZALITA BINTI DATO’ ZAIDAN) Judicial Commissioner Shah Alam High Court SOLICITORS FOR THE APPELLANT: P.Y. CHONG LEE MAN HENG Tetuan H.M. Lee P-O3-01, Impian Meridian Commerze Jalan Subang 1, USJ 1 47600 Subang Jaya Selangor Darul Ehsan [Rujukan: 1948/JM/16/L] Tel: 03-5891 6810 Fax: 03-5891 6820 SOLICITORS FOR THE RESPONDENT: ASHMADI BIN OTHMAN Tetuan Zulpadli & Edham No. 24, Jalan Perumahan Gurney 54000 Kuala Lumpur [Rujukan: ZE(E)/L/1704/16] Tel: 03-2694 6979/ 03-2694 6997 Fax: 03-2691 1107 1

Tika 2.6.0

22NCC-169-05/2017

PLAINTIF AMBANK (M) BERHAD DEFENDAN 1. AHMAD TAJUDDIN SHAH HOLDINGS SDN BHD 2. AHMAD TAJUDDIN BIN SHAHABUDIN 3. FAUZIAH BT SAMION 4. MOHAMMAD TAJUL AZMAN BIN AHMAD TAJUDDIN

24/10/2017

YA TUAN MOHAMED ZAINI BIN MAZLAN

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=73054929-bab3-4844-aead-420060f66c26&Inline=true

1 IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR (COMMERCIAL DIVISION) SUIT NO. 22NCC-169-05/2017 BETWEEN AMBANK (M) BERHAD PLAINTIFF AND 1. AHMAD TAJUDDIN SHAH HOLDINGS SDN BHD 2. AHMAD TAJUDDIN BIN SHAHABUDIN 3. FAUZIAH BT SAMION 4. MOHAMMAD TAJUL AZMAN BIN AHMAD TAJUDDIN DEFENDANTS JUDGMENT Introduction [1] The plaintiff applied to enter judgment summarily against the defendants pursuant to the provisions of O.14 Rules of Court 2012 (‘RC 2012’). There were only three affidavits filed, with two of them being the plaintiff’s. [2] I had after considering the issues and the submissions, allowed the plaintiff’s application. This judgment encapsulates the reasons for the decision. 2 The plaintiff’s case [3] The plaintiff’s claim is premised on the banking facilities granted to the first defendant, namely two mortgage loans. MBF Finance Berhad (‘MBF’) had initially granted these two facilities back in 1997 and 2000 respectively. MBF has since then been renamed as the plaintiff. [4] Pursuant to a loan agreement dated 30 April 1997, the plaintiff granted the first mortgage loan for RM2,700,000.00 to the first defendant. The second, third and fourth defendants were guarantors to the first facility through a ‘Letter of Guarantee’ dated 30 April 1997. [5] The second mortgage loan was for RM650,000.00, where the plaintiff and the first defendant had also executed a loan agreement dated 11 September 2000. Only the second and third defendants were guarantors for this facility through a ‘Letter of Guarantee’ dated 11 September 2000. [6] The plaintiff had through its letters to the first defendant dated 29 November 2016 and 14 February 2017, highlighted the outstanding amount for both facilities, and requested for the first defendant’s proposal for settlement. The first defendant through its letter dated 6 March 2017, informed the plaintiff of the difficulties that it was facing, and requested that they be given time. The plaintiff was unimpressed with the fact that the first defendant had not submitted any proposal to settle the amount owing, and made this known in 3 its letter to the first defendant dated 14 March 2017. The plaintiff had in the same letter reiterated that it would take further steps if the first defendant did not submit any concrete proposal. The letter did not seem to elicit any positive response from the first defendant. This led the plaintiff to terminate the facilities, and to demand the amount outstanding from the first defendant. This was done through the plaintiff’s solicitors’ letter to the first defendant dated 21 April 2017. At that point in time, the amount owing was RM7,445,271.60 under the first facility, and RM1,366,656.70, under the second facility, with interests. The plaintiff’s solicitors had also issued letters of demand dated 21 April 2017 to the guarantors, namely the second, third and fourth defendants. [7] The plaintiff had also tendered its ‘Certificate of Indebtedness’ dated 31 May 2017 in support of its application for summary judgment. The law on summary judgment [8] The following requirements have been fulfilled:- (a) The defendants have entered an appearance, (b) The statement of claim has been served on the defendants, 4 (c) The plaintiff’s affidavit in support of its summary judgment application has complied with the requirements of O. 14 r. 2 RC 2012. As these requirements have been fulfilled, the burden now shifts on the defendants to convince this court, that judgment should not be granted to the plaintiff summarily; National Company For Foreign Trade v Kayu Raya Sdn Bhd [1984] 2 MLJ 300 (SC). [9] For the defendants to succeed, they must be able to demonstrate that there are arguable issues that could only be determined in a trial; Voo Min En v Leong Chung Fatt [1982] 2 MLJ 241 (FC). [10] For the court addressing a summary judgment application, the test is simply this: Would the court be able to decide on the issues raised by merely relying on the affidavits and the exhibits? If the issues put forward can only be satisfactorily or fairly decided at a full trial with the advantage of having witnesses testifying, then the application for summary judgment must be dismissed, and the suit set down for trial. The issues [11] That the first defendant had taken and utilised the two banking facilities was not disputed. It was also not disputed that the second, third and fourth defendants are guarantors to these facilities. 5 [12] In gist, the issues raised by the defendants are as follows: (a) That the first defendant had reneged on its promise to provide end-financing facilities to the first defendant, and that the first defendant had only agreed to take up the plaintiff’s offer for the banking facilities based on the plaintiff’s representation; (b) The plaintiff had failed to fully realise the securities held under the banking facilities before commencing this suit; and (c) The plaintiff had failed to particularise the amount claimed. I shall address each issue in turn. The end-financing [13] The first defendant contended that there were oral representations made by the plaintiff prior to them taking up the banking facilities. The first defendant claimed that the plaintiff had offered to finance its housing project in Langkawi in 1997, and gave the first defendant an assurance, that it will provide end-financing as a package. It was also claimed that the plaintiff would ensure that the redemption statements would be issued to the house buyers expeditiously. It was these representations that convinced the first defendant to take up the plaintiff’s offer for the banking facilities. 6 [14] The first defendant contended that the plaintiff had failed to provide the end-financing as promised, and that it faced difficulty to obtain any end-financing facilities for the potential house buyers. The first defendant also claimed that the plaintiff had failed to provide the redemption statements to the house buyers expeditiously. [15] The first defendant had taken up its grievances with Bank Negara by writing a letter of complaint dated 25 March 1999. A meeting was subsequently held on the 21 May 1999, where the representatives of the plaintiff, the first defendant and Bank Negara were present. Pursuant to the meeting, the first defendant claimed that the plaintiff had on the 28 May 1999 sent its representatives to inspect the progress of the housing project, and that the representatives had given the plaintiff’s commitment to provide end-financing. [16] The plaintiff subsequently rescheduled the principal repayment dates, waived overdue interests for a certain period, and agreed to provide end-financing facilities to some house buyers through its letter to the first defendant dated 16 July 1999. It was submitted that this supports the first defendant’s contention that there was a collateral contract, which existed with the loan agreements for the banking facilities, and that this is a triable issue. [17] Financial institutions are in the business of providing banking facilities, and would endeavour to get companies to use them 7 for financing. I do not find it improbable that the first defendant’s representatives could have at the material time, stated that they would be willing to provide end-financing. After all, it would be beneficial for the first defendant if the house buyers were to use their services. [18] Nevertheless, I find no merits in the first defendant’s contention that they had only taken up the banking facilities offered by the first defendant based on this promise. There is no evidence to support this. There are no terms or conditions in the loan agreements that support the first defendant’s allegation. If the granting of end-financing was indeed crucial for the first defendant, it should have insisted for the representation to be reflected in the loan agreements. [19] It is highly improbable for any financial institutions to guarantee that it would grant end-financing to any house buyers. Any financial institution would want to ensure that the applicant would have been able to fulfil its criteria before granting end-financing. This fact is evident from the plaintiff’s letter to the first defendant dated 16 July 1999, where it stated as follows:- “6. End-financingFacility We wish to inform that we will be providing end-financing to your purchasers who are qualified on case to case basis with the following terms and conditions:- …” 8 [20] It is foolhardy for the first defendant to insinuate that all its house buyers would be given end-financing as of right. The first defendant had in fact considered and even approved some end-financing for some house buyers as can be seen from the correspondences after the meeting with Bank Negara. [21] In any event, this alleged representation by the first defendant to provide end-financing and the letters referred to in its affidavit in reply, were made more than eighteen years ago in 1999. If the first defendant was indeed aggrieved with the plaintiff for reneging on it’s alleged promise, it should have then taken steps to enforce its rights. Since more than eighteen years had passed, the first defendant is deemed to have acquiesced to any alleged wrongs committed by the plaintiff. [22] The House of Lords in Archbold v Scully9 H.L Cases 371 defined acquiescence as follows:- If a party could object, lies by and knowingly permits another to incur an expense in doing an act under the belief that it would not be objected to, and so a kind of permission may be said to be given to another to alter his condition, he may be said to acquiesce. (p 383) [23] I would further add the first defendant’s allegation is doomed for failure due to laches. Many years had passed, and the first defendant had not given any explanation to explain why 9 they have not over these years raised this issue with the plaintiff or take any action. Failure to realise the securities [24] The first defendant had pledged some land in Langkawi as securityfor the banking facilities given by the plaintiff. The first defendant alleged that the plaintiff should have taken steps to realise them first, and that this failure meant that the plaintiff had failed to mitigate its losses. [25] The answer to this lies in clause 11.02 of the loan agreements for both facilities, which states as follows:- “Notwithstanding any provision hereof, it is hereby expressly agreed that upon default or breach by the Borrower of any term, covenant, stipulation and/or undertaking herein provided and on the part of the Borrower to be observed and performed the Lender shall thereafter have the right to exercise all or any of the remedies available whether by this Agreement or by statute or otherwise concurrently, including pursuing all remedies of sale or possession and civil suit to recover all monies due and owing to the Lender”. [26] It has therefore been expressly agreed, that the plaintiff is at liberty to pursue any remedy to recover the amount outstanding, and that it is not compelled to realise the securities first. It is also completely the plaintiff’s prerogative whether to pursue its claim against the defendants or realise 10 the securities first, or do both simultaneously. The Supreme Court in Low Lee Lian v Ban Hin Lee Bank Bhd [1997] 1 MLJ 77 held:- “Now, it is trite that a charge/creditor may pursue any or all remedies to recover monies lent by him. He may enforce his statutory charge against the charger by way of proceedings in rem under s. 256 of the Code. He may sue the principal debtor (who may or may not be the charger) upon the personal covenant contained in any loan agreement that was entered into between the parties. He may proceed against the surety who has guaranteed the loan. And he may pursue all of these courses simultaneously, contemporaneously or successively.” (p 93) Failure to particularise the amount owing [27] The defendants take issue with the amount claimed by the plaintiff, in that it had failed to give particulars as to how the amount was arrived at. The defendants also contend that the plaintiff’s certificate of indebtedness that was exhibited in its affidavit in support is self-serving, as the certificate had merely referred to paragraph 22[a][l] to [lll] and paragraph 23[a][l] to [lll] of the statement of claim without condescending to particulars. [28] It has been held by high authorities, that a certificate of indebtedness is binding and conclusive, unless one can show manifest error on the face of it, or fraud. Raja Azlan 11 Shah CJ (as his Highness then was) in delivering judgment for the Federal Court in Citibank NZ v Ooi Boon Leong [1981] 1 MLJ 282 held:- “We have often said in this Court many a time that where all the issues are clear and the matter of substance can be decided once and for all without going to trial there is no reason why the Assistant Registrar or the judge in chambers, or, for that matter this court, shall not deal with the whole matter under the R.S.C, Order 14 procedure. In the present case the guarantee contains a clause, which enables the bank by producing a certificate of indebtedness by its officer to dispense with legal proof of the actual indebtedness of the respondents….. It means that, for the purpose of fixing liability of the respondents, the company’s indebtedness may be ascertained conclusively by a certificate..” (p 284) [29] In Cempaka Finance Bhd v Ho Lai Ying (trading as KH Trading) [2006] 2 MLJ 685, one of the questions posed to the Federal Court for appeal was this:- “Whether apart from producing a certificate of indebtedness pursuant of the contract which provided that the certificate was final and conclusive of the matters stated therein, the appellant had a further obligation to produce statements of account to prove the debt in an application for summary judgment”. 12 [30] The question posed by the appellant arose from its dissatisfaction with the Court of Appeal’s decision. The Court of Appeal had overruled the High Court’s decision in granting summary judgment against the respondent. In doing so, the appellate court held that the mere production of the certificate of indebtedness is insufficient to show that the appellant had established the debt, and that the absence of documentary evidence such as the monthly statement of accounts, and the amount of interest imposed on the monies released is fatal to the appellant’s case. The Court of Appeal went further by holding that the burden of proof lies on the appellant to satisfy the court of the amount claimed, and that the certificate of indebtedness is only binding on the parties. [31] Steve Shim CJ (Sabah & Sarawak) who delivered judgment for the apex court, reiterated the dictum in Citibank NZ v Ooi Boon Leong (supra) and held:- “A certificate of indebtedness operates in the filed of adjectival law. It excuses the plaintiff from adducing proof of debt. Such a certificate shifts the burden onto the defendant to disprove the claim”. (p 691) [32] It is therefore futile for the defendants to merely complain of the need for particulars. It is for them to disprove the amount, which they have not. 13 Conclusion [33] In any event, the first defendant’s response to the plaintiff’s letter of demand dated 14 February 2017 was telling. The first defendant had in its reply to the plaintiff through a letter dated 6 March 2017, lamented the problems that it was facing, namely the difficulty that the house buyers are facing in getting loans due to the stringent requirements put by financial institutions, and the criminal breach of trust committed by its solicitors on the redemption sum. The first defendant had in the same letter, also pleaded the plaintiff to waive the interests, and sought for more time to settle the amount due. The content of this letter are a clear admission of the debt due, and estops the first defendant from now disputing it. [34] I have not found any triable issues that could credibly questioned the plaintiff’s claim. The plaintiff’s application for summary judgment is therefore allowed with costs of RM5,000.00 subject to allocatur. Dated: 24 October 2017. -sgd- (Mohamed Zaini Mazlan) High Court Judge Kuala Lumpur High Court (Commercial Division) 14 Plaintiff’s counsel Au Seng Heng (Messrs Y. S. Lim & Ng) Defendants’ counsel Abdullah Abbas & Khairil Khalid (Messrs. Abbas Khairil & Partners)

Tika 2.6.0

W-02(C)(A)-1400-08/2016

PERAYU 1. JAN DE NUL (MALAYSIA) SDN BHD ... APPELLANTS (COMPANY NO. 414113-K) 2. JAN DE NUL GROUP (SOFIDRA S.A.) RESPONDEN 1. VINCENT TAN CHEE YIOUN ... RESPONDEN TS 2. CENTRAL MALAYSIAN PROPERTIES SDN BHD (COMPANY NO. 471389-X)

Arbitration — Appeal — Setting aside Award — Arbitral tribunal awarded counterclaim — Whether arbitral tribunal acted beyond jurisdiction and breached rules of natural justice — Whether High Court rightly dismissed JDN's application to set aside Award — Arbitration Act 2005 [Act 646], ss 36,37 and 42

24/10/2017

YA DATUK DR HAJI HAMID SULTAN BIN ABU BACKERKorumYA DATUK DR HAJI HAMID SULTAN BIN ABU BACKERYA DATO' UMI KALTHUM BINTI ABDUL MAJIDYA DATO' SRI HASNAH DATO' MOHAMMED HASHIM

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=05ad8ac4-e51e-459f-90a9-44d170990efe&Inline=true

1 IN THE COURT OF APPEAL OF MALAYSIA (APPELLATE JURISDICTION) CIVIL APPEAL NO. W-02(C)(A)-1400-08/2016 BETWEEN 1. JAN DE NUL (MALAYSIA) SDN BHD ... APPELLANTS (COMPANY NO. 414113-K) 2. JAN DE NUL GROUP (SOFIDRA S.A.) AND 1. VINCENT TAN CHEE YIOUN ... RESPONDENTS 2. CENTRAL MALAYSIAN PROPERTIES SDN BHD (COMPANY NO. 471389-X) [Dalam Perkara Mahkamah Tinggi Malaya di Kuala Lumpur] Dalam Wilayah Persekutuan Kuala Lumpur No. Saman Pemula: 24C(ARB)-45-12/2015 Dalam Perkara Seksyen 20, 37(1)(a)(v), 37(1)(b)(ii), 37(2)(b), 37(3) dan 37(4) Akta Timbangtara 2005 Dan Dalam Perkara Aturan 69 Kaedah-Kaedah Mahkamah 2012 Dan Dalam Perkara Timbangtara Di antara Jan De Nul (Malaysia) Sdn Bhd & Jan De Nul Group (Sofidra S.A.) dan Vincent Tan Chee Yioun & Central Malaysian Properties Sdn Bhd Dan Dalam Perkara Awad Muktamad yang diterbitkan pada 3.9.2015 dan pembetulan 2 kepada Awad Muktamad yang diterbitkan pada 5.10.2015 oleh Penimbangtara- Penimbangtara Professor Lawrence Boo dan Dato’ Abdul Kadir Sulaiman dan Dr. Michael Pryles. ANTARA 1. JAN DE NUL (MALAYSIA) SDN BHD … PEMOHON-PEMOHON (No. Syarikat: 414113-K) 2. JAN DE NUL GROUP (SOFIDRA S.A.) DAN 3. VINCENT TAN CHEE YIOUN … RESPONDEN-RESPONDEN 4. CENTRAL MALAYSIAN PROPERTIES SDN BHD (No. Syarikat: 471389-X) Heard together with IN THE COURT OF APPEAL OF MALAYSIA (APPELLATE JURISDICTION) CIVIL APPEAL NO. W-02(C)(A)-1402-08/2016 BETWEEN 1. VINCENT TAN CHEE YIOUN ... APPELLANTS 2. CENTRAL MALAYSIAN PROPERTIES SDN BHD (COMPANY NO. 471389-X) AND 3 1. JAN DE NUL (MALAYSIA) SDN BHD ... RESPONDENTS (COMPANY NO. 414113-K) 2. JAN DE NUL GROUP (SOFIDRA S.A.) [Dalam Perkara Mahkamah Tinggi Malaya di Kuala Lumpur] Dalam Wilayah Persekutuan Kuala Lumpur No. Saman Pemula: 24C(ARB)-34-10/2015 Dalam Perkara Seksyen 20, 30 dan 42 Akta Timbangtara 2005 Dan Dalam Perkara Aturan 69 Kaedah-kaedah Mahkamah 2012 Dan Dalam Perkara Timbangtara antara Jan De Nul (Malaysia) Sdn Bhd & Jan De Nul Group (Sofidra S.A.) dan Vincent Tan Chee Yioun & Central Malaysian Properties Sdn Bhd Dan Dalam Perkara Awad Muktamad bertarikh 3.9.2015 dan 5.10.2015 oleh Penimbangtara- Penimbangtara Dr. Michael Pryles, Prof. Lawrence Boo dan Dato’ Abdul Kadir Sulaiman ANTARA 1. VINCENT TAN CHEE YIOUN … PLAINTIF-PLAINTIF 2. CENTRAL MALAYSIAN PROPERTIES SDN BHD DAN 1. JAN DE NUL (MALAYSIA) SDN BHD … DEFENDAN-DEFENDAN 2. JAN DE NUL GROUP (SOFIDRA S.A.) 4 Heard Together With DALAM MAHKAMAH RAYUAN MALAYSIA (BIDANG KUASA RAYUAN) RAYUAN SIVIL NO: W-02(C)(A)-1401-08/2016 Antara 1. JAN DE NUL (MALAYSIA) SDN BHD … PERAYU-PERAYU 2. JAN DE NUL GROUP (SOFIDRA S.A.) Dan 1. VINCENT TAN CHEE YIOUN … RESPONDEN- 2. CENTRAL MALAYSIAN PROPERTY SDN BHD RESPONDEN [Dalam Mahkamah Tinggi Malaya di Kuala Lumpur] Dalam Wilayah Persekutuan Kuala Lumpur No. Saman Pemula: 24C(ARB)-32-10/2015 Dalam Perkara Seksyen 42 Akta Timbangtara 2005 Dan Dalam Perkara Timbangtara antara Jan De Nul (Malaysia) Sdn Bhd dan Jan De Nul Group (Sofidra S.A.) dan Vincent Tan Chee Yioun dan Central Malaysian Properties Sdn Bhd Dan Dalam Perkara Awad Muktamad yang diterbitkan oleh Prof. Lawrence Boo, Dato’ Abdul Kadir Sulaiman dan Dr. Michael Pryles pada 3.9.2015 5 ANTARA 1. JAN DE NUL (MALAYSIA) SDN BHD … PEMOHON-PEMOHON 2. JAN DE NUL GROUP (SOFIDRA S.A.) DAN 1. VINCENT TAN CHEE YIOUN … RESPONDEN-RESPONDEN 2. CENTRAL MALAYSIAN PROPERTIES SDN BHD Coram: Hamid Sultan bin Abu Backer, JCA Umi Kalthum binti Abdul Majid, JCA Hasnah binti Dato’ Mohammed Hashim, JCA Hamid Sultan Bin Abu Backer, JCA (Delivering Judgment of The Court) GROUNDS OF JUDGMENT [1] Three appeals arising from one award fixed for hearing on 14-3- 2017. We first heard the cross-appeal in appeal No. W-02(C)(A)-1402- 08/2016 and allowed the cross-appeal in in appeal No. W-02(C)(A)1401- 08/2016 on 18-8-2017. In consequence of allowing the cross-appeal, two appeals under section 42 of the Arbitration Act 2005 (AA 2005), i.e. one by the claimant to the arbitration proceedings and the other by the respondent were dismissed with no order as to costs. The only appeal remained to be heard was the appeal No. W-02(C)(A)-1400-08/2016 related to section 37, filed by the claimant to the arbitration proceedings. 6 [2] We heard the appeal on 18-8-2017 and reserved judgment. We do not wish to set out the facts and issues related to this appeal as it has been admirably set out by the learned High Court judge in great detail and reported as [2016] 1 LNS 1234. This appeal must be read with our previous judgment now reported as [2017] 1 LNS 1130 and the judgment of the learned judge. Brief Facts [3] The brief facts in our own words can be summarised as follows: (i) The 1st appellant was engaged for a reclamation project which is a specialist job. The contract makes them liable in various instances to ensure that they deliver a reclaimed platform from the sea coast. The 2n d appellant was the guarantor. The 1st appellant was not able to deliver what was required under the contract notwithstanding that the 1st appellant as claimant initiated arbitration proceedings for payment of work done. The respondents, the owners of the project filed a counterclaim and the arbitral tribunal found in favour of the respondents and made the following award: “(i) JDN validly terminated the Contract; (ii) JDN was responsible, in breach of the Contract, for the Reclamation Failure Incident; (iii) JDN and Sofidra are ordered, jointly and severally, to pay CMP the amount of RM2,789,383.57 in respect of CMP's 7 counterclaim, plus simple interest on that amount at the rate of 5% from the date of the award until the date of payment; (iv) Each party shall bear equally all the fees and expenses incurred by the KLRCA and the Tribunal; and (v) All other claims of the parties are dismissed.” (ii) The appellants filed an application under section 37 of AA 2005 to set aside the award. The appellants’ case is summarised in their further submissions inter alia as follows: “18. To wit, the Appellants' s. 37 challenge is premised upon the following grounds. At all material times, the battle lines drawn and submitted by the parties to arbitration were simply a contest between design and method of construction. In this respect:- (a) The Appellants' case is that the contract between JDN and CMP is a conventional contract where JDN builds to CMP's design. The need for ground improvement, via staged construction, is an issue of design and needed to be specified and/or communicated. JDN's is not responsible by reason of Clause 7.2(a) of the Contract2 8. (b) The Respondents' case is that ground improvement, via staged construction, constitutes a method of construction which is left to be determined by JDN and the Reclamation Failure Incident was caused by JDN purportedly not following its Method Statement / Work Programme.” 8 (iii) The arbitral tribunal has considered the issues related to the appellants’ complaint inter alia based on the contract and parties obligations. The learned judge had captured it as follows: “[146] Based on the legal test set out above, CMP’s learned counsel submitted that JDN’s complaint does not meet the high threshold of the Tribunal having made a determination on a “new difference” that was outside the scope of the submission to Arbitration. JDN’s complaint is this: “I state that it was never the pleaded cases and/or contention of the parties nor was evidence led on the premise that was decided by the Tribunal, i.e. Staged construction is a design issue, yet JDN bore the responsibility of designing the same.” (para 38 of Affidavit in Support of Martin Eric Harms of 17.12.15.) [147] I agree with CMP’s submission that this complaint does not amount to a “new difference”. As recognised by the Tribunal, the case mounted by CMP in their Counterclaim is a simple case of JDN having breached its Contractual obligations in causing the RFI (para 229 of Final Award). The Contract clearly imposed obligations on JDN. [148] These relevant obligations are summarised as follows: 1. Clause 7.1(a) of the Contract requires JDN to, “with due care and diligence, design (to the extent required by the Contract), execute and complete the Works and remedy Defects to the satisfaction of the Superintending Officer in accordance with the provisions of the Contract”; 9 2. Clause 7.1(a) is to be read with Clause 4.0 of the Coastal Reclamation Specification which required JDN to take cognisance of the relative low strength of the original soil at the reclamation area and to avoid inducing slips, slides, mudwaves, erosion or displacement of the original soil; 3. Clause 7.1(a) is also to be read with Clauses 5.1(a) and (b) of the Conditions which required JDN to submit a works programme identifying the manner in which JDN proposed to carry out the works as well as a method statement describing the arrangement, sequence and method of construction of the works including temporary works; 4. Clause 4.0 of the Coastal Reclamation Specification required JDN to maintain a minimum FOS of 1.2 at all times. 5. Clause 4 of the Instruction to Tenderers required JDN to visit the site and obtain for themselves all other information which may be “necessary for making a tender and entering into the Contract to ascertain the matters as to which they will be deemed to have satisfied themselves and the risks and obligations which they are to undertake”; and 6. Clause 4.8 of the Coastal Reclamation Specification similarly required JDN to “have acquainted himself with all matters pertaining to risks, contingencies and all circumstances affecting the executions and completing of the Works”. 10 [149] Learned counsel for CMP emphasized that these clauses were specifically referred to in paragraph 4 of CMP’s Defence and Counterclaim dated 6.05.2013. [150] CMP has a valid point when through their counsel they submitted that the Contract was before the Tribunal. The Tribunal was entitled, and in fact was incumbent, to take cognisance of the Contract and to determine the parties’ respective obligations. Howsoever the isolated issue of whether “staged construction is a design issue” is answered, it does not detract the Tribunal from having to determine the overarching issue of whether JDN had breached its Contractual obligations in causing the RFI. With that this Court agrees. [151] In any event, CMP’s pleaded case clearly submits a dispute of whether JDN had breached its Contractual obligations in causing the RFI. [152] CMP had in its Defence and Counterclaim dated 6.05.2013 pleaded as follows: “6.3 CMP states that the Reclamation Failure Incident was caused by a failure by JDN to properly and safely execute the Works, in breach of its contractual obligations. ... 6.7 Further or alternatively, JDN failed to carry out the Works to any satisfactory quality, with due care and diligence, with reasonable care and skill and/ or in a good workmanlike manner. JDN failed to ensure that the Works were carried out by workmen with reasonable and adequate capability, experience, knowledge and understanding required to execute and complete the Works. Further, the Works that were carried out by JDN 11 were not fit for the particular purposes for which they were required i.e. to form a reclaimed platform for the purposes of building the Lido Boulevard Project. In fact, the reclaimed platform collapsed into the sea without any building on it. 6.8 Further or alternatively, the only inference that can be drawn from the circumstances which led to the Reclamation Failure Incident is that JDN was negligent. The Respondents will, therefore, rely on the principle of res ipsa loquitor. [153] JDN had pleaded that: 1. The Contract was a conventional contract with no design and/or fitness for purpose obligations resting upon JDN, express or implied in the Contract; 2. JDN followed the Contract with its Method Statement and Work Programme which were approved; and 3. The design in the Contract did not provide for staged construction as a method. Staged construction was never disclosed to JDN at the material time. (Para 7 in JDN’s Reply to Defence). [154] In CMP’s Rejoinder to the Reply to the Statement of Defence & Reply to the Defence to the Counterclaim dated 5.2.2014, CMP had pleaded as follows: “2.2 The issue for determination was therefore whether it was JDN’s obligation to: (a) Ascertain the weak soils conditions at Site; 12 (b) Given the weak soils conditions at Site, to calculate and plan the logic, sequence, arrangement and rate of fill during construction to accommodate the need for the Weak Deposits to consolidate and gain shear strength over time; and/or (c) To carry out its works to accommodate the need for the Weak Deposits to consolidate and gain shear strength over time. 2.3 The Respondents aver that it was indeed JDN’s obligation, bearing in mind: (a) The terms and conditions of the Contract documents; (b) The Specification Instrumentation; (c) JDN’s method Statement and Work Programme; and (d) The experience and expertise of JDN. 2.4 The Respondents will further state that in breach of its contractual obligations, JDN did not take into consideration the sub soils condition and the need for it to gain shear strength over a course of the fill when it: (a) calculated the logic, sequence and rate of its construction works; and/or (b) When it actually carried out its construction works.” [155] Furthermore, it was not the Respondents’ case that it required JDN to only utilise staged construction and that JDN had breached its duties under the Contract or at common law in failing to do so. 13 In this regard: the Contract is silent as to the exact method of constructing the intended reclaimed platform. It was for JDN to deliver the works as they saw fit whilst maintaining a FOS of 1.2 and maintaining stability of the works. It was not CMP’s case that the reclaimed platform could only have been constructed by staged construction. [156] The geotechnical experts agreed that a stable reclaimed platform, as per CMP’s design, was buildable or constructible by adopting an appropriate design and method of construction. It was up to JDN to determine the method in which the reclaimed platform was to be constructed. [157] JDN was contractually obligated to satisfy itself to the sub-soil conditions. The Contract further required JDN to adopt the most appropriate method having regard to the sub-soil conditions which it was expected to be appraised of continuously through monitoring. [158] In any event, JDN’s expert agreed under cross-examination that the Soil Investigation Report, provided by CMP to JDN, contained all necessary data to prepare a stability analysis. This in essence meant that such information pertaining to the condition of the seabed was equally available to both CMP and JDN. [159] However, in building the reclaimed platform in the way it did, JDN had failed its contractual obligations and, in doing so, it had also breached its duties of care in tort. This led to the RFI. [160] As such, JDN’s contention that the Tribunal had gone beyond its jurisdiction in the Final Award is baseless. [161] Here is a case where every opportunity had been given to JDN to present its case. It is clear that JDN seek to take issue with the merits of the Tribunal’s decision, in effect seeking to appeal the 14 Final Award to this Court. This is not permitted in a challenge under s. 37 AA 2005. In any event, the Tribunal had not committed any error on the matters put into issue by JDN. [162] I cannot agree more with CMP that it was therefore a live issue before the Tribunal whether the Contract was a conventional contract and the legal implications of the same on JDN’s responsibilities. The Tribunal had determined this issue, with particular reference to clause 7.2(a) of the Conditions of Contract, in paragraphs 207 and 208 of the Final Award reproduced above. I fail to see, in the light of the above, how the Tribunal could be said to have strayed from the pleaded case and have gone beyond the submission of the parties to the Arbitration.” [4] On the issue of natural justice, the learned judge had captured the appellants’ complaint inter alia as follows: “[163] Then there is the issue of a breach of natural justice which JDN, through their learned counsel Mr Rajendra Navaratnam, alleged that the Tribunal had committed. It was submitted that there was a breach of natural justice when the Tribunal: 1. Decided the case on a basis not raised or contemplated by the parties in the arbitration, i.e. JDN bears the responsibility to carry out staged construction and/or ground treatment even though it is found to be a design issue; 2. Summarily dismissed, without notice, the contentions of the parties and/or the parties pleaded case and/or the evidence led in the arbitration hearings as unhelpful; and 15 3. Without notice, denied the Applicants an opportunity to be heard and/or a fair opportunity to present its case on the issue upon which the arbitration was decided. [164] In order for JDN to succeed in a complaint of a breach of public policy, JDN must show that the “most basic notions of morality and justice would be offended” by the Final Award and that the conflict with the public policy of Malaysia is something “clearly injurious to the public good in Malaysia…”. Jurisprudence relating to setting aside of the award under section 37 of AA 2005. [5] Section 37 of AA 2005 reads as follows: “Application for setting aside 37. (1) An award may be set aside by the High Court only if— (a) the party making the application provides proof that— (i) a party to the arbitration agreement was under any incapacity; (ii) the arbitration agreement is not valid under the law to which the parties have subjected it, or, failing any indication thereon, under the laws of Malaysia; (iii) the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present that party’s case; (iv) the award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration; (v) subject to subsection (3), the award contains decisions on matters beyond the scope of the submission to arbitration; or 16 (vi) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of this Act from which the parties cannot derogate, or, failing such agreement, was not in accordance with this Act; or (b) the High Court finds that— (i) the subject matter of the dispute is not capable of settlement by arbitration under the laws of Malaysia; or (ii) the award is in conflict with the public policy of Malaysia. (2) Without limiting the generality of subparagraph (1)(b)(ii), an award is in conflict with the public policy of Malaysia where— (a) the making of the award was induced or affected by fraud or corruption; or (b) a breach of the rules of natural justice occurred— (i) during the arbitral proceedings; or (ii) in connection with the making of the award. (3) Where the decision on matters submitted to arbitration can be separated from those not so submitted, only that part of the award which contains decisions on matters not submitted to arbitration may be set aside. (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. (5) Subsection (4) does not apply to an application for setting aside on the ground that the award was induced or affected by fraud or corruption. 17 (6) On an application under subsection (1) the High Court may, where appropriate and so requested by a party, adjourn the proceedings for such period of time as it may determine in order to allow the arbitral tribunal an opportunity to resume the arbitral proceedings or to take such other action as in the arbitral tribunal’s opinion will eliminate the grounds for setting aside. (7) Where an application is made to set aside an award, the High Court may order that any money made payable by the award shall be brought into the High Court or otherwise secured pending the determination of the application.” [6] It is important to note that section 37 is not in pari materia to any of the sections in English Arbitration Act 1996 (EAA 1996). In addition, England is not strictly a Model Law country. England allows the court to intervene on the arbitral award on a number of grounds. There is no provision in England as that of the opening of section 37(1) i.e. “An award may be set aside by the Court if…” in relation to setting aside a domestic award. The provisions of sections 67 and 68 of EA A 1996 give a positive and/or substantive right to the party to challenge the award. At the most the right under section 37, if at all is negative in nature as it is dependent on the courts discretion. Section 37 of AA 2005 does not give a positive right for the parties to challenge the award. Section 37 AA 2005 vests the discretion to the court. The distinction between the English and the Malaysia Act is not one related to an apple and orange but a marble and pumpkin. Counsel, in decided cases often have been instrumental in citing the English cases to seek intervention of the court to interfere in the award. However, most of the Malaysian decisions have not allowed intervention readily and where intervention has been allowed or the jurisprudence advocated has been in favour of intervention the reasoning appears to be convoluted in the light of our section 37 AA 2005 and the difference in sections 67 and 68 of EAA 18 1996. For ease of reference, we produce sections 67 and 68 of EAA 1996 which read as follows: “67. Challenging the award: substantive jurisdiction. (1) A party to arbitral proceedings may (upon notice to the other parties and to the tribunal) apply to the court— (a) challenging any award of the arbitral tribunal as to its substantive jurisdiction; or (b) for an order declaring an award made by the tribunal on the merits to be of no effect, in whole or in part, because the tribunal did not have substantive jurisdiction. A party may lose the right to object (see section 73) and the right to apply is subject to the restrictions in section 70(2) and (3). (2) The arbitral tribunal may continue the arbitral proceedings and make a further award while an application to the court under this section is pending in relation to an award as to jurisdiction. (3) On an application under this section challenging an award of the arbitral tribunal as to its substantive jurisdiction, the court may by order— (a) confirm the award, (b) vary the award, or (c) set aside the award in whole or in part. 19 (4) The leave of the court is required for any appeal from a decision of the court under this section. 68. Challenging the award: serious irregularity. (1) A party to arbitral proceedings may (upon notice to the other parties and to the tribunal) apply to the court challenging an award in the proceedings on the ground of serious irregularity affecting the tribunal, the proceedings or the award. A party may lose the right to object (see section 73) and the right to apply is subject to the restrictions in section 70(2) and (3). (2) Serious irregularity means an irregularity of one or more of the following kinds which the court considers has caused or will cause substantial injustice to the applicant— (a) failure by the tribunal to comply with section 33 (general duty of tribunal); (b) the tribunal exceeding its powers (otherwise than by exceeding its substantive jurisdiction: see section 67); (c) failure by the tribunal to conduct the proceedings in accordance with the procedure agreed by the parties; (d) failure by the tribunal to deal with all the issues that were put to it; (e) any arbitral or other institution or person vested by the parties with powers in relation to the proceedings or the award exceeding its powers; (f) uncertainty or ambiguity as to the effect of the award; 20 (g) the award being obtained by fraud or the award or the way in which it was procured being contrary to public policy; (h) failure to comply with the requirements as to the form of the award; or (i) any irregularity in the conduct of the proceedings or in the award which is admitted by the tribunal or by any arbitral or other institution or person vested by the parties with powers in relation to the proceedings or the award. (3) If there is shown to be serious irregularity affecting the tribunal, the proceedings or the award, the court may— (a) remit the award to the tribunal, in whole or in part, for reconsideration, (b) set the award aside in whole or in part, or (c) declare the award to be of no effect, in whole or in part. The court shall not exercise its power to set aside or to declare an award to be of no effect, in whole or in part, unless it is satisfied that it would be inappropriate to remit the matters in question to the tribunal for reconsideration. (4) The leave of the court is required for any appeal from a decision of the court under this section.” [7] Even our section 42 is not in pari materia to section 69 EAA 1996, when it relates to appeal in respect of point of law. The jurisprudence in England is to accommodate intervention and the jurisprudence in 21 Malaysia for section 42 is to be extremely restrictive in intervention. England also does not have a similar or equivalent provision like section 36 which attempts to bar court intervention per se. For ease of reference, section 69 of EAA 1996 is reproduced which read as follows: “69. Appeal on point of law. (1) Unless otherwise agreed by the parties, a party to arbitral proceedings may (upon notice to the other parties and to the tribunal) appeal to the court on a question of law arising out of an award made in the proceedings. An agreement to dispense with reasons for the tribunal’s award shall be considered an agreement to exclude the court’s jurisdiction under this section. (2) An appeal shall not be brought under this section except— (a) with the agreement of all the other parties to the proceedings, or (b) with the leave of the court. The right to appeal is also subject to the restrictions in section 70(2) and (3). (3) Leave to appeal shall be given only if the court is satisfied— (a) that the determination of the question will substantially affect the rights of one or more of the parties, (b) that the question is one which the tribunal was asked to determine, 22 (c) that, on the basis of the findings of fact in the award— (i) the decision of the tribunal on the question is obviously wrong, or (ii) the question is one of general public importance and the decision of the tribunal is at least open to serious doubt, and (d) that, despite the agreement of the parties to resolve the matter by arbitration, it is just and proper in all the circumstances for the court to determine the question. (4) An application for leave to appeal under this section shall identify the question of law to be determined and state the grounds on which it is alleged that leave to appeal should be granted. (5) The court shall determine an application for leave to appeal under this section without a hearing unless it appears to the court that a hearing is required. (6) The leave of the court is required for any appeal from a decision of the court under this section to grant or refuse leave to appeal. (7) On an appeal under this section the court may by order— (a) confirm the award, (b) vary the award, (c) remit the award to the tribunal, in whole or in part, for reconsideration in the light of the court’s determination, or (d) set aside the award in whole or in part. 23 The court shall not exercise its power to set aside an award, in whole or in part, unless it is satisfied that it would be inappropriate to remit the matters in question to the tribunal for reconsideration. (8) The decision of the court on an appeal under this section shall be treated as a judgment of the court for the purposes of a further appeal. But no such appeal lies without the leave of the court which shall not be given unless the court considers that the question is one of general importance or is one which for some other special reason should be considered by the Court of Appeal.” [8] Appreciating the distinction in our sections 37 and 42 of AA 2005 in relation to EAA 1996, the Court of Appeal in Petronas Penapisan (Melaka) Sdn Bhd v Ahmani Sdn Bhd [2016] 3 CLJ 403, had in simple terms advocated that the test for intervention will be related to one where the award suffer from patent injustice and/or where the award is manifestly unlawful and unconscionable. Parading English judgments in submissions or cases relating to sections 37 or 42 in actual fact have no jurisprudential utility. The test in England can be said to be one related to low threshold to intervene and in Malaysia the legislation has placed a high threshold for intervention, though the threshold to satisfy the grounds stated in section 37 may be low. In Petronas case, the Court of Appeal made the following observations: “[7] In Taman Bandar Baru Masai Sdn Bhd v. Dindings Corporation Sdn Bhd [2010] 5 CLJ 83, it was stated: [13] I have no hesitation in saying that in the instant case the provision of the AA 2005 is applicable notwithstanding the Arbitration agreement was made before the AA 2005 came into force i.e. the date javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2865039873&SearchId=2hakim33','_DisplayCase','');DispCase.focus() javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2865039873&SearchId=2hakim33','_DisplayCase','');DispCase.focus() javascript:DispAct=window.open('/Members/DisplayAct.aspx?CaseActCode=MY_FS_ACT_2005_646&SearchId=2hakim33','_DisplayAct','');DispAct.focus() javascript:DispAct=window.open('/Members/DisplayAct.aspx?CaseActCode=MY_FS_ACT_2005_646&SearchId=2hakim33','_DisplayAct','');DispAct.focus() 24 being 15 March 2006. Even assuming that AA 1952 applies, the facts stated by the plaintiff do not permit the intervention of court as Justice KN Segara sitting in the Court of Appeal in the case of Crystal Realty Sdn Bhd v. Tenaga Insurance (Malaysia) Sdn Bhd [2008] 3 CLJ 791, CA have in an articulate manner, in practical terms, put a stop to the interference of court by stating that: The final award of an arbitrator must be viewed in its totality and any error of law on the face of the award must be one that is patent and obvious as to render the award manifestly unlawful and unconscionable to subsist and, thereby, justify the award being set aside. On the facts of this instant appeal, there was no error of law on the face of the final award for the High Court to review. When an arbitrator does not accept any submission made by counsel with regard to any proposition of law, such act or conduct does not render the award infected with an error on its face. Clearly, there was no legal proposition by the arbitrator, forming the basis of the award, which was erroneous. [14] The other appellate judges have readily concurred making the decision a formidable authority in this area of law in contrast to earlier apex decisions. And at p. 98: [20] I will say that draftsmen of provisions such as ss. 8, 9, 37 and 42 have with great ingenuity asserted that court should not interfere with arbitrator's award without out rightly saying so. If they have said so out rightly, it will stand to be unconstitutional. Thus, it will appear that it is going to be difficult to frame any question of law pursuant to AA 2005 when the subject matter of complaint is one which is restricted by ss. 9, 37, or 42 etc. It is now for the courts themselves to restrain from interference unless it is a case of patent injustice which the law permit the court in clear terms to intervene. It is trite that AA 2005 is meant to javascript:DispAct=window.open('/Members/DisplayAct.aspx?CaseActCode=MY_FS_ACT_1972_93&SearchId=2hakim33','_DisplayAct','');DispAct.focus() javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2823160836&SearchId=2hakim33','_DisplayCase','');DispCase.focus() javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2823160836&SearchId=2hakim33','_DisplayCase','');DispCase.focus() javascript:DispAct=window.open('/Members/DisplayAct.aspx?CaseActCode=MY_FS_ACT_2005_646&ActSectionNo=8.&SearchId=2hakim33','_DisplayAct','');DispAct.focus() javascript:DispAct=window.open('/Members/DisplayAct.aspx?CaseActCode=MY_FS_ACT_2005_646&ActSectionNo=9.&SearchId=2hakim33','_DisplayAct','');DispAct.focus() javascript:DispAct=window.open('/Members/DisplayAct.aspx?CaseActCode=MY_FS_ACT_2005_646&ActSectionNo=37.&SearchId=2hakim33','_DisplayAct','');DispAct.focus() javascript:DispAct=window.open('/Members/DisplayAct.aspx?CaseActCode=MY_FS_ACT_2005_646&ActSectionNo=42.&SearchId=2hakim33','_DisplayAct','');DispAct.focus() javascript:DispAct=window.open('/Members/DisplayAct.aspx?CaseActCode=MY_FS_ACT_2005_646&SearchId=2hakim33','_DisplayAct','');DispAct.focus() javascript:DispAct=window.open('/Members/DisplayAct.aspx?CaseActCode=MY_FS_ACT_2005_646&ActSectionNo=9.&SearchId=2hakim33','_DisplayAct','');DispAct.focus() javascript:DispAct=window.open('/Members/DisplayAct.aspx?CaseActCode=MY_FS_ACT_2005_646&ActSectionNo=37.&SearchId=2hakim33','_DisplayAct','');DispAct.focus() javascript:DispAct=window.open('/Members/DisplayAct.aspx?CaseActCode=MY_FS_ACT_2005_646&ActSectionNo=42.&SearchId=2hakim33','_DisplayAct','');DispAct.focus() 25 promote one-stop adjudication. In Lesotho Highland Development Authority v. Impregilo Spa [2005] UKHL 43, Lord Steyn sitting in the House of Lords had this to say: I am glad to have arrived at this conclusion. It is consistent with the legislative purpose of the 1996 Act, which is intended to promote one-stop adjudication. If the contrary view of the Court of Appeal had prevailed; it would have opened up many opportunities for challenging awards on the basis that the tribunal exceeded its powers in ruling on the currency of the award. Such decisions are an everyday occurrence in the arbitral world. If the view of the Court of appeal had been upheld, a very serious defect in the machinery of the 1996 Act would have been revealed. The fact that this case has been before courts at three levels and that enforcement of the award has been delayed for more than three years reinforces the importance of the point.” [9] Section 37 largely subsumes Article V of the New York Convention. In addition, it has additional features to ensure the award is not set aside. Section 37 grounds relates to arbitral process. The threshold to satisfy the grounds may appear to be low. However, the court is given discretion not to set aside the award notwithstanding the applicant can establish one or more of the grounds set out in section 37. Some of the grounds stated under section 37, if established, may require the court to set aside the award as of right. For example, incapacity of a party to the arbitration agreement or no notice of the arbitration proceedings was given at all. The weaker grounds will relate to such as “unable to present the party’s case” where due opportunity has been given to the parties and award is within the four corners of the principal contract which carries arbitration clause or agreement. [See Lesotho Highland Development Authority v. Impregilo Spa [2005] UKHL 43]. 26 [10] In considering whether or not to set aside the award, the court is obliged to look at other provisions of the Act and take a holistic approach as far as practical to sustain the award. Very importantly the court must consider sending the award back to the arbitral tribunal to eliminate the grounds for setting aside. There may be instances where the award cannot be sent back to the tribunal. For example, incapacity of one of the party’s to the arbitration agreement or where no notice of arbitration was given, etc. [11] Unlike the New York Convention regime, the Model Law advocates the jurisprudence to ensure the arbitral tribunal delivers an award which is enforceable. The court’s role is to ensure substantive integrity of the arbitral process is maintained at all stages. Trivial complaints framed as excess of jurisdiction related to the manner the arbitral tribunal had handled the issues which arose from the substantive contract having the arbitration clause should not be much of a concern for the court in the regime of party autonomy concept. Only violent breaches on the face of record which compromises the integrity of the decision making process should be the cause of concern for the courts. [12] It is now well settled that in Malaysia, the arbitrators’ award is final, binding and conclusive and can only be challenged in exceptional circumstances. This jurisprudence is unique to Malaysia and is well articulated in section 36 of AA 2005 which reads as follows: “An award is final and binding 36. (1) An award made by an arbitral tribunal pursuant to an arbitration agreement shall be final and binding on the parties and may be relied upon by 27 any party by way of defence, set-off or otherwise in any proceedings in any court. (2) The arbitral tribunal shall not vary, amend, correct, review, add to or revoke an award which has been made except as specifically provided for in section 35.” [13] In the Malaysian context, section 36 largely closes the door for judicial intervention. Section 36 is not found in the Model Law. In consequence, reliance on other jurisdiction on the scope of intervention will not be helpful. In Taman Bandar Baru Masai Sdn Bhd v Dindings Corporations Si Bhd [2010] 5 CLJ 83 Hamid Sultan Abu Backer JC (as he then was), when dealing with section 36 of the AA 2005 held that: "......AA 2005 makes it compulsory for courts to respect the decision of arbitrators and only minimum intervention is allowed. It is the parties who selected the arbitrator and s. 36 of AA 2005 makes the award final, binding and conclusive. Real proof is required to be shown before the court can meddle with the award." [14] We have read the appeal records and the able submissions of the learned counsel. We do not think it is a fit and proper case for judicial intervention to set aside the award. [15] For reasons stated above, the appeal is dismissed with agreed costs of RM20,000.00 subject to allocatur. Deposit is to be refunded. We hereby order so. 28 Dated: 24 October 2017 sgd (DATUK DR. HJ. HAMID SULTAN BIN ABU BACKER) Judge Court of Appeal Malaysia. Note: Grounds of judgment subject to correction of error and editorial adjustment etc. Counsel for Appellant: Mr. Rajendra Navaratnam [with Mr. Raja Kumar, Raja Kandan and Mak Hon Pan] Messrs Azman Davidson & Co Peguambela & Peguamcara Suite 13.03, 13th Floor, Menara Tan & Tan 207 Jalan Tun Razak 50400 Kuala Lumpur. [Ref: RN/RKR/MHP/0325/2011P] Counsel for Respondent: Mr. Philip Koh [with Mr. Kamraj Nyagam, Mr. Kent Chai and Ms Dawn Wong] Messrs Mah-Kamaryah & Partners Peguambela & Peguamcara 3A07, Block B, Phileo Damansara II No. 15 Jalan 16/11, Off Jalan Damansara 46350 Petaling Jaya Selangor Darul Ehsan. [Ref: LIT 8616.1846 (PK/KN/KC)]

Tika 2.6.0

BA-12ANCC-25-10/2016

PERAYU TAN KIAN SOON DEFENDAN MD ZUKRI BIN SALLLEH (NO.K/P: 581211-03-5499)

23/10/2017

YA DATIN ZALITA BINTI DATO' HJ. ZAIDAN (PK)

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=3d43f525-5bab-4208-b1e4-88dcc83bbdfd&Inline=true

DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN, MALAYSIA RAYUAN NO.: BA-12ANCC-25-10/2016 ANTARA TAN KIAN SOON … PERAYU DAN MD ZUKRI BIN SALLLEH … RESPONDEN (NO.K/P: 581211-03-5499) (DALAM PERKARA MAHKAMAH SESYEN DI SHAH ALAM GUAMAN NO: BA-B52NCC-49-05/2016 ANTARA TAN KIAN SOON … PLAINTIF DAN MD ZUKRI BIN SALLEH … DEFENDAN) (NO.K/P: 581211-03-5499) GROUND OF JUDGMENT Introduction [1] This is an appeal by the Appellant (the Plaintiff), against the Sessions Court’s decision in dismissing the Appellant’s Notice of Application for Summary Judgment against the Respondent (the Defendant), on 30.9.2016. [2] The Appellant’s application under Order 14 of the Rules of Court 2012 (ROC 2012) is for a claim of RM518,203.00 with interest at 5% per annum from 8.10.2012 until judgment and 5% per annum from the date of judgment until full settlement and cost. [3] This appeal is heard together with the other appeal, case number BA-12ANCC-31-12/2016 between the same parties, where the Appellant is appealing against the Sessions Court’s decision which dismissed the Appellant’s Notice of Application to strike out the Respondent’s counterclaim under Order 18 rule 19 of the ROC 2012. The Respondent had filed a counterclaim against the Appellant for a sum of RM2,600,000.00. [4] For ease of reference, in this judgment, the parties will be referred to as they were in the Sessions Court. Facts [5] The relevant factual background giving rise to this appeal based on the written submission of the counsels may be briefly stated as follows: (a) The Plaintiff is an individual having its address is at No. 15, Jalan BJ/29, Taman Balakong Jaya, 43200 Cheras, Selangor. (b) The Plaintiff claimed that by a letter of 9.4.2012 from the Pejabat Pengarah Tanah dan Galian, Wilayah Persekutuan (the “Local Authority”) to the Defendant, the Local Authority had agreed to grant a title of a piece of land, Lot 165, Jalan Jelatek, Seksyen 88, Bandar Kuala Lumpur (the said Land) to the Defendant. According to the Plaintiff, before the title of the said Land can be issued to the Defendant, the Defendant is required to pay a premium of RM518,203 in accordance with Form 5A and the Plaintiff advanced the sum RM518,203.00 on Defendant’s request, on or around 8.10.2012 and the Form 5A dated 9.4.2012 following section 81 and section 82 of the National Land Code 1965 was issued to the Defendant. (c) The particulars of Plaintiff’s claim (at page 16 of the Appeal Record): “a) Cukai tanah bagi tahun pertama RM 621.00 b) Bayaran Premium 5A RM 517,192.00 c) Bayaran Ukur RM 250.00 d) Lain-lain bayaran RM 140.00 RM 518,203.00” (d) The Plaintiff claimed that in return for the monetary advancement, the Defendant agreed to sign a formal agreement where the terms were among others, the Plaintiff is to be appointed with the Power of Attorney to act for and behalf for the Defendant for the said Land; the said Land is to be sold off and the proceeds are to be divided between them where Defendant will repay Plaintiff RM517,901.00 and the balance will be divided equally between the Plaintiff and the Defendant. (e) The Plaintiff claimed that the Defendant refused to sign the agreement and the sum of RM518,203.00 failed to be repaid to the Plaintiff. (f) The Plaintiff also claimed that in the alternative, the payment made to the Local Authority for RM518,203.00 for the issuance of the title of the said Land had benefitted the Defendant and was never intended to be paid as gratuitous, hence the Defendant is responsible to return the advancement of RM518,203.00 to the Plaintiff based on section 71 of the Contracts Act 1950. (g) The Defendant denied that the he had agreed to any monetary advancement from the Plaintiff and claimed that there was no agreement to sign any contract with the Plaintiff nor did he direct the Plaintiff to advance the amount of RM518,203.00 for the said Land. (h) The Defendant also claimed that in the alternative, the Plaintiff may on its own personal capacity or willingness, advanced the RM518,203.00 to the Defendant without the Defendant’s knowledge in order to get Defendant’s assistance for projects where the Defendant had access and/or the Plaintiff felt obliged to repay for Defendant’s assistance for successfully getting the projects which benefitted the Plaintiff (paragraph 4.3, pages 20-21 of Defendant’s Defence, Appeal Record). (i) The Defendant claimed that the Plaintiff had guaranteed to give money of RM2,600,000.00 as an incentive or for the return of Defendant’s assistance in getting the projects and honorary which will be proven during the trial. The Defendant claimed that the Plaintiff had agreed during one negotiation between the Plaintiff and the Defendant, in the presence of one Tengku Ibrahim, the Plaintiff will pay the Defendant RM1,000,000.00 as full settlement but the Plaintiff failed to pay and the Defendant is claiming for the RM2,600,000.00. (j) The Defendant then filed a counterclaim against the Plaintiff for a sum of RM2,600,000.00 alleging that the Plaintiff had given an undertaking to the Defendant for successfully obtaining all the projects and the honorary which the projects are as listed Defendant’s Defence and Counterclaim (paragraphs 4.3 – 4.5 of Defence and Counterclaim at pages 21-23 Appeal Record). Plaintiff’s Submission [6] The learned counsel for the Plaintiff advanced several grounds for this appeal and the main contention is that the Session Judge had failed to consider the Plaintiff’s alternative claim against Defendant under section 71 of the Contracts Act 1950 which is for the refund of the premium and other miscellaneous charges. The Plaintiff’s counsel relied on the Privy Council case of Siow Wong Fatt v Susur Rotan Mining Ltd & Anor [1967] 2 MLJ 118 on the four conditions that must be satisfied to establish a claim under section 71 which was also followed by the Supreme Court in the case of New Kok Ann Realty Sdn Bhd v Development & Commercial Bank Ltd., New Hebrides (in liquidation) [1987] 2 MLJ 57. [7] It was submitted by the Plaintiff’s counsel that the four conditions had been satisfied, that the Plaintiff’s act by paying the said Land’s premium and other miscellaneous charges were lawful, that the payment enabled the Defendant to obtain the title to the said Land, the payment was not intended to be done gratuitously and it was submitted that the Defendant enjoyed the benefit from the Plaintiff’s act. [8] It was also averred by the Plaintiff’s counsel that based on the principle of unjust enrichment following the case of Sediaperak Sdn Bhd v Baboo Chowdhury [1999] 5 MLJ 229, the Plaintiff’s payment which was not done gratuitously had unjustly enriched the Defendant as owner of the said Land without returning the sum of RM518,203.00 to the Plaintiff. [9] The Plaintiff’s counsel contended that the Defendant’s affidavit in reply were merely bare denials and the Defendant had made contradictory statement in its application to remove the private caveat entered by Plaintiff (page 84 of the Appeal Record) by stating that the Defendant had paid the premium whereas in his Defence (paragraph 4.3 of Defence and Counterclaim, page 20 of Appeal Record), it was stated that the payment was made by Plaintiff in exchange for Defendant’s assistance. Defendant’s Submission [10] The learned counsel for the Defendant submitted that the contract exhibited by the Plaintiff is not a valid contract under section 10 of Contracts Act 1950 and there was no consent from both parties to the contract which was not denied by the Plaintiff. It was also contended that the Plaintiff failed to prove that there was an intention to create legal relations between the Plaintiff and the Defendant, relying on the case of Ismail bin Mohd Yunos & Anor v First Revenue Sdn Bhd [2000] 5 MLJ 42. It was also argued that the Plaintiff failed to satisfy the elements of a contract under section 3 of the Contracts Act 1950. [11] The Defendant’s counsel in its submission argued that the Defendant denied all the evidence adduced by the Plaintiff and asserted that the Plaintiff had failed to prove the existence of monetary advancement of RM518,203.00 as there were no words stating that it was made by Plaintiff to the Defendant (pages 88 – 96 of Appeal Record). The Defendant’s counsel also contended, among others, that the cheque is not the same as the receipt (page 89 of Appeal Record) as the cheque number states “017908” whereas the receipt number is “019232”. In addition, the cheque was issued under the name of ‘HSBC Amanah Malaysia Bhd’ without stating the purpose of its payment which is for the premium under Form 5A as alleged by the Plaintiff. [12] The Defendant’s counsel contended that the Defendant has a defence as the Plaintiff’s claim is doubtful and can only be proven at the trial, referring to the Federal Court’s case of Ng Yik Seng & Anor v Perwira Habib Bank Malaysia Berhad [1980] 2 MLJ 83. THE SESSIONS COURT’S DECISION [13] Some of the decision of the Sessions Court is reproduced here as follows: “Mahkamah berpendapat defendan telah membangkitkan isu fakta dan memplidkan juga butir-butir projek yang telahdidapatkan bagi manfaat plaintif. Mahkamah mendapati isu-isu yang ditimbulkan oleh defendan itu adalah isu yang boleh dibicarakan. Malahan Defendan juga telah membuat tuntutan balas yang jumlahnya melebih dari tuntutan plaintiff bagi “set off” jumlah yang didahulukan oleh plaintif bagi mendapatkan hartanah tersebut yang kemudiannya untuk dijual dan hasilnya untuk dibahagi dua dan dikongsikan bersama-sama. Mahkamah berpendapat jikalau pun tuntutan balas itu dibicarakan di Mahkamah ini maka defendan hendaklah bersetuju untuk suatu award yang dalam bidang kuasa Mahkamah Sesyen sahaja dan Mahkamah ini tidak ada bidang kuasa untuk memerintahkan jumlah yang melebihi amaun RM1 juta. 2. Mahkamah berpendapat oleh kerana semua isu tersebut adalah isu fakta dan percanggahan adalah ketara, maka Mahkamah berpendapat isu ini perlu dibicarakan secara perbicaraan penuh dengan pihak-pihak memanggil saksi-saksi dan mengemukakan keterangan dokumen bagi menyokong pernyataan mereka. Mahkamah berpendapat kes ini tidak sesuai diadili secara perbicaraan melalui affidavit. Mahkamah berpandangan merit kes plaintif dan defendan wajar didengar bagi menilai keterangan semua pihak secara keseluruhan. ……… ……… 5. Mahkamah berpendapat pengataan defendan mempunyai percanggahan apabila dalam pembelaannya di perenggan 4.3 beliau mengatakan “kemungkinan plaintif dengan kerelaanya membayar RM518,203.00 tanpa pengetahuan defendan kerana ingin dapatkan bantuan bagi projek-projek lain yang defendan ada akses/ mungkin rasa terhutang budi atas jasa dan pertolongan defendan yang telah berjaya mendapatkan projek untuk plaintif..”, sebaliknya dalam affidavit defendan pula beliau menafikan telah menerima wang sejumlah yang dinyatakan di atas. Dalam pembelaanya defendan memberi gambaran beliau sememangnya ada terima wang yang telah didepositkan itu namun ianya bukan untuk tujuan penjualan hartanah sebaliknya untuk bayaran lain seperti mana yang dinyatakan. Namun dalam affidavitnya pula defendan menafikan telah menerima wang tersebut atas beberapa alasan iaitu nama defendan tidak dicatatkan di atas cek tersebut selain tujuan bayaran juga tidak dinyatakan dan bercanggah dengan apa yang dinyatakan oleh plaintif, wang pos tiada butiran penerima dll alasan lagi. 6. Mahkamah berpendapat suatu perbicaraan penuh perlu dijalankan utnuk menentukan pihak manakah yang bercakap benar dan yang boleh membuktikan alegasi dan fakta masing-masing. Pada pendapat Mahkamah, oleh kerana fakta tersebut telah ditimbulkan oleh defendan, maka beban bukti adalah atas defendan untuk membuktikan tuntutan balas beliau. Oleh yang demikian pendengaran secara perbicaraan penuh adalah forum yang wajar dan sesuai bagi memutuskan semua isu yang telah dibangkitkan tersebut. ….. Oleh yang demikian, atas alasan-alasan tersebut, Mahkamah menolak permohonan tersebut dengan kos RM3000-00.” THE COURT’S FINDING [14] There are preliminary requirements to be followed for an application under Order 14 ROC 2012. The burden is on the plaintiff to prove and once the burden is discharged by the plaintiff, the onus then shifts to the defendant to raise triable issues. This was decided in the Federal Court case of Cempaka Finance Bhd v Ho Lai Ying (trading as KH Trading) [2006] 2 MLJ 685. The Federal Court in an earlier case of National Company For Foreign Trade v Kayu Raya Sdn Bhd [1984] 2 MLJ 300 held that, in order for the Plaintiff to satisfy the preliminary requirements, the plaintiff will have to establish a prima facie case and he will then be entitled to the judgment. The burden then shifts to the defendant to satisfy the Court why the judgment should not be given to the plaintiff, that there is a triable issue or some other reason that there ought to be a trial. [15] It is of pertinence to note that in this case, it would be for the Plaintiff to prove that it has a prima facie case that the Defendant is legally liable to pay the sum of RM518,203.00. Based on the Federal Court’s decision in National Company for Foreign Trade (supra) case, the preliminary requirements are: (a) The defendant must have entered an appearance; (b) The statement of claim must have been served on the defendant; and (c) The affidavit in support of the application must comply with the requirements of Rule 2 of Order 14. Following the case of National Company for Foreign Trade (supra), unless the plaintiff satisfies either of the three requirements, the applications may be dismissed. [16] Based on ‘Malaysian Court Practice, Rules of Court 2012, Desk Edition 2017’, for an application under Order 14 rule 2 of ROC 2012, the plaintiff is not required to proof that there is triable issue, it is for the plaintiff to state his belief in the affidavit that there is no defence to the claim. In reference to the requirements laid out in National Company for Foreign Trade (supra) case, this Court finds that the Plaintiff had fulfilled the preliminary requirements and the Plaintiff had in its Affidavit stated its belief that the Defendant has no defence to this claim (paragraph 17 of Plaintiff’s Affidavit, page 74 of Appeal Record). [17] The Plaintiff’s Additional Affidavit of 15.9.2016 stated that the monetary advancement for the said Land which benefitted the Plaintiff was not intended to be gratuitous and demanded for the return of the amount RM518,203.00 in accordance with section 71 of the Contracts Act 1950. Following section 71 of the Contracts Act 1950, “Where a person lawfully does anything for another person, or delivers anything to him, not intending to do so gratuitously, and such other person enjoys the benefit thereof, the latter is bound to make compensation to the former in respect of, or to restore, the thing so done or delivered.” The Plaintiff claimed that the payment for the said Land was done lawfully and was not intended as gratuitous. The Plaintiff’s act of objection by entering a private caveat and under statutory declaration shows its objection to the Defendant in taking the said Land. Based on the Privy Council’s case of Siow Wong Fatt (supra) as submitted by Plaintiff’s counsel, that such payment as alleged by the Plaintiff for the Defendant was lawful and was not gratuitous indeed benefitted the Defendant. This Court finds that the plaintiff had established its claim under section 71 of the Contracts Act 1950. [18] Turning to the evidence, upon careful perusal of the Plaintiff’s Amended Statement of Claim, the evidence submitted by the Plaintiff comprising the receipts for the premium paid, the bank draft of HSBC by the Plaintiff, the caveat application on the said Land with the statutory declaration by the Plaintiff (pages 123 – 125 of the Appeal Record), proved to show the consistency in the Plaintiff’s claim. The HSBC cheque of the Plaintiff dated 3.10.2012 to HSBC Amanah Malaysia Berhad (page 92 of the Appeal Record) bears the exact amount for the required premium and the bank draft to the Local Authority bears the Plaintiff’s cheque number of 56-14019. However, the amount on the bank draft is more than the premium amount and the cheque issued, stating RM517, 912.00 (page 93 of the Appeal Record), to which based on Plaintiff’s pleading, the amount of RM517,902.00 be returned to Plaintiff (paragraph 7(c)(i) of Amended Statement of Claim, page 16 of the Appeal Record). The Plaintiff in its Affidavit, stated its belief that the defendant has no defence to this claim (paragraph 17 of Plaintiff’s Affidavit, page 74 of Appeal Record). [19] This Court also finds that the Plaintiff did not claim for contractual relationship nor the existence of a power of attorney but for the return of the advancement based on a failed monetary arrangement (paragraphs 11 and 12 of Affidavit in Support, page 73 of the Appeal Record). The caveat entered by the Plaintiff on the said Land dated 15.1.2015 stating that the Plaintiff had paid the Defendant the sum of money RM517,901.00 for the title to be registered and claimed that the Defendant had agreed to transfer to the Plaintiff in exchange for development, together with Plaintiff’s Statutory Declaration under section 21 of the Statutory Declaration Act 1960 (pages 123-125 of Appeal Record). [20] When times are good, payment could be arranged for a land to be transferred and registered by issuance of title to the interested person who may not be the one who paid the premium. This is consistent with the view that payment made upon trust without any proof of written agreement between parties. The Plaintiff averred in its pleading that its claim is not on the basis of any agreement. Therefore this Court viewed that the agreement which is unsigned and unstamped as claimed by the Plaintiff will not assist this Honourable Court. This Court viewed that the prima facie case established by the Plaintiff is based on its Amended Statement of Claim, the receipts for the premium and other charges in the name of the Defendant, the Plaintiff’s cheque and bank draft (pages 88-93 of the Appeal Record), the caveat entered by the Plaintiff on the said Land, the affidavits of the Plaintiff and the Defendant’s defence. [21] The onus then shifts to the Defendant to show that the judgment should not be given to the Plaintiff. Based on the Supreme Court’s decision of Bank Negara Malaysia v Mohd Ismail & Ors [1992] 1 MLJ 400, in relation to the defence, the requirement under Order 14 ROC 2012 is that, it is for the Court to be satisfied on affidavit evidence that the defence not only raised an issue but also that the said issue is triable. There are a number of authorities as reference on defence. It has been decided in the case of Perwira Habib Bank Malaysia Berhad v Samuel Pakianathan [1993] 2 MLJ 423, a Supreme Court decision that summary judgment may still be given notwithstanding that the Defendant had filed a counterclaim. [22] Upon careful perusal of the Defendant’s defence, the Court finds that firstly, the Defendant did not dispute that the Statement of Claim/ Amended Statement of Claim had been served on the Defendant, that the Defendant had entered appearance and that the Plaintiff had affirmed an affidavit verifying the facts on which the Amended Statement of Claim are based upon: Wasco Lindung Sdn Bhd vLustre Metals & Minerals Sdn Bhd [2015] 2 CLJ 427. Secondly, the Court finds that the Defendant denied on the premium made by the Plaintiff, that the Defendant averred that the premium paid was a gratuitous payment for the projects and honorary and that in the alternative, had claimed that the Plaintiff may have paid without Defendant’s knowledge (paragraphs 4.2, 4.3, 4.4 of the Defendant’s Defence and Counterclaim, pages 20-21 Appeal Record). [23] The Defendant in its Affidavit In Reply stated his denial of the advancement by the Plaintiff (paragraphs 6.1 – 6.4 of the Defendant’s Affidavit In Reply 4.8.2016, at pages 77 – 78 of Appeal Record) and averred that only through a full trial where witnesses will be called, can decide whether it is the Defendant or the Plaintiff whom agreed to pay for the Defendant. In the latter, the relevant sentence at paragraph 6.1 is reproduced here: “… Pembuktian pembayaran tersebut hanya dapat dibuktikan melalui perbicaraan penuh untuk menentukan sama ada saya atau Plaintif bersama-sama bersetuju bahawa Plaintif akan membuat bayaran bagi pihak saya.” This Court finds no statement to prove that the Defendant had in fact paid the premium for the said Land to rebut the Plaintiff’s claim. [24] In addition, merely denying with no documentary evidence to rebut, the onus stays with the Defendant. In fact, the Defendant’s averment on the gratuitous payment and that it was paid without Defendant’s knowledge would be an admission that there was monetary advancement, following section 17 of Evidence Act 1950. As Defendant had admitted that such monetary advancement took place, there is no requirement for witnesses to be called to testify. The other aspect of law of concerned is the Defendant’s alternative defence that the payment was made without Defendant’s knowledge in order to gain from projects. Such commission or incentives as how the Defendant puts it, would be contrary to public policy and the Court as a vital institution of democratic governance must be firm in sending out a principled message that unregulated incentive which is against public policy, is unlawful. Therefore, this Court finds that there was no other reason for the case to go to trial: Order 14 rule 3(1) of ROC 2012. [25] This appeal arises from a summary judgment under Order 14 ROC 2012. It is incumbent upon the Court to have the overall view to ascertain whether the Defendant has a real or bona fide defence. This Court has carefully perused the affidavits and documentary evidence and finds that the Defendant did not deny that there was an advancement arrangement. The Defendant’s admission that the Plaintiff paid without the Defendant’s knowledge and the argument that such payment was gratuitous as to repay Defendant’s assistance, proves to show that there is a prima facie case of monetary advancement. [26] In light of the above reasons, the Plaintiff has on the balance of probabilities, a prima facie case for summary judgment to be entered against the Defendant. I therefore allowed the appeal with cost. The Plaintiff’s counsel had asked for a consequential order, for a stay of execution. This Court holds the view that a stay of execution must be applied, as this Court treats this appeal and the other appeal under Order 18 rule 19 ROC 2012, as two separate proceedings. This Court finds no defence to Plaintiff’s claim and as Defendant’s counterclaim is not less than the Plaintiff’s claim, the Plaintiff should apply for a stay of execution until the trial of counterclaim to which the other appeal under Order 18 rule 19 ROC 2012 is allowed. Dated: 23 October 2017 (ZALITA BINTI DATO’ ZAIDAN) Judicial Commissioner Shah Alam High Court SOLICITORS FOR THE APPELLANT: P.Y. CHONG LEE MAN HENG Tetuan H.M. Lee P-O3-01, Impian Meridian Commerze Jalan Subang 1, USJ 1 47600 Subang Jaya Selangor Darul Ehsan [Rujukan: 1948/JM/16/L] Tel: 03-5891 6810 Fax: 03-5891 6820 SOLICITORS FOR THE RESPONDENT: ASHMADI BIN OTHMAN Tetuan Zulpadli & Edham No. 24, Jalan Perumahan Gurney 54000 Kuala Lumpur [Rujukan: ZE(E)/L/1704/16] Tel: 03-2694 6979/ 03-2694 6997 Fax: 03-2691 1107 1

Tika 2.6.0

BA-12ANCC-25-10/2016

PERAYU TAN KIAN SOON DEFENDAN MD ZUKRI BIN SALLLEH (NO.K/P: 581211-03-5499)

23/10/2017

YA DATIN ZALITA BINTI DATO' HJ. ZAIDAN (PK)

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=3d43f525-5bab-4208-b1e4-88dcc83bbdfd&Inline=true

DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN, MALAYSIA RAYUAN NO.: BA-12ANCC-25-10/2016 ANTARA TAN KIAN SOON … PERAYU DAN MD ZUKRI BIN SALLLEH … RESPONDEN (NO.K/P: 581211-03-5499) (DALAM PERKARA MAHKAMAH SESYEN DI SHAH ALAM GUAMAN NO: BA-B52NCC-49-05/2016 ANTARA TAN KIAN SOON … PLAINTIF DAN MD ZUKRI BIN SALLEH … DEFENDAN) (NO.K/P: 581211-03-5499) GROUND OF JUDGMENT Introduction [1] This is an appeal by the Appellant (the Plaintiff), against the Sessions Court’s decision in dismissing the Appellant’s Notice of Application for Summary Judgment against the Respondent (the Defendant), on 30.9.2016. [2] The Appellant’s application under Order 14 of the Rules of Court 2012 (ROC 2012) is for a claim of RM518,203.00 with interest at 5% per annum from 8.10.2012 until judgment and 5% per annum from the date of judgment until full settlement and cost. [3] This appeal is heard together with the other appeal, case number BA-12ANCC-31-12/2016 between the same parties, where the Appellant is appealing against the Sessions Court’s decision which dismissed the Appellant’s Notice of Application to strike out the Respondent’s counterclaim under Order 18 rule 19 of the ROC 2012. The Respondent had filed a counterclaim against the Appellant for a sum of RM2,600,000.00. [4] For ease of reference, in this judgment, the parties will be referred to as they were in the Sessions Court. Facts [5] The relevant factual background giving rise to this appeal based on the written submission of the counsels may be briefly stated as follows: (a) The Plaintiff is an individual having its address is at No. 15, Jalan BJ/29, Taman Balakong Jaya, 43200 Cheras, Selangor. (b) The Plaintiff claimed that by a letter of 9.4.2012 from the Pejabat Pengarah Tanah dan Galian, Wilayah Persekutuan (the “Local Authority”) to the Defendant, the Local Authority had agreed to grant a title of a piece of land, Lot 165, Jalan Jelatek, Seksyen 88, Bandar Kuala Lumpur (the said Land) to the Defendant. According to the Plaintiff, before the title of the said Land can be issued to the Defendant, the Defendant is required to pay a premium of RM518,203 in accordance with Form 5A and the Plaintiff advanced the sum RM518,203.00 on Defendant’s request, on or around 8.10.2012 and the Form 5A dated 9.4.2012 following section 81 and section 82 of the National Land Code 1965 was issued to the Defendant. (c) The particulars of Plaintiff’s claim (at page 16 of the Appeal Record): “a) Cukai tanah bagi tahun pertama RM 621.00 b) Bayaran Premium 5A RM 517,192.00 c) Bayaran Ukur RM 250.00 d) Lain-lain bayaran RM 140.00 RM 518,203.00” (d) The Plaintiff claimed that in return for the monetary advancement, the Defendant agreed to sign a formal agreement where the terms were among others, the Plaintiff is to be appointed with the Power of Attorney to act for and behalf for the Defendant for the said Land; the said Land is to be sold off and the proceeds are to be divided between them where Defendant will repay Plaintiff RM517,901.00 and the balance will be divided equally between the Plaintiff and the Defendant. (e) The Plaintiff claimed that the Defendant refused to sign the agreement and the sum of RM518,203.00 failed to be repaid to the Plaintiff. (f) The Plaintiff also claimed that in the alternative, the payment made to the Local Authority for RM518,203.00 for the issuance of the title of the said Land had benefitted the Defendant and was never intended to be paid as gratuitous, hence the Defendant is responsible to return the advancement of RM518,203.00 to the Plaintiff based on section 71 of the Contracts Act 1950. (g) The Defendant denied that the he had agreed to any monetary advancement from the Plaintiff and claimed that there was no agreement to sign any contract with the Plaintiff nor did he direct the Plaintiff to advance the amount of RM518,203.00 for the said Land. (h) The Defendant also claimed that in the alternative, the Plaintiff may on its own personal capacity or willingness, advanced the RM518,203.00 to the Defendant without the Defendant’s knowledge in order to get Defendant’s assistance for projects where the Defendant had access and/or the Plaintiff felt obliged to repay for Defendant’s assistance for successfully getting the projects which benefitted the Plaintiff (paragraph 4.3, pages 20-21 of Defendant’s Defence, Appeal Record). (i) The Defendant claimed that the Plaintiff had guaranteed to give money of RM2,600,000.00 as an incentive or for the return of Defendant’s assistance in getting the projects and honorary which will be proven during the trial. The Defendant claimed that the Plaintiff had agreed during one negotiation between the Plaintiff and the Defendant, in the presence of one Tengku Ibrahim, the Plaintiff will pay the Defendant RM1,000,000.00 as full settlement but the Plaintiff failed to pay and the Defendant is claiming for the RM2,600,000.00. (j) The Defendant then filed a counterclaim against the Plaintiff for a sum of RM2,600,000.00 alleging that the Plaintiff had given an undertaking to the Defendant for successfully obtaining all the projects and the honorary which the projects are as listed Defendant’s Defence and Counterclaim (paragraphs 4.3 – 4.5 of Defence and Counterclaim at pages 21-23 Appeal Record). Plaintiff’s Submission [6] The learned counsel for the Plaintiff advanced several grounds for this appeal and the main contention is that the Session Judge had failed to consider the Plaintiff’s alternative claim against Defendant under section 71 of the Contracts Act 1950 which is for the refund of the premium and other miscellaneous charges. The Plaintiff’s counsel relied on the Privy Council case of Siow Wong Fatt v Susur Rotan Mining Ltd & Anor [1967] 2 MLJ 118 on the four conditions that must be satisfied to establish a claim under section 71 which was also followed by the Supreme Court in the case of New Kok Ann Realty Sdn Bhd v Development & Commercial Bank Ltd., New Hebrides (in liquidation) [1987] 2 MLJ 57. [7] It was submitted by the Plaintiff’s counsel that the four conditions had been satisfied, that the Plaintiff’s act by paying the said Land’s premium and other miscellaneous charges were lawful, that the payment enabled the Defendant to obtain the title to the said Land, the payment was not intended to be done gratuitously and it was submitted that the Defendant enjoyed the benefit from the Plaintiff’s act. [8] It was also averred by the Plaintiff’s counsel that based on the principle of unjust enrichment following the case of Sediaperak Sdn Bhd v Baboo Chowdhury [1999] 5 MLJ 229, the Plaintiff’s payment which was not done gratuitously had unjustly enriched the Defendant as owner of the said Land without returning the sum of RM518,203.00 to the Plaintiff. [9] The Plaintiff’s counsel contended that the Defendant’s affidavit in reply were merely bare denials and the Defendant had made contradictory statement in its application to remove the private caveat entered by Plaintiff (page 84 of the Appeal Record) by stating that the Defendant had paid the premium whereas in his Defence (paragraph 4.3 of Defence and Counterclaim, page 20 of Appeal Record), it was stated that the payment was made by Plaintiff in exchange for Defendant’s assistance. Defendant’s Submission [10] The learned counsel for the Defendant submitted that the contract exhibited by the Plaintiff is not a valid contract under section 10 of Contracts Act 1950 and there was no consent from both parties to the contract which was not denied by the Plaintiff. It was also contended that the Plaintiff failed to prove that there was an intention to create legal relations between the Plaintiff and the Defendant, relying on the case of Ismail bin Mohd Yunos & Anor v First Revenue Sdn Bhd [2000] 5 MLJ 42. It was also argued that the Plaintiff failed to satisfy the elements of a contract under section 3 of the Contracts Act 1950. [11] The Defendant’s counsel in its submission argued that the Defendant denied all the evidence adduced by the Plaintiff and asserted that the Plaintiff had failed to prove the existence of monetary advancement of RM518,203.00 as there were no words stating that it was made by Plaintiff to the Defendant (pages 88 – 96 of Appeal Record). The Defendant’s counsel also contended, among others, that the cheque is not the same as the receipt (page 89 of Appeal Record) as the cheque number states “017908” whereas the receipt number is “019232”. In addition, the cheque was issued under the name of ‘HSBC Amanah Malaysia Bhd’ without stating the purpose of its payment which is for the premium under Form 5A as alleged by the Plaintiff. [12] The Defendant’s counsel contended that the Defendant has a defence as the Plaintiff’s claim is doubtful and can only be proven at the trial, referring to the Federal Court’s case of Ng Yik Seng & Anor v Perwira Habib Bank Malaysia Berhad [1980] 2 MLJ 83. THE SESSIONS COURT’S DECISION [13] Some of the decision of the Sessions Court is reproduced here as follows: “Mahkamah berpendapat defendan telah membangkitkan isu fakta dan memplidkan juga butir-butir projek yang telahdidapatkan bagi manfaat plaintif. Mahkamah mendapati isu-isu yang ditimbulkan oleh defendan itu adalah isu yang boleh dibicarakan. Malahan Defendan juga telah membuat tuntutan balas yang jumlahnya melebih dari tuntutan plaintiff bagi “set off” jumlah yang didahulukan oleh plaintif bagi mendapatkan hartanah tersebut yang kemudiannya untuk dijual dan hasilnya untuk dibahagi dua dan dikongsikan bersama-sama. Mahkamah berpendapat jikalau pun tuntutan balas itu dibicarakan di Mahkamah ini maka defendan hendaklah bersetuju untuk suatu award yang dalam bidang kuasa Mahkamah Sesyen sahaja dan Mahkamah ini tidak ada bidang kuasa untuk memerintahkan jumlah yang melebihi amaun RM1 juta. 2. Mahkamah berpendapat oleh kerana semua isu tersebut adalah isu fakta dan percanggahan adalah ketara, maka Mahkamah berpendapat isu ini perlu dibicarakan secara perbicaraan penuh dengan pihak-pihak memanggil saksi-saksi dan mengemukakan keterangan dokumen bagi menyokong pernyataan mereka. Mahkamah berpendapat kes ini tidak sesuai diadili secara perbicaraan melalui affidavit. Mahkamah berpandangan merit kes plaintif dan defendan wajar didengar bagi menilai keterangan semua pihak secara keseluruhan. ……… ……… 5. Mahkamah berpendapat pengataan defendan mempunyai percanggahan apabila dalam pembelaannya di perenggan 4.3 beliau mengatakan “kemungkinan plaintif dengan kerelaanya membayar RM518,203.00 tanpa pengetahuan defendan kerana ingin dapatkan bantuan bagi projek-projek lain yang defendan ada akses/ mungkin rasa terhutang budi atas jasa dan pertolongan defendan yang telah berjaya mendapatkan projek untuk plaintif..”, sebaliknya dalam affidavit defendan pula beliau menafikan telah menerima wang sejumlah yang dinyatakan di atas. Dalam pembelaanya defendan memberi gambaran beliau sememangnya ada terima wang yang telah didepositkan itu namun ianya bukan untuk tujuan penjualan hartanah sebaliknya untuk bayaran lain seperti mana yang dinyatakan. Namun dalam affidavitnya pula defendan menafikan telah menerima wang tersebut atas beberapa alasan iaitu nama defendan tidak dicatatkan di atas cek tersebut selain tujuan bayaran juga tidak dinyatakan dan bercanggah dengan apa yang dinyatakan oleh plaintif, wang pos tiada butiran penerima dll alasan lagi. 6. Mahkamah berpendapat suatu perbicaraan penuh perlu dijalankan utnuk menentukan pihak manakah yang bercakap benar dan yang boleh membuktikan alegasi dan fakta masing-masing. Pada pendapat Mahkamah, oleh kerana fakta tersebut telah ditimbulkan oleh defendan, maka beban bukti adalah atas defendan untuk membuktikan tuntutan balas beliau. Oleh yang demikian pendengaran secara perbicaraan penuh adalah forum yang wajar dan sesuai bagi memutuskan semua isu yang telah dibangkitkan tersebut. ….. Oleh yang demikian, atas alasan-alasan tersebut, Mahkamah menolak permohonan tersebut dengan kos RM3000-00.” THE COURT’S FINDING [14] There are preliminary requirements to be followed for an application under Order 14 ROC 2012. The burden is on the plaintiff to prove and once the burden is discharged by the plaintiff, the onus then shifts to the defendant to raise triable issues. This was decided in the Federal Court case of Cempaka Finance Bhd v Ho Lai Ying (trading as KH Trading) [2006] 2 MLJ 685. The Federal Court in an earlier case of National Company For Foreign Trade v Kayu Raya Sdn Bhd [1984] 2 MLJ 300 held that, in order for the Plaintiff to satisfy the preliminary requirements, the plaintiff will have to establish a prima facie case and he will then be entitled to the judgment. The burden then shifts to the defendant to satisfy the Court why the judgment should not be given to the plaintiff, that there is a triable issue or some other reason that there ought to be a trial. [15] It is of pertinence to note that in this case, it would be for the Plaintiff to prove that it has a prima facie case that the Defendant is legally liable to pay the sum of RM518,203.00. Based on the Federal Court’s decision in National Company for Foreign Trade (supra) case, the preliminary requirements are: (a) The defendant must have entered an appearance; (b) The statement of claim must have been served on the defendant; and (c) The affidavit in support of the application must comply with the requirements of Rule 2 of Order 14. Following the case of National Company for Foreign Trade (supra), unless the plaintiff satisfies either of the three requirements, the applications may be dismissed. [16] Based on ‘Malaysian Court Practice, Rules of Court 2012, Desk Edition 2017’, for an application under Order 14 rule 2 of ROC 2012, the plaintiff is not required to proof that there is triable issue, it is for the plaintiff to state his belief in the affidavit that there is no defence to the claim. In reference to the requirements laid out in National Company for Foreign Trade (supra) case, this Court finds that the Plaintiff had fulfilled the preliminary requirements and the Plaintiff had in its Affidavit stated its belief that the Defendant has no defence to this claim (paragraph 17 of Plaintiff’s Affidavit, page 74 of Appeal Record). [17] The Plaintiff’s Additional Affidavit of 15.9.2016 stated that the monetary advancement for the said Land which benefitted the Plaintiff was not intended to be gratuitous and demanded for the return of the amount RM518,203.00 in accordance with section 71 of the Contracts Act 1950. Following section 71 of the Contracts Act 1950, “Where a person lawfully does anything for another person, or delivers anything to him, not intending to do so gratuitously, and such other person enjoys the benefit thereof, the latter is bound to make compensation to the former in respect of, or to restore, the thing so done or delivered.” The Plaintiff claimed that the payment for the said Land was done lawfully and was not intended as gratuitous. The Plaintiff’s act of objection by entering a private caveat and under statutory declaration shows its objection to the Defendant in taking the said Land. Based on the Privy Council’s case of Siow Wong Fatt (supra) as submitted by Plaintiff’s counsel, that such payment as alleged by the Plaintiff for the Defendant was lawful and was not gratuitous indeed benefitted the Defendant. This Court finds that the plaintiff had established its claim under section 71 of the Contracts Act 1950. [18] Turning to the evidence, upon careful perusal of the Plaintiff’s Amended Statement of Claim, the evidence submitted by the Plaintiff comprising the receipts for the premium paid, the bank draft of HSBC by the Plaintiff, the caveat application on the said Land with the statutory declaration by the Plaintiff (pages 123 – 125 of the Appeal Record), proved to show the consistency in the Plaintiff’s claim. The HSBC cheque of the Plaintiff dated 3.10.2012 to HSBC Amanah Malaysia Berhad (page 92 of the Appeal Record) bears the exact amount for the required premium and the bank draft to the Local Authority bears the Plaintiff’s cheque number of 56-14019. However, the amount on the bank draft is more than the premium amount and the cheque issued, stating RM517, 912.00 (page 93 of the Appeal Record), to which based on Plaintiff’s pleading, the amount of RM517,902.00 be returned to Plaintiff (paragraph 7(c)(i) of Amended Statement of Claim, page 16 of the Appeal Record). The Plaintiff in its Affidavit, stated its belief that the defendant has no defence to this claim (paragraph 17 of Plaintiff’s Affidavit, page 74 of Appeal Record). [19] This Court also finds that the Plaintiff did not claim for contractual relationship nor the existence of a power of attorney but for the return of the advancement based on a failed monetary arrangement (paragraphs 11 and 12 of Affidavit in Support, page 73 of the Appeal Record). The caveat entered by the Plaintiff on the said Land dated 15.1.2015 stating that the Plaintiff had paid the Defendant the sum of money RM517,901.00 for the title to be registered and claimed that the Defendant had agreed to transfer to the Plaintiff in exchange for development, together with Plaintiff’s Statutory Declaration under section 21 of the Statutory Declaration Act 1960 (pages 123-125 of Appeal Record). [20] When times are good, payment could be arranged for a land to be transferred and registered by issuance of title to the interested person who may not be the one who paid the premium. This is consistent with the view that payment made upon trust without any proof of written agreement between parties. The Plaintiff averred in its pleading that its claim is not on the basis of any agreement. Therefore this Court viewed that the agreement which is unsigned and unstamped as claimed by the Plaintiff will not assist this Honourable Court. This Court viewed that the prima facie case established by the Plaintiff is based on its Amended Statement of Claim, the receipts for the premium and other charges in the name of the Defendant, the Plaintiff’s cheque and bank draft (pages 88-93 of the Appeal Record), the caveat entered by the Plaintiff on the said Land, the affidavits of the Plaintiff and the Defendant’s defence. [21] The onus then shifts to the Defendant to show that the judgment should not be given to the Plaintiff. Based on the Supreme Court’s decision of Bank Negara Malaysia v Mohd Ismail & Ors [1992] 1 MLJ 400, in relation to the defence, the requirement under Order 14 ROC 2012 is that, it is for the Court to be satisfied on affidavit evidence that the defence not only raised an issue but also that the said issue is triable. There are a number of authorities as reference on defence. It has been decided in the case of Perwira Habib Bank Malaysia Berhad v Samuel Pakianathan [1993] 2 MLJ 423, a Supreme Court decision that summary judgment may still be given notwithstanding that the Defendant had filed a counterclaim. [22] Upon careful perusal of the Defendant’s defence, the Court finds that firstly, the Defendant did not dispute that the Statement of Claim/ Amended Statement of Claim had been served on the Defendant, that the Defendant had entered appearance and that the Plaintiff had affirmed an affidavit verifying the facts on which the Amended Statement of Claim are based upon: Wasco Lindung Sdn Bhd vLustre Metals & Minerals Sdn Bhd [2015] 2 CLJ 427. Secondly, the Court finds that the Defendant denied on the premium made by the Plaintiff, that the Defendant averred that the premium paid was a gratuitous payment for the projects and honorary and that in the alternative, had claimed that the Plaintiff may have paid without Defendant’s knowledge (paragraphs 4.2, 4.3, 4.4 of the Defendant’s Defence and Counterclaim, pages 20-21 Appeal Record). [23] The Defendant in its Affidavit In Reply stated his denial of the advancement by the Plaintiff (paragraphs 6.1 – 6.4 of the Defendant’s Affidavit In Reply 4.8.2016, at pages 77 – 78 of Appeal Record) and averred that only through a full trial where witnesses will be called, can decide whether it is the Defendant or the Plaintiff whom agreed to pay for the Defendant. In the latter, the relevant sentence at paragraph 6.1 is reproduced here: “… Pembuktian pembayaran tersebut hanya dapat dibuktikan melalui perbicaraan penuh untuk menentukan sama ada saya atau Plaintif bersama-sama bersetuju bahawa Plaintif akan membuat bayaran bagi pihak saya.” This Court finds no statement to prove that the Defendant had in fact paid the premium for the said Land to rebut the Plaintiff’s claim. [24] In addition, merely denying with no documentary evidence to rebut, the onus stays with the Defendant. In fact, the Defendant’s averment on the gratuitous payment and that it was paid without Defendant’s knowledge would be an admission that there was monetary advancement, following section 17 of Evidence Act 1950. As Defendant had admitted that such monetary advancement took place, there is no requirement for witnesses to be called to testify. The other aspect of law of concerned is the Defendant’s alternative defence that the payment was made without Defendant’s knowledge in order to gain from projects. Such commission or incentives as how the Defendant puts it, would be contrary to public policy and the Court as a vital institution of democratic governance must be firm in sending out a principled message that unregulated incentive which is against public policy, is unlawful. Therefore, this Court finds that there was no other reason for the case to go to trial: Order 14 rule 3(1) of ROC 2012. [25] This appeal arises from a summary judgment under Order 14 ROC 2012. It is incumbent upon the Court to have the overall view to ascertain whether the Defendant has a real or bona fide defence. This Court has carefully perused the affidavits and documentary evidence and finds that the Defendant did not deny that there was an advancement arrangement. The Defendant’s admission that the Plaintiff paid without the Defendant’s knowledge and the argument that such payment was gratuitous as to repay Defendant’s assistance, proves to show that there is a prima facie case of monetary advancement. [26] In light of the above reasons, the Plaintiff has on the balance of probabilities, a prima facie case for summary judgment to be entered against the Defendant. I therefore allowed the appeal with cost. The Plaintiff’s counsel had asked for a consequential order, for a stay of execution. This Court holds the view that a stay of execution must be applied, as this Court treats this appeal and the other appeal under Order 18 rule 19 ROC 2012, as two separate proceedings. This Court finds no defence to Plaintiff’s claim and as Defendant’s counterclaim is not less than the Plaintiff’s claim, the Plaintiff should apply for a stay of execution until the trial of counterclaim to which the other appeal under Order 18 rule 19 ROC 2012 is allowed. Dated: 23 October 2017 (ZALITA BINTI DATO’ ZAIDAN) Judicial Commissioner Shah Alam High Court SOLICITORS FOR THE APPELLANT: P.Y. CHONG LEE MAN HENG Tetuan H.M. Lee P-O3-01, Impian Meridian Commerze Jalan Subang 1, USJ 1 47600 Subang Jaya Selangor Darul Ehsan [Rujukan: 1948/JM/16/L] Tel: 03-5891 6810 Fax: 03-5891 6820 SOLICITORS FOR THE RESPONDENT: ASHMADI BIN OTHMAN Tetuan Zulpadli & Edham No. 24, Jalan Perumahan Gurney 54000 Kuala Lumpur [Rujukan: ZE(E)/L/1704/16] Tel: 03-2694 6979/ 03-2694 6997 Fax: 03-2691 1107 1

Tika 2.6.0

BA-12ANCC-25-10/2016

PERAYU TAN KIAN SOON RESPONDEN MD ZUKRI BIN SALLLEH (NO.K/P: 581211-03-5499)

23/10/2017

YA DATIN ZALITA BINTI DATO' HJ. ZAIDAN (PK)

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=de5b66ab-441a-427f-a4b9-5605dea4b46a&Inline=true

DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN, MALAYSIA RAYUAN NO.: BA-12ANCC-25-10/2016 ANTARA TAN KIAN SOON … PERAYU DAN MD ZUKRI BIN SALLLEH … RESPONDEN (NO.K/P: 581211-03-5499) (DALAM PERKARA MAHKAMAH SESYEN DI SHAH ALAM GUAMAN NO: BA-B52NCC-49-05/2016) ANTARA TAN KIAN SOON … PLAINTIF DAN MD ZUKRI BIN SALLEH … DEFENDAN) (NO.K/P: 581211-03-5499) GROUND OF JUDGMENT Introduction [1] This is an appeal by the Appellant (the Plaintiff), against the Sessions Court’s decision in dismissing the Appellant’s Notice of Application for Summary Judgment against the Respondent (the Defendant), on 30.9.2016. [2] The Appellant’s application under Order 14 of the Rules of Court 2012 (ROC 2012) is for a claim of RM518,203.00 with interest at 5% per annum from 8.10.2012 until judgment and 5% per annum from the date of judgment until full settlement and cost. [3] This appeal is heard together with the other appeal, case number BA-12ANCC-31-12/2016 between the same parties, where the Appellant is appealing against the Sessions Court’s decision which dismissed the Appellant’s Notice of Application to strike out the Respondent’s counterclaim under Order 18 rule 19 of the ROC 2012. The Respondent had filed a counterclaim against the Appellant for a sum of RM2,600,000.00. [4] For ease of reference, in this judgment, the parties will be referred to as they were in the Sessions Court. Facts [5] The relevant factual background giving rise to this appeal based on the written submission of the counsels may be briefly stated as follows: (a) The Plaintiff is an individual having its address is at No. 15, Jalan BJ/29, Taman Balakong Jaya, 43200 Cheras, Selangor. (b) The Plaintiff claimed that by a letter of 9.4.2012 from the Pejabat Pengarah Tanah dan Galian, Wilayah Persekutuan (the “Local Authority”) to the Defendant, the Local Authority had agreed to grant a title of a piece of land, Lot 165, Jalan Jelatek, Seksyen 88, Bandar Kuala Lumpur (the said Land) to the Defendant. According to the Plaintiff, before the title of the said Land can be issued to the Defendant, the Defendant is required to pay a premium of RM518,203 in accordance with Form 5A and the Plaintiff advanced the sum RM518,203.00 on Defendant’s request, on or around 8.10.2012 and the Form 5A dated 9.4.2012 following section 81 and section 82 of the National Land Code 1965 was issued to the Defendant. (c) The particulars of Plaintiff’s claim (at page 16 of the Appeal Record): “a) Cukai tanah bagi tahun pertama RM 621.00 b) Bayaran Premium 5A RM 517,192.00 c) Bayaran Ukur RM 250.00 d) Lain-lain bayaran RM 140.00 RM 518,203.00” (d) The Plaintiff claimed that in return for the monetary advancement, the Defendant agreed to sign a formal agreement where the terms were among others, the Plaintiff is to be appointed with the Power of Attorney to act for and behalf for the Defendant for the said Land; the said Land is to be sold off and the proceeds are to be divided between them where Defendant will repay Plaintiff RM517,901.00 and the balance will be divided equally between the Plaintiff and the Defendant. (e) The Plaintiff claimed that the Defendant refused to sign the agreement and the sum of RM518,203.00 failed to be repaid to the Plaintiff. (f) The Plaintiff also claimed that in the alternative, the payment made to the Local Authority for RM518,203.00 for the issuance of the title of the said Land had benefitted the Defendant and was never intended to be paid as gratuitous, hence the Defendant is responsible to return the advancement of RM518,203.00 to the Plaintiff based on section 71 of the Contracts Act 1950. (g) The Defendant denied that the he had agreed to any monetary advancement from the Plaintiff and claimed that there was no agreement to sign any contract with the Plaintiff nor did he direct the Plaintiff to advance the amount of RM518,203.00 for the said Land. (h) The Defendant also claimed that in the alternative, the Plaintiff may on its own personal capacity or willingness, advanced the RM518,203.00 to the Defendant without the Defendant’s knowledge in order to get Defendant’s assistance for projects where the Defendant had access and/or the Plaintiff felt obliged to repay for Defendant’s assistance for successfully getting the projects which benefitted the Plaintiff (paragraph 4.3, pages 20-21 of Defendant’s Defence, Appeal Record). (i) The Defendant claimed that the Plaintiff had guaranteed to give money of RM2,600,000.00 as an incentive or for the return of Defendant’s assistance in getting the projects and honorary which will be proven during the trial. The Defendant claimed that the Plaintiff had agreed during one negotiation between the Plaintiff and the Defendant, in the presence of one Tengku Ibrahim, the Plaintiff will pay the Defendant RM1,000,000.00 as full settlement but the Plaintiff failed to pay and the Defendant is claiming for the RM2,600,000.00. (j) The Defendant then filed a counterclaim against the Plaintiff for a sum of RM2,600,000.00 alleging that the Plaintiff had given an undertaking to the Defendant for successfully obtaining all the projects and the honorary which the projects are as listed Defendant’s Defence and Counterclaim (paragraphs 4.3 – 4.5 of Defence and Counterclaim at pages 21-23 Appeal Record). Plaintiff’s Submission [6] The learned counsel for the Plaintiff advanced several grounds for this appeal and the main contention is that the Session Judge had failed to consider the Plaintiff’s alternative claim against Defendant under section 71 of the Contracts Act 1950 which is for the refund of the premium and other miscellaneous charges. The Plaintiff’s counsel relied on the Privy Council case of Siow Wong Fatt v Susur Rotan Mining Ltd & Anor [1967] 2 MLJ 118 on the four conditions that must be satisfied to establish a claim under section 71 which was also followed by the Supreme Court in the case of New Kok Ann Realty Sdn Bhd v Development & Commercial Bank Ltd., New Hebrides (in liquidation) [1987] 2 MLJ 57. [7] It was submitted by the Plaintiff’s counsel that the four conditions had been satisfied, that the Plaintiff’s act by paying the said Land’s premium and other miscellaneous charges were lawful, that the payment enabled the Defendant to obtain the title to the said Land, the payment was not intended to be done gratuitously and it was submitted that the Defendant enjoyed the benefit from the Plaintiff’s act. [8] It was also averred by the Plaintiff’s counsel that based on the principle of unjust enrichment following the case of Sediaperak Sdn Bhd v Baboo Chowdhury [1999] 5 MLJ 229, the Plaintiff’s payment which was not done gratuitously had unjustly enriched the Defendant as owner of the said Land without returning the sum of RM518,203.00 to the Plaintiff. [9] The Plaintiff’s counsel contended that the Defendant’s affidavit in reply were merely bare denials and the Defendant had made contradictory statement in its application to remove the private caveat entered by Plaintiff (page 84 of the Appeal Record) by stating that the Defendant had paid the premium whereas in his Defence (paragraph 4.3 of Defence and Counterclaim, page 20 of Appeal Record), it was stated that the payment was made by Plaintiff in exchange for Defendant’s assistance. Defendant’s Submission [10] The learned counsel for the Defendant submitted that the contract exhibited by the Plaintiff is not a valid contract under section 10 of Contracts Act 1950 and there was no consent from both parties to the contract which was not denied by the Plaintiff. It was also contended that the Plaintiff failed to prove that there was an intention to create legal relations between the Plaintiff and the Defendant, relying on the case of Ismail bin Mohd Yunos & Anor v First Revenue Sdn Bhd [2000] 5 MLJ 42. It was also argued that the Plaintiff failed to satisfy the elements of a contract under section 3 of the Contracts Act 1950. [11] The Defendant’s counsel in its submission argued that the Defendant denied all the evidence adduced by the Plaintiff and asserted that the Plaintiff had failed to prove the existence of monetary advancement of RM518,203.00 as there were no words stating that it was made by Plaintiff to the Defendant (pages 88 – 96 of Appeal Record). The Defendant’s counsel also contended, among others, that the cheque is not the same as the receipt (page 89 of Appeal Record) as the cheque number states “017908” whereas the receipt number is “019232”. In addition, the cheque was issued under the name of ‘HSBC Amanah Malaysia Bhd’ without stating the purpose of its payment which is for the premium under Form 5A as alleged by the Plaintiff. [12] The Defendant’s counsel contended that the Defendant has a defence as the Plaintiff’s claim is doubtful and can only be proven at the trial, referring to the Federal Court’s case of Ng Yik Seng & Anor v Perwira Habib Bank Malaysia Berhad [1980] 2 MLJ 83. THE SESSIONS COURT’S DECISION [13] Some of the decision of the Sessions Court is reproduced here as follows: “Mahkamah berpendapat defendan telah membangkitkan isu fakta dan memplidkan juga butir-butir projek yang telahdidapatkan bagi manfaat plaintif. Mahkamah mendapati isu-isu yang ditimbulkan oleh defendan itu adalah isu yang boleh dibicarakan. Malahan Defendan juga telah membuat tuntutan balas yang jumlahnya melebih dari tuntutan plaintiff bagi “set off” jumlah yang didahulukan oleh plaintif bagi mendapatkan hartanah tersebut yang kemudiannya untuk dijual dan hasilnya untuk dibahagi dua dan dikongsikan bersama-sama. Mahkamah berpendapat jikalau pun tuntutan balas itu dibicarakan di Mahkamah ini maka defendan hendaklah bersetuju untuk suatu award yang dalam bidang kuasa Mahkamah Sesyen sahaja dan Mahkamah ini tidak ada bidang kuasa untuk memerintahkan jumlah yang melebihi amaun RM1 juta. 2. Mahkamah berpendapat oleh kerana semua isu tersebut adalah isu fakta dan percanggahan adalah ketara, maka Mahkamah berpendapat isu ini perlu dibicarakan secara perbicaraan penuh dengan pihak-pihak memanggil saksi-saksi dan mengemukakan keterangan dokumen bagi menyokong pernyataan mereka. Mahkamah berpendapat kes ini tidak sesuai diadili secara perbicaraan melalui affidavit. Mahkamah berpandangan merit kes plaintif dan defendan wajar didengar bagi menilai keterangan semua pihak secara keseluruhan. ……… ……… 5. Mahkamah berpendapat pengataan defendan mempunyai percanggahan apabila dalam pembelaannya di perenggan 4.3 beliau mengatakan “kemungkinan plaintif dengan kerelaanya membayar RM518,203.00 tanpa pengetahuan defendan kerana ingin dapatkan bantuan bagi projek-projek lain yang defendan ada akses/ mungkin rasa terhutang budi atas jasa dan pertolongan defendan yang telah berjaya mendapatkan projek untuk plaintif..”, sebaliknya dalam affidavit defendan pula beliau menafikan telah menerima wang sejumlah yang dinyatakan di atas. Dalam pembelaanya defendan memberi gambaran beliau sememangnya ada terima wang yang telah didepositkan itu namun ianya bukan untuk tujuan penjualan hartanah sebaliknya untuk bayaran lain seperti mana yang dinyatakan. Namun dalam affidavitnya pula defendan menafikan telah menerima wang tersebut atas beberapa alasan iaitu nama defendan tidak dicatatkan di atas cek tersebut selain tujuan bayaran juga tidak dinyatakan dan bercanggah dengan apa yang dinyatakan oleh plaintif, wang pos tiada butiran penerima dll alasan lagi. 6. Mahkamah berpendapat suatu perbicaraan penuh perlu dijalankan utnuk menentukan pihak manakah yang bercakap benar dan yang boleh membuktikan alegasi dan fakta masing-masing. Pada pendapat Mahkamah, oleh kerana fakta tersebut telah ditimbulkan oleh defendan, maka beban bukti adalah atas defendan untuk membuktikan tuntutan balas beliau. Oleh yang demikian pendengaran secara perbicaraan penuh adalah forum yang wajar dan sesuai bagi memutuskan semua isu yang telah dibangkitkan tersebut. ….. Oleh yang demikian, atas alasan-alasan tersebut, Mahkamah menolak permohonan tersebut dengan kos RM3000-00.” THE COURT’S FINDING [14] There are preliminary requirements to be followed for an application under Order 14 ROC 2012. The burden is on the plaintiff to prove and once the burden is discharged by the plaintiff, the onus then shifts to the defendant to raise triable issues. This was decided in the Federal Court case of Cempaka Finance Bhd v Ho Lai Ying (trading as KH Trading) [2006] 2 MLJ 685. The Federal Court in an earlier case of National Company For Foreign Trade v Kayu Raya Sdn Bhd [1984] 2 MLJ 300 held that, in order for the Plaintiff to satisfy the preliminary requirements, the plaintiff will have to establish a prima facie case and he will then be entitled to the judgment. The burden then shifts to the defendant to satisfy the Court why the judgment should not be given to the plaintiff, that there is a triable issue or some other reason that there ought to be a trial. [15] It is of pertinence to note that in this case, it would be for the Plaintiff to prove that it has a prima facie case that the Defendant is legally liable to pay the sum of RM518,203.00. Based on the Federal Court’s decision in National Company for Foreign Trade (supra) case, the preliminary requirements are: (a) The defendant must have entered an appearance; (b) The statement of claim must have been served on the defendant; and (c) The affidavit in support of the application must comply with the requirements of Rule 2 of Order 14. Following the case of National Company for Foreign Trade (supra), unless the plaintiff satisfies either of the three requirements, the applications may be dismissed. [16] Based on ‘Malaysian Court Practice, Rules of Court 2012, Desk Edition 2017’, for an application under Order 14 rule 2 of ROC 2012, the plaintiff is not required to proof that there is triable issue, it is for the plaintiff to state his belief in the affidavit that there is no defence to the claim. In reference to the requirements laid out in National Company for Foreign Trade (supra) case, this Court finds that the Plaintiff had fulfilled the preliminary requirements and the Plaintiff had in its Affidavit stated its belief that the Defendant has no defence to this claim (paragraph 17 of Plaintiff’s Affidavit, page 74 of Appeal Record). [17] The Plaintiff’s Additional Affidavit of 15.9.2016 stated that the monetary advancement for the said Land which benefitted the Plaintiff was not intended to be gratuitous and demanded for the return of the amount RM518,203.00 in accordance with section 71 of the Contracts Act 1950. Following section 71 of the Contracts Act 1950, “Where a person lawfully does anything for another person, or delivers anything to him, not intending to do so gratuitously, and such other person enjoys the benefit thereof, the latter is bound to make compensation to the former in respect of, or to restore, the thing so done or delivered.” The Plaintiff claimed that the payment for the said Land was done lawfully and was not intended as gratuitous. The Plaintiff’s act of objection by entering a private caveat and under statutory declaration shows its objection to the Defendant in taking the said Land. Based on the Privy Council’s case of Siow Wong Fatt (supra) as submitted by Plaintiff’s counsel, that such payment as alleged by the Plaintiff for the Defendant was lawful and was not gratuitous indeed benefitted the Defendant. This Court finds that the plaintiff had established its claim under section 71 of the Contracts Act 1950. [18] Turning to the evidence, upon careful perusal of the Plaintiff’s Amended Statement of Claim, the evidence submitted by the Plaintiff comprising the receipts for the premium paid, the bank draft of HSBC by the Plaintiff, the caveat application on the said Land with the statutory declaration by the Plaintiff (pages 123 – 125 of the Appeal Record), proved to show the consistency in the Plaintiff’s claim. The HSBC cheque of the Plaintiff dated 3.10.2012 to HSBC Amanah Malaysia Berhad (page 92 of the Appeal Record) bears the exact amount for the required premium and the bank draft to the Local Authority bears the Plaintiff’s cheque number of 56-14019. However, the amount on the bank draft is more than the premium amount and the cheque issued, stating RM517, 912.00 (page 93 of the Appeal Record), to which based on Plaintiff’s pleading, the amount of RM517,902.00 be returned to Plaintiff (paragraph 7(c)(i) of Amended Statement of Claim, page 16 of the Appeal Record). The Plaintiff in its Affidavit, stated its belief that the defendant has no defence to this claim (paragraph 17 of Plaintiff’s Affidavit, page 74 of Appeal Record). [19] This Court also finds that the Plaintiff did not claim for contractual relationship nor the existence of a power of attorney but for the return of the advancement based on a failed monetary arrangement (paragraphs 11 and 12 of Affidavit in Support, page 73 of the Appeal Record). The caveat entered by the Plaintiff on the said Land dated 15.1.2015 stating that the Plaintiff had paid the Defendant the sum of money RM517,901.00 for the title to be registered and claimed that the Defendant had agreed to transfer to the Plaintiff in exchange for development, together with Plaintiff’s Statutory Declaration under section 21 of the Statutory Declaration Act 1960 (pages 123-125 of Appeal Record). [20] When times are good, payment could be arranged for a land to be transferred and registered by issuance of title to the interested person who may not be the one who paid the premium. This is consistent with the view that payment made upon trust without any proof of written agreement between parties. The Plaintiff averred in its pleading that its claim is not on the basis of any agreement. Therefore this Court viewed that the agreement which is unsigned and unstamped as claimed by the Plaintiff will not assist this Honourable Court. This Court viewed that the prima facie case established by the Plaintiff is based on its Amended Statement of Claim, the receipts for the premium and other charges in the name of the Defendant, the Plaintiff’s cheque and bank draft (pages 88-93 of the Appeal Record), the caveat entered by the Plaintiff on the said Land, the affidavits of the Plaintiff and the Defendant’s defence. [21] The onus then shifts to the Defendant to show that the judgment should not be given to the Plaintiff. Based on the Supreme Court’s decision of Bank Negara Malaysia v Mohd Ismail & Ors [1992] 1 MLJ 400, in relation to the defence, the requirement under Order 14 ROC 2012 is that, it is for the Court to be satisfied on affidavit evidence that the defence not only raised an issue but also that the said issue is triable. There are a number of authorities as reference on defence. It has been decided in the case of Perwira Habib Bank Malaysia Berhad v Samuel Pakianathan [1993] 2 MLJ 423, a Supreme Court decision that summary judgment may still be given notwithstanding that the Defendant had filed a counterclaim. [22] Upon careful perusal of the Defendant’s defence, the Court finds that firstly, the Defendant did not dispute that the Statement of Claim/ Amended Statement of Claim had been served on the Defendant, that the Defendant had entered appearance and that the Plaintiff had affirmed an affidavit verifying the facts on which the Amended Statement of Claim are based upon: Wasco Lindung Sdn Bhd vLustre Metals & Minerals Sdn Bhd [2015] 2 CLJ 427. Secondly, the Court finds that the Defendant denied on the premium made by the Plaintiff, that the Defendant averred that the premium paid was a gratuitous payment for the projects and honorary and that in the alternative, had claimed that the Plaintiff may have paid without Defendant’s knowledge (paragraphs 4.2, 4.3, 4.4 of the Defendant’s Defence and Counterclaim, pages 20-21 Appeal Record). [23] The Defendant in its Affidavit In Reply stated his denial of the advancement by the Plaintiff (paragraphs 6.1 – 6.4 of the Defendant’s Affidavit In Reply 4.8.2016, at pages 77 – 78 of Appeal Record) and averred that only through a full trial where witnesses will be called, can decide whether it is the Defendant or the Plaintiff whom agreed to pay for the Defendant. In the latter, the relevant sentence at paragraph 6.1 is reproduced here: “… Pembuktian pembayaran tersebut hanya dapat dibuktikan melalui perbicaraan penuh untuk menentukan sama ada saya atau Plaintif bersama-sama bersetuju bahawa Plaintif akan membuat bayaran bagi pihak saya.” This Court finds no statement to prove that the Defendant had in fact paid the premium for the said Land to rebut the Plaintiff’s claim. [24] In addition, merely denying with no documentary evidence to rebut, the onus stays with the Defendant. In fact, the Defendant’s averment on the gratuitous payment and that it was paid without Defendant’s knowledge would be an admission that there was monetary advancement, following section 17 of Evidence Act 1950. As Defendant had admitted that such monetary advancement took place, there is no requirement for witnesses to be called to testify. The other aspect of law of concerned is the Defendant’s alternative defence that the payment was made without Defendant’s knowledge in order to gain from projects. Such commission or incentives as how the Defendant puts it, would be contrary to public policy and the Court as a vital institution of democratic governance must be firm in sending out a principled message that unregulated incentive which is against public policy, is unlawful. Therefore, this Court finds that there was no other reason for the case to go to trial: Order 14 rule 3(1) of ROC 2012. [25] This appeal arises from a summary judgment under Order 14 ROC 2012. It is incumbent upon the Court to have the overall view to ascertain whether the Defendant has a real or bona fide defence. This Court has carefully perused the affidavits and documentary evidence and finds that the Defendant did not deny that there was an advancement arrangement. The Defendant’s admission that the Plaintiff paid without the Defendant’s knowledge and the argument that such payment was gratuitous as to repay Defendant’s assistance, proves to show that there is a prima facie case of monetary advancement. [26] In light of the above reasons, the Plaintiff has on the balance of probabilities, a prima facie case for summary judgment to be entered against the Defendant. I therefore allowed the appeal with cost. The Plaintiff’s counsel had asked for a consequential order, for a stay of execution. This Court holds the view that a stay of execution must be applied, as this Court treats this appeal and the other appeal under Order 18 rule 19 ROC 2012, as two separate proceedings. This Court finds no defence to Plaintiff’s claim and as Defendant’s counterclaim is not less than the Plaintiff’s claim, the Plaintiff should apply for a stay of execution until the trial of counterclaim to which the other appeal under Order 18 rule 19 ROC 2012 is allowed. Dated: 23 October 2017 (ZALITA BINTI DATO’ ZAIDAN) Judicial Commissioner Shah Alam High Court SOLICITORS FOR THE APPELLANT: P.Y. CHONG LEE MAN HENG Tetuan H.M. Lee P-O3-01, Impian Meridian Commerze Jalan Subang 1, USJ 1 47600 Subang Jaya Selangor Darul Ehsan [Rujukan: 1948/JM/16/L] Tel: 03-5891 6810 Fax: 03-5891 6820 SOLICITORS FOR THE RESPONDENT: ASHMADI BIN OTHMAN Tetuan Zulpadli & Edham No. 24, Jalan Perumahan Gurney 54000 Kuala Lumpur [Rujukan: ZE(E)/L/1704/16] Tel: 03-2694 6979/ 03-2694 6997 Fax: 03-2691 1107 2

Tika 2.6.0

BA-12ANCC-25-10/2016

PERAYU TAN KIAN SOON RESPONDEN MD ZUKRI BIN SALLLEH (NO.K/P: 581211-03-5499)

23/10/2017

YA DATIN ZALITA BINTI DATO' HJ. ZAIDAN (PK)

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=de5b66ab-441a-427f-a4b9-5605dea4b46a&Inline=true

DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN, MALAYSIA RAYUAN NO.: BA-12ANCC-25-10/2016 ANTARA TAN KIAN SOON … PERAYU DAN MD ZUKRI BIN SALLLEH … RESPONDEN (NO.K/P: 581211-03-5499) (DALAM PERKARA MAHKAMAH SESYEN DI SHAH ALAM GUAMAN NO: BA-B52NCC-49-05/2016) ANTARA TAN KIAN SOON … PLAINTIF DAN MD ZUKRI BIN SALLEH … DEFENDAN) (NO.K/P: 581211-03-5499) GROUND OF JUDGMENT Introduction [1] This is an appeal by the Appellant (the Plaintiff), against the Sessions Court’s decision in dismissing the Appellant’s Notice of Application for Summary Judgment against the Respondent (the Defendant), on 30.9.2016. [2] The Appellant’s application under Order 14 of the Rules of Court 2012 (ROC 2012) is for a claim of RM518,203.00 with interest at 5% per annum from 8.10.2012 until judgment and 5% per annum from the date of judgment until full settlement and cost. [3] This appeal is heard together with the other appeal, case number BA-12ANCC-31-12/2016 between the same parties, where the Appellant is appealing against the Sessions Court’s decision which dismissed the Appellant’s Notice of Application to strike out the Respondent’s counterclaim under Order 18 rule 19 of the ROC 2012. The Respondent had filed a counterclaim against the Appellant for a sum of RM2,600,000.00. [4] For ease of reference, in this judgment, the parties will be referred to as they were in the Sessions Court. Facts [5] The relevant factual background giving rise to this appeal based on the written submission of the counsels may be briefly stated as follows: (a) The Plaintiff is an individual having its address is at No. 15, Jalan BJ/29, Taman Balakong Jaya, 43200 Cheras, Selangor. (b) The Plaintiff claimed that by a letter of 9.4.2012 from the Pejabat Pengarah Tanah dan Galian, Wilayah Persekutuan (the “Local Authority”) to the Defendant, the Local Authority had agreed to grant a title of a piece of land, Lot 165, Jalan Jelatek, Seksyen 88, Bandar Kuala Lumpur (the said Land) to the Defendant. According to the Plaintiff, before the title of the said Land can be issued to the Defendant, the Defendant is required to pay a premium of RM518,203 in accordance with Form 5A and the Plaintiff advanced the sum RM518,203.00 on Defendant’s request, on or around 8.10.2012 and the Form 5A dated 9.4.2012 following section 81 and section 82 of the National Land Code 1965 was issued to the Defendant. (c) The particulars of Plaintiff’s claim (at page 16 of the Appeal Record): “a) Cukai tanah bagi tahun pertama RM 621.00 b) Bayaran Premium 5A RM 517,192.00 c) Bayaran Ukur RM 250.00 d) Lain-lain bayaran RM 140.00 RM 518,203.00” (d) The Plaintiff claimed that in return for the monetary advancement, the Defendant agreed to sign a formal agreement where the terms were among others, the Plaintiff is to be appointed with the Power of Attorney to act for and behalf for the Defendant for the said Land; the said Land is to be sold off and the proceeds are to be divided between them where Defendant will repay Plaintiff RM517,901.00 and the balance will be divided equally between the Plaintiff and the Defendant. (e) The Plaintiff claimed that the Defendant refused to sign the agreement and the sum of RM518,203.00 failed to be repaid to the Plaintiff. (f) The Plaintiff also claimed that in the alternative, the payment made to the Local Authority for RM518,203.00 for the issuance of the title of the said Land had benefitted the Defendant and was never intended to be paid as gratuitous, hence the Defendant is responsible to return the advancement of RM518,203.00 to the Plaintiff based on section 71 of the Contracts Act 1950. (g) The Defendant denied that the he had agreed to any monetary advancement from the Plaintiff and claimed that there was no agreement to sign any contract with the Plaintiff nor did he direct the Plaintiff to advance the amount of RM518,203.00 for the said Land. (h) The Defendant also claimed that in the alternative, the Plaintiff may on its own personal capacity or willingness, advanced the RM518,203.00 to the Defendant without the Defendant’s knowledge in order to get Defendant’s assistance for projects where the Defendant had access and/or the Plaintiff felt obliged to repay for Defendant’s assistance for successfully getting the projects which benefitted the Plaintiff (paragraph 4.3, pages 20-21 of Defendant’s Defence, Appeal Record). (i) The Defendant claimed that the Plaintiff had guaranteed to give money of RM2,600,000.00 as an incentive or for the return of Defendant’s assistance in getting the projects and honorary which will be proven during the trial. The Defendant claimed that the Plaintiff had agreed during one negotiation between the Plaintiff and the Defendant, in the presence of one Tengku Ibrahim, the Plaintiff will pay the Defendant RM1,000,000.00 as full settlement but the Plaintiff failed to pay and the Defendant is claiming for the RM2,600,000.00. (j) The Defendant then filed a counterclaim against the Plaintiff for a sum of RM2,600,000.00 alleging that the Plaintiff had given an undertaking to the Defendant for successfully obtaining all the projects and the honorary which the projects are as listed Defendant’s Defence and Counterclaim (paragraphs 4.3 – 4.5 of Defence and Counterclaim at pages 21-23 Appeal Record). Plaintiff’s Submission [6] The learned counsel for the Plaintiff advanced several grounds for this appeal and the main contention is that the Session Judge had failed to consider the Plaintiff’s alternative claim against Defendant under section 71 of the Contracts Act 1950 which is for the refund of the premium and other miscellaneous charges. The Plaintiff’s counsel relied on the Privy Council case of Siow Wong Fatt v Susur Rotan Mining Ltd & Anor [1967] 2 MLJ 118 on the four conditions that must be satisfied to establish a claim under section 71 which was also followed by the Supreme Court in the case of New Kok Ann Realty Sdn Bhd v Development & Commercial Bank Ltd., New Hebrides (in liquidation) [1987] 2 MLJ 57. [7] It was submitted by the Plaintiff’s counsel that the four conditions had been satisfied, that the Plaintiff’s act by paying the said Land’s premium and other miscellaneous charges were lawful, that the payment enabled the Defendant to obtain the title to the said Land, the payment was not intended to be done gratuitously and it was submitted that the Defendant enjoyed the benefit from the Plaintiff’s act. [8] It was also averred by the Plaintiff’s counsel that based on the principle of unjust enrichment following the case of Sediaperak Sdn Bhd v Baboo Chowdhury [1999] 5 MLJ 229, the Plaintiff’s payment which was not done gratuitously had unjustly enriched the Defendant as owner of the said Land without returning the sum of RM518,203.00 to the Plaintiff. [9] The Plaintiff’s counsel contended that the Defendant’s affidavit in reply were merely bare denials and the Defendant had made contradictory statement in its application to remove the private caveat entered by Plaintiff (page 84 of the Appeal Record) by stating that the Defendant had paid the premium whereas in his Defence (paragraph 4.3 of Defence and Counterclaim, page 20 of Appeal Record), it was stated that the payment was made by Plaintiff in exchange for Defendant’s assistance. Defendant’s Submission [10] The learned counsel for the Defendant submitted that the contract exhibited by the Plaintiff is not a valid contract under section 10 of Contracts Act 1950 and there was no consent from both parties to the contract which was not denied by the Plaintiff. It was also contended that the Plaintiff failed to prove that there was an intention to create legal relations between the Plaintiff and the Defendant, relying on the case of Ismail bin Mohd Yunos & Anor v First Revenue Sdn Bhd [2000] 5 MLJ 42. It was also argued that the Plaintiff failed to satisfy the elements of a contract under section 3 of the Contracts Act 1950. [11] The Defendant’s counsel in its submission argued that the Defendant denied all the evidence adduced by the Plaintiff and asserted that the Plaintiff had failed to prove the existence of monetary advancement of RM518,203.00 as there were no words stating that it was made by Plaintiff to the Defendant (pages 88 – 96 of Appeal Record). The Defendant’s counsel also contended, among others, that the cheque is not the same as the receipt (page 89 of Appeal Record) as the cheque number states “017908” whereas the receipt number is “019232”. In addition, the cheque was issued under the name of ‘HSBC Amanah Malaysia Bhd’ without stating the purpose of its payment which is for the premium under Form 5A as alleged by the Plaintiff. [12] The Defendant’s counsel contended that the Defendant has a defence as the Plaintiff’s claim is doubtful and can only be proven at the trial, referring to the Federal Court’s case of Ng Yik Seng & Anor v Perwira Habib Bank Malaysia Berhad [1980] 2 MLJ 83. THE SESSIONS COURT’S DECISION [13] Some of the decision of the Sessions Court is reproduced here as follows: “Mahkamah berpendapat defendan telah membangkitkan isu fakta dan memplidkan juga butir-butir projek yang telahdidapatkan bagi manfaat plaintif. Mahkamah mendapati isu-isu yang ditimbulkan oleh defendan itu adalah isu yang boleh dibicarakan. Malahan Defendan juga telah membuat tuntutan balas yang jumlahnya melebih dari tuntutan plaintiff bagi “set off” jumlah yang didahulukan oleh plaintif bagi mendapatkan hartanah tersebut yang kemudiannya untuk dijual dan hasilnya untuk dibahagi dua dan dikongsikan bersama-sama. Mahkamah berpendapat jikalau pun tuntutan balas itu dibicarakan di Mahkamah ini maka defendan hendaklah bersetuju untuk suatu award yang dalam bidang kuasa Mahkamah Sesyen sahaja dan Mahkamah ini tidak ada bidang kuasa untuk memerintahkan jumlah yang melebihi amaun RM1 juta. 2. Mahkamah berpendapat oleh kerana semua isu tersebut adalah isu fakta dan percanggahan adalah ketara, maka Mahkamah berpendapat isu ini perlu dibicarakan secara perbicaraan penuh dengan pihak-pihak memanggil saksi-saksi dan mengemukakan keterangan dokumen bagi menyokong pernyataan mereka. Mahkamah berpendapat kes ini tidak sesuai diadili secara perbicaraan melalui affidavit. Mahkamah berpandangan merit kes plaintif dan defendan wajar didengar bagi menilai keterangan semua pihak secara keseluruhan. ……… ……… 5. Mahkamah berpendapat pengataan defendan mempunyai percanggahan apabila dalam pembelaannya di perenggan 4.3 beliau mengatakan “kemungkinan plaintif dengan kerelaanya membayar RM518,203.00 tanpa pengetahuan defendan kerana ingin dapatkan bantuan bagi projek-projek lain yang defendan ada akses/ mungkin rasa terhutang budi atas jasa dan pertolongan defendan yang telah berjaya mendapatkan projek untuk plaintif..”, sebaliknya dalam affidavit defendan pula beliau menafikan telah menerima wang sejumlah yang dinyatakan di atas. Dalam pembelaanya defendan memberi gambaran beliau sememangnya ada terima wang yang telah didepositkan itu namun ianya bukan untuk tujuan penjualan hartanah sebaliknya untuk bayaran lain seperti mana yang dinyatakan. Namun dalam affidavitnya pula defendan menafikan telah menerima wang tersebut atas beberapa alasan iaitu nama defendan tidak dicatatkan di atas cek tersebut selain tujuan bayaran juga tidak dinyatakan dan bercanggah dengan apa yang dinyatakan oleh plaintif, wang pos tiada butiran penerima dll alasan lagi. 6. Mahkamah berpendapat suatu perbicaraan penuh perlu dijalankan utnuk menentukan pihak manakah yang bercakap benar dan yang boleh membuktikan alegasi dan fakta masing-masing. Pada pendapat Mahkamah, oleh kerana fakta tersebut telah ditimbulkan oleh defendan, maka beban bukti adalah atas defendan untuk membuktikan tuntutan balas beliau. Oleh yang demikian pendengaran secara perbicaraan penuh adalah forum yang wajar dan sesuai bagi memutuskan semua isu yang telah dibangkitkan tersebut. ….. Oleh yang demikian, atas alasan-alasan tersebut, Mahkamah menolak permohonan tersebut dengan kos RM3000-00.” THE COURT’S FINDING [14] There are preliminary requirements to be followed for an application under Order 14 ROC 2012. The burden is on the plaintiff to prove and once the burden is discharged by the plaintiff, the onus then shifts to the defendant to raise triable issues. This was decided in the Federal Court case of Cempaka Finance Bhd v Ho Lai Ying (trading as KH Trading) [2006] 2 MLJ 685. The Federal Court in an earlier case of National Company For Foreign Trade v Kayu Raya Sdn Bhd [1984] 2 MLJ 300 held that, in order for the Plaintiff to satisfy the preliminary requirements, the plaintiff will have to establish a prima facie case and he will then be entitled to the judgment. The burden then shifts to the defendant to satisfy the Court why the judgment should not be given to the plaintiff, that there is a triable issue or some other reason that there ought to be a trial. [15] It is of pertinence to note that in this case, it would be for the Plaintiff to prove that it has a prima facie case that the Defendant is legally liable to pay the sum of RM518,203.00. Based on the Federal Court’s decision in National Company for Foreign Trade (supra) case, the preliminary requirements are: (a) The defendant must have entered an appearance; (b) The statement of claim must have been served on the defendant; and (c) The affidavit in support of the application must comply with the requirements of Rule 2 of Order 14. Following the case of National Company for Foreign Trade (supra), unless the plaintiff satisfies either of the three requirements, the applications may be dismissed. [16] Based on ‘Malaysian Court Practice, Rules of Court 2012, Desk Edition 2017’, for an application under Order 14 rule 2 of ROC 2012, the plaintiff is not required to proof that there is triable issue, it is for the plaintiff to state his belief in the affidavit that there is no defence to the claim. In reference to the requirements laid out in National Company for Foreign Trade (supra) case, this Court finds that the Plaintiff had fulfilled the preliminary requirements and the Plaintiff had in its Affidavit stated its belief that the Defendant has no defence to this claim (paragraph 17 of Plaintiff’s Affidavit, page 74 of Appeal Record). [17] The Plaintiff’s Additional Affidavit of 15.9.2016 stated that the monetary advancement for the said Land which benefitted the Plaintiff was not intended to be gratuitous and demanded for the return of the amount RM518,203.00 in accordance with section 71 of the Contracts Act 1950. Following section 71 of the Contracts Act 1950, “Where a person lawfully does anything for another person, or delivers anything to him, not intending to do so gratuitously, and such other person enjoys the benefit thereof, the latter is bound to make compensation to the former in respect of, or to restore, the thing so done or delivered.” The Plaintiff claimed that the payment for the said Land was done lawfully and was not intended as gratuitous. The Plaintiff’s act of objection by entering a private caveat and under statutory declaration shows its objection to the Defendant in taking the said Land. Based on the Privy Council’s case of Siow Wong Fatt (supra) as submitted by Plaintiff’s counsel, that such payment as alleged by the Plaintiff for the Defendant was lawful and was not gratuitous indeed benefitted the Defendant. This Court finds that the plaintiff had established its claim under section 71 of the Contracts Act 1950. [18] Turning to the evidence, upon careful perusal of the Plaintiff’s Amended Statement of Claim, the evidence submitted by the Plaintiff comprising the receipts for the premium paid, the bank draft of HSBC by the Plaintiff, the caveat application on the said Land with the statutory declaration by the Plaintiff (pages 123 – 125 of the Appeal Record), proved to show the consistency in the Plaintiff’s claim. The HSBC cheque of the Plaintiff dated 3.10.2012 to HSBC Amanah Malaysia Berhad (page 92 of the Appeal Record) bears the exact amount for the required premium and the bank draft to the Local Authority bears the Plaintiff’s cheque number of 56-14019. However, the amount on the bank draft is more than the premium amount and the cheque issued, stating RM517, 912.00 (page 93 of the Appeal Record), to which based on Plaintiff’s pleading, the amount of RM517,902.00 be returned to Plaintiff (paragraph 7(c)(i) of Amended Statement of Claim, page 16 of the Appeal Record). The Plaintiff in its Affidavit, stated its belief that the defendant has no defence to this claim (paragraph 17 of Plaintiff’s Affidavit, page 74 of Appeal Record). [19] This Court also finds that the Plaintiff did not claim for contractual relationship nor the existence of a power of attorney but for the return of the advancement based on a failed monetary arrangement (paragraphs 11 and 12 of Affidavit in Support, page 73 of the Appeal Record). The caveat entered by the Plaintiff on the said Land dated 15.1.2015 stating that the Plaintiff had paid the Defendant the sum of money RM517,901.00 for the title to be registered and claimed that the Defendant had agreed to transfer to the Plaintiff in exchange for development, together with Plaintiff’s Statutory Declaration under section 21 of the Statutory Declaration Act 1960 (pages 123-125 of Appeal Record). [20] When times are good, payment could be arranged for a land to be transferred and registered by issuance of title to the interested person who may not be the one who paid the premium. This is consistent with the view that payment made upon trust without any proof of written agreement between parties. The Plaintiff averred in its pleading that its claim is not on the basis of any agreement. Therefore this Court viewed that the agreement which is unsigned and unstamped as claimed by the Plaintiff will not assist this Honourable Court. This Court viewed that the prima facie case established by the Plaintiff is based on its Amended Statement of Claim, the receipts for the premium and other charges in the name of the Defendant, the Plaintiff’s cheque and bank draft (pages 88-93 of the Appeal Record), the caveat entered by the Plaintiff on the said Land, the affidavits of the Plaintiff and the Defendant’s defence. [21] The onus then shifts to the Defendant to show that the judgment should not be given to the Plaintiff. Based on the Supreme Court’s decision of Bank Negara Malaysia v Mohd Ismail & Ors [1992] 1 MLJ 400, in relation to the defence, the requirement under Order 14 ROC 2012 is that, it is for the Court to be satisfied on affidavit evidence that the defence not only raised an issue but also that the said issue is triable. There are a number of authorities as reference on defence. It has been decided in the case of Perwira Habib Bank Malaysia Berhad v Samuel Pakianathan [1993] 2 MLJ 423, a Supreme Court decision that summary judgment may still be given notwithstanding that the Defendant had filed a counterclaim. [22] Upon careful perusal of the Defendant’s defence, the Court finds that firstly, the Defendant did not dispute that the Statement of Claim/ Amended Statement of Claim had been served on the Defendant, that the Defendant had entered appearance and that the Plaintiff had affirmed an affidavit verifying the facts on which the Amended Statement of Claim are based upon: Wasco Lindung Sdn Bhd vLustre Metals & Minerals Sdn Bhd [2015] 2 CLJ 427. Secondly, the Court finds that the Defendant denied on the premium made by the Plaintiff, that the Defendant averred that the premium paid was a gratuitous payment for the projects and honorary and that in the alternative, had claimed that the Plaintiff may have paid without Defendant’s knowledge (paragraphs 4.2, 4.3, 4.4 of the Defendant’s Defence and Counterclaim, pages 20-21 Appeal Record). [23] The Defendant in its Affidavit In Reply stated his denial of the advancement by the Plaintiff (paragraphs 6.1 – 6.4 of the Defendant’s Affidavit In Reply 4.8.2016, at pages 77 – 78 of Appeal Record) and averred that only through a full trial where witnesses will be called, can decide whether it is the Defendant or the Plaintiff whom agreed to pay for the Defendant. In the latter, the relevant sentence at paragraph 6.1 is reproduced here: “… Pembuktian pembayaran tersebut hanya dapat dibuktikan melalui perbicaraan penuh untuk menentukan sama ada saya atau Plaintif bersama-sama bersetuju bahawa Plaintif akan membuat bayaran bagi pihak saya.” This Court finds no statement to prove that the Defendant had in fact paid the premium for the said Land to rebut the Plaintiff’s claim. [24] In addition, merely denying with no documentary evidence to rebut, the onus stays with the Defendant. In fact, the Defendant’s averment on the gratuitous payment and that it was paid without Defendant’s knowledge would be an admission that there was monetary advancement, following section 17 of Evidence Act 1950. As Defendant had admitted that such monetary advancement took place, there is no requirement for witnesses to be called to testify. The other aspect of law of concerned is the Defendant’s alternative defence that the payment was made without Defendant’s knowledge in order to gain from projects. Such commission or incentives as how the Defendant puts it, would be contrary to public policy and the Court as a vital institution of democratic governance must be firm in sending out a principled message that unregulated incentive which is against public policy, is unlawful. Therefore, this Court finds that there was no other reason for the case to go to trial: Order 14 rule 3(1) of ROC 2012. [25] This appeal arises from a summary judgment under Order 14 ROC 2012. It is incumbent upon the Court to have the overall view to ascertain whether the Defendant has a real or bona fide defence. This Court has carefully perused the affidavits and documentary evidence and finds that the Defendant did not deny that there was an advancement arrangement. The Defendant’s admission that the Plaintiff paid without the Defendant’s knowledge and the argument that such payment was gratuitous as to repay Defendant’s assistance, proves to show that there is a prima facie case of monetary advancement. [26] In light of the above reasons, the Plaintiff has on the balance of probabilities, a prima facie case for summary judgment to be entered against the Defendant. I therefore allowed the appeal with cost. The Plaintiff’s counsel had asked for a consequential order, for a stay of execution. This Court holds the view that a stay of execution must be applied, as this Court treats this appeal and the other appeal under Order 18 rule 19 ROC 2012, as two separate proceedings. This Court finds no defence to Plaintiff’s claim and as Defendant’s counterclaim is not less than the Plaintiff’s claim, the Plaintiff should apply for a stay of execution until the trial of counterclaim to which the other appeal under Order 18 rule 19 ROC 2012 is allowed. Dated: 23 October 2017 (ZALITA BINTI DATO’ ZAIDAN) Judicial Commissioner Shah Alam High Court SOLICITORS FOR THE APPELLANT: P.Y. CHONG LEE MAN HENG Tetuan H.M. Lee P-O3-01, Impian Meridian Commerze Jalan Subang 1, USJ 1 47600 Subang Jaya Selangor Darul Ehsan [Rujukan: 1948/JM/16/L] Tel: 03-5891 6810 Fax: 03-5891 6820 SOLICITORS FOR THE RESPONDENT: ASHMADI BIN OTHMAN Tetuan Zulpadli & Edham No. 24, Jalan Perumahan Gurney 54000 Kuala Lumpur [Rujukan: ZE(E)/L/1704/16] Tel: 03-2694 6979/ 03-2694 6997 Fax: 03-2691 1107 2

Tika 2.6.0

W-02(NCC)-1484-08/2016

PERAYU CHIROPRACTIC SPECIALTY CENTRE SDN BHD ... APPELLANT [COMPANY NO.: 757008-A] RESPONDEN ORTHORELIEF & CARE SDN BHD ... RESPONDEN T [COMPANY NO.: 985492-D]

Arbitration — Franchise Agreement — Appeal — Setting aside Award — Whether award was manifestly unlawful and unconscionable to subsist — Arbitration Act 2005 [Act 646], ss 37, 42

23/10/2017

YA DATUK DR HAJI HAMID SULTAN BIN ABU BACKERKorumYA DATUK DR HAJI HAMID SULTAN BIN ABU BACKERYA DATUK HARMINDAR SINGH DHALIWALYA DATUK YEOH WEE SIAM

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=940b3a7f-7a70-49d0-b972-4e6c4fd7e0b0&Inline=true

1 THE COURT OF APPEAL OF MALAYSIA (APPELLATE JURISDICTION) CIVIL APPEAL NO. W-02(NCC)-1484-08/2016 BETWEEN CHIROPRACTIC SPECIALTY CENTRE SDN BHD ... APPELLANT [COMPANY NO.: 757008-A] AND ORTHORELIEF & CARE SDN BHD ... RESPONDENT [COMPANY NO.: 985492-D] [Dalam Mahkamah Tinggi Malaya di Kuala Lumpur [Bahagian Dagang] Saman Pemula No.: WA-24NCC-288-07/2016] Dalam perkara Pusat Timbang Tara Serantau Kuala Lumpur No. Timbang Tara 172-2013 antara Orthorelief & Care Sdn Bhd (Pihak Menuntut) dan Chiropractic Specialty Centre Sdn Bhd (Responden); Dan Dalam perkara Award bertarikh 24.11.2015 oleh Khoo Guan Huat, Penimbangtara tunggal Dan Dalam perkara Aturan 69 Kaedah 8 Kaedah- Kaedah Mahkamah 2012 2 ANTARA ORTHORELIEF & CARE SDN BHD … PLAINTIF [NO. SYARIKAT985492-D] DAN CHIROPRACTIC SPECIALTY CENTRE SDN BHD … DEFENDAN [NO. SYARIKAT: 757008-A] Coram: Hamid Sultan bin Abu Backer, JCA Harmindar Singh Dhaliwal, JCA Yeoh Wee Siam, J Hamid Sultan Bin Abu Backer, JCA (Delivering Judgment of The Court) GROUNDS OF JUDGMENT [1] The appellant appeals against the judgment of the High Court which refused to set aside the award of the arbitrator pursuant to sections 37 and 42 of the Arbitration Act 2005 (AA 2005), in relation to a Franchise Agreement. [2] There was only one principal complaint raised before us on the date of hearing of the appeal. They were related to section 42 of AA 2005. The appellant says: (i) The arbitrator was wrong in law to deal with the issue of misrepresentation before the Franchise Agreement was 3 executed in the light of exclusion clauses and the entire agreement clause, particularly clauses 20.1 and 22 which read as follows: “Clause 20 "The Franchisee acknowledges that prior to having executed this Agreement it has carefully read the provisions of this Agreement and has understood them and has not relied upon any statement, representation or waiver made by the Franchisor or its servant, agent other than as set out herein." Clause 22 "22.1 This Agreement sets forth the entire agreement and understanding between the parties as to the subject matter of this Agreement and emerges all prior discussion between them and neither of the party shall be bound by any conditions, definitions and warranties or representations with respect to the subject matter of this Agreement other than as expressly provided in this Agreement duly set forth or subsequent to the date hereof in writing and signed by a proper and duly authorized representative of party to be bound thereby. 22.2. This Agreement supersedes any prior agreement between the parties whether written or oral and any such prior agreement is cancelled as at the commencement date but without prejudice to any rights which had been accrued to any of the parties." [3] The other complaint which the appellant touch upon was related to damages and in the submission it reads as follows: “(c) in assessing what should be diminution value of the RxDecom equipment without TMS, the Arbitrator had decided the value on his 4 own accord without calling for submissions and evidence, thus constituting breach of natural justice.” Brief Facts [4] The brief facts of the case can be summarised as follows: (i) the respondent was the claimant in the arbitration proceeding; (ii) the respondent had entered into a Franchise Agreement with the appellant; (iii) on the representations made by the appellant, through its director, Dr. Yama Zafer, the respondent had purchased several machines, namely RxDecom, Theaflex and Spinercise; (iv) the respondent found that the said representations were false and sought rescission of the Franchise Agreement and restitution of the sum of RM629, 344.50, i.e. the value of the machines; (v) the appellant denied there were any false representations; (vi) the appellant claimed that the machines failed due to the respondent's inability to operate them correctly and/or due to the mishandling of the said machines and/or poor management of the staff handling these machines; 5 (vii) the appellant had also filed a counterclaim against the respondent seeking damages for tarnishing the appellant's reputation, mishandling the equipment, violating the appellant's intellectual property rights and breaching the Franchise Agreement. [5] The arbitrator partly allowed the respondent’s claim. The Memorandum of Appeal before us reads as follows: “1. In all the circumstances of the case, the High Court erred in law and in fact in dismissing the Appellant's said application. 2. The High Court erred in law and in fact holding that the arbitration clause in question has included a broad scope justifies the Award under challenge. In so doing, the High Court did not at all or properly take into account or sufficiently or properly appreciate or otherwise the following matters:- (a) properly interpret and apply the entire agreement clause as found in Clause 20 as well as Clause 22 of the Franchise Agreement which amongst others expressly negates any representation that is not expressly set out in the Franchise Agreement itself; (b) note that there were 2 separate transactions, namely, the Franchise Agreement as between the Appellant and the Respondent and a distinct purchase of machines and equipment transaction by the Respondent from Theramod (M) Sdn Bhd; and (c) the allegation of misrepresentation stemmed from the purchase of the machine and equipments transaction as between the 6 Respondent and Theramod (M) Sdn Bhd in which the Appellant was neither a party nor privy. 3. The High Court erred in law and fact in holding that the Plaintiff (instead of Dr. Yama Zafer) had made a representation as to the merchantable quality and lack of defect of machines supplied by Theramod (M) Sdn Bhd. 4. The High Court erred in law and in fact in holding that Theramod (M) Sdn Bhd was not liable to the Respondent and/or that the Respondent and Theramod (M) Sdn Bhd did not have privity of contract. 5. The High Court erred in holding that the grounds posed was one fact instead of law. 6. The High Court erred in holding that the Arbitrator had arrived at an accurate construction based on the facts before him without referral to the ambit and applicability of the current provisions of the Franchise Agreement. 7. The High Court erred in failing to hold that the Arbitrator erred in law in making the Award in paragraphs 70(1) and 70(2) against the Appellant notwithstanding that the Appellant is neither party nor privy to the transaction between Theramod (M) Sdn Bhd and the Respondent for the purchase of machines or equipment. 8. The High Court erred in failing to hold that the Arbitrator erred in law in making the Award in paragraphs 70(1) and 70(2) notwithstanding that there was no arbitration agreement between the Appellant, the Respondent and/or Theramod (M) Sdn Bhd concerning the purchase of machines or equipment, the subject matter of the claimed misrepresentation. 7 9. The High Court erred in failing to hold that the Arbitrator erred in law in erroneously interpreting or construing Clause 20 and 22 of the Franchise Agreement, allowing him liberty to consider matters beyond and outside of the said Franchise Agreement to determine if there had been representations (not expressly set out or stated in the said Franchise Agreement) which may have resulted in the Respondent entering into the Franchise Agreement with the Appellant. 10. The High Court erred in failing to hold that the Arbitrator erred in law in unilaterally making adjustments as to the Award made in respect of the RxDecom machine without calling for any evidence or submissions from the parties on the question of quantum. 11. The High Court erred in failing to hold that the Arbitrator erred in law in allowing the damages for RM 18,750.00 being the fee for unutilized Franchise Period of 45 months out of 60 months. 12. The High Court erred in failing to hold that the Arbitrator erred in law in failing to consider the admission arising from the Respondent's failure to cross-examine the Respondent's witnesses (including RW1 - Dr. Yama Zafer) as to the loss and damage suffered by the Appellant and to accordingly make an award in that respect. 13. In all the circumstances of the case, the High Court ought to have allowed the Appellant's said application and set aside the Award and consequential relief.” [6] The learned counsel for the appellant anchors the argument on section 42 to say that the arbitrator had erred by law in erroneously interpreting or construing clause 20 and 22 of the Franchise Agreement by considering evidence and submission beyond and outside of the Franchise Agreement. 8 [7] What is important to note in the instant case is related to the issue that the equipment supplied was not fit for the purpose and in consequence the respondent suffered loss. In addition, both parties had led evidence before the arbitrator in respect of the agreement as well as representation of parties before the Franchise Agreement was executed. The issue here is whether misrepresentation will have the protection of clause 20 or 22. In our view, representation and misrepresentation are not one and the same in the legal sense. Exclusion clause may not have the effect of excluding liability. Lightman J in the case of Inntrepreneur Pub Co v East Crown Ltd [2000] 2 Lloyds Rep 611 had held: “An entire Agreement clause does not preclude a claim for misrepresentation, for the denial of contractual force to a statement cannot affect the status of a statement as a misrepresentation.” [8] Lightman J’s approach is one related to common sense as well as commercial reality. No person of sound mind will agree to exclude misrepresentation, fraud, deceit, etc. Even if such a clause is included in an agreement, it may lie upon the court, not to recognise such a clause on public policy grounds. It all depends on the facts and the gravity of impropriety of such clause in a contractual document. Though unfair contract terms such as in England is not part of our law, the court to maintain rule of law is sufficiently empowered to arrest any oppressive conduct through the well establish concept of ‘public policy’. [9] The learned arbitrator had considered clause 20 as well as 22 and the learned counsel for the respondent had summarised it. That part of the submission as well as other evidence read as follows: 9 “9.2 The learned Arbitrator had dealt with this issue at page 7 paragraphs 22, 23 and 24 of his Final Award. In respect of Clause 22, this is what he says at paragraph 23:- ..Clause 22, reasonably construed, merely states that the parties were bound by the express terms and warranties expressly provided for in the Franchise Agreement. This provision does not exclude the operation of other terms, conditions, warranties or representations that had not been expressly provided in the Franchise Agreement. In respect of Clause 20, this is what he says at paragraph 24:- With respect to Clause 20, it provides that the Claimant acknowledged that it did not rely on any representation or statement made by the Respondent before it signed the Agreement, other than set out "herein". To require the Claimant to purchase equipment/machines from only stipulated vendors in order to meet the needs of the Franchise Agreement must come with it a form of assurance that the equipment/machines work in compliance with the Franchise Agreement. This is consistent with the Claimant also stating that the representations are also contained in some of the documents, namely the Franchise Training Operations Manual. Clause 20 therefore does not bar an argument contending that the Claimant relied on representations contained in the documents supplied by the Respondent. The Arbitrator had taken cognisance of the fact that there were several documents that were being relied on by the Respondent at the arbitration proceedings in addition to the Franchise Agreement, i.e; a. The training manual b. Franchise Disclosure Document c. Operations Manual 10 9.3 The representations were also contained in these document. The fact that these documents would be referred to in the arbitration proceedings was duly notified to the Appellant in the notice of arbitration.” [14] We have read the appeal record and able submissions of the learned counsels. After giving much consideration to the submission of the appellant, we take the view that the appeal must be dismissed in limine. Our reasons inter alia are as follows: (i) It is well established even under the old regime related to the Arbitration Act 1952, the court will not intervene to set aside the award unless it has been shown that the award was manifestly unlawful and unconscionable to subsist. [See Crystal Realty Sdn Bhd v Tenaga Insurance (Malaysia) Sdn Bhd [2008] 3 CLJ 791]. (ii) The Court of Appeal decision in Crystal Realty’s case was followed in the case of Petronas Penapisan (Melaka) Sdn Bhd v Ahmani Sdn Bhd [2016] 3 CLJ 403 as well as a number of cases including SDA Architects (sued as a firm) v Metro Millenium Sdn Bhd [2014] 2 MLJ 627, where the Court of Appeal reiterated as follows: “… the final award of the arbitrator must be viewed in its totality and, any error of law on the face of the award must be one that is patent and obvious as to render the award manifestly unlawful and unconscionable to subsist and, thereby justify it to be set aside. 11 (iii) No reasonable tribunal appraised of the facts of the case as well as the application of the law by the arbitrator will succumb to the argument that the award in its totality was patently unjust or unconscionable or manifestly unlawful for the court to intervene to set aside the award. [15] For reasons stated above, we do not think that this is a fit and proper case for appellate intervention. The appeal is dismissed with costs of RM10,000.00 subject to payment of the allocatur fees. Deposit is to be refunded. We hereby ordered so. Dated: 23 October 2017 sgd (DATUK DR. HAJI HAMID SULTAN BIN ABU BACKER) Judge Court of Appeal Malaysia. Note: Grounds of judgment subject to correction of error and editorial adjustment etc. Counsel for Appellant: Mr. Tharminder Singh [with Mr. Lim Soon Seng] Messrs. Izral Partnership Advocates & Solicitors Suite 2001, 20th Floor Wisma Hamzah-KH No. 1 Leboh Ampang 50100 Kuala Lumpur. [Ref: IZP.1335.15.TS] 12 Counsel for Respondent : Mr. Ravi Nekoo Messrs Hakem Arabi & Associates Advocates & Solicitors No. 1-3, Mezzanine Floor Bangunan Hotel Sentral No. 30, Jalan Thambypillai Brickfields 50470 Kuala Lumpur. [Ref: PRN/C610/ORTHO/13]

Tika 2.6.0

44-32-10/2016

PEMOHON CHIN CHIN WEI (NO. K/P: 730508-01-5241) … PEMOHON RESPONDEN 1. TIMBALAN MENTERI DALAM NEGERI, MALAYSIA 2. KETUA POLIS NEGARA MALAYSIA 3. PENGARAH,PUSAT PEMULIHAN AKHLAK SIMPANG RENGGAM, JOHOR. … RESPONDEN - RESPONDEN

Permohonan Writ Habeas Corpus - Perintah Tahanan - sama ada lantikan anggota polis untuk bertindak sebagai jurubahasa Mandarin kepada Pemohon adalah bertentangan dengan undang-undang - sama ada Perintah Tahanan tidak mematuhi undang-undang kerana Afidavit tidak menyatakan tarikh Timbalan Menteri Dalam Negeri berpuas hati untuk mengeluarkan Perintah Tahanan terhadap Pemohon - sama ada kegagalan Pegawai Siasatan untuk mengambil kira keterangan saksi dalam menyediakan laporan bertulis adalah bertentangan dengan undang-undang - Akta Dadah Berbahaya (Langkah-Langkah Pencegahan Khas) 1985 [Akta 316], seksyen 5(1) dan (4), 6(1).

23/10/2017

YA DATO' ABU BAKAR BIN JAIS

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1 DALAM MAHKAMAH TINGGI MALAYA DI SEREMBAN DALAM NEGERI SEMBILAN DARUL KHUSUS, MALAYSIA PERMOHONAN JENAYAH NO.: 44-32-10/2016 DI ANTARA CHIN CHIN WEI (NO. K/P: 730508-01-5241) …PEMOHON DAN 1. TIMBALAN MENTERI DALAM NEGERI, MALAYSIA 2. KETUA POLIS NEGARA MALAYSIA 3. PENGARAH,PUSAT PEMULIHAN AKHLAK SIMPANG RENGGAM, JOHOR. …RESPONDEN-RESPONDEN ALASAN PENGHAKIMAN Pendahuluan 1. Penghakiman bertulis ini berkait dengan satu permohonan oleh Pemohon untuk mendapatkan suatu Writ Habeas Corpus dari Mahkamah ini agar Pemohon dibebaskan dari tahanan akibat satu perintah tahanan yang telah dikeluarkan di bawah Akta Dadah Berbahaya (Langkah-Langkah Pencegahan Khas) 1985 (“Akta berkaitan”). 2 Fakta Kes 2. Pemohon telah ditahan di atas suatu perintah tahanan yang dikeluarkan oleh Timbalan Menteri Dalam Negeri bertarikh 30.12.2015 di bawah Seksyen 6 (1) Akta berkaitan yang mengarahkan supaya Pemohon di tahan di Pusat Pemulihan Ahlak Simpang Renggam, Johor selama dua (2) tahun dari tarikh yang sama. 3. Bagi mencabar perintah tahanan yang telah dikeluarkan, pemohon membangkitkan isu-isu berikut: (i) jurubahasa yang digunakan dan diberikan kepada Pemohon adalah bertentangan dengan kehendak s. 5, khususnya s. 5 (1) Akta berkaitan; (ii) perintah tahanan yang dikeluarkan tidak mematuhi s. 6 (1) Akta berkaitan kerana Timbalan Menteri Dalam Negeri tidak menyatakan tarikh beliau berpuas hati apabila menimbangkan dua laporan yang diperlukan dan (iii) pegawai siasatan gagal mengambil kira keterangan saksi dalam menyediakan laporan bertulis dan ini betentangan dengan seksyen 5(4) Akta berkaitan. 3 Dapatan Mahkamah 4. Bagi isu pertama di atas, dihujahkan Pemohon bahawa seorang konstable bernama Jong Tze Kiong dari Jabatan Siasatan Jenayah Narkotik, Ibupejabat Kontigen Johor telah ditugaskan menjadi jurubahasa Mandarin untuk Pemohon semasa sesi inkuiri dan semasa percakapan beliau dirakamkan. Ini menurut Pemohon tidak boleh dilakukan kerana bertentangan dengan s. 5, khususnya 5 (1) Akta berkaitan yang menyebut seperti berikut; 5. Pegawai Siasatan (1) Maka hendaklah dilantik oleh Menteri secara bertulis seberapa banyak Pegawai Siasatan yang perlu bagi maksud Akta ini: Dengan syarat bahawa seseorang pegawai polis atau seseorang yang tidak mempunyai kelayakan undang- undang tidak boleh dilantik sebagai seorang Pegawai Siasatan. 5. Adalah amat jelas bahawa peruntukan undang-undang di atas tidak menyentuh langsung mengenai jurubahasa. Oleh itu adalah pelik dan menghairankan bagi Pemohon menghujahkan jurubahasa yang dilantik untuk Pemohon telah menyebabkan seksyen di atas Akta berkaitan telah tidak dipatuhi. Hujahan ini tidak boleh di terima Mahkamah atas sebab ini. 6. Pemohon juga telah mengemukakan kes Mahkamah Tinggi iaitu Fong Choon San V Timbalan Menteri Dalam Negeri & Ors 4 [2016] 1 LNS 788 yang mana telah membenarkan permohonan Writ of Habeas Corpus Pemohon dan dan memutuskan seperti berikut: …Though Section 5 does not expressly preclude the use of police officer as interpreters, in my view, it is implicit in section 5 that only an independent interpreter who is uninterested in the outcome maybe use in inquiry proceeding. A police officer from the narcotics department would not meet the requirement of an independent interpreter as there is a likelihood of bias arising from the fact that it was the narcotics department that had investigated and found evidence that the applicant was associated with activity relating to or involving the trafficking in dangerous drug. There is a presumption that he cannot be free of bias. …In this case, the report prepared by the inquiry officer became tainted as a result of the failure to use an independent interpreter. This report played a significant role in the making of the detention order against the applicant. The Minister had considered the report in making the order. It amounts to a procedural requirement governing the exercise of discretion by the Minister in making a detention order within the meaning of section 11C of the Act. 7. Dengan mengemukakan kes di atas, hujah Pemohon ialah jurubahasa yang telah digunakan iaitu konstable Jong Tze Kiong adalah seorang yang tidak bebas kerana bekerja sebagai anggota polis di Jabatan Siasatan Jenayah Narkotik dan ada kemungkinan bertindak secara berat sebelah atau bias. Seperti yang tertera dari kes di atas, kes ini mengakui dan menyatakan menurut s. 5 Akta berkaitan tidak dinyata seorang anggota polis tidak boleh menjadi 5 jurubahasa. Malahan seperti yang telah diterangkan, sebenarnya seksyen ini langsung tidak menyebut mengenai jurubahasa. Oleh itu Mahkamah ini dengan hormatnya tidak bersetuju dengan keputusan kes Fong Choon San ini yang ingin digunakan oleh Pemohon sebagai nas menunjukkan konstable Jong Tze Kiong tidak boleh bertindak sebagai jurubahasa. Hakikatnya s. 5 (1) Akta berkaitan tidak menyatakan langsung mengenai jurubahasa. Oleh yang demikian seksyen ini tidak boleh dihujahkan telah tidak dipatuhi. Mahkamah ini juga dengan hormatnya tidak bersetuju dengan kes Fong Choon San yang menyatakan ada keperluan melalui seksyen yang disebut itu bahawa jurubahasa bebas perlu dilantik. Sekali lagi Mahkamah ini tidak bersetuju kerana seksyen tersebut tidak langsung menyebut mengenai jurubahasa. Sehubungan dengan ini, adalah menjadi prinsip undang-undang mantap bahawa peruntukan undang-undang perlu dibaca menurut apa yang dinyatakan dengan terang dan tidak ditambah dengan sewenang-wenangnya. Untuk ini Mahkamah Persekutuan di dalam kes Public Prosecutor v. Tan Tatt Eek & other appeals [2005] 1 CLJ 713 menyatakan seperti berikut: The primary duty of the court is to give effect to the intention of the legislature in the words used by it. It is a well established canon of interpretation that the intent of the legislature is to be gathered from the words used and that if the words used have not acquired any technical meaning, they should be deemed to have been used in their ordinary meaning. If the words of the statute are in themselves precise and unambiguous, then no more is necessary than to expound those words in their natural and ordinary sense. The words themselves alone in such cases best declare the intent of the law giver. javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2754871809&SearchId=4ag02','_DisplayCase','');DispCase.focus() javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2754871809&SearchId=4ag02','_DisplayCase','');DispCase.focus() 6 [Penekanan diberikan] 8. Begitu juga di dalam kes Mahkamah Persekutuan, Krishnadas Achutan Nair & Ors v. Maniyam Samykano [1997] 1 CLJ 636 dinyatakan seperti berikut: Parliament does not legislate in vain by the use of meaningless words and phrases, and prima facie every word appearing in an Act must bear some meaning. A judicial interpreter is therefore not entitled to disregard words used in a statute or treat them as superfluous or insignificant. [Penekanan diberikan] 9. Untuk isu pertama ini juga Pemohon mengemukan kes Mahkamah Rayuan iaitu Cheong See Leong v Public Prosecutor [1948] 1 LNS 169 yang dikatakan telah menggariskan ujian yang digunapakai oleh mahkamah dalam menentukan faktor yang perlu dipatuhi oleh seorang jurubahasa bagi memastikan tiada sebarang ketidakadilan berlaku. Perkara ini dikatakan seperti berikut: The only practicable way in which one person can make a statement to another in a language that the latter does not understand is either by signs or through interpretation. In the ordinary way an independent interpreter is, as the learned trial Judge pointed out, uninterested in the subject matter and may be taken as being a mere “conduit-pipe” incapable of invention to the detriment of the accused. A statement thus made through a mere “conduit-pipe” by an accused to a Police Officer is, in our view a statement properly made by him to the Inspector. javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2560164353&SearchId=7ag02','_DisplayCase','');DispCase.focus() javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2560164353&SearchId=7ag02','_DisplayCase','');DispCase.focus() 7 If, however, the interpreter used, instead of being a mere “conduit- pipe” has an interest in the subject matter then we are brought to the consideration of the second point raised by the learned trial Judge in the extract above quoted that he might be open to a temptation to improve or embellish the case. We must, therefore, consider the affect of such a possibility upon the proceedings. Those cases have decided that when a judicial officer is interested in the subject matter of any case before him the presumption is that he cannot be free from bias. It may be, in such a case, that his adjudication has been free from all bias. That is not the test. The test is whether there is a likelihood of bias arising from his interest in the subject matter. If there is that likelihood then his adjudication cannot stand. 10. Mahkamah ini berpendapat dengan hormatnya Pemohon memetik apa yang dinyatakan di atas di luar konteks bagi hujahan Pemohon mengenai s. 5 (1) Akta berkaitan. Ini kerana kes di atas tiada kaitan sama sekali dengan seksyen yang dinyatakan. Juga seperti yang telah dijelaskan, seksyen tersebut tidak menyebut mengenai jurubahasa. Oleh yang demikian kes di atas tidak membantu menyokong hujahan Pemohon. 11. Untuk isu kedua, s. 6 (1) Akta berkaitan menyatakan seperti berikut; Jika Menteri, selepas menimbangkan- (a) laporan lengkap penyiasatan yang dikemukakan di bawah subseksyen 3(3); dan 8 (b) laporan Pegawai Siasatan yang dikemukakan di bawah subseksyen 5(4), berpuas hati berkenaan dengan mana-mana orang bahawa orang itu pernah ada atau sedang ada kaitan dengan apa-apa aktiviti yang berhubungan dengan atau yang melibatkan pengedaran dadah berbahaya, Menteri boleh, jika dia berpuas hati bahawa bagi kepentingan ketenteraman awam orang itu perlu ditahan, melalui perintah (kemudian daripada ini disebut "perintah tahanan") mengarahkan supaya orang itu ditahan selama suatu tempoh yang tidak melebihi dua tahun. 12. Berdasarkan peruntukan di atas, Pemohon telah menghujahkan terdapat dua laporan yang perlu ditimbangkan sebelum perintah tahanan dikeluarkan. Berkait dengan ini, hujah Pemohon ialah Timbalan Menteri Dalam Negeri tidak menyatakan di dalam afidavit tarikh beliau berpuas hati untuk mengeluarkan perintah tahanan untuk menahan Pemohon. Menurut Pemohon tarikh bila Timbalan Menteri ini berpuas hati perlu dinyatakan. 13. Sekali lagi Mahkamah ini berpendapat Pemohon telah membaca atau mengadakan sesuatu yang tidak ada atau yang tidak dinyatakan di dalam peruntukan di atas. Seksyen di atas tidak langsung menyebut bahawa tarikh berpuas hati itu perlu dinyatakan. Apa yang dinyatakan hanya dua laporan perlu ditimbangkan sebelum perintah tahanan dikeluarkan. Fakta bahawa laporan-laporan ini ditimbangkan tidak dapat dinafikan melihat kepada afidavit yang diikrarkan oleh Timbalan Menteri tersebut seperti berikut: Setelah meneliti laporan-laporan tersebut, saya berpuashati bahawa pemohon pernah ada kaitan dengan apa-apa aktiviti yang 9 berhubungan dengan atau yang meibatkan dengan pengedaran dadah berbahaya, seperti ditakrifkan di bawah Seksyen 2 Akta Dadah Berbahaya… Selanjutnya, saya telah mengarahkan pegawai saya, NABILLAH RASHIDAH BINTI ABDUL KADIR untuk menyediakan perintah tahanan serta penyataan fakta mengenai alasan-alasan yang atasnya perintah itu dibuat dan pengataan-pengataan fakta yang atasnya perintah itu diasaskan yang bersesuaian dnegan keputusan saya supaya pemohon ditahan mulai 30-12-2015… 14. Mahkamah mendapati apa yang dinyatakan di atas adalah mencukupi bagi keperluan s. 6 (1) Akta berkaitan dan berdasarkan apa yang tersurat di dalam peruntukan ini, tiada keperluan untuk menyatakan tarikh bilakah rasa berpuas hati itu telah timbul. 15. Bagi menyokong hujahan beliau, Pemohon bergantung kepada kes Mahkamah Persekutuan, Kumaran Suppiah v Dato Noh Hj Omar & Anor [2006] 4 CLJ 675. Namun hakikatnya fakta kes ini berbeza dengan fakta kes Pemohon. Di dalam kes Kumaran ini, apa yang berlaku ialah perintah tahanan itu berkuat kuasa pada satu tarikh selepas tarikh perintah tahanan itu dikeluarkan dan tidak dijelaskan kenapa ini berlaku. Oleh itu di dalam kes ini, pertamanya terdapat kelewatan perintah tahanan berkuat kuasa dan keduanya tiada sebab diberikan kenapa perintah itu lewat berkuat kuasa. Dua fakta ini tidak wujud di dalam kes Pemohon sekarang. Oleh itu Mahkamah ini tidak dapat mengikut keputusan kes Kumaran kerana fakta-fakta berbeza ini. 10 16. Bagi isu ketiga pula, Pemohon menghujahkan bahawa Pegawai Siasatan hanya bertemu Pemohon untuk menjalankan siasatan tetapi tidak menyiasat atau berjumpa dengan saksi yang berkaitan dengan kes Pemohon dalam menyediakan laporan bertulis kepada Timbalan Menteri berdasarkan keterangan Pemohon dan laporan lengkap penyiasatan polis. Berdasarkan hujahan ini Pemohon menyatakan s. 5 (4) Akta berkaitan telah tidak dipatuhi. Seksyen ini menyebut: Seseorang Pegawai Siasatan hendaklah mengemukakan laporannya secara bertulis kepada Menteri dalam tempoh yang boleh ditetapkan oleh Menteri melalui peraturan-peraturan yang dibuat di bawah Akta ini. 17. Sekali lagi melihat kepada seksyen di atas, Pemohon telah mengadakan sesuatu yang tidak ada apabila berhujah seksyen ini telah tidak dipatuhi apabila Pegawai Siasatan gagal meneliti dan mengambil kira keterangan yang dirakamkan terhadap saksi yang yang telah dilakukan oleh Pegawai Polis yang melakukan siasatan terlebih dahulu. Seksyen ini langsung tidak menyentuh berkenaan apa yang telah dihujahkan Pemohon di sini. Seksyen ini hanya menghendaki Pegawai Siasatan menyerahkan laporan bertulis kepada Menteri dalam masa yang ditentukan. Jadi adalah tidak benar untuk Pemohon menyatakan seksyen ini telah tidak dipatuhi. 18. Di samping itu juga merujuk kepada perenggan 9 Afidavit Jawapan Pegawai Siasatan, Dzul Iswari bin Mohd Jaafar yang diikrarkan pada 5.12.2016, beliau telah menyatakan seperti berikut: 11 Setelah mendengar dan menimbangkan keterangan-keterangan yang dikemukakan oleh Pemohon dan juga setelah meneliti laporan lengkap penyiasatan yang dikemukakan oleh Inspektor Polis Satiyaselan a/l Balakrishnan berkaitan dengan aktiviti -aktiviti Pemohon berhubungan dengan atau yang melibatkan dengan pengedaran dadah berbahaya, saya kemudiaannya telah menyediakan satu laporan bertulis kepada Timbalan Menteri Dalam Negeri… 19. Ini adalah mencukupi untuk menunjukkan s. 5 (4) Akta berkaitan seperti yang ditunjukkan di atas telah dipatuhi. 20. Dalam membangkitkan ketiga-tiga isu di atas, Pemohon tidak dapat lari dari hakikat bahawa beliau masih terikat dengan keperluan menunjukkan bahawa keperluan prosedur telah tidak dipatuhi. Ini dinyatakan di dalam kes Mahkamah Persekutuan iaitu Lee Kew Sang v Timbalan Menteri Dalam Negeri & Ors [2005] 3 CLJ 914 yang menyatakan seperti berikut: …the first thing the courts should do is to see whether the ground forwarded is one that falls within the meaning of procedural non compliance. To determine the question, the courts should look at the provisions of the law or the rules that lay down the procedural requirements. It is not for the courts to create procedural requirements because it is not the function of the courts to make law or rules. If there is no such procedural requirement then there cannot be non-compliance thereof. 21. Berdasarkan kepada petikan di atas, seperti yang telah diterangkan, tiada undang-undang atau keperluan prosedur yang 12 telah tidak dipatuhi dapat ditunjukkan oleh Pemohon mengenai ketiga-tiga isu yang telah dibangkitkan. Kesimpulan 22. Hujahan Pemohon mengenai ketiga-tiga isu yang dikemukakan bagi mencabar perintah tahanan yang telah dikeluarkan tidak dapat diterima oleh Mahkamah ini berdasarkan alasan-alasan yang telah diterangkan. 23. Oleh itu permohonan Pemohon untuk satu Writ Habeas Corpus adalah ditolak. Bertarikh 23 Oktober 2017 ABU BAKAR JAIS Hakim Mahkamah Tinggi Seremban Pihak-Pihak: Naizatul Zarina Hj Karizaman bagi Pemohon Tetuan K.L. Chee & Co Hemy Annerina Haja Mydin bagi Responden-Responden Peguam Kanan Persekutuan, Jabatan Peguam Negara

Tika 2.6.0

44-32-10/2016

PEMOHON CHIN CHIN WEI (NO. K/P: 730508-01-5241) … PEMOHON RESPONDEN 1. TIMBALAN MENTERI DALAM NEGERI, MALAYSIA 2. KETUA POLIS NEGARA MALAYSIA 3. PENGARAH,PUSAT PEMULIHAN AKHLAK SIMPANG RENGGAM, JOHOR. … RESPONDEN - RESPONDEN

Permohonan Writ Habeas Corpus - Perintah Tahanan - sama ada lantikan anggota polis untuk bertindak sebagai jurubahasa Mandarin kepada Pemohon adalah bertentangan dengan undang-undang - sama ada Perintah Tahanan tidak mematuhi undang-undang kerana Afidavit tidak menyatakan tarikh Timbalan Menteri Dalam Negeri berpuas hati untuk mengeluarkan Perintah Tahanan terhadap Pemohon - sama ada kegagalan Pegawai Siasatan untuk mengambil kira keterangan saksi dalam menyediakan laporan bertulis adalah bertentangan dengan undang-undang - Akta Dadah Berbahaya (Langkah-Langkah Pencegahan Khas) 1985 [Akta 316], seksyen 5(1) dan (4), 6(1).

23/10/2017

YA DATO' ABU BAKAR BIN JAIS

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1 DALAM MAHKAMAH TINGGI MALAYA DI SEREMBAN DALAM NEGERI SEMBILAN DARUL KHUSUS, MALAYSIA PERMOHONAN JENAYAH NO.: 44-32-10/2016 DI ANTARA CHIN CHIN WEI (NO. K/P: 730508-01-5241) …PEMOHON DAN 1. TIMBALAN MENTERI DALAM NEGERI, MALAYSIA 2. KETUA POLIS NEGARA MALAYSIA 3. PENGARAH,PUSAT PEMULIHAN AKHLAK SIMPANG RENGGAM, JOHOR. …RESPONDEN-RESPONDEN ALASAN PENGHAKIMAN Pendahuluan 1. Penghakiman bertulis ini berkait dengan satu permohonan oleh Pemohon untuk mendapatkan suatu Writ Habeas Corpus dari Mahkamah ini agar Pemohon dibebaskan dari tahanan akibat satu perintah tahanan yang telah dikeluarkan di bawah Akta Dadah Berbahaya (Langkah-Langkah Pencegahan Khas) 1985 (“Akta berkaitan”). 2 Fakta Kes 2. Pemohon telah ditahan di atas suatu perintah tahanan yang dikeluarkan oleh Timbalan Menteri Dalam Negeri bertarikh 30.12.2015 di bawah Seksyen 6 (1) Akta berkaitan yang mengarahkan supaya Pemohon di tahan di Pusat Pemulihan Ahlak Simpang Renggam, Johor selama dua (2) tahun dari tarikh yang sama. 3. Bagi mencabar perintah tahanan yang telah dikeluarkan, pemohon membangkitkan isu-isu berikut: (i) jurubahasa yang digunakan dan diberikan kepada Pemohon adalah bertentangan dengan kehendak s. 5, khususnya s. 5 (1) Akta berkaitan; (ii) perintah tahanan yang dikeluarkan tidak mematuhi s. 6 (1) Akta berkaitan kerana Timbalan Menteri Dalam Negeri tidak menyatakan tarikh beliau berpuas hati apabila menimbangkan dua laporan yang diperlukan dan (iii) pegawai siasatan gagal mengambil kira keterangan saksi dalam menyediakan laporan bertulis dan ini betentangan dengan seksyen 5(4) Akta berkaitan. 3 Dapatan Mahkamah 4. Bagi isu pertama di atas, dihujahkan Pemohon bahawa seorang konstable bernama Jong Tze Kiong dari Jabatan Siasatan Jenayah Narkotik, Ibupejabat Kontigen Johor telah ditugaskan menjadi jurubahasa Mandarin untuk Pemohon semasa sesi inkuiri dan semasa percakapan beliau dirakamkan. Ini menurut Pemohon tidak boleh dilakukan kerana bertentangan dengan s. 5, khususnya 5 (1) Akta berkaitan yang menyebut seperti berikut; 5. Pegawai Siasatan (1) Maka hendaklah dilantik oleh Menteri secara bertulis seberapa banyak Pegawai Siasatan yang perlu bagi maksud Akta ini: Dengan syarat bahawa seseorang pegawai polis atau seseorang yang tidak mempunyai kelayakan undang- undang tidak boleh dilantik sebagai seorang Pegawai Siasatan. 5. Adalah amat jelas bahawa peruntukan undang-undang di atas tidak menyentuh langsung mengenai jurubahasa. Oleh itu adalah pelik dan menghairankan bagi Pemohon menghujahkan jurubahasa yang dilantik untuk Pemohon telah menyebabkan seksyen di atas Akta berkaitan telah tidak dipatuhi. Hujahan ini tidak boleh di terima Mahkamah atas sebab ini. 6. Pemohon juga telah mengemukakan kes Mahkamah Tinggi iaitu Fong Choon San V Timbalan Menteri Dalam Negeri & Ors 4 [2016] 1 LNS 788 yang mana telah membenarkan permohonan Writ of Habeas Corpus Pemohon dan dan memutuskan seperti berikut: …Though Section 5 does not expressly preclude the use of police officer as interpreters, in my view, it is implicit in section 5 that only an independent interpreter who is uninterested in the outcome maybe use in inquiry proceeding. A police officer from the narcotics department would not meet the requirement of an independent interpreter as there is a likelihood of bias arising from the fact that it was the narcotics department that had investigated and found evidence that the applicant was associated with activity relating to or involving the trafficking in dangerous drug. There is a presumption that he cannot be free of bias. …In this case, the report prepared by the inquiry officer became tainted as a result of the failure to use an independent interpreter. This report played a significant role in the making of the detention order against the applicant. The Minister had considered the report in making the order. It amounts to a procedural requirement governing the exercise of discretion by the Minister in making a detention order within the meaning of section 11C of the Act. 7. Dengan mengemukakan kes di atas, hujah Pemohon ialah jurubahasa yang telah digunakan iaitu konstable Jong Tze Kiong adalah seorang yang tidak bebas kerana bekerja sebagai anggota polis di Jabatan Siasatan Jenayah Narkotik dan ada kemungkinan bertindak secara berat sebelah atau bias. Seperti yang tertera dari kes di atas, kes ini mengakui dan menyatakan menurut s. 5 Akta berkaitan tidak dinyata seorang anggota polis tidak boleh menjadi 5 jurubahasa. Malahan seperti yang telah diterangkan, sebenarnya seksyen ini langsung tidak menyebut mengenai jurubahasa. Oleh itu Mahkamah ini dengan hormatnya tidak bersetuju dengan keputusan kes Fong Choon San ini yang ingin digunakan oleh Pemohon sebagai nas menunjukkan konstable Jong Tze Kiong tidak boleh bertindak sebagai jurubahasa. Hakikatnya s. 5 (1) Akta berkaitan tidak menyatakan langsung mengenai jurubahasa. Oleh yang demikian seksyen ini tidak boleh dihujahkan telah tidak dipatuhi. Mahkamah ini juga dengan hormatnya tidak bersetuju dengan kes Fong Choon San yang menyatakan ada keperluan melalui seksyen yang disebut itu bahawa jurubahasa bebas perlu dilantik. Sekali lagi Mahkamah ini tidak bersetuju kerana seksyen tersebut tidak langsung menyebut mengenai jurubahasa. Sehubungan dengan ini, adalah menjadi prinsip undang-undang mantap bahawa peruntukan undang-undang perlu dibaca menurut apa yang dinyatakan dengan terang dan tidak ditambah dengan sewenang-wenangnya. Untuk ini Mahkamah Persekutuan di dalam kes Public Prosecutor v. Tan Tatt Eek & other appeals [2005] 1 CLJ 713 menyatakan seperti berikut: The primary duty of the court is to give effect to the intention of the legislature in the words used by it. It is a well established canon of interpretation that the intent of the legislature is to be gathered from the words used and that if the words used have not acquired any technical meaning, they should be deemed to have been used in their ordinary meaning. If the words of the statute are in themselves precise and unambiguous, then no more is necessary than to expound those words in their natural and ordinary sense. The words themselves alone in such cases best declare the intent of the law giver. javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2754871809&SearchId=4ag02','_DisplayCase','');DispCase.focus() javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2754871809&SearchId=4ag02','_DisplayCase','');DispCase.focus() 6 [Penekanan diberikan] 8. Begitu juga di dalam kes Mahkamah Persekutuan, Krishnadas Achutan Nair & Ors v. Maniyam Samykano [1997] 1 CLJ 636 dinyatakan seperti berikut: Parliament does not legislate in vain by the use of meaningless words and phrases, and prima facie every word appearing in an Act must bear some meaning. A judicial interpreter is therefore not entitled to disregard words used in a statute or treat them as superfluous or insignificant. [Penekanan diberikan] 9. Untuk isu pertama ini juga Pemohon mengemukan kes Mahkamah Rayuan iaitu Cheong See Leong v Public Prosecutor [1948] 1 LNS 169 yang dikatakan telah menggariskan ujian yang digunapakai oleh mahkamah dalam menentukan faktor yang perlu dipatuhi oleh seorang jurubahasa bagi memastikan tiada sebarang ketidakadilan berlaku. Perkara ini dikatakan seperti berikut: The only practicable way in which one person can make a statement to another in a language that the latter does not understand is either by signs or through interpretation. In the ordinary way an independent interpreter is, as the learned trial Judge pointed out, uninterested in the subject matter and may be taken as being a mere “conduit-pipe” incapable of invention to the detriment of the accused. A statement thus made through a mere “conduit-pipe” by an accused to a Police Officer is, in our view a statement properly made by him to the Inspector. javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2560164353&SearchId=7ag02','_DisplayCase','');DispCase.focus() javascript:DispCase=window.open('/Members/DisplayCase.aspx?CaseId=2560164353&SearchId=7ag02','_DisplayCase','');DispCase.focus() 7 If, however, the interpreter used, instead of being a mere “conduit- pipe” has an interest in the subject matter then we are brought to the consideration of the second point raised by the learned trial Judge in the extract above quoted that he might be open to a temptation to improve or embellish the case. We must, therefore, consider the affect of such a possibility upon the proceedings. Those cases have decided that when a judicial officer is interested in the subject matter of any case before him the presumption is that he cannot be free from bias. It may be, in such a case, that his adjudication has been free from all bias. That is not the test. The test is whether there is a likelihood of bias arising from his interest in the subject matter. If there is that likelihood then his adjudication cannot stand. 10. Mahkamah ini berpendapat dengan hormatnya Pemohon memetik apa yang dinyatakan di atas di luar konteks bagi hujahan Pemohon mengenai s. 5 (1) Akta berkaitan. Ini kerana kes di atas tiada kaitan sama sekali dengan seksyen yang dinyatakan. Juga seperti yang telah dijelaskan, seksyen tersebut tidak menyebut mengenai jurubahasa. Oleh yang demikian kes di atas tidak membantu menyokong hujahan Pemohon. 11. Untuk isu kedua, s. 6 (1) Akta berkaitan menyatakan seperti berikut; Jika Menteri, selepas menimbangkan- (a) laporan lengkap penyiasatan yang dikemukakan di bawah subseksyen 3(3); dan 8 (b) laporan Pegawai Siasatan yang dikemukakan di bawah subseksyen 5(4), berpuas hati berkenaan dengan mana-mana orang bahawa orang itu pernah ada atau sedang ada kaitan dengan apa-apa aktiviti yang berhubungan dengan atau yang melibatkan pengedaran dadah berbahaya, Menteri boleh, jika dia berpuas hati bahawa bagi kepentingan ketenteraman awam orang itu perlu ditahan, melalui perintah (kemudian daripada ini disebut "perintah tahanan") mengarahkan supaya orang itu ditahan selama suatu tempoh yang tidak melebihi dua tahun. 12. Berdasarkan peruntukan di atas, Pemohon telah menghujahkan terdapat dua laporan yang perlu ditimbangkan sebelum perintah tahanan dikeluarkan. Berkait dengan ini, hujah Pemohon ialah Timbalan Menteri Dalam Negeri tidak menyatakan di dalam afidavit tarikh beliau berpuas hati untuk mengeluarkan perintah tahanan untuk menahan Pemohon. Menurut Pemohon tarikh bila Timbalan Menteri ini berpuas hati perlu dinyatakan. 13. Sekali lagi Mahkamah ini berpendapat Pemohon telah membaca atau mengadakan sesuatu yang tidak ada atau yang tidak dinyatakan di dalam peruntukan di atas. Seksyen di atas tidak langsung menyebut bahawa tarikh berpuas hati itu perlu dinyatakan. Apa yang dinyatakan hanya dua laporan perlu ditimbangkan sebelum perintah tahanan dikeluarkan. Fakta bahawa laporan-laporan ini ditimbangkan tidak dapat dinafikan melihat kepada afidavit yang diikrarkan oleh Timbalan Menteri tersebut seperti berikut: Setelah meneliti laporan-laporan tersebut, saya berpuashati bahawa pemohon pernah ada kaitan dengan apa-apa aktiviti yang 9 berhubungan dengan atau yang meibatkan dengan pengedaran dadah berbahaya, seperti ditakrifkan di bawah Seksyen 2 Akta Dadah Berbahaya… Selanjutnya, saya telah mengarahkan pegawai saya, NABILLAH RASHIDAH BINTI ABDUL KADIR untuk menyediakan perintah tahanan serta penyataan fakta mengenai alasan-alasan yang atasnya perintah itu dibuat dan pengataan-pengataan fakta yang atasnya perintah itu diasaskan yang bersesuaian dnegan keputusan saya supaya pemohon ditahan mulai 30-12-2015… 14. Mahkamah mendapati apa yang dinyatakan di atas adalah mencukupi bagi keperluan s. 6 (1) Akta berkaitan dan berdasarkan apa yang tersurat di dalam peruntukan ini, tiada keperluan untuk menyatakan tarikh bilakah rasa berpuas hati itu telah timbul. 15. Bagi menyokong hujahan beliau, Pemohon bergantung kepada kes Mahkamah Persekutuan, Kumaran Suppiah v Dato Noh Hj Omar & Anor [2006] 4 CLJ 675. Namun hakikatnya fakta kes ini berbeza dengan fakta kes Pemohon. Di dalam kes Kumaran ini, apa yang berlaku ialah perintah tahanan itu berkuat kuasa pada satu tarikh selepas tarikh perintah tahanan itu dikeluarkan dan tidak dijelaskan kenapa ini berlaku. Oleh itu di dalam kes ini, pertamanya terdapat kelewatan perintah tahanan berkuat kuasa dan keduanya tiada sebab diberikan kenapa perintah itu lewat berkuat kuasa. Dua fakta ini tidak wujud di dalam kes Pemohon sekarang. Oleh itu Mahkamah ini tidak dapat mengikut keputusan kes Kumaran kerana fakta-fakta berbeza ini. 10 16. Bagi isu ketiga pula, Pemohon menghujahkan bahawa Pegawai Siasatan hanya bertemu Pemohon untuk menjalankan siasatan tetapi tidak menyiasat atau berjumpa dengan saksi yang berkaitan dengan kes Pemohon dalam menyediakan laporan bertulis kepada Timbalan Menteri berdasarkan keterangan Pemohon dan laporan lengkap penyiasatan polis. Berdasarkan hujahan ini Pemohon menyatakan s. 5 (4) Akta berkaitan telah tidak dipatuhi. Seksyen ini menyebut: Seseorang Pegawai Siasatan hendaklah mengemukakan laporannya secara bertulis kepada Menteri dalam tempoh yang boleh ditetapkan oleh Menteri melalui peraturan-peraturan yang dibuat di bawah Akta ini. 17. Sekali lagi melihat kepada seksyen di atas, Pemohon telah mengadakan sesuatu yang tidak ada apabila berhujah seksyen ini telah tidak dipatuhi apabila Pegawai Siasatan gagal meneliti dan mengambil kira keterangan yang dirakamkan terhadap saksi yang yang telah dilakukan oleh Pegawai Polis yang melakukan siasatan terlebih dahulu. Seksyen ini langsung tidak menyentuh berkenaan apa yang telah dihujahkan Pemohon di sini. Seksyen ini hanya menghendaki Pegawai Siasatan menyerahkan laporan bertulis kepada Menteri dalam masa yang ditentukan. Jadi adalah tidak benar untuk Pemohon menyatakan seksyen ini telah tidak dipatuhi. 18. Di samping itu juga merujuk kepada perenggan 9 Afidavit Jawapan Pegawai Siasatan, Dzul Iswari bin Mohd Jaafar yang diikrarkan pada 5.12.2016, beliau telah menyatakan seperti berikut: 11 Setelah mendengar dan menimbangkan keterangan-keterangan yang dikemukakan oleh Pemohon dan juga setelah meneliti laporan lengkap penyiasatan yang dikemukakan oleh Inspektor Polis Satiyaselan a/l Balakrishnan berkaitan dengan aktiviti -aktiviti Pemohon berhubungan dengan atau yang melibatkan dengan pengedaran dadah berbahaya, saya kemudiaannya telah menyediakan satu laporan bertulis kepada Timbalan Menteri Dalam Negeri… 19. Ini adalah mencukupi untuk menunjukkan s. 5 (4) Akta berkaitan seperti yang ditunjukkan di atas telah dipatuhi. 20. Dalam membangkitkan ketiga-tiga isu di atas, Pemohon tidak dapat lari dari hakikat bahawa beliau masih terikat dengan keperluan menunjukkan bahawa keperluan prosedur telah tidak dipatuhi. Ini dinyatakan di dalam kes Mahkamah Persekutuan iaitu Lee Kew Sang v Timbalan Menteri Dalam Negeri & Ors [2005] 3 CLJ 914 yang menyatakan seperti berikut: …the first thing the courts should do is to see whether the ground forwarded is one that falls within the meaning of procedural non compliance. To determine the question, the courts should look at the provisions of the law or the rules that lay down the procedural requirements. It is not for the courts to create procedural requirements because it is not the function of the courts to make law or rules. If there is no such procedural requirement then there cannot be non-compliance thereof. 21. Berdasarkan kepada petikan di atas, seperti yang telah diterangkan, tiada undang-undang atau keperluan prosedur yang 12 telah tidak dipatuhi dapat ditunjukkan oleh Pemohon mengenai ketiga-tiga isu yang telah dibangkitkan. Kesimpulan 22. Hujahan Pemohon mengenai ketiga-tiga isu yang dikemukakan bagi mencabar perintah tahanan yang telah dikeluarkan tidak dapat diterima oleh Mahkamah ini berdasarkan alasan-alasan yang telah diterangkan. 23. Oleh itu permohonan Pemohon untuk satu Writ Habeas Corpus adalah ditolak. Bertarikh 23 Oktober 2017 ABU BAKAR JAIS Hakim Mahkamah Tinggi Seremban Pihak-Pihak: Naizatul Zarina Hj Karizaman bagi Pemohon Tetuan K.L. Chee & Co Hemy Annerina Haja Mydin bagi Responden-Responden Peguam Kanan Persekutuan, Jabatan Peguam Negara

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