1. ) Amir Muhammad Ilia Syahid Indra Putra @ Jeffrey Jins v 1. ) Putera Hang Jebat Bin Mohamed Jin (BA-22NCvC-7-01/2019)

AMIR MUHAMMAD ILIA SYAHID INDRA ZAIN PUTRA @ JEFFREY JINS (K/P Singapura No.: S1544968C)

HANG TUAH @ SHAZRIN BIN MOHAMED JIN (No. K/P: 740123-14-5159) …PLAINTIF-PLAINTIF

PUTERA HANG JEBAT BIN MOHAMED JIN (No. K/P: 871006-10-5561)

ROSAL AZIMIN BIN AHMAD (No. K/P: 750113-10-5355) Beramal atas nama firma Tetuan Shamsudin & Co

BARAKATUL KAMARIA BT. AHMAD (No. K/P: 710829-08-5242) ..DEFENDAN-DEFENDAN 04/04/2023 10:41:34 BA-22NCvC-7-01/2019 Kand. 202 S/N 3zp2Yfvj/EyZj3PdMwvHjA GROUNDS OF JUDGMENT Introduction [1] Tan Sri Mohamed Jin bin Shamsuddin (“TSJ”) was, in his day, a renowned actor. He passed away on 1.3.2017. [2] Prior to his death, TSJ executed a Power of Attorney (“PA”) irrevocably appointing his son, Putera Hang Jebat bin Mohamed Jin, the 1st Defendant, as his attorney. The 1st Defendant was authorized to inter alia, dispose of the property of TSJ, which comprised of a land and building identified as GM 63, Lot No. 1045, Batu 7 ½, Kampong Pasir, Daerah Gombak, State of Selangor (“said property”). Pursuant to the powers granted him in the PA, the 1st Defendant sold the said property to the 3rd Defendant. [3] The Plaintiffs are also the sons of TSJ. Upon discovering the sale, they challenge the transfer to the 3rd Defendant. They claim that the PA was not validly created. Hence, the sale of the property was effected by a void instrument. The 3rd Defendant’s title to the land, acquired under a void instrument, is therefore defeasible and liable to be set aside. The Plaintiff’s case [4] Hang Tuah @ Shazrin bin Mohamed Jin, the 2nd Plaintiff (PW1), testified on behalf of both the Plaintiffs. S/N 3zp2Yfvj/EyZj3PdMwvHjA [5] Although PW1 is the son of TSJ, he was born to a different mother. The 1st Plaintiff and the 1st Defendant are his half-brothers. He grew up in a different household. However, he maintained close ties with his father and the 1st Defendant. His relationship with the 1st Defendant only became strained after TSJ’s mental capacity deteriorated sometime in 2011. He began to be suspicious of the 1st Defendant, whom he suspected had disposed of some of TSJ’s property. One of the properties is the said property and the subject matter of these proceedings. [6] He contacted the 1st Plaintiff and informed his suspicions. He also conducted a search at the land office in Gombak and was able to procure some documents, one of which was the PA. He had doubts as to the genuineness of TSJ’s signature as he was of the view that TSJ was suffering from Alzheimer in 2013. Although there was no medical diagnosis to confirm TSJ’s condition, he personally observed a marked deterioration in the mental capacity of TSJ. [7] Both the Plaintiffs made separate police reports in 2017 alleging that the signature of TSJ on the PA was falsified. The 1st Defendant’s case [8] TSJ had intended to transfer the said property to the 1st Defendant. In furtherance of such an intention, TSJ executed a Memorandum of Transfer 8.8.2012 in consideration of love and affection. However, upon being informed that stamp duty of RM 35,000 was payable for the transfer, the 1st Defendant did not present the transfer for registration as he could not afford to pay the stamp duty. S/N 3zp2Yfvj/EyZj3PdMwvHjA [9] Towards the end of 2012, the family experienced some financial strain to care for TSJ in view of his advanced years. The 1st Defendant was tasked with sourcing for a purchaser for said property to ease the financial burden of the family. [10] At a breaking of fast event in 2013 organized at Perbadanan Kemajuan Filem Nasional (FINAS), the 2nd Defendant, an advocate and solicitor, was introduced to TSJ. TSJ was advised to appoint the 1st Defendant as his attorney to dispose of the property. The 2nd Defendant then prepared the PA to be executed by TSJ. The PA was handed to the 1st Defendant to be brought to TSJ. [11] On 9.10.2013, the 1st Defendant went to the house of TSJ, bringing with him the PA. He explained the contents to TSJ, after which TSJ signed at the relevant portion. His mother (DW2) and other brother (DW4) was present at the material time. Both DW2 and DW4 testified at the trial that they saw TSJ signing the PA. [12] The following day, on 10.10.2013, the 2nd Defendant presented himself at the house of TSJ. The 2nd Defendant obtained TSJ’s confirmation that he understood the contents of the PA. At the 2nd Defendant’s request, TSJ made a mark on the PA below his signature. Again, this meeting and all that transpired was witnessed by DW2 and DW4. [13] Sometime in 2014, the 2nd Defendant managed to procure an interested buyer for the said property. The 3rd Defendant agreed to purchase the said property for RM 2,750,000. On 17.10.2014, the 2nd and 3rd Defendant executed the Sale and Purchase Agreement in respect of the said property. On 15.9.2015 the parties executed S/N 3zp2Yfvj/EyZj3PdMwvHjA the Memorandum of Transfer in Form 14A which was then presented to the land office in Gombak for registration on 3.11.2015. The purchase price was paid by the 3rd Defendant in several instalments. The monies from the sale was used by DW4 to fund the expenses involved in the care of TSJ. The 2nd Defendant’s case [14] The 2nd Defendant’s evidence case confirmed that of the 1st Defendant’s in so far as it relates to him. He met TSJ on 28.7.2013, at an event organized by Perbadanan Kemajuan Filem Nasional (FINAS). When TSJ learnt that he was an advocate and solicitor, TSJ sought his advice regarding his wish to transfer the said property to the 1st Defendant for the purpose of disposing of it. However, he was reluctant to incur the stamp duty payable upon such transfer. The 2nd Defendant advised TSJ to appoint the 1st Defendant as his attorney to deal with the property. TSJ agreed to the advice given and requested the 2nd Defendant to prepare the PA. [15] The PA was then handed over to the 1st Defendant as several attempts prior to meet with TSJ was not successful. [16] On 10.10.2013, the 2nd Defendant went to the residence of TSJ. Upon perusing the PA, the 2nd Defendant found it to have been signed by TSJ. TSJ informed him that he had signed earlier. Notwithstanding the fact it had been signed, the 2nd Defendant explained the contents of the PA to TSJ and informed him that it was S/N 3zp2Yfvj/EyZj3PdMwvHjA to facilitate the sale of the said property. TSJ appeared to the 2nd Defendant to understand the explanation given to him. [17] As TSJ had already signed the PA, the 2nd Defendant requested TSJ to make a mark on the PA, to confirm that the signature on the PA was his. TSJ did as instructed by taking his pen and making a mark below the portion in which he had earlier put his signature. [18] Upon being satisfied that TSJ understood the contents of the PA and having received confirmation that the signature was that of TSJ’s, the 2nd Defendant then authenticated the PA by signing on the form of authentication provided for in Form 1 of the First Schedule to the Power of Attorney Act 1949. [19] On 25.10.2013, the PA was deposited with the office of the Senior Assistant Registrar of the High Court at Kuala Lumpur. [20] The 2nd Defendant contends that the authentication of the PA was done in accordance with the law. The 3rd Defendant’s case [21] The 3rd Defendant deals in real estate. She was contacted by the 1st Defendant sometime in 2014 in respect of the said property. After some negotiation, she agreed to purchase the land for RM 2,750,000. She then appointed the firm of Jakariya & Co. to attend to the documentation involved. S/N 3zp2Yfvj/EyZj3PdMwvHjA [22] The purchase price was paid by several instalments between December 2014 and September 2015. She also paid the interest for late payment stipulated in the sale and purchase agreement. She had no knowledge of the family dispute pertaining to the sale of the said property. It was not until 2019 that she learnt of the dispute between the Plaintiffs and the 1st Defendant from a news report in Kosmo. [23] She contends that she is a bona fide purchaser for value and the legal owner of the said property. Antecedent proceedings [24] At this juncture it ought to be mentioned that the trial of this action had earlier commenced in another High Court in Shah Alam on 23.7.2020. In the midst of the Plaintiffs’ case, counsel for the Plaintiffs drew the attention of the court to the fact that the defence witnesses in their witness statements had admitted that TSJ signed the PA on 9.10.2013. Premised on this fact, counsels for the parties requested that the case be disposed following the procedure in Order 14A. [25] The learned judge then framed the question of law, which was agreed to by counsels for all parties, as follows: Whether the Power of Attorney dated 10.10.2013 which was duly executed by Mohamed Jin bin Shamsuddin on 9.10.2013 and the execution of the same having been admitted by Mohamed Jin bin Shamsuddin to the 2nd Defendant (the S/N 3zp2Yfvj/EyZj3PdMwvHjA solicitor) and the act of putting a pen and marking on his signature in the said Power of Attorney by Mohamed Jin bin Shamsuddin on 10.10.2013 is deemed as an attestation in accordance with the law, particularly under section 3(1)(a)(vi) of the Power of Attorney Act, 1949? [26] Upon hearing submissions of all counsels, on 11.9.2020 the learned High Court Judge ruled that the question of law must be answered in the negative. In short, the learned Judge was of the view that the PA did not comply with section 3(1)(a)(vi) of the Power of Attorney Act, 1949. The Defendants appealed to the Court of Appeal against the decision. On 17.2.2022, the Court of Appeal reversed the decision of the High Court, hence the present proceedings. Issues in contention [27] Before me, as was also their position in the Order 14A proceedings, the Plaintiffs’ allegation of forgery and falsification of the PA had been abandoned. The Plaintiffs now contend that the PA was not executed in compliance with the provisions of the Power of Attorney Act, 1949. Their basis for so saying is that the signature of TSJ on the PA was not made in the presence of the 2nd Defendant. The law makes it mandatory for TSJ to sign in the presence of 2nd Defendant. [28] The Plaintiffs further contend that as a result of the non-compliance, the 1st Defendant could not validly act for TSJ. The Form 14A executed by the 1st Defendant in favour of the 3rd Defendant was not a valid instrument of transfer. As a consequence thereof, the S/N 3zp2Yfvj/EyZj3PdMwvHjA transfer to the 3rd Defendant is liable to be set aside as she did not obtain a good title to the said property. [29] The Plaintiffs seek a declaration to the effect that the PA dated 10.10.2013 is null and void and therefore unenforceable. In addition, the Plaintiffs also seek to have the registration of the said property in the name of the 3rd Defendant declared null and void. Consequential orders in the event the declarations are allowed, also form part of the reliefs sought by the Plaintiffs. [30] The Plaintiffs’ claim is resisted by all the defendants on the common stand taken that the PA was validly executed. [31] Arising from the position taken by the parties, and notwithstanding the oral evidence adduced at the trial by the witnesses called to testify, the case is now centered upon a narrow issue, i.e the validity of the PA. I am of the view that the grant of the reliefs sought fall to be decided on this sole issue. Analysis and decision of this court Locus point [32] Before proceeding further, a preliminary point needs to be dealt with first. This pertains to the locus of the Plaintiffs to bring the action. In the event the declarations sought are granted, the Plaintiffs seek for the said property to be returned to the estate of TSJ to be administered in accordance with the relevant laws applicable. As S/N 3zp2Yfvj/EyZj3PdMwvHjA beneficiaries to the estate of TSJ, the Plaintiffs contend that they could validly bring the present action. [33] The 1st Defendant contends otherwise. Relying on the case of Deramen & Ors v Mek Yam [1977] 1 MLJ 52, the 1st Defendant claims that as beneficiaries, the Plaintiffs have no locus to sue. They had not taken out representation and therefore had no locus to institute the present action. [34] The issue on the locus of beneficiaries to commence an action was settled in Al Rashidy bin Kassim & Ors v Rosman bin Roslan [2007] 4 ML 297. The nature of the claim must be looked at. An exception is made where the suit is to protect and preserve the estate of the deceased. The Federal Court held, [19] In the present case the action was commenced by the beneficiaries of the estate in order to regain the said land from the respondent whom they alleged had by fraudulent means transferred the land to himself. The respondent had also entered upon the land and damaged the fruit trees and demolished buildings found on the said land. Further, the said land is liable to be sold by the respondent to a third party. In that event the said land may be lost forever. This becomes more urgent in view of the decision of this court in Adorna Properties Sdn Bhd v Boonsom Boonyamit @ Sun Yok Eng [2001] 1 MLJ 241, which confers immediate indefeasible title to a purchaser in good faith for valuable consideration. [20] Thus, the appellants have had to act fast in order to protect and preserve the estate of the deceased. Therefore, on the facts of this case, we find, there exist special circumstances for the beneficiaries to commence legal action against the respondent qua beneficiaries for the purpose of protecting and preserving the asset of the estate. Quite apart S/N 3zp2Yfvj/EyZj3PdMwvHjA from that we also hold that the beneficiaries in the present case have at least an equity in the estate of the deceased to entitle them to seek a declaratory judgment. Thus, on the above grounds are agree with the learned counsel for the appellants that the appellants in this case had the locus standi to commence this action at least for the limited purpose of protecting and preserving the asset of the estate. (See also: Ho Yoke Keng v Philip Lau Soo Fock [2022] 3 MLJ 256, Court of Appeal) [35] Guided by the principles stated above, I am satisfied that the Plaintiffs have the necessary locus to bring this action. Validity of the PA [36] The starting point for discussion is the provision relating to the authentication of powers of attorney in section 3 of the Power of Attorney Act 1949 [“Act 424”] as the validity of the PA is challenged on non-compliance with the said provision. Section 3 of Act 424 reads,

Authentication of powers of attorney

No instrument purporting to create a power of attorney executed after the commencement of this Act shall have any validity to create such power within West Malaysia unless-

if executed within West Malaysia, the instrument is executed before, and is authenticated in the appropriate form set out in the First Schedule hereto by-S/N 3zp2Yfvj/EyZj3PdMwvHjA

a Magistrate; or

(ii) a Justice of the Peace; or

(iii) a Land Administrator; or

(iv) a Notary Public; or

a Commissioner for Oaths; or

(vi) an advocate and solicitor; or

(vii) an officer, acting in the course of his employment, of a company carrying on the business of banking in West Malaysia and incorporated by or under any written law in force in West Malaysia; or

if executed outside West Malaysia, the execution of such instrument is authenticated, in such form as may be accepted by the Registrar, by-

a Notary Public; or

(ii) a Commissioner for Oaths; or

(iii) any Judge; or

(iv) a Magistrate; or

a British Consul or Vice-Consul; or

(vi) a representative of Her Britanic Majesty; or

(vii) on and after Merdeka Day, any Consular Officer of Malaysia; or

(viii) in the case of an instrument executed in the Kingdom of Saudi Arabia, the Malaysian Pilgrimage Commissioner; or

(ix) in the case of an instrument executed in the Republic of Singapore, an advocate and solicitor of the Supreme Court of the Republic; or an officer, acting in the course of his employment, of a company carrying on the business of banking in the Republic and incorporated by or under any written law of the Republic. S/N 3zp2Yfvj/EyZj3PdMwvHjA

Notwithstanding anything to the contrary contained in any written law in force at the commencement of this Act, an instrument purporting to create a power of attorney duly executed and authenticated in accordance with this section shall be deemed to be properly and validly executed and attested for all or any of the purposes for which a power of attorney may be used under any such written law. [37] Section 3(1)(a) makes it clear that the prerequisites of a valid power of attorney executed within West Malaysia must firstly, be executed before the category of persons listed in paragraph (a) and secondly, be authenticated in the form set out in the First Schedule. [38] In Letchumanan Chettiar Alagappan (as executor to SL Alameloo Achi) v Secure Plantation Sdn Bhd [2017] 5 CLJ 418, the Federal Court held that conditions set out in section 3 are mandatory and cannot be ignored. [39] It is not disputed that TSJ signed the PA on 9.10.2013. The 1st Defendant’s own evidence was that it was so. The 2nd Defendant said that when he went to see TSJ on 10.10.2013, the PA had TSJ’s signature on it. It had been pre-signed. To this extent in so far as the signature of TSJ made on 9.10.2013 is concerned, I would agree with the Plaintiffs’ contention that the PA was not executed before the 2nd Defendant. [40] However, when the 2nd Defendant noticed that TSJ had pre-signed the PA, he took the step of requesting TSJ to make a mark on the PA, which TSJ did by making a mark with his pen below his signature. The mark in question is reproduced below:- S/N 3zp2Yfvj/EyZj3PdMwvHjA [41] After TSJ had made the mark, the 2nd Defendant then signed the form of authentication prepared in accordance to Form 1 of the First Schedule as follows, I, ROSAL AZIMIN BIN AHMAD, a Advocate and Solicitor of the High Court in Malaya practicing at Kuala Lumpur, hereby certify the signature of the donor above named was written in my presence on this 10th day of October 2013 and is, to my own personal knowledge the true signature of MOHAMED JIN BIN SAMSUDIN (NRIC NO: 351105-08-5325) who had acknowledged to me that he is of full age and that he has voluntarily executed this instrument. [42] The mark was affixed to the PA on 10.10.2013. The 2nd Defendant certified that the signature of TSJ was written in his presence on 10.10.2013. S/N 3zp2Yfvj/EyZj3PdMwvHjA [43] Can a mark qualify as a signature? I refer to section 3 of the Interpretation Act 1948 and 1967, the definition section which provide that, “sign” includes the making of a mark or the affixing of a thumbprint. [44] The question was considered in Kala Devi Thamdoderam v Eon Finance Bhd [1999] 4 MLJU 573, where the High Court had to determine if the impugned affidavit in that case was signed. The learned judge referred to the same provision and opined as follows, The question which then follows is what does the word "sign" mean. The answer is to be found in s.3 of the Interpretation Act 1967 which reads as follows: "'sign' includes the making of a mark or the affixing of a thumb print." Stroud's Judiciary Dictionary 1974 defines a signature as including a mark to represent one's name. In the impugned affidavit, the seal was affixed below the jurat and under the words "Before me", with the title name, the address and Commissioner for Oaths's number together with the word "sgd" affixed thereon. All these certainly constituted more than a mark and so in my view affirmatively comes within the mean of the word "sign" in s.3 of the Interpretation Act 1967. In other words, the affidavit has been "signed" by the Commissioner for Oaths before whom it is sworn. S.3 provides for an extensive and not an inhibitive definition of the word "sign". S/N 3zp2Yfvj/EyZj3PdMwvHjA [45] Therefore, as far as the mark appended on to the PA on 10.10.2013 is concerned, it was a signature appended in the presence of the 2nd Defendant. That being the case, the PA was executed before the 2nd Defendant. There was due compliance with the requirement of section 3(I)(a)(vi) as to execution before an advocate and solicitor. [46] In addition to certifying that the signature was written in the presence of the 2nd Defendant, the form of authentication also required the 2nd Defendant to certify that TSJ is of full age and that he has voluntarily executed the instrument. The evidence of the 2nd Defendant in relation to this requirement was as follows, “……….Selain daripada itu, saya juga lihat kepada capacity samada dia sound mind atau tidak Yang Arif. Dan saya lihat dia sihat dan dia pun layak untuk tandatangan. Kemudian Yang Arif saya juga memastikan bahawa dia faham dengan enam consequences dalam muka surat 178, (a) sampai (f). Enam kesan terhadap apa yang akan berlaku selepas dia tandatangan, Yang Arif. Dan selepas saya percaya bahawa dia dah faham asas itu betul, dan dia faham consequences, saya walau dan dia juga mengakui bahawa dia tandatangan jadi saya mengambil satu langkah lebih lagi, saya minta dia letakkan buat tandaan, marking kepada tandatangan tersebut. Yang mana dia buat di hadapan semua saksi-saksi satu tandaan Yang Arif pada tanda tangan tersebut. Dan selepas itu barulah saya tanda tangan di bahagian belakang dan di bahagian depan, 178, 179 Yang Arif, mengikut tiga syarat-syarat dalam certification of authentication muka surat 179, ia itu ia adalah suatu tandatangan Tan Sri, dia faham itu, S/N 3zp2Yfvj/EyZj3PdMwvHjA perkara tersebut. Dia full age and dia voluntarily nak sign perkara tersebut. Selepas itu baru saya attest. Itu yang saya lakukan Yang Arif.” [47] His evidence in this regard was not challenged. I accept his explanation, and find that the authentication of the PA by 2nd Defendant to be in accordance with Form 1. [48] In the circumstances, I find the requirement on execution and authentication of powers of attorney in section 3 of Act 424 to be duly complied with. In the result, the challenge to the validity of the PA by the Plaintiffs must necessarily fail. The 3rd Defendant’s title to the property [49] Having found the PA to be valid, the issue of the indefeasibility of the 3rd Defendant’s title to the said property does not arise. The 1st Defendant could, by the terms of the PA, validly sell and/or transfer and/or dispose of the said property on behalf of TSJ. The SPA and the Form 14A were executed by the 1st Defendant on the basis of the PA. There being no insufficiency in the instrument of transfer, the registration of the said property in the name of the 3rd Defendant is unchallengeable. Conclusion [50] Premised on the foregoing reasons, the Plaintiffs’ case and reliefs sought against all the Defendants must be dismissed. S/N 3zp2Yfvj/EyZj3PdMwvHjA [51] Taking into account that the case turned on a narrow issue, I order that costs of RM 8000 be paid by the Plaintiffs to each of the Defendants. Dated : 31st day of March 2023 -sgd- .………………..….... Alice Loke Yee Ching Judge High Court of Malaya at Shah Alam Counsel for the Plaintiffs : Mr. Mohamad Nasrom b. Rashid (Mr. Mohd Iskandar b. Ismail) Tetuan Basharuddin Iskandar Counsel for : Mr. Amir Farid b. Nawasi (Mr. Mohd Rizal The 1st Defendant Bahari) Tetuan Bahari & Bahari Counsel for : Mr. Datuk Adnan b. Seman @ Abdullah The 2nd Defendant Tetuan Adnan Sharida & Associates Counsel for : Ms Masturina binti Mohamad Rodzi The 3rd Defendant Tetuan Lim & Suren S/N 3zp2Yfvj/EyZj3PdMwvHjA S/N 3zp2Yfvj/EyZj3PdMwvHjA