1. ) Dato Seri Yap Seng Yew v 1. ) Expo Electronics Sdn Bhd (WA-22NCC-591-11/2022)

DATIN SERI’ GAN LI LI PLAINTIFFS

SURUHANJAYA SYARIKAT MALAYSIA DEFENDANTS INDEX No.

A) Introduction 4-6 2.

(I) Suit by Expo against Dato Seri Yap and Datin Seri Gan – Suraya Othman J judgment (First Suit) 6-11

Minority Oppression filed by Abu Bakar bin Ahmad 11-12

Application by Expo’s liquidator to reinstate Cekap Asia – Orders by Mohamed Zaini bin Mazlan J on 28-6-2018 - Originating Summons No: WA-24NCC- 131-03/2018 13-15

Other documents produced at trial 16-19

(V) Intervention Application by Dato Seri Yap and Datin Seri Gan 19-21

Cekap Asia Sdn Bhd’s Suit against the Defendant – BA-22NCC-18-02/2021 (Shah Alam Sivil Suit No. 18) 21-23

The Fresh Suit Filed by Dato Seri Yap and Datin Seri Gan Li Li against Haslina, Suzlita, Syed Nagiff, Abu Bakar and Wong Youn Kim - BA-22NCVC-60- 02/2024 23 3. C) Trial and the pleaded case: Witnesses Produced at Trial 24 Pleaded Case

Summary of Plaintiffs’ Claim 24-39

The Defence of the 1st, 5th and 6th Defendants 39-40 Pleaded Case

Defence of the 2nd to 4th Defendants 40-41 Pleaded Case

SSM’s Defence – 7th Defendant 42 4. D. Issues to be Determined by this Court 43-44 5. E. Decision of this Court

Issue 1 – Res Judicata / Estoppel / Abuse of Process Are the Plaintiffs’ Barred due to the Application to Intervention and the Civil Suit filed by Cekap Asia – Res Judicata / Issue Estoppel 44-60

Issue 2 – Alleged Fraud on the Court Whether the Plaintiff has proven that the Order dated 28-6-2018 should be set aside due to fraud by the Defendants 60-105

Issue 3 - Forged Instruments 105-110 6. D. Exemplary Damages and Costs 111-117 7. E. Orders of this Court 117-120 GROUNDS OF JUDGMENT A.

The Plaintiffs seek the following orders from this Court: -

That the Court Order dated 28-6-2018 obtained by Expo Electronics Sdn Bhd vide Kuala Lumpur High Court Originating Summons No: WA-24NCC-131-03/2018 (“the Impeached Court Order dated 28-6- 2018”) be impeached and / or set aside in its entirety.

Further and / or in the alternative to paragraph (a) above, for the Originating Summons No: WA-24NCC-131-03/2018 be struck out.

The appointment of Abu Bakar bin Ahmad and Syed Nagiff bin Syed Mokhtar as directors of Cekap Asia Sdn Bhd be set aside.

The transfer of one (1) unit of share of Cekap Asia Sdn Bhd to each of Abu Bakar bin Ahmad and Syed Nagiff bin Syed respectively be set aside.

The appointment of Wong Youn Kim as company secretary of Cekap Asia be set aside.

That the 7th Defendant be directed to expunge the documents relating to the appointment and resignation of directors, company secretary, and documents relating to changes in shareholding of Cekap Asia Sdn Bhd, namely:

Form Section 58 Companies Act 2016 dated 16.7.2019;

(ii) Form Section 58 Companies Act 2016 dated 17.7.2019;

(iii) Form Section 51 Companies Act 2016 dated 6.9.2020; and

(iv) Form Section 51 Companies Act 2016 dated 29.9.2020;

A declaration that the Plaintiffs be reinstated as Directors ofCekap Asia Sdn Bhd.

A Declaration that Tan Mee Teck be reinstated as the company’s secretary of Cekap Asia Sdn Bhd.

That the 7th Defendant be directed to rectify the register to reinstate the directorships, secretary and shareholding information of Cekap Asia Sdn Bhd to the status immediately preceding the date of the Impeached Court Order dated 28-6-2018.

That the 7th Defendant be directed to reinstate the status of Cekap Asia Sdn Bhd in the CCM register to the “struck out” status immediately preceding the date of the Impeached Court Order.

A declaration that any and all actions which were carried out by the directors and / or shareholders and / or Expo Electronics Sdn Bhd after the reinstatement of Cekap Asia Sdn Bhd on 28-6-2018 be declared null and void.

Punitive and / or exemplary and / or aggravated damages against the Defendants jointly and severally.

General damages to be assessed against the Defendants jointly and severally.

Interest and Costs. B.

(I) Suit by Expo against Dato Seri Yap and Datin Seri Gan – Suraya Othman J judgment (First Suit)

This case is part of the never-ending dispute between Expo Electronics Sdn Bhd, the late Dato Edward Lee, and the Plaintiffs (Dato Seri Yap and Datin Seri Gan) concerning the sale and purchase of the shares in Merces Holding Bhd.

Expo Electronics Sdn Bhd had allegedly sold 15, 009, 000 units of Merces Holdings Bhd shares for the consideration of RM 23 million. Dato Seri Yap and Datin Seri Gan refuted this allegation. They contend that the said shares were purchased for the consideration of RM 5.25 million and not the alleged sum of RM 23 million. Dato Seri Yap and Datin Seri Gan allege that they have paid the full amount for the said shares. (“Original

Expo had instituted proceedings against Dato Seri Yap and Datin Seri Gan in the High Court of Shah Alam. This suit was heard by Suraya Othman J (as she then was) and the claim was dismissed. The grounds of Suraya Othman J is reported as Expo Electronics Sdn Bhd v Sri Yap Seng Yew & Ors [2015] MLJU 2326. I also note that at the material time Expo Electronics Sdn Bhd was a company that was under liquidation and Mr Lim Litt had already acted as the representative of the liquidator of the company.

I summarise the reasoning of the learned Judge as follows: -

The Plaintiff had failed to prove that there was any contract to sale and purchase the shares in Merces Holdings Bhd was sold for the consideration of RM 23 million between Expo and Dato Seri Yap and Datin Seri Gan.

(ii) The evidence before the High Court showed that the Merces Holdings Bhd shares were sold to Dato Seri Yap and Datin Seri Gan for the consideration of RM 5.25 million. This is also consistent with the disclosures made to the relevant authorities that the said shares were sold for the price of RM 5.25 million.

(iii) The sum of RM 4.25 million was not due to Expo and was meant to pay Dato Edward Lee’s consultancy fees.

Expo did file its appeal against the decision of Suraya Othman J. This appeal was struck out by the Court of Appeal on 26-5-2015. Therefore, the decision of Suraya Othman J on the issue concerning the sale and purchase of the shares in Merces Holdings Bhd remains binding on Expo and Dato Seri Yap and Datin Seri Gan.

It must be reiterated that at the material time, Expo was already under liquidation. The liquidator of the said company was represented by Lim Litt, a defendant in this suit, and did attend the said trial as a witness in those proceedings. The solicitors acting for Expo was Dinesh Praveen.

It is also important to note that parties had also agreed that the shares in Merces Holding Bhd was purchased by Dato Seri Yap and Datin Seri Gan from Expo. As I have alluded earlier, Suraya Othman J did find that Dato Seri Yap and Datin Seri Gan did purchase the shares for a consideration of RM 5.25 million from Expo. I reproduce parts of the grounds of Suraya Othman J: - “[8] It is not disputed by parties that the 1st payment of RM 5.25 million was made to the Plaintiff on 17-11-2004 via cross shares in the share market as against the Plaintiff shares in Merces. This payment thus has been fully paid and is not an issue. … [12] this case, the plaintiff has not shown that they are the beneficiary of the cheques for the payments of the RM 4.75 million and RM 13 million. The plaintiff has failed to show that they are privy to an agreement with the defendants in respect of the RM 4.75 million and the RM 13 million. The plaintiff relied on the payment of RM 475 million (less commission) made by Darul Kencana and Perumahan Teknik payable to A1am Me Iur (plaintiff's alleged nominee) to substantiate their case that the RM 13 million cheque is the 3'd instalment payment owing from the defendants to the plaintiff. The plaintiff failed to establish that the alleged payee of the RM 475 million, that is, Alam MeIur and the alleged payee of RM 13 million, that is, Great Prospect Sdn Bhd, are connected or associated with the plaintiff, ie, that they are the plaintiffs nominees. The plaintiff has failed to call any directors from Alam MeIur and Great Prospect Sdn Bhd to testify that they are the plaintiff's nominees. PWl testified that Alam MeIur is not a subsidiary or an associate of the plaintiff and that the directors and shareholders in Alam MeIur and Expo are not the same. [13] As stated earlier, the claim by the plaintiff is based on an oral agreement. PW1, PW2 and PW3 admitted that there is no written sale and purchase agreement pertaining to the buying and selling of the Merces shares between the parties. In fact the only evidence in writing is of a contract for the sale and purchase of the said Merces shares for RM5.25 million as alleged by the defendants. This is so since there were instructions from PW2 to the plaintiff's broker on behalf of the plaintiff to "cross" the said Merces shares at "VWAP less 10%" (amounting to RM5,757,419.40) and the cheques and vouchers for refund of the difference between the crossing price and the agreed price of RM5.25 million. …. [35] Based on the above, the plaintiff had failed to prove their case on a balance of probabilities (Bank Pertanian Malaysia v. MCIBio Tech Sdn Bhd [2013] 6 MLJ 537 (CA), referred to) A] The plaintiff could not produce any credible witness who was present when the terms of the alleged oral agreement were agreed upon to corroborate their allegations that there was an oral agreement to purchase the 15,009,00 unit of shares in Merces Holding Bhd for the price of RM23 million. B] The contemporaneous documents such as the documents relating to the crossing of the shares and the MGO documents supported the defendants claim that the said shares was sold at RM5.25 million. C] The plaintiff failed to establish or substantiate their claim that the cheques for RM4.25 million and RM 13 million (the alleged 2'' and 3'd instalment payments) which were issued to Alam MeIur and Great Prospect Sdn Bhd are connected or associated with the plaintiff or that these 2 entities were the plaintiffs nominees: ie, to establish that these payments were due and meant for the plaintiff. Therefore, the plaintiff's claim is dismissed.”

Minority Oppression filed by Abu Bakar bin Ahmad 9. I also note that Abu Bakar bin Ahmad, the 3rd Defendant, had also filed a minority oppression petition (section 181 Companies Act 1865) against Expo, Golden Icon Sdn Bhd, Tan Ah Hin, and Te Soh Peng in the Petition bearing number 26NCC-93-10/2011.

For our purpose, it is important that I reproduce material parts of the said Petition filed by Abu Bakar bin Ahmad: “16. Expo Electronics secara asasnya adalah suatu Syarikat pemegang pelaburan. Aset utamanya adalah 15,009,000 unit saham di da!am satu Merces Holdings Berhad.

Pada atau ketika November 2004, Expo Electronics ingin menjual Saham-Saham MHB tersebut. Satu Yap Yeng Saw didentikasikan sebagai Pembeli saham-saham MHB.”

I also note the suit filed by Abu Bakar bin Ahmad against Golden Icon Sdn Bhd, Expo Electronics Sdn Bhd, Alam Melur Sdn Bhd, Te Soh Peng, and Tan Ah Hin in the civil suit bearing number S-22-NCVC-144-

This suit also pertains to the consideration paid for the shares in Merces Holdings Berhad sold by Expo to Dato Seri Yap and Datin Seri Gan. The main difference is that Abu Bakar bin Ahmad is seeking RM 1, 551, 666.66 being his alleged right to the proceeds of sale of the said shares, being a shareholder in Expo.

Application by Expo’s liquidator to reinstate Cekap Asia – Orders by Mohamed Zaini bin Mazlan J on 28-6-2018 - Originating Summons No: WA-24NCC-131-03/2018 12. Cekap Asia Sdn Bhd was struck out by Suruhajaya Syarikat Malaysia from its register of companies due to non-compliance with the statutory requirements (filing of statement of audited accounts) on 21-10-2011.

Expo applied by the Originating Summons No: WA-24NCC-131- 03/2018 to reinstate Cekap Asia Sdn Bhd. The said Originating Summons was supported by an affidavit affirmed by Lim Litt, as representative of the Expo’s liquidator, i.e., Encik Michael Joseph Monteiro and Dato’ Heng Ji Keng.

The grounds for the said application are as follows: -

Expo was wound up on 4-5-2012 and that Joseph Monteiro and Heng Ji Keng were appointed as liquidators.

(ii) Expo alleges that the previous directors had committed fraud against the company. The two directors of Cekap Asia were Dato Seri Yap dan Datin Seri Gan.

(iii) Cekap Asia intends to initiate legal action against these two directors.

(iv) Expo had dealt with Cekap Asia as well as Dato Seri Yap dan Datin Seri Gan with regard to the purchase of Merces Holdings Berhad shares.

Expo was the original owner of 15,009,000 shares in Merces Holdings Berhad. These shares were sold to Dato Seri Yap, Datin Seri Gan and to Cekap Asia.

(vi) The consideration payable for the Merces Holdings Berhad shares was for the sum of RM 23 million. The terms for the said sale and purchase of shares are as follows: -

Expo was to transfer 1.8 million shares to Dato Seri Yap for the consideration of RM 5.25 million.

Expo was to transfer 1.46 million shares to Datin Seri Gan for the consideration of RM 4.75 million.

Expo was to transfer the remaining 11,749,000 shares to Cekap Asia for the consideration of RM 13 million.

If Dato Seri Yap and Datin Seri Gan was unable to pay for the said shares in full then they will resign from the board of directors of Cekap Asia and transfer the shares in Cekap Asia to Expo.

Dato Seri Yap and Datin Seri Gan had failed to pay for the remaining RM 13 million due. The shares held in Cekap Asia was wrongfully transferred into their own name.

(vi) As a result, Cekap Asia is unable to return 11, 749,000 shares in Merces Holdings Berhad back to Expo.

(vii) Datin Seri Gan and Dato Seri Yap had fraudulently siphoned out the shares from Cekap Asia and had caused losses to Expo. Expo has suffered damages as a result of the fraudulent actions of the Dato Seri Yap and Datin Seri Gan.

The aforesaid Originating Summons was not opposed by Suruhanjaya Syarikat Malaysia. Mohamed Zaini bin Mazlan J hearing the said application by Expo only allowed the following orders: -

That Cekap Asia Sdn Bhd is entered back into the register of companies under section 555 of the Companies Act.

(ii) Costs of RM 2000.00 to be paid by Expo to SSM.

I also note that Messrs Dinesh Praveen Nair also acted as solicitors and counsel for Expo in the said Originating Summons.

Other documents produced at trial 17. Parties had produced a copy of an undated letter issued by Tan Kak Teck addressed to Alam Melur Sdn Bhd attaching: -

two copies of registrable transfer forms (form 32A) of Cekap Asia Sdn Bhd shares from Dato Seri Yap and Datin Seri Gan. The identity of the transferee was left empty.

(ii) Letter of resignation of the directors of Cekap Asia Sdn Bhd.

(iii) original resolution of the board of directors of Cekap Asia Sdn Bhd to appoint new directors.

I have also sighted copies of the letter issued by Dato Yap and Datin Gan that confirms their resignation from the board of directors of Cekap Asia. The said letter was addressed to the board of directors of Cekap Asia and was undated.

Form 49 of Cekap Asia Sdn Bhd was also produced, which shows that Lim Kok Heng had resigned on 12-10-2004 and was replaced with Tan Mee Teck on the same day.

Notice to Bursa Malaysia dated 11-3-2005 concerning the disposal of 15,009,000 shares held by Expo Electronics Sdn Bhd shares in Merces and the acquisition of the said shares in the name of Cekap Asia Sdn Bhd (11,749,000 shares), Dato Seri Yap (1,800,000 shares) and Datin Seri Gan (1,460,000 shares) was also produced. Tuan Syed Nagiff bin Syed Mokhtar also resigned from Merces Holdings Berhad on 11-3-2005.

The shares held by Cekap Asia Sdn Bhd in Merces Holdings Berhad were transferred to Dato Seri Yap on 27-4-2006. The letter from Cekap Asia Sdn Bhd to Eoncap Securities Sdn Bhd dated 27-4-2006 was also produced.

The shares in Cekap Asia Sdn Bhd have since been transferred into the name of Syed Nagiff bin Syed Mokhtar and Abu Bakar bin Ahmad. These shares were subsequently transferred into the name of Expo. The registered directors of Cekap Asia Sdn Bhd as of today are Abu Bakar bin Ahmad and Syed Nagiff bin Syed Mokhtar.

I also note the following correspondence from Messrs Dinesh

Letter dated 16-11-2018 to Ferrier Hodgson MH Sdn Bhd, where copies of the following documents were forwarded to the liquidator: - 2 share certificates in Cekap Asia Sdn Bhd and 2 transfer forms duly executed by the existing shareholders; - letter of resignation of the current directors; - original resolution of the board of directors to appoint new directors to the company.

(ii) Messrs Dinesh Praveen Nair also directed that Abu Bakar and Syed Nagiff be appointed as new directors and that Wong Youn Kim be appointed to the board of the company.

(iii) Letter dated 14-1-2019 to the liquidator seeking action as directed earlier.

(iv) Letter dated 29-1-2019 to the liquidator, where copies of the following documents were forwarded to the liquidator: - 2 share certificates in Cekap Asia Sdn Bhd and 2 transfer forms duly executed by the existing shareholders; - Letter of resignation of the current directors; - original resolution of the board of directors to appoint new directors to the company.

(ii) Messrs Dinesh Praveen Nair also directed that Abu Bakar and Syed Nagiff be appointed as new directors and that Wong Youn Kim be appointed to the board of the company. The liquidator was also directed to transfer the shares in Cekap Asia to Expo.

Mr Dinesh Praveen Nair also issued an email to the liquidator, among others, on 21-7-2019 stating the following: -

That the appeal against Expo’s claim for the alleged sum of RM 13 million was struck out.

(ii) To recover the monies owed for the balance purchase price of RM 13 million: - “Therefore, at present, it is my considered view that to recover the monies owed for the balance purchase price of RM 13 million, we have to:- 1) reinstate and take over Cekap Asia Sdn Bhd; 2) Cekap Asia then files a suit for the recovery of shares that were held by it Y&G Bhd (which was taken by Yap Seng Yew and Gan Li Li without paying any consideration to Cekap Asia.”

(V) Intervention Application by Dato Seri Yap and Datin Seri Gan in

Dato Seri Yap dan Datin Seri Gan both applied to intervene and set aside the order of the Court dated 28-6-2018 in the Originating Summons No: WA-24NCC-131-03/2018.

This application was opposed by Expo. Wan Muhammad Amin J heard the application and did not agree with the proposed application to intervene.

Wan Muhammad Amin J decided that:-

The proposed interveners, Dato Seri Yap and Datin Seri Gan were not deprived of their right to be heard as it is not mandatory for them to be made a party under the application to reinstate under section 555 of the Companies Act 2016.

(ii) The order dated 28-6-2018 only affects Cekap Asia. It did not have an impact on Dato Seri Yap and Datin Seri Gan.

(iii) As both of them have no right to intervene, they do not have a right to set aside the order dated 28-6-2018.

(iv) The allegations concerning the concealment of the orders of Suraya Othman J and fraud should be raised by way of a fresh suit. See Badiaddin Mohd Mahidin & Anor v Arab-Malaysian Finance Bhd [1998] 2 CLJ 75, Chee Pok Choy & Ors v Scotch Leasing Sdn Bhd [2001] 2 CLJ 321 and Hock Hua Bank Bhd v Sahari Murid [1980] 1 LNS 92.

The applicants had delayed in their application even after the suit was instituted against them by Cekap Asia Sdn Bhd.

I note that Mr Dinesh Praveen Nair appeared for Expo.

One of the arguments relied on by Expo in opposing the said application to intervene is that the allegations concerning fraud should not be entertained by way of an originating summons.

Cekap Asia Sdn Bhd’s Suit against the Defendant – BA-22NCC- 18-02/2021 (Shah Alam Sivil Suit No. 18)

I also note that Cekap Asia Sdn Bhd has since instituted proceedings against Dato Seri Yap and Datin Sri Gan in the suit bearing number BA-22NCC-18-02/2021. The solicitors acting for Cekap Asia Sdn Bhd is again Messrs Dinesh Praveen Nair.

The claim concerns the alleged 11,749,000 shares in Merces that allegedly belonged to Cekap Asia Sdn Bhd.

Cekap Asia alleges that there was a fraudulent breach of trust when the company transferred 11,749,000 shares in Merces to Dato Seri Yap and Datin Seri Gan.

The said shares were allegedly transferred to Dato Seri Yap and Datin Seri Gan without consideration and without any board authority.

Dato Seri Yap and Datin Seri Gan denied liability and argued that the shares held in Cekap Asia were only held as their nominees. The shares belonged to them as they had paid for the shares in full.

Dato Seri Yap and Datin Seri Gan had also referred to the decision of Suraya Othman J in the High Court of Shah Alam, Suit No. 22-350-2010 (Suit 350) that was referred to earlier. The litigants did argue that the issue raised in this fresh suit is subject to the doctrine of Res Judicata.

I note that the learned Judicial Commissioner had allowed the claims by Cekap Asia Sdn Bhd by way of the order dated 3-2-2023. Dato Seri Yap and Datin Seri Gan have since appealed against the said order, and a stay of the order of the Judicial Commissioner was allowed by the Court of Appeal.

The Fresh Suit Filed by Dato Seri Yap and Datin Seri Gan Li Li against Haslina, Suzlita, Syed Nagiff, Abu Bakar and Wong Youn Kim – BA-22NCVC-60-02/2024 37. I have also been referred to the suit bearing number BA-22NCVC- 60-02/2024 issued by Dato Seri Yap and Datin Seri Gan against the above-named Defendants.

The said Plaintiff is seeking that the shares held Cekap Asia should be transferred back into their name and that the said shares were fraudulently transferred out from them. C. Trial and the pleaded case Witnesses Produced at Trial 39. This claim was heard on 12-2-2025 and 13-2-2025. The following witnesses were produced by the litigants: -

39.1 Plaintiffs’ Witnesses

Tay Eue Kam – Forensic Document Examiner

Dato Seri Yap 39.2 Defendants’ witnesses

Abu Bakar bin Ahmad

Syed Nagiff bin Syed Mokhtar

Lim Litt

Nur Ammarah binti Zakaria – SSM

Summary of Plaintiffs’ Claim 40. The Plaintiffs, Dato Seri Yap and Datin Seri Gan, claim that the application to reinstate Cekap Asia Sdn Bhd was obtained by way of fraudulent statements that were intended to mislead the High Court.

The 1st, 5th, and 6th Defendants had failed and/or committed and/or concealed material facts and/or had outrightly made false representations to the High Court in the Originating Summons No. 131. The following material information was allegedly omitted by the said Defendants: -

That Cekap Asia Sdn Bhd had been struck off from the register of SSM under section 308(4) of the Companies Act on 8-6-2018.

(ii) As a result, the said company has ceased to exist as a legal entity, and there is no locus standi to continue or commence any legal action.

(iii) Expo had earlier filed a claim for the sum of RM 13 million against Dato Seri Yap and Datin Seri Gan for the alleged failure to pay for the 15,009,000 shares sold by Expo to them in the High Court Suit No. 22- 350-2010 (Suit 350).

(iv) The Suit 350 was dismissed by Suraya Othman J as highlighted earlier. Suraya Othman J found that the said 15,009,000 shares were sold by Expo to Dato Seri Yap and Datin Seri Gan for the sum of RM 5.25 million.

Expo, Lim Li Litt and Heng Ji Keng had failed to disclose the findings of Suraya Othman J as follows: - - The purchasers of the Merces shares were Dato Seri Yap and Datin Seri Gan; - The purchasers had deposited documents to a stakeholder, inter alia, pre signed share transfer forms, pre-signed directors' resignation letters; - The stakeholder documents were intended as security for payment of consultancy fees of Dato Edward Lee Hock Soon and not for the Merces shares; - The total consideration for the sale of 15, 009,000 Merces Shares was only RM 5.25 million and was fully paid by Dato Seri Yap and Datin Seri Gan; - The 5th Defendant has no personal knowledge of the claim and the facts concerning the said share sale; - Cekap Asia was the nominee of Dato Seri Yap and Datin Seri Gan; - The claim by Expo for RM 13 million was dismissed by the learned trial Judge as the full purchase price of RM 5.25 million was paid in full.

Due to the said concealment of the material facts, the Plaintiffs believe that this is a suitable case to invoke the powers of the Court to set aside the orders made by a Court of concurrent jurisdiction. (Badiaddin Mohd Mahidin & Anor v Arab Malaysian Finance Bhd [1998] 2 CLJ 75).

For convenience, I reproduce material parts of the judgment of the Federal Court in Badiaddin Mohd Mahidin v Arab Malaysian Finance Bhd (supra).

Mohd Azmi FCJ “It is of course settled law as laid down by the Federal Court in Hock Hua Bank case that one High Court cannot set aside a final order regularly obtained from another High Court of concurrent jurisdiction. But one special exception to this rule (which was not in issue and therefore not discussed in Hock Hua Bank) is where the final judgment of the High Court could be proved to be null and void on ground of illegality or lack of jurisdiction so as to bring the aggrieved party within the principle laid down by a number of authorities culminating in the Privy Council case of Isaacs v. Robertson [1985] AC 97 where Lord Diplock while rejecting the legal aspect of voidness and voidability in the orders made by a court of unlimited jurisdiction, upheld the existence of a category of orders of the court "... which a person affected by the order is entitled to apply to have set aside ex debito justitiae in the exercise of the inherent jurisdiction of the court, without his needing to have recourse to the rules that deal expressly with proceedings to set aside orders for irregularity, and give to the judge a discretion as to the order he will make. The Privy Council through Lord Diplock also emphasised that the courts in England have not closed the door as to the type of defects in the final judgment of the court that can be brought into the category that attracts ex debito justitiae the right to have it set aside without going into the appeal procedure, "save that specifically it includes orders that have been obtained in breach of rules of natural justice". Similarly, in this country the statement of Abdoolcader J (as he then was) in Eu Finance Berhad v. Lim Yoke Foo [1982] 2 MLJ 37 @ 39 provides the correct guideline on the subject: The general rule is that where an order is a nullity, an appeal is somewhat useless as despite any decision on appeal, such an order can be successfully attacked in collateral proceedings; it can be disregarded and impeached in any proceedings, before any court or tribunal and whenever it is relied upon - in other words, it is subject to collateral attack. In collateral proceedings the court may declare an act that purports to bind to be non-existent. In Harkness v. Bells' Asbestos and Engineering Ltd. [1967] 2 QB 729, 736 Lord Diplock LJ (now a Law Lord) said (at p. 736) that 'it has been long laid down that where an order is a nullity, the person whom the order purports to affect has the option either of ignoring it or of going to the court and asking for it to be set aside'. For my part, I must hasten to add that apart from breach of rules of natural justice, in any attempt to widen the door of the inherent and discretionary jurisdiction of the Superior Courts to set aside an order of court ex debito justitiae to a category of cases involving orders which contravened "any written law", the contravention should be one which defies a substantive statutory prohibition so as to render the defective order null and void on ground of illegality or lack of jurisdiction. It should not for instance be applied to a defect in a final order which has contravened a procedural requirement of any written law. The discretion to invoke the inherent jurisdiction should also be exercised judicially in exceptional cases where the defect is of such a serious nature that there is a real need to set aside the defective order to enable the court to do justice. In all cases the normal appeal procedure should be adopted to set aside a defective order, unless the aggreived party could bring himself within the special exception. Gopal Sri Ram JCA “It is settled law that one High Court cannot set aside a final order of another High Court, let alone its own final order. It is our view that the Seremban High Court having rightly or wrongly given 8 October 1990 order, is functus officio, and it cannot set its own order aside….. It is true, as a general rule, that orders of a court of unlimited jurisdiction may not be impugned on the ground that they are void in the sense that they may be ignored or disobeyed. The decision of the Judicial Committee of the Privy Council in Isaacs v. Robertson [1985] AC 97 affirms the existence of the rule. There, Lord Diplock when delivering the advice of the Board said: Their Lordships would, however, take this opportunity to point out that in relation to orders of a court of unlimited jurisdiction it is misleading to seek to draw distinctions between orders that are 'void' in the sense that they can be ignored with impunity by those persons to whom they are addressed, and orders that are 'voidable' and may be enforced unless and until they are set aside. Dicta that refer to the possibility of there being such a distinction between orders to which the descriptions 'void' and 'voidable' respectively have been applied can be found in the opinions given by the Judicial Committee of the Privy Council in the appeals Marsh v. Marsh [1945] AC 271 at p. 284 and MacFoy v. United Africa Co Ltd. [1962] AC 152 at p. 160; but in neither of those appeals nor in any other case to which counsel has been able to refer their Lordships has any order of a court of unlimited jurisdiction been held to fall into a category of court orders that can simply be ignored because they are void ipso facto without there being any need for proceedings to have them set aside. The cases that are referred to in these dicta do not support the proposition that there is any category of orders of a court of unlimited jurisdiction of this kind; what they do support is the quite different proposition that there is a category of orders of such a court which a person affected by the order is entitled to apply to have set aside ex debito justitiae in the exercise of the inherent jurisdiction of the court without his needing to have recourse to the rules that deal expressly with proceedings to set aside orders for irregularity and give to the judge a discretion as to the order he will make. The judges in the cases that have drawn the distinction between the two types of orders have cautiously refrained from seeking to lay down a comprehensive definition of defects that bring an order into the category that attracts ex debito justitiae the right to have it set aside, save that specifically it includes orders that have been obtained in breach of rules of natural justice. The contrasting legal concepts of voidness and voidability form part of the English law of contract. They are inapplicable to orders made by a court of unlimited jurisdiction in the course of contentious litigation. Such an order is either irregular or regular. If it is irregular, it can be set aside by the court that made it upon application to that court; if it is regular, it can only be set aside by an appellate court upon appeal if there is one to which an appeal lies. It is one thing to say that an order of a court of unlimited jurisdiction must be obeyed until it is set aside. It is quite a different thing to say that a court of unlimited jurisdiction may make orders in breach of written law. Isaacs v. Robertson is certainly not authority for the latter proposition. I take it to be well settled that even courts of unlimited jurisdiction have no authority to act in contravention of written law. Of course, so long as an order of a court of unlimited jurisdiction stands, irregular though it may be, it must be respected. But where an order of such a court is made in breach of statute, it is made without jurisdiction and may therefore be declared void and set aside in proceedings brought for that purpose. It is then entirely open to the court, upon the illegality being clearly shown, to grant a declaration to the effect that the order is invalid and to have it set aside. It is wrong to assume that such an order may only be corrected on appeal.

This Court further refers to the decision of the UK Supreme Court in Takhar v Gracefield Developments Ltd [2020] AC 450 and the English

Court of Appeal in Tinkler v Esken Ltd [2023] EWCA Civ 655; [2023] Ch I reproduce material parts from the judgment of Lord Kerr and Lord

Lord Kerr “53. I agree with all of that. It appears to me that the policy arguments for permitting a litigant to apply to have judgment set aside where it can be shown that it has been obtained by fraud are overwhelming.

For the reasons that I have given, I do not consider that Etoile and Bracco are authority for the proposition that, in cases where it is alleged that a judgment was obtained by fraud, it may only be set aside where the party who makes that application can demonstrate that the fraud could not have been uncovered with reasonable diligence in advance of the obtaining of the judgment. If, however, they have that effect, I consider that they should not be followed. In my view, it ought now to be recognised that where it can be shown that a judgment has been obtained by fraud, and where no allegation of fraud had been raised at the trial which led to that judgment, a requirement of reasonable diligence should not be imposed on the party seeking to set aside the judgment.

Two qualifications to that general conclusion should be made. Where fraud has been raised at the original trial and new evidence as to the existence of the fraud is prayed in aid to advance a case for setting aside the judgment, it seems to me that it can be argued that the court having to deal with that application should have a discretion as to whether to entertain the application. Since that question does not arise in the present appeal, I do not express any final view on it. The second relates to the possibility that, in some circumstances, a deliberate decision may have been taken not to investigate the possibility of fraud in advance of the first trial, even if that had been suspected. If that could be established, again, I believe that a discretion whether to allow an application to set aside the judgment would be appropriate but, once more, I express no final view on the question. In Mrs Takhar’s case, she did suspect that there may have been fraud but it is clear that she did not make a conscious decision not to investigate it. To the contrary, she sought permission to engage an expert but, as already explained, this application was refused.

At para 26 of his judgment Newey J said that the principles which govern applications to set aside judgments for fraud had been summarised by Aikens LJ in Royal Bank of Scotland plc v Highland Financial Partners lp [2013] 1 CLC 596, para 106: "The principles are, briefly: first, there has to be a ‘conscious and deliberate dishonesty’ in relation to the relevant evidence given, or action taken, statement made or matter concealed, which is relevant to the judgment now sought to be impugned. Secondly, the relevant evidence, action, statement or concealment (performed with conscious and deliberate dishonesty) must be ‘material’. ‘Material’ means that the fresh evidence that is adduced after the first judgment has been given is such that it demonstrates that the previous relevant evidence, action, statement or concealment was an operative cause of the court’s decision to give judgment in the way it did. Put another way, it must be shown that the fresh evidence would have entirely changed the way in which the first court approached and came to its decision. Thus the relevant conscious and deliberate dishonesty must be causative of the impugned judgment being obtained in the terms it was. Thirdly, the question of materiality of the fresh evidence is to be assessed by reference to its impact on the evidence supporting the original decision, not by reference to its impact on what decision might be made if the claim were to be retried on honest evidence."

(ii) Lord Sumption “60. An action to set aside an earlier judgment for fraud is not a procedural application but a cause of action. As applied to judgments obtained by fraud, the historical background was explained by Sir George Jessel MR in Flower v Lloyd (1877) 6 Ch D 297, 299-300. Equity has always exercised a special jurisdiction to reverse transactions procured by fraud. A party to earlier litigation was entitled to bring an original bill in equity to set aside the judgment given in that litigation on the ground that it was obtained by fraud. Such a bill could be brought without leave, because it was brought in support of a substantive right. If the fact and materiality of the fraud were established, the party bringing the bill was absolutely entitled to have the earlier judgment set aside. In this respect, an original bill differed from a bill of review on the basis of further evidence, which was essentially procedural and did require leave. After the fusion of law and equity in the 1870s, the procedure by way of original bill was superseded by a procedure by action on the same juridical basis.

The cause of action to set aside a judgment in earlier proceedings for fraud is independent of the cause of action asserted in the earlier proceedings. It relates to the conduct of the earlier proceedings, and not to the underlying dispute. There can therefore be no question of cause of action estoppel. Nor can there be any question of issue estoppel, because the basis of the action is that the decision of the issue in the earlier proceedings is vitiated by the fraud and cannot bind the parties: Director of Public Prosecutions v Humphrys[1977] AC1, 21 (Viscount Dilhorne). If the claimant establishes his right to have the earlier judgment set aside, it will be of no further legal relevance qua judgment. It follows that res judicata cannot therefore arise in either of its classic forms. …. 66 I would leave open the question whether the position as I have summarised it is any different where the fraud was raised in the earlier proceedings but unsuccessfully. My provisional view is that the position is the same, for the same reasons. If decisive new evidence is deployed to establish the fraud, an action to set aside the judgment will lie irrespective of whether it could reasonably have been deployed on the earlier occasion unless a deliberate decision was then taken not to investigate or rely on the material. 67 I recognise the risk of frivolous or extravagant litigation to set aside judgments on the ground of fraud, but like other members of the court, I think that the stringent conditions set out by Aikens LJ in Royal Bank of Scotland plc v Highland Financial Partners lp [2013] 1 CLC 596, para 106, combined with the professional duties of counsel, are enough keep it within acceptable limits. I do not think that the imposition of further conditions would be consistent with the long-standing policy of equity of reversing transactions procured by fraud.”

For a claimant to be successful in a claim to set aside a previous judgment of a court of competent jurisdiction based on an alleged fraud, it must be shown (i) the successful party committed conscious and deliberate dishonesty, (ii) the dishonest conduct was material to the original decision and (iii) there is new evidence before Court to prove the said fraud.

The Plaintiff also alleges that Expo and the 3rd to 6th Defendants did forge Dato Seri Yap’s signature in the purported director’s circular resolution dated 15-7-2019 to remove Tan Mee Teck as the company secretary and to appoint the new company secretary Wong Youn Kim.

The Plaintiff further alleges that the said Defendants had wrongfully converted the above referred Stakeholders documents and had wrongfully caused the removal of the Plaintiffs as directors of Cekap Asia and had caused the appointment of the new directors as well as new Company Secretary.

The above actions were part of the conspiracy by Expo, the 3rd to 6th Defendants to take over the affairs of Cekap Asia. This was intended to enable them to control Cekap Asia and initiate the proceedings against the Plaintiffs. This has caused the Plaintiff to suffer damages as a result of the wrongs committed by the said Defendants.

For the above reasons, Expo had no locus standi to initiate its claim to reinstate Cekap Asia as prayed for in the OS 131.

The Defence of the 1st, 5th and 6th Defendants 50. The 1st, 5th, and 6th Defendants claim that the Plaintiffs (Dato Seri Yap and Datin Seri Gan) have filed for the same reliefs in the application to intervene in the Suit No: WA-24NCC-131-03/2018. The High Court had not allowed for the application to intervene.

The reliefs claimed herein are also similar to the claims filed in the High Court of Malaya at Shah Alam Suit No: BA-22NCC-18-02/2021. The learned High Court Judge had allowed the claim by Cekap Asia Sdn Bhd and directed that 11,749,000 units of shares in Merces be returned to Cekap Asia and that dividends for the years 2006 to 2020 be repaid to the company.

The claim herein is duplicitous and mala fide as the reliefs in this suit are the same in the application to intervene and similar to the suit heard in the suit filed before the High Court of Malaya at Shah Alam.

As a result, the Defendants contend that the Plaintiffs herein are estopped from raising the same issues again herein and that the claims are now subject to the doctrine of Res Judicata. They also deny any form of conspiracy and they have only acted in accordance with their rights.

Defence of the 2nd to 4th Defendants 54. The 2nd to 4th Defendants also rely on the allegation that this claim is duplicitous, constitutes an abuse of process, and is maliciously filed. They also rely on the allegation that the same issue was raised in the High Court before Justice Wan Muhammad Amin and before the High Court of Malaya at Shah Alam, as referred to earlier. The said Defendants also rely on the doctrine of Res Judicata.

The 2nd to 4th Defendants also claims that the Plaintiffs' claim is based on their intention to circumvent the suits filed by Cekap Asia against them. If the company is struck out, then Cekap Asia will not have any locus standi to make any claim against them.

The Plaintiffs had been indolent and delayed in their application to set aside the judgment of Zaini Mazlan J and should have acted expeditiously. Failure to do so suggests that they had acquiesced to the said reinstatement.

The removals and the appointment of new directors to the board of directors of Cekap Asia was validly undertaken. The decision to affect the Plaintiff’s resignation on 15-7-2019 was validly undertaken by the said Defendants and Cekap Asia.

SSM’s Defence – 7th Defendant 58. The records of SSM show that Expo was wound up by an order of the Court dated 4-5-2012. There were errors in the records of SSM that did not register the actual status of Expo, and this caused the removal of the said company from its register. However, this has since been rectified, and as of today, Expo remains a company subject to the liquidation process.

Cekap Asia was reinstated according to an order of Zaini Mazlan J, as referred to earlier, and is an existing company based on the records of

Cekap Asia was struck off from the register of the companies on 21- 10-2011 in accordance with Section 308 of the Companies Act 1965. As a result of the order of Zaini Mazlan J on 28-6-2018, Cekap Asia was reinstated pursuant to Section 555 of the Companies Act 2016.

SSM is not involved in any of the other disputes between the Plaintiffs and the other Defendants. D. Issues to be Determined by this Court

I find that the following issues have been raised by the litigants and have to be determined by this Court. They are as follows: -

Whether the Plaintiffs are barred from relitigating the issue of the validity of the order made by the Zaini Mazlan J on 28-6-2018 as they have (i) applied to intervene and failed in the said application before Justice Wan Muhammad Amin and (ii) that the same issue was allegedly raised in the Civil Suit bearing Number BA-22NCC-18-02/2021 in the High Court of Malaya at Shah Alam. (“Issue 1 – Res Judicata / Estoppel / Abuse of Process”)

Whether there was any fraud or material non-disclosure by Expo and the 5th and 6th Defendants in the WA-24NCC-131-03/2018 that justifies the setting aside of the order dated 28-6-2018. (“Issue 2 – Alleged Fraud on the Court”)

Whether the signatures of the 1st Plaintiff, Dato Seri Yap, was forged in the resolutions relied on by the Defendants to cause the resignation of the Plaintiffs from the Board of Directors of Cekap Asia, the appointment of new directors and the appointment of new company secretary. (“Issue 3 - Forged Instruments”)

I will deal with each of the above issues in the following paragraphs. E. Decision of this Court

Issue 1 – Res Judicata / Estoppel / Abuse of Process Are the Plaintiffs’ Barred due to the Application to Intervention and the Civil Suit filed by Cekap Asia – Res Judicata / Issue Estoppel 64. Superficially, one could assume that there may be competing principles of finality to litigation, on the one hand, that bars any attempt to relitigate a claim and the defences raised therein with the principle of law that “fraud unravels all”.

I am however of the opinion that an allegation of fraud is one of the exceptions provided by law to the strict application of the doctrine of Res Judicata. See Seruan Gemilang Makmur Sdn Bhd v Kerajaan Negeri Pahang [2016] 3 CLJ 1 where Ramli Ali FCJ held: - [50] The appellant raised the issue of res judicata and submitted that the doctrine applied in present case to bar the respondent from challenging the earlier judgment. [51] On this issue, the Court of Appeal in Chee Pok Choy (supra) had the opportunity to deal with the doctrine in an action to impeach or set aside an earlier judgment. In that case, the court elaborated on the provisions of s. 44 of the Act and the scope and application of doctrine of res judicata. One of the issues determined in that case was whether the decision of the Supreme Court in an earlier judgment, as a matter of law precludes the appellants from seeking to set aside the judgment. [52] The Court of Appeal (in that case) concluded that, "since the doctrine (whether in its narrow or broader sense) is designed to achieve justice, a court may decline to apply it where to do so would lead to unjust result". [53] The Court of Appeal further ruled that "... it would be an affront to justice to permit the respondent to successfully plead res judicata in the second suit as that would tantamount to applying the editorial blue pencil across the mandatory provisions of s. 260(2) of the Code." [54] For that reason, the Court of Appeal resolved the issue in the appellants' favour to the effect that the earlier judgment in question does not operate to bar the appellants from making an application to challenge and to set aside the said earlier judgment. [55] Consequently, we hold that the doctrine of res judicata is not applicable in an action to impeach or to set aside an earlier judgment which has been obtained by fraud.” Also refer to section 44 of the Evidence Act.

I refer again to the dicta of Lord Sumption in Takhar v Gracefiled Developments Limited and others [2019] EWCA Civ 147: “60. An action to set aside an earlier judgment for fraud is not a procedural application but a cause of action. As applied to judgments obtained by fraud, the historical background was explained by Sir George Jessell MR in Flower v Lloyd (1877) 6 Ch D 297, 299-300. Equity has always exercised a special jurisdiction to reverse transactions procured by fraud. A party to earlier litigation was entitled to bring an original bill in equity to set aside the judgment given in that litigation on the ground that it was obtained by fraud. Such a bill could be brought without leave, because it was brought in support of a substantive right. If the fact and materiality of the fraud were established, the party bringing the bill was absolutely entitled to have the earlier judgment set aside. In this respect, an original bill differed from a bill of review on the basis of further evidence, which was essentially procedural and did require leave. After the fusion of law and equity in the 1870, the procedure by way of original bill was superseded by a procedure by action on the same juridical basis.

The cause of action to set aside a judgment in earlier proceedings for fraud is independent of the cause of action asserted in the earlier proceedings. It relates to the conduct of the earlier proceedings, and not to the underlying dispute. There can therefore be no question of cause of action estoppel. Nor can there be any question of issue estoppel, because the basis of the action is that the decision of the issue in the earlier proceedings is vitiated by the fraud and cannot bind the parties: Director of Public Prosecutions v Humphrys [1977] AC 1, 21 (Viscount Dilhorne). If the claimant establishes his right to have the earlier judgment set aside, it will be of no further legal relevance qua judgment. It follows that res judicata cannot therefore, arise in either of its classic forms.

The rule, originally stated by Wigram V-C in Henderson v Henderson

3 Hare 100, 115, that a party is precluded from raising in subsequent proceedings matters which were not, but could and should have been raised in the earlier ones, is commonly treated as a branch of the law of res judicata. It has the same policy objective and the same preclusive effect. But, it is better analysed as part of the juridically distinct but overlapping principle which empowers the court to restrain abuses of its process. The relationship between the two concepts was examined by this court in Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd [2014] AC 160, paras 22-25. Whereas res judicata is a rule of substantive law, abuse of process is a concept that informs the exercise of the court’s procedural powers. These are part of the wider jurisdiction of the court to protect its process from wasteful and potentially oppressive duplicative litigation, even in cases where the relevant question was not raised or decided on the earlier occasion. Since the decisions of the House of Lords in Arnold v National Westminster Bank plc [1991] 2 AC 93 and Johnson v Gore Wood & Co [2002] 2 AC 1 it has been recognised that where a question was not raised or decided in the earlier proceedings but could have been, the jurisdiction to restrain abusive re-litigation is subject to a degree of flexibility which reflects its procedural character. This allows the court to give effect to the wider interests of justice raised by the circumstances of each case.

It is this flexibility which supplies the sole juridical basis on which the respondents can argue that the evidence of fraud must not only be new but such as could not with reasonable diligence have been deployed in the earlier proceedings. It is also the basis on which Lord Briggs, in his judgment on the present appeal, suggests a less absolute rule than that proposed by Lord Kerr. I cannot accept either the respondents’ argument or Lord Briggs’ more moderate variant of it. The reason is that proceedings of this kind are abusive only where the point at issue and the evidence deployed in support of it not only could have been raised in the earlier proceedings but should have been: see Johnson v Gore-Wood & Co, at p 31 (Lord Bingham of Cornhill) and Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd, para 22 (Lord Sumption). As Lord Bingham observed in the former case, it is “wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive.” The “should” in this formulation refers to something which the law would expect a reasonable person to do in his own interest and in that of the efficient conduct of litigation. However, the basis on which the law unmakes transactions, including judgments, which have been procured by fraud is that a reasonable person is entitled to assume honesty in those with whom he deals. He is not expected to conduct himself or his affairs on the footing that other persons are dishonest unless he knows that they are. That is why it is not a defence to an action in deceit to say that the victim of the deceit was foolish or negligent to allow himself to be taken in: Central Railway Company of Venezuela v Kisch (1867) LR 2 HL 99, 120 (Lord Chelmsford); Redgrave v Hurd

20 Ch D 1, 13-17 (Jessell MR). It follows that unless on the earlier occasion the claimant deliberately decided not to investigate a suspected fraud or rely on a known one, it cannot be said that he “should” have raised it.

Nor do I accept Lord Briggs’ view that a more flexible and fact-sensitive approach may be required in order to distinguish between degrees of dishonesty. I think that this would introduce an unacceptable element of discretion into the enforcement of a substantive right. The standard of proof for fraud is high, and rightly so. But once it is satisfied, there are no degrees of fraud which can affect the right to have the judgment set aside.”

I also refer to the decision of the English Court of Appeal in The Royal Bank of Scotland PLC v (1) Highland Financial Partners LP & 4 Ors [20120] EHWC 1278.

In that case, Lord Justice Aikens stated: - “The legal framework: There was no dispute between counsel before us on the legal principles to be applied if one party alleges that a judgment must be set aside because it was obtained by the fraud of another party. The principles are, briefly: first, there has to be a "conscious and deliberate dishonesty" in relation to the relevant evidence given, or action taken, statement made or matter concealed, which is relevant to the judgment now sought to be impugned. Secondly, the relevant evidence, action, statement or concealment (performed with conscious and deliberate dishonesty) must be "material". "Material" means that the fresh evidence that is adduced after the first judgment has been given is such that it demonstrates that the previous relevant evidence, action, statement or concealment was an operative cause of the court's decision to give judgment in the way it did. Put another way, it must be shown that the fresh evidence would have entirely changed the way in which the first court approached and came to its decision. Thus the relevant conscious and deliberate dishonesty must be causative of the impugned judgment being obtained in the terms it was. Thirdly, the question of materiality of the fresh evidence is to be assessed by reference to its impact on the evidence supporting the original decision, not by reference to its impact on what decision might be made if the claim were to be retried on honest evidence.”

I am of the opinion that the fact that the Plaintiffs were unsuccessful before Justice Wan Muhammad Amin in their attempt to intervene and set aside the orders dated 28-6-2018 does not mean that they are now barred from initiating this suit on the ground of fraud and material concealment by Expo and the aforesaid liquidators.

I am also of the opinion that Justice Wan Muhammad Amin’s decision did not close the possibility for the Plaintiffs to initiate this action by way of a fresh suit. He stated: - “[51] In the present case I have found that there was no breach of natural justice and in any event the Proposed Interveners grounds to set aside the Order dated 28.6.2018 include concealment of material information, dishonesty and fraud. These are quasi criminal allegations, in particular fraud. Thus, the proper mode for applying to set aside a judgment or order obtained by fraud would be by way of a fresh suit or action. …. [53] The rationale behind this rule is simply that allegations such as fraud cannot be determined by way of affidavit evidence alone especially when dealing with an application to set aside a judgment or order, a matter of such a serious nature (Badiaddin (supra)). Fresh evidence is required to be produced (see Seruan Gemilang Makmur Sdn Bhd v. Pegawai Kewangan Negeri Pahang 120.61 3 MLJ 1 - a case also involving concealment or suppression of matters and fraud on the Court). …. [55] As this Application was also premised on, inter ajia, concealment and fraud as well as breach of natural justice the proper mode to set aside the Order dated 28.6.2018 would be by commencing a fresh suit.”

I do note that Justice Wan Muhammad Amin did deal with the issue of whether the alleged claims would have made any material change to the decision made by Zain Mazlan J on 28-6-2018. However, his Lordship decision must be read in line with what he had said earlier and in accordance with the following excerpts: - “[59] First and foremost, what transpired before Justice Zaini at the hearing of the Originating Summons cannot be determined by affidavit evidence alone and this Application ought to have been made via a fresh suit (Seruan Gemilang (supra); Chee Pok Choy (supra)). In the absence of "fresh evidence" there is no material for me to examine to determine whether there are grounds to set aside the Order dated 28.6.2018”

Therefore, I am of the opinion that the door for the Plaintiffs to file a fresh suit to set aside the Order dated 28-6-2018 is not closed. The door was left open by Justice Wan Muhammad Amin and he only correctly stated that it would be wrong for the High Court to allow the application to intervene at that stage and such allegations of any wrongdoing such as fraud and material concealment should be brought by way of a new civil suit as viva voce evidence is necessary in such cases.

I have also considered the judgment of the High Court by Rozi Bainun JC in the Civil Suit bearing number BA-22NCC-18-02/2021. I find that the learned Judicial Commissioner did not in any way deal with the issue of whether the reinstatement of the order of Court on 28-6-2018 was obtained by fraud or whether Expo had any right to make any such claims for reinstatement of Cekap Asia per section 555 of the Companies Act. The decision by Rozi Bainun JC only dealt with the issue of whether the said Merces shares were beneficially owned by Cekap Asia or by Dato Seri Yap and Datin Seri Gan.

To fortify my decision, I further refer to the decision of the Federal Court in Sykt Sebati Sdn Bhd v Pengarah Jabatan Perhutanan & Anor [2019] 3 CLJ 157, where Alizatul Khair FCJ stated: - "[43] It is clear however from decided cases that the circumstances alluded to by the Court of Appeal (ie, non-consideration of the provisions of the GCA (1949)) do not fall within the exceptions to the doctrine of res judicata which are limited to the following situations: fraud or where evidence not available at the original hearing becomes available (see Arnold v. National Westminster Bank P/c; [1991] 2 AC 93 and Hock Hua Bank Bhd v. Sahari Murid; [1980] CLJU 92; [1980] 1 LNS 92; [1981] 1 MLJ 143. Whether an 'unjust result' or the justice of the case constitutes a further exception to the doctrine of res judicata remains to be seen. For the moment, based on decided cases (as seen above) it is not yet a recognised exception to the doctrine of res judicata."

For the above reasons, I find that the Plaintiffs in this suit are not barred by Res Judicata from litigating again on this issue despite their failure to intervene. I find that the Plaintiffs retained the right to institute and continue their claim to set aside the earlier judgment due to the alleged fraud committed by the Defendants as alleged in the Statement of Claim. I also find that the decision of the Shah Alam High Court in the above-referred suit also did not bar the Plaintiffs from commencing and continuing their claim.

I also note that the Defendants have also argued that this claim is duplicitous, frivolous, and vexatious and constitutes an abuse of process. The Defendants refer not only to the (i) application to intervene filed as referred to earlier, (ii) the civil suit filed by Cekap Asia Sdn Bhd against the Plaintiffs, but also to the (iii) new civil suit filed by the Plaintiffs for the return of the shares in Cekap Asia. Alleged Duplicitous Actions / Abuse of Process 77. I find that the manner in which the claim filed by the Plaintiffs may be haphazard and not efficiently planned by their chosen solicitors, but this does not mean that the Plaintiffs have abused the process of the Court.

I refer to the decision of Wan Suleiman FCJ in Loh Holdings Sdn Bhd v Peglin Development Sdn Bhd & Anor [1984] 1 CLJ Rep 211 where he held: - "The second defence is one of res judicata. There has, of course, been no actual decision in litigation between these parties as to the issue involved in the present case, but the appellants invoke this defence in its wider sense, according to which a party may be shut out from raising in a subsequent action an issue which he could, and should, have raised in earlier proceedings. The classic statement of this doctrine is contained in the judgment of Wigram V.C. in Henderson v. Henderson; [1843] 3 Hare 100 and its existence has been reaffirmed by this Board in Hoystead v. Commissioner of Taxation; [1926] AC 155. A recent application of it is to be found in the decision of the Board in Yat Tung Investment Co. Ltd. v. Dao Heng Bank Ltd. [1975] AC 581. It was, in the judgment of the Board, there described in these words: ... there is a wider sense in which the doctrine may be appealed to, so that it becomes an abuse of process to raise in subsequent proceedings matters which could and therefore should have been litigated in earlier proceedings. (p. 590). This reference to "abuse of process" had previously been made in Greenhalgh v. Mallard; [1947] 2 All ER 255 per Somervell LJ and their Lordships endorse it. This is the true basis of the doctrine and ought only to be applied when the facts are such as to amount to an abuse: otherwise there is a danger of a party being shut from bringing forward a genuine subject of litigation."

I also refer to the decision of the Singapore Court of Appeal per Yong Pung How CJ in Gabriel Peter & Partnbers (suing as a firm) v Wee Chong Jin [1998] 1 SLR 374: - "The term 'abuse of the process of the court', in O. 18 r. 19(1)(d) has been given a wide interpretation by the courts. It includes considerations of public policy and the interest of justice. This term signifies that the process of the court must be used bona fide and properly and must not be abused. The court will prevent the improper use of its machinery. It will prevent the judicial process from being used as a means of vexation and oppression in the process of litigation. The categories of conduct rendering a claim frivolous, vexatious or an abuse of process are not closed and will depend on all relevant circumstances of the case;"

Reference is also made to Jasa Keramat Sdn Bhd v Monatech (M) Sdn Bhd [1999] 4 CLJ 533 where Gopal Sri Ram JCA (as he then was) held: - "Since the circumstances in which the court's process may be abused are varied and numerous, the categories of such cases are therefore not closed. Whether the institution of an action or its continuation or a step taken therein amounts to an abuse of process depends upon particular and individual circumstances."

I find that the Dato Seri Yap and Datin Seri Gan’s actions were justified in the circumstances of this case and are not prevented from filing this claim to have the findings of fact corrected, as they were caused by fraud by the Defendants. Having successfully defended the claim by Expo in the First Suit, they now find themselves having to face a fresh claim for the same subject matter by Cekap Asia Sdn Bhd which is now controlled by Expo. Expo now attempts to seek for the return of the same shares that the Suraya Othman J did find was sold to Dato Seri Yap and Datin Seri Gan for the consideration of RM 5.25 million and not RM 23 million. To prevent the Plaintiffs from seeking to have the facts corrected and rectified, especially in view of the decision of Suraya Othman J, would be an affront to justice.

As the Merces shares were paid in full, Expo no longer has any valid claim to (i) either return of the shares through Cekap Asia or (ii) for the payment of RM 13 million as claimed in the First Suit. The issue concerning the Merces shares was dealt with in the First Suit, and Expo did not have any right to reopen the same either directly or through Cekap Asia.

In the circumstances, I find that the suits and defences filed by the Plaintiffs are not an abuse of the process of this Court. The Plaintiffs have shown to this Court that they have a valid grievance regarding the validity of the orders sought by Expo and that the true facts were not disclosed to the Court at the time when the order dated 28-6-2018 was made by Zaini Mazlan J.

Issue 2 – Alleged Fraud on the Court Whether the Plaintiff has proven that the Order dated 28-6-2018 should be set aside due to fraud by the Defendants 84. For the Plaintiff to be successful in their attempt to set aside the Judgment dated 28-6-2018, it must be shown that: -

first, there has to be a "conscious and deliberate dishonesty" in relation to the relevant evidence given, or action taken, statement made or matter concealed, which is relevant to the judgment now sought to be impugned.

Secondly, the relevant evidence, action, statement or concealment (performed with conscious and deliberate dishonesty) must be "material". "Material" means that the fresh evidence that is adduced after the first judgment has been given is such that it demonstrates that the previous relevant evidence, action, statement, or concealment was an operative cause of the court's decision to give judgment in the way it did. Put another way, it must be shown that the fresh evidence would have entirely changed the way in which the first court approached and came to its decision. Thus the relevant conscious and deliberate dishonesty must be causative of the impugned judgment being obtained in the terms it was.

Thirdly, the question of materiality of the fresh evidence is to be assessed by reference to its impact on the evidence supporting the original decision, not by reference to its impact on what decision might be made if the claim were to be retried on honest evidence. (as per Royal Bank of Scotland PLC v (1) Highland Financial Partners LP & 4 Ors [20120] EHWC 1278 – also refer to the English and UK cases cited earlier)

I further refer to the decision of Azizul Azmi Adnan J (as he then was) in Professor Emeritus Dr Azman Awang & Anor v FBSM Ctech Sdn Bhd & Anor [2021] CLJU 36:- “[24] What constitutes fraud on the court? The Federal Court in Serac explained: [38] Fraud on the court is obviously a serious allegation. It requires that higher standard of proof, one of beyond a reasonable doubt. In Jonesco v. Beard [1930] AC 298 (HL), Lord Buckmaster observed that 'fraud is an insidious disease, and if clearly proved to have been used so that it might deceive the court, spreads to infect the whole body of the judgment'. The qualifying phrase 'if clearly proved' to us governs the manner on which fraud should be proved. In Chee Pok Choy & Ors v. Scotch Leasing Sdn Bhd [2001] 2 CLJ 321; [2001] 4 MLJ 346, it was held that a judgment may be impeached only for a 'deliberate fraud practiced upon the court' and that it is 'insufficient to show that a litigant merely convinced the court through misleading or erroneous evidence' (see the Australian case of Price v. Stone [1964] VR 106). It has been otherwise described as 'cheating to get an advantage'. Thus, to us, there is a need for a fresh action to adjudicate the issue. [25] Of course, the applicable standard of proof has now been held to be on a balance of probabilities (following Sinnaiyah & Sons Sdn Bhd v. Damai Setia Sdn Bhd[3]). Nonetheless, the passage quoted above remains instructive, as it illustrates that there must have been a "deliberate fraud upon the court", which I take to mean a wilful deception practised upon the court in order to obtain the judgment in question. …. [35] This very issue was considered by the UK Supreme Court in Takhar v. Gracefield Developments Limited[7]. Delivering the leading judgment of the seven-person bench, Lord Kerr stated: In my view, it ought now be recognised that where it can be shown that a judgment has been obtained by fraud, and where no allegation of fraud had been raised at the trial which led to that judgment, a requirement of reasonable diligence ought not be imposed on the party seeking to set aside the judgment. [36] Thus a litigant is entitled to have a prior judgment set aside if he or she can show that it had been obtained by fraud. He or she need not establish that the fresh evidence that was sought to be relied upon could not have been obtained with reasonable diligence. Where however the question of fraud had been raised at the prior trial, Lord Kerr was of the view that whether or not a fresh trial ought to be ordered is a matter for the discretion of the judge hearing the matter, although his lordship stopped short of expressing a final view on this point. …. [43] The UK Supreme Court held that where a judgment was alleged to have been obtained by fraud, there was no requirement for the party making the application to prove that the fraud could not have been uncovered with reasonable diligence in advance of the obtaining of the judgment. Lord Kerr stated: The idea that a fraudulent individual should profit from passivity or lack of reasonable diligence on the part of his or her opponent seems antithetical to any notion of justice. Quite apart from this, the defrauder, in obtaining a judgment, has perpetrated a deception not only on their opponent and the court but on the rule of law. [44] Fraud unravels all. It need not be established that the evidence of fraud could not have been obtained before the first trial by the exercise of reasonable diligence. [45] In my view, paragraph 43 of the judgment of the Federal Court in Serac (reproduced at paragraph 33 above) must be understood in context. There, there had been an application to adduce fresh evidence in the same action. There was thus a consideration of the rule in Ladd v. Marshall [8] and order 56 rule 3A of the Rules of Court 2012, where the issue of the reasonable diligence in obtaining the fresh evidence was pertinent. Where there is no application to adduce fresh evidence on appeal, and where fraud is contended, the issue of reasonable diligence does not arise.”

In this case, I observe that in the Section 555 Companies Act application filed by Expo, the following was affirmed by Lim Litt on behalf of the company and as the representative of Heng Ji Keng, the liquidator of the company:- “6 (a) setelah meneliti kesemua kertas kausa dan dokumen relevan, ianya telah didapati bahawa pengarah-pengarah terdahulu Cekap Asia Sdn Bhd telah melakukan frod ke atas Cekap Asia dan telah menyeleweng duitnya.

Cekap Asia mempunyai suatu Tindakan dalam frod, menjalankan transaksi frod, kemungkiran duti-duti director dan “unjust enrichment”;

oleh itu, Cekap Asia berhasrat membawa suatu Tindakan guaman terhadap pengarah-pengarah terdahulu pada masa kini. Oleh yang demikian, Cekap Asia patut didaftarkan semula diatas daftar Syarikat dengan Expo didaftarkan sebagai pemegang saham baru;

sekiranya Cekap Asia tidak didaftarkan semula, ianya tidak akan mempunyai apa-apa remedy terhadap sesiapa dan pesalah-pesalah akan terlepas begitu sahaja; …. Penjualan Saham 9. Expo merupakan pemilik 15,009,000 saham di dalam Syarikat Bernama Merces Holdings Berhad.

Pada atau ketika November 2004, Expo telah menjual Saham Merces kepada Yap, Gan dan Cekap Asia.

Harga penjualan Saham Merces adalah RM 23,000,000.00 dan terma-terma penjualanya adalah seperti berikut:- a) Expo harus memindahkan 1,800,000 unit saham Merces kepada Yap (pengarah dan pemegang saham Cekap Asia) untuk jumlah balasan sebanyak RM 5,250,000.00 b) Expo harus memindahkan 1, 460,000 unit saham Merces kepada Gan (pengarah dan pemegang saham Cekap Asia) untuk jumlah balasan sebanyak RM 4,750,000; dan c) Expo harus memindahkan baki 11, 749,000 unit saham Merces kepada Cekap Asia untuk balasan sebanyak RM 13,000,000.00; d) pada masa tersebut, tiada satu perjanjian penjualan saham secara formal ditandatangani antara Expo dengan Yap dan Gan; e) namun demikian, walaupun dengan ketiadaan satu perjanjian penjualan saham secara formal, pihak-pihak telah bersetuju kepada mekanisma-mekanisma keselamatan dibawah untuk memastikan kesemua pihak akur kepada terma-terma Perjanjian Penjualan Saham tersebut.”

Perjanjian Keselamatan Kedua-dua Expo dan Yap berjanji bahawa sekiranya Yap tidak mampu membayar jumlah RM 13,000,000 berkenaan dengan transaksi Cekap Asia, kedua-dua Yap & Gan akan:- a) meletak jawapan sebagao pengarah Cekap Asia; b) memindahmilik 100% pegangan syer mereka di dalam Cekap Asia kepada Expo; dan c) membenarkan Expo melantik Lembaga pengarah baru di dalam Cekap

I find that the above facts, as stated by Lim Litt, are contrary to the decision of Suraya Othman J in the earlier suit and are also contrary to the allegations made by Expo in the same suit. It is worth repeating that Suraya Othman J’s decision is final and binding on Expo and Dato Seri Yap as well as Datin Seri Gan. Expo’s appeal against her decision was struck out by the Court of Appeal. These facts were known to Lim Litt and even to the solicitors for Expo, Mr Dinesh Praveen.

I reproduce the material parts of the decision of Suraya Othman J:

“The Plaintiff (Expo) claims against the defendants (Dato Seri Yap and Datin Seri Gan) a sum of RM 13 million being the balance purchase price of 15,009,000 unit of shares in Merces Holdings Berhad purchased by the 1st and 2nd Defendants from the plaintiff. The Plaintiff alleged that there was an oral agreement between them and the defendants for the sale of the said Merces shares for the total consideration of RM 23 million and that RM 10 million had been paid in 2 instalment of RM 5.25 million and RM 4.75 million leaving a balance of RM 13 million due.”

(ii) Agreed Facts “[5] Amongst the material terms in relation to the sale and purchase of the shares is that the transfer of ownership of the shares by the Plaintiff (Expo) to the 1st and 2nd Defendant (Dato Seri Yap and Datin Seri Gan) and its nominees were to be in the following portions:-

Cekap Asia Sdn Bhd 11, 479,000 shares

1st Defendant 1,800,000 shares

2nd Defendant 15,009,000 shares Total 15,009,000 shares”

(iii) The shares were transferred to the 1st Defendant, 2nd Defendants and their nominee, Cekap Asia in the following proportions: -

Cekap Asia Sdn Bhd 11, 479,000 shares

1st Defendant 1,800,000 shares

2nd Defendant 15,009,000 shares Total 15,009,000 shares” Thus the central issue is whether the purchase price agreed upon between the parties for the 15,009,000 Merces shares is RM 23 million or RM 5.25 million. [8] It is not disputed by parties that the 1st payment of RM 5.25 million was made to the Plaintiff on 17-11-2004 via cross shares in the share market as against the plaintiff’s shares in Merces. This payment thus has been fully paid and is not an issue. …. [11] After hearing the evidence of the witnesses, this is my findings. Written or documentary evidence on the sale of shares for RM 23 million [13] As stated earlier, the claim by the plaintiff (Expo) is based on an oral agreement. PW1, PW2 and PW3 admitted that there is no written sale and purchase agreement pertaining to the buying and selling of the Merces shares between the parties. In fact the only evidence in writing is of a contract for the sale and purchase of the said Merces shares for RM 5.25 million as alleged by the defendants. This is so since there were instructions from PW2 to the plaintiff’s broker on behalf of the plaintiff to “cross” the said Merces shares at “VWAP less 10% (amounting to RM

5.757, 419.40) and the cheques and vouchers for refund of the difference between the crossing price and the agreed price of RM 5.25 million. [14] This fact were admitted by both PW2 and PW3 who stated that the only disclosures made by the Plaintiff and Merces Bhd to the authorities were in respect of the sale of the said Merces shares for RM 5.25 million. Apart from this, there was no disclosure by the Plaintiff or Merces Bhd that the sale was for RM 23 million. Thus all the documentary evidence clearly supports the defendants’ contention that the sale price was for RM 5.25 million and not at RM 23 million as alleged by the Plaintiff.

No Evidence that the Plaintiff received the 2nd instalment payment of RM 25 million [15] The payment of RM 4.25 million were made to Alam Melur by 2 cheques from DK (RM 2.405 million) and PTW (RM 2.25 million). There was no evidence that the RM 4.25 million were deposited into the Plaintiff’s bank accounts or credited into the books of the Plaintiff. PW1 and PW2 admitted that there was no record of this alleged 2nd instalment in the companies’ book. I agree with the defendants’ counsel that this indicate that the RM 4.25 million was not meant for the plaintiff. It lent credence to the defendants’ counsel that this indicate that the RM 4.25 million was not meant for the plaintiff. It lent credence to the defendants’ claim that this said money was for Dato Edward Lee’s consultancy fees or for whatever other purpose than for the benefit of the shareholders of the Plaintiff’s company. Credible or reliable evidence to support existence of oral agreement. Evidence of witnesses [16] This claim is brought by the liquidator since the plaintiff is in liquidation. PW1, Mr Lim Litt, the insolvency manager in Ferrier Hodgson MH Sdn Bhd stated that he has no personal knowledge on the matter and that the suit was brought based on a statement of affairs filed by a Mr Roger Tan, a director of Expo. ….. [25] In contrast, DW1 and DW2 are more assertive in their testimony. Both testified that they were present when the negotiation and agreement was reached on the sale of shares; that is the agreement reached was for the plaintiff to sell to the defendants 15,009,000 unit of Merces shares for RM

5.25 million. As such, the plaintiff is not able to produce any credible witness to corroborate PW2’ testimony that the agreed sum for the purchase of the Merces shares was at the price of RM 23 million. …. Conclusion [35] Based on the above, the plaintiff had failed to prove their case on a balance of probabilities:- a) the Plaintiff could not produce any credible evidence who was present when the terms of the alleged oral agreement were agreed upon to corroborate their allegations that there was an oral agreement to purchase the 15,009,000 unit of shares in Merces Holding Bhd for the price of RM 23 million. b) The contemporaneous documents such as the documents relating to the crossing of the shares and the MGO documents supported the defendants claim that the said shares were sold at RM 5.25 million. c) The Plaintiff failed to establish or substantiate their claim that the cheques for RM 4.25 million and RM 13 million (the alleged 2nd and 3rd instalment payments) which were issued to Alam Melur and Great Prospect Sdn Bhd are connected or associated with the plaintiff or that these 2 entities were the plaintiff’s nominees: ie. to establish that these payments were due and meant for the plaintiff. Therefore, the plaintiff’s claim is dismissed.”

I repeat that these findings were known to Lim Litt and the solicitors for Expo, Mr Dinesh Nair. This appears in the email issued by Mr Dinesh Nair to the liquidator dated 21-7-2015, where he stated: - “1) As you are aware , the High Court had dismissed our claim with costs of RM 60,000.00; 2) We had in turn, appealed to the Court of Appeal; … 7) The Court of Appeal struck out the appeal on the aforesaid basis. Therefore, at present, it is my considered view that to recover the monies owed for the balance purchase price of RM 13 million, we have to: 1) Reinstate and take over Cekap Asia Sdn Bhd; 2) Cekap Asia then files a suit for the recovery of shares that was held by it in Y&G Bhd ) which was taken by Yap Seng Yew and Gan Li Li without paying and consideration to Cekap Asia.”

Therefore, I find that Suraya Othman J had conclusively found that the 15,009,000 shares were sold by Expo to Dato Seri Yap and Datin Seri Gan for the consideration of RM 5.25 million and not the sum of RM 23 million. Expo no longer has any valid claim directly or otherwise for the remaining sums allegedly not paid by Dato Seri Yap, Datin Seri Gan, or by Cekap Asia in any form whatsoever. Expo’s claim is now subject to res judicata and should not be allowed to reopen the case through Cekap Asia Sdn Bhd. To allow the same would be an abuse of process.

As shown earlier, even in the grounds of Suraya Othman J, Expo had found that the said shares were sold to Dato Seri Yap and Datin Seri Gan and that part of the shares were transferred to Cekap Asia Sdn Bhd as nominees for Dato Seri Yap and Datin Seri Gan.

Therefore, even I was to take Expo’s claim at its highest, the existence of the security documents concerning the shares in Cekap Asia, the resignation of directors as well as the appointment of new directors, will only be available to Expo if it had an existing claim for any unpaid sums for the said 15,009,000 Merces shares. The fact remains that Suraya Othman J had found that the shares were paid in full by the Plaintiffs. As such, there is no need to enforce the security documents and the shares of Cekap Asia need not be transferred to the nominees of Expo or Expo. There are no sums that are due to Expo.

As I have alluded earlier, it is irrefutable that Suraya Othman J had found that the agreement to sell the 15,009,000 Merces shares by Expo was for the consideration of RM 5.25 million and not RM 23 million. This finding of fact is binding on Expo and the said company, and its liquidators are not entitled to reopen this issue either through Cekap Asia or any other inventive ways thought of by their chosen advocate and solicitor. I find that this attempt to circumvent Suraya Othman J’s judgment/order is potentially contemptuous and potentially breaches the duty owed by the solicitors to the Court and even the etiquette rules of the Legal Profession Act.

I refer to the decision of Aikens LJ in Royal Bank of Scotland Plc v Highland Financial Partners IP [2013] 1 CLCJ 596 at [106]:- "The principles are, briefly: first, there has to be a 'conscious and deliberate dishonesty' in relation to the relevant evidence given, or action taken, statement made or matter concealed, which is relevant to the judgment now sought to be impugned. Secondly, the relevant evidence, action, statement or concealment (performed with conscious and deliberate dishonesty) must be 'material'. 'Material' means that the fresh evidence that is adduced after the first judgment has been given is such that it demonstrates that the previous relevant evidence, action, statement or concealment was an operative cause of the court's decision to give judgment in the way it did. Put another way, it must be shown that the fresh evidence would have entirely changed the way in which the first court approached and came to its decision. Thus the relevant conscious and deliberate dishonesty must be causative of the impugned judgment being obtained in the terms it was. Thirdly, the question of materiality of the fresh evidence is to be assessed by reference to its impact on the evidence supporting the original decision, not by reference to its impact on what decision might be made if the claim were to be retried on honest evidence.”

For the above reasons, I find that Expo, its liquidators, and the advocate and solicitor, Mr Dinesh Praveen Nair, should have disclosed the decision by Suraya Othman J in its application to reinstate Cekap Asia Sdn Bhd. The decision by Suraya Othman J shows that there are no sums due either by Dato Seri Yap or Datin Seri Gan and even by Cekap Asia Sdn Bhd for the sale of the Merces shares. The full sum of RM 5.25 million was paid in full for the purchase of the said 15,009,000 Mercer shares and the High Court had dismissed Expo’s claim. As such, there are no sums outstanding due and payable for the 15,009,000 Mercer shares. If Expo is unhappy with the said decision, it should have ensured that the appeal it filed was not struck out by the Court of Appeal. Suraya Othman J’s decision is therefore final and binding on Expo.

For Expo to apply to reinstate Cekap Asia back into the register of companies, it must show that it is a person aggrieved by the decision of the said Registrar. I reproduce section 555 of the Companies Act: -

Any person who is aggrieved by the decision of the Registrar to strike off the company may, within seven years after the name of the company has been struck off, apply to the Court to reinstate the name of the company into the register.

If the Court is satisfied that the company was at the time of the striking off, carrying on business or in operation or otherwise that it is just that the name of the company be reinstated in the register, the Court may order that-

the name of the company be reinstated; and

give such directions and make such provisions as seem just for placing the company and all other persons in the same position as nearly as may be as if the name of the company had not been struck off.

In this case, as shown in the affidavit of Lim Litt, the only ground that Expo says it has a legitimate interest in the affairs of Cekap Asia and could be considered to be an “aggrieved person” is that it has a right to take over Cekap Asia from Dato Seri Yap and Datin Seri Gan Li Li due to the alleged claim that the Merces shares were not paid in full.

As stated by Lim Litt, Expo maintains that it was not paid the full purchase price of RM 23 million being the consideration due. Please see Wong Fong Leng & Anor v Registrar of Companies [2023] CLJU 1832 and Harcharan Singh Santhokh Sing v Bidang Kemudi Sdn Bhd [2023] CLJU 2533 concerning the issue of who would be considered as an “aggrieved person” under section 555 of the Companies Act 2016.

In view of Suraya Othman J’s decision, Expo’s allegation of its right as an “aggrieved person” is incorrect and false. I find that Lim Litt’s statement is a fraudulent statement created to mislead the High Court to justify Expo’s right to reinstate the company. This fraud committed on the Court was intended by Lim Litt, Expo and, I daresay, the advocate and solicitor, Mr Dinesh Nair, was crucial and it caused the Court to agree to grant the order sought under Section 555 of the Companies Act. Expo had no right to enforce any of the security documents and no further claims for the shares. The said claim has been dismissed by Court and is final and binding on parties.

I find that if Suraya Othman’s J judgment was disclosed to Justice Zaini Mazlan, the Court would not have granted the order dated 28-6-2018. Expo had no locus standi to apply to reinstate as there were no monies due to it, and the security documents are no longer enforceable against Dato Seri Yap, Datin Seri Gan and Cekap Asia. Simply put, there was no sums due to Expo for the sale of the Merces Shares as found by Suraya Othman J.

I need to repeat that Expo, Lim Litt, and Dinesh Nair are aware of the decision of Suraya Othman J and that the appeal against the said decision was struck out. As such, the said decision is binding on them, and Expo is not entitled to reopen the said claims based on the doctrine of Res Judicata.

Therefore, I find that Expo, Lim Litt, Dinesh Nair and the liquidators of Expo: -

did consciously and deliberately did not disclose the decision of Suraya J.

(ii) knew that the decision of Suraya J is material and chose not to disclose it to Zaini J with the intent of deceiving the Court to enable Expo to pursue claims that have been dismissed by Suraya J through Cekap Asia.

(iii) the relevant conscious and deliberate dishonesty did have a causative impact on the judgment of Zaini J.

I refer to Asia Commercial Finance (M) Bhd v Kawal Teliti Sdn Bhd [1995] 3 CLJ 783 where the Peh Swee Chin FCJ held:- “What is res judicata? It simply means a matter adjudged, and its significance lies in its effect of creating an estoppel per rem judicatum. When a matter between two parties has been adjudicated by a court of competent jurisdiction, the parties and their privies are not permitted to litigate once more the res judicata, because the judgment becomes the truth between such parties, or in other words, the parties should accept it as the truth; res judicata pro veritate accipitur. The public policy of the law is that, it is in the public interest that there should be finality in litigation- interest rei publicae ut sit finis litium. It is only just that no one ought to be vexed twice for the same cause of action-nemo debet bis vexari pro eadem causa. Both maxims are the rationales for the doctrine of res judicata, but the earlier maxim has the further elevated status of a question of public policy. ...... The starting point ought to be the celebrated passage by Wigram VC in the case of Henderson v. Henderson [1843] 3 Hare 100 at p 115 which is: The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation and which the parties, exercising reasonable diligence might have brought forward at the time."

I further refer to the decision of Wan Suleiman FJ in Loh Holdings Sdn Bhd v. Peglin Development Sdn Bhd & Anor; [1984] 1 CLJ Rep 211, where he stated: - "The second defence is one of res judicata. There has, of course, been no actual decision in litigation between these parties as to the issue involved in the present case, but the appellants invoke this defence in its wider sense, according to which a party may be shut out from raising in a subsequent action an issue which he could, and should, have raised in earlier proceedings. The classic statement of this doctrine is contained in the judgment of Wigram V.C. in Henderson v. Henderson; [1843] 3 Hare 100 and its existence has been reaffirmed by this Board in Hoystead v. Commissioner of Taxation; [1926] AC 155. A recent application of it is to be found in the decision of the Board in Yat Tung Investment Co. Ltd. v. Dao Heng Bank Ltd. [1975] AC 581. It was, in the judgment of the Board, there described in these words: ... there is a wider sense in which the doctrine may be appealed to, so that it becomes an abuse of process to raise in subsequent proceedings matters which could and therefore should have been litigated in earlier proceedings. (p. 590). This reference to "abuse of process" had previously been made in Greenhalgh v. Mallard; [1947] 2 All ER 255 per Somervell LJ and their Lordships endorse it. This is the true basis of the doctrine and ought only to be applied when the facts are such as to amount to an abuse: otherwise there is a danger of a party being shut from bringing forward a genuine subject of litigation."

His Lordship had the jurisprudential foresight to summarise this area of the law many years before Lord Sumption of the UK Supreme Court did in Virgin Atlantic Airways Limited v. Zodiac Seats; [2013] UKSC 46. I reproduce relevant parts of the judgment of Lord Sumption: - "17. Res judicata is a portmanteau term which is used to describe a number of different legal principles with different juridical origins. As with other such expressions, the label tends to distract attention from the contents of the bottle. The first principle is that once a cause of action has been held to exist or not to exist, that outcome may not be challenged by either party in subsequent proceedings. This is "cause of action estoppel". It is properly described as a form of estoppel precluding a party from challenging the same cause of action in subsequent proceedings. Secondly, there is the principle, which is not easily described as a species of estoppel, that where the claimant succeeded in the first action and does not challenge the outcome, he may not bring a second action on the same cause of action, for example to recover further damages: see Conquer v. Boot; [1928] 2 KB 336. Third, there is the doctrine of merger, which treats a cause of action as extinguished once judgment has been given upon it, and the claimant's sole right as being a right upon the judgment. Although this produces the same effect as the second principle, it is in reality a substantive rule about the legal effect of an English judgment, which is regarded as "of a higher nature" and therefore as superseding the underlying cause of action: see King v. Hoare; [1844] 13 M & W 494, 504 (Parke B). At common law, it did not apply to foreign judgments, although every other principle of res judicata does. However, a corresponding rule has applied by statute to foreign judgments since 1982: see Civil Jurisdiction and Judgments Act 1982, section 34. Fourth, there is the principle that even where the cause of action is not the same in the later action as it was in the earlier one, some issue which is necessarily common to both was decided on the earlier occasion and is binding on the parties: Duchess of Kingston's Case (1776) 20 St Tr 355. "Issue estoppel" was the expression devised to describe this principle by Higgins J in Hoysted v. Federal Commissioner of Taxation; [1921] 29 CLR 537, 561 and adopted by Diplock LJ in Thoday v. Thoday; [1964] P 181, 197-

Fifth, there is the principle first formulated by Wigram V-C in Henderson v. Henderson; [1843] 3 Hare 100, 115, which precludes a party from raising in subsequent proceedings matters which were not, but could and should have been raised in the earlier ones. Finally, there is the more general procedural rule against abusive proceedings, which may be regarded as the policy underlying all of the above principles with the possible exception of the doctrine of merger." "24. I do not accept this. The principle in Henderson v. Henderson has always been thought to be directed against the abuse of process involved in seeking to raise in subsequent litigation points which could and should have been raised before. There was nothing controversial or new about this notion when it was expressed by Lord Kilbrandon in Yat Tung. The point has been taken up in a large number of subsequent decisions, but for present purposes it is enough to refer to the most important of them, Johnson v. Gore-Wood & Co; [2002] 2 AC 1, in which the House of Lords considered their effect. This appeal arose out of an application to strike out proceedings on the ground that the plaintiff's claim should have been made in an earlier action on the same subject-matter brought by a company under his control. Lord Bingham took up the earlier suggestion of Lord Hailsham of St. Marylebone LC in Vervaeke v. Smith; [1983] 1 AC 145, 157 that the principle in Henderson v. Henderson was "both a rule of public policy and an application of the law of res judicata". He expressed his own view of the relationship between the two at p 31 as follows: "Henderson v. Henderson abuse of process, as now understood, although separate and distinct from cause of action estoppel and issue estoppel, has much in common with them. The underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole. The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all. I would not accept that it is necessary, before abuse may be found, to identify any additional element such as a collateral attack on a previous decision or some dishonesty, but where those elements are present the later proceedings will be much more obviously abusive, and there will rarely be a finding of abuse unless the later proceeding involves what the court regards as unjust harassment of a party. It is, however, wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before." The rest of the Committee, apart from Lord Millett, agreed in terms with Lord Bingham's speech on this issue. Lord Millett agreed in substance in a concurring speech. He dealt with the relationship between res judicata and the Henderson v. Henderson principle at pp 58H-59B as follows: "Later decisions have doubted the correctness of treating the principle as an application of the doctrine of res judicata, while describing it as an extension of the doctrine or analogous to it. In Barrow v. Bankside Members Agency Ltd; [1996] 1 WLR 257, Sir Thomas Bingham MR explained that it is not based on the doctrine in a narrow sense, nor on the strict doctrines of issue or cause of action estoppel. As May LJ observed in Manson v. Vooght; [1999] BPIR 376, 387, it is not concerned with cases where a court has decided the matter, but rather cases where the court has not decided the matter . But these various defences are all designed to serve the same purpose: to bring finality to litigation and avoid the oppression of subjecting a defendant unnecessarily to successive actions. While the exact relationship between the principle expounded by Sir James Wigram V-C and the defences of res judicata and cause of action and issue estoppel may be obscure, I am inclined to regard it as primarily an ancillary and salutary principle necessary to protect the integrity of those defences and prevent them from being deliberately or inadvertently circumvented." It was clearly not the view of Lord Millett in Johnson v. Gore-Wood that because the principle in Henderson v. Henderson was concerned with abuse of process, it could not also be part of the law of res judicata. Nor is there anything to support that idea in the speech of Lord Bingham. The focus in Johnson v. GoreWood was inevitably on abuse of process because the parties to the two actions were different, and neither issue estoppel nor cause of action estoppel could therefore run (Mr Johnson's counsel conceded that he and his company were privies, but Lord Millett seems to have doubted the correctness of the concession at p 60D-E, and so do I). Res judicata and abuse of process are juridically very different. Res judicata is a rule of substantive law, while abuse of process is a concept which informs the exercise of the court's procedural powers. In my view, they are distinct although overlapping legal principles with the common underlying purpose of limiting abusive and duplicative litigation. That purpose makes it necessary to qualify the absolute character of both cause of action estoppel and issue estoppel where the conduct is not abusive. As Lord Keith put it in Arnold v. National Westminster Bank at p 110G, "estoppel per rem judicatam, whether cause of action estoppel, or issue estoppel is essentially concerned with preventing abuse of process."

It is important to note that this principle is not limited only to the parties appearing in the earlier suit. The principle could also apply to parties who are so closely connected to the litigants in the earlier trial that they could be "privies" to the aforesaid litigants. The purpose of the said rule is to prevent the process of the Court from being abused by multiple actions on the same subject matter.

I find Expo is not entitled to enforce any security documents to recover any sums due allegedly due to the breach of the oral agreement concerning the sale of the Merces shares. There were no sums due for the sale of the said Merces shares. As such, Expo had no locus standi to reinstate Cekap Asia. Expo is barred from reopening the same issue again even through Cekap Asia.

For the aforesaid reasons, I find that this is a suitable case for the orders made on 28-6-2018 to be set aside by this Court. I find that: -

Expo, Lim Litt, Heng Ji Keng (as liquidator) and Dinesh Nair as solicitors for Expo had been deliberately dishonest in concealing the decision of Suraya Othman J as referred to earlier.

(ii) the action by the aforesaid persons were material and operative cause of the Court’s decision to give judgment as prayed for by Expo. If not for the said concealment, Expo would not have been an aggrieved person and as such would have lacked locus standi.

(iii) if Suraya Othman J’s decision was disclosed, it would have would have entirely changed the way in which the first court approached and came to its decision.

For the aforesaid reason, I find that Dato Seri Yap and Datin Seri Gan have proven that the said Defendants are guilty of fraud against the Court and the order made on 28-6-2018 should be set aside by this Court.

I also find that the Plaintiffs, Dato Seri Yap and Datin Seri Gan, are not strangers to Cekap Asia Sdn Bhd. Not only were they former directors of the said company at the time before the reinstatement, but they were also shareholders of the company. This appears in the share certificates produced at trial and even in the judgment of Suraya Othman J. This fact was also stated by Lim Litt in the affidavit affirmed on 5-3-2018.

On the issue of delays as alleged by the Defendants, I find that they are of no consequence. The aforementioned Defendants are guilty of fraud, and fraud unravels all. I reproduce part of the judgment of Lord Kerr in the earlier cited case: “The idea that a fraudulent individual should profit from passivity or lack of reasonable diligence on the part of his or her opponent seems antithetical to any notion of justice. Quite apart from this, the defrauder, in obtaining a judgment, has perpetrated a deception not only on their opponent and the court but on the rule of law.”

I have also considered the fact that Dato Seri Yap and Datin Seri Gan have instituted proceedings to seek the return of the shares in Cekap Asia. I find that this does not restrict their right to have the earlier order set aside if it is shown that the same was obtained by fraud. They are entitled to have recourse to all steps that are available to them in law.

For the above reasons, I find that the Court Order dated 28-6-2018 obtained by Expo Electronics Sdn Bhd vide Kuala Lumpur High Court Originating Summons No: WA-24NCC-131-03/2018 (“the Court Order dated 28-6-2018”) be set aside in its entirety.

I also find that the evidence of Abu Bakar bin Ahmad, Syed Nagiff bin Syed Mokhtar, and Lim Litt cannot be relied on by this Court. I find that these individuals had acted blindly following the directions of Dato Edward Lim and relied blindly on the advice of Mr Dinesh Praveen Nair.

It is also striking that Mr Lim Litt and Heng Ji Keng, who are aware of the decision of Suraya Othman J, decided to even contemplate filing of the reinstatement and eventual taking over of Cekap Asia Sdn Bhd based on the alleged debt for the sale of the Merces shares.

As liquidator of the Expo, they should be aware of their duty to the Court as they are, first and foremost, officers of the Court. Lim Litt was also a witness at the trial before Suraya Othman J. Therefore, Expo’s liquidator should not have undertaken the steps complained of by the Plaintiff. I refer to Abric Project Management Sdn Bhd v Palmshine Plaza Sdn Bhd [2007] 3 MLJ 571 and Yeo Ann Kiat & 238 Ors v Hong Leong Bank & Anor [2016] 6 MLJ 499.

I reproduce judgment of Vernon Ong JCA in Yeo Ann Kiat (supra):- “[28] In the discharge and performance of their statutory duties, the liquidators are required to exercise a high standard of care, skill, diligence and competence commensurate with their professional standing. The general duties of a liquidator appointed in a compulsory winding up was explained by Marks J in the Australian case of Commissioner for Corporate Affairs v. Peter William Harvey [1980] VR 669 in the following terms: The duties of a liquidator need to be clearly understood. Fundamentally, he must administer the estate strictly in accordance with the duties and obligations specifically imposed on him by the Companies Act and its Rules. It is obvious that everything to be done in a competent administration is not and cannot be specifically prescribed. Preserving the assets, giving proper attention to the administration, acting with due despatch and ensuring adequate knowledge and understanding of the affairs of the companies are matters of common sense. If there is a difficulty at any stage of the administration then it is the clear duty of the liquidator to inform the Court and take directions. In a compulsory winding up his office stems from appointment by the Court. He is clearly not an employee of the Court but the nature of the appointment makes him a representative of it. As Street J said in Duffy v. Super Centre Development Corp Ltd [1967] 1 NSWR 382 at 383, the decisions the liquidator makes from time-to-time are in effect made under the authority of the Court itself. The winding up is by the Court, which for the purposes the liquidator is. As such he is entrusted with the reputation of the Court for impartial and proper despatch of duties. No lesser standard in that regard is to be expected of the liquidator than of a court of a judge. When a winding up occurs, the financial outcome for creditors and contributories is dependent, amongst other things, on honest administration. It is the trust, which those persons are obliged to place in the liquidator to preserve the assets and act faithfully and fairly that defines the weight of the duties owed and the strictness with which his conduct must be considered by the Court. The law in the circumstances regards such duties as fiduciary, although clearly it will not interfere with bona fide exercise of discretion which are not beyond the acts or omissions of a reasonable person. (emphasis supplied) [29] It has, therefore, been recognised that in the discharge of their duties, the liquidator must act impartially and with due and proper despatch; ie to say he must transact or dispose of the liquidation process promptly or expeditiously or as soon as practicable. In Re Keypak Homecare Ltd [1987] BCLC 409, the liquidator was removed by the court because he had failed to display sufficient vigour in carrying out his duties as liquidator, and in particular, although he had been in office for three months he had failed to conduct a thorough investigation of the company's affairs. In that case, the liquidator had made no examination of the sale and purchase ledgers, had not investigated whether stock was missing, had made no inquiries of NB Ltd (a company which was operating from the company's premises, with substantially the same directors and staff, using the same vehicles and selling the company's stock) and had not interviewed the employees of the company to determine exactly what happened in the weeks before the company ceased to trade.”

I find that the liquidators have acted below the standard that it is expected of them. Instead of acting impartially, they have simply followed the whims and fancies of Dato Edward Lim in his attempt to recoup the “pound of flesh” that was denied by Suraya Othman J earlier. Therefore, I find that the said Defendants should be held personally liable for the damages suffered by the Plaintiff as a result of the wrongs committed against them.

This also extends to Abu Bakar and Syed Nagiff as they have clearly acted in accordance with the directions of Dato Edward Lim and chose to act blindly in the circumstances of this case.

As a whole, I find that the 3rd to 6th Defendants have blindly agreed to whatever steps directed by Dato Edward Lim and the advocate, Mr Dinesh Navin Nair. They did not at any material time check whether the proposed steps were factually correct. The obvious facts, based on the judgment of Suraya Othman J, was ignored simply because Dato Edward Lim wanted to pursue Expo’s claim for the remaining debts. If these individuals, especially Mr Lim Litt and Heng Ji Keng, had considered this honestly, they would have realised that the proposed steps by Dato Edward Lim and their chosen counsel were obviously wrong and fraudulent. I also find Lim Litt and Heng Ji Keng knew and cannot obfuscate that they were aware of the decision of Suraya J. Lim Litt was a witness at the trial and they were informed of the decision of the said Judge by Dinesh Navin Nair as seen the email produced earlier.

I find that these Defendants have failed to act honestly based on the standards laid down in Royal Brunei Airlines v Tan [1996] 2 CLJ 380. No reasonable person would have dared to make such perverse claims before Zaini J view of the decision of Suraya Othman J. I also find that Zaini J would not have made the orders sought by Expo if Suraya Othman J’s decision and grounds were disclosed to Court.

Fruit of the Forbidden Tree As Expo did not have any claims for any further sums from Dato Seri Yap, Datin Seri Gan and Cekap Asia for the sale of the Merces shares, it could not enforce the security documents for (i) the transfer of shares, (ii) resignation of directors, (iii) appointment of new directors or any other instruments.

Therefore, all actions that were undertaken by Expo that arose as a result of the reinstatement of Cekap Asia Sdn Bhd by way of the court order dated 28-6-2018, are also void. All actions taken by Expo after the 28-6-2018 was only possible due to the order for reinstatement and are therefore tainted. They are the fruit of the forbidden tree. I refer to the decision of Ong Chee Kwan JC in Golden Wheel Credit Sdn Bhd v Dato’ Siah Teong Din [2021] 9 CLJ 461. After all fraud unravels all.

This also extends to all actions taken by Cekap Asia and its directors after 28-6-2018. The resolutions passed and all actions taken were clearly taken on the instructions of Expo and its liquidators. The solicitors utilized by Expo and Cekap Asia was also Mr Dinesh Praveen Nair. I find that all these steps, including the civil suits initiated against the Plaintiffs herein, were intended to circumvent the decision of Suraya Othman J. That should not be allowed by this Court as it constitutes an abuse of process and is clearly part of the fraud perpetrated by the said Defendant and the solicitor mentioned herein.

Substantial parts of the orders sought by the Plaintiff concerns declaratory orders to be made concerning the affairs of Cekap Asia post reinstatement. I find that this is a suitable case for such orders as the Plaintiff do have the required locus standi and have valid tangible interest to seek such orders. These proceedings clearly concern the rights of the Plaintiffs as to the affairs of Cekap Asia, as they were shareholders and directors of the company at the time when the company was struck our and reinstated. The issue raised herein are alive issues that must be resolved by this Court.

I refer to the decision of the UK House of Lords in Russian Commercial and Industrial Bank v British Bank for Foreign Trade Limited [1921] 2 AC 438, our Supreme Court in Government of Malaysia v Lim Kit Siang [1988] 1 CLJ 63 and the Court of Appeal in Attorney General of Hong Kong v Zauyah Wan Chik & Ors and another appeal [1995] 2 MLJ 620 as well as Sakapp Commodities (M) Sdn Bhd v Cecil Abraham [1998] 4 MLJ 651.

For the above reasons, I make the following orders: -

The appointment of Abu Bakar bin Ahmad and Syed Nagiff bin Syed Mokhtar as directors of Cekap Asia Sdn Bhd be set aside.

The transfer of one (1) unit of share of Cekap Asia Sdn Bhd to each of Abu Bakar bin Ahmad and Syed Nagiff bin Syed respectively be set aside.

The appointment of Wong Youn Kim as company secretary of Cekap Asia be set aside.

That the 7th Defendant be directed to expunge the documents relating to the appointment and resignation of directors, company secretary and documents relating to changes in shareholding of Cekap Asia Sdn Bhd.

A declaration that the Plaintiffs be reinstated as the company secretary of Cekap Asia Sdn Bhd.

That the 7th Defendant be directed to rectify the register to reinstate the directorship, secretary and shareholding information of Cekap Asia Sdn Bhd to the status immediately preceding the date of the Court Order dated 28-6-2018.

That the 7th Defendant be directed to reinstate the status of Cekap Asia Sdn Bhd in the CCM register to the “struck out” status immediately preceding the date of the Impeached Court Order.

A declaration that any and all actions which were carried out by the directors and / or shareholders and / or Cekap Asia Sdn Bhd after 28-6-2018 be declared null and void as if Cekap Asia Sdn Bhd had never been reinstated before.

A declaration that any and all actions which were carried out by the directors and / or shareholders and / or Expo Electronics Sdn Bhd after 28-6-2018 be declared null and void.

A declaration that any and all actions which were carried out by the directors and / or shareholders and / or Expo Electronics Sdn Bhd after the reinstatement of Cekap Asia Sdn Bhd on 28-6-2018 be declared null and void.

I find this case falls within the rare circumstances where a Judge of a concurrent jurisdiction should exercise its powers and set aside the orders made by another High Court. After considering the facts of this case, I find that the overall objective of ensuring justice to be done and to prevent an abuse of process of Court, the orders sought by the Plaintiffs should be allowed in this case. I refer to the judgment of Abdul Hamid Mohamad CJ in Hong Leong Bank Bhd v Staghord Sdn Bhd & Other appeals [2008] 2 CLJ 121 where he stated: - “[79] It is not my intention to make a detailed analysis or give any final opinion on Badiaddin 's case (supra), except to make a few points. First, in Badiaddin (supra), the appellants commenced a fresh action to have the second order of the High Court declared null and void and to have it set aside on the ground that it contravened the provisions of s. 13 of the Malay Reservations Enactment (FMS Cap. 142.) This court in that case was dealing with the inherent jurisdiction of the court to set aside a final order. The judgment of this court on that issue was a split decision: Mohd. Azmi FCJ and Gopal Sri Ram JCA were of the view that it could be done while Peh Swee Chin FCJ disagreed. Even Azmi FCJ talked about the "extraordinary circumstances" of the case and said that "the contravention should be one which defies a substantive statutory prohibition so as to render the defective order null and void on ground of illegality or lack of jurisdiction." The learned judge further added that "The discretion to invoke the inherent jurisdiction should also be exercised judicially in exceptional cases where the defect is of such a serious nature that there is a real need to set aside the defective order to enable the court to do justice. … [81] Secondly, it is one thing for the apex court to look at the order of a lower court and say that the order is null and void because it contravenes a written law, especially as in Badiaddin (supra) where the contravention is glaring. But, let us reverse the position. Let us assume that a case has reached the Federal Court and that the Federal Court has made an order. Subsequently, the losing party commences a fresh action in the High Court to set aside the order on the ground of illegality for contravention with a written law. Following Badiaddin (supra) and the dictum in Eu Finance Bhd. (supra) the High Court would be at liberty to reopen the case, declare the Federal Court order null and void and set it aside! I dread to think of such a situation. [82] Even where it involves a judgment of a court of co-ordinate jurisdiction, a second judge scrutinizing an earlier judgment or order of another judge may easily find a point which he disagrees with, even in law. Maybe that point was not even raised or argued before the first judge. As a matter of judicial policy, should the second judge be allowed to reopen the case, set aside the earlier judgment or order and substitute it with his own? If he can do it, why can't a third judge do the same with the second judge's order, and so on? That will encourage "judge shopping." The same process can also happen at every level of the court system. [83] The abuse voiced by Peh Swee Chin FCJ eg, where he said "Further, a point of illegality could not be reserved by a litigant for future use without deploying it at the trial or in an appeal therefrom" should not be taken lightly. That is exactly what had happened in this case. … [87] Secondly, "to prevent injustice being done" is not the only consideration. It is "one of the principal objectives", even in the words of Lord Diplock. That does not mean that just because the second judge is of the view the order of the first judge had caused injustice, the order to intervene should be given. The requirements of the rule still have to be satisfied."

Issue 3 - Forged Instruments

On the issue of the forged instruments, I find that the Plaintiffs have proven their claim that the said signature appearing in the resolution dated 15-7-2019 and the undated resolution to appoint additional directors were not executed by Dato Seri Yap.

The evidence before, as seen from the testimony of Dato Seri Yap and the expert, Tay Eue Kam, shows that the signature appearing on the said resolution was not that of Dato Seri Yap. According to the expert, the signature appearing on the said documents (i) the undated resolution to appoint additional directors and (ii) the change of company secretary dated 15-7-2019 were not those of Dato Seri Yap but were copied from previous documents executed by him.

Dato Seri Yap had also denied that he signed those documents, and the Defendants did not produce any evidence to rebut the said allegations. In fact, the new company secretary appointed, when cross-examined by counsel for the Plaintiff, informed Court that she was not present when the signatures were put to the said instruments and only accepted the said documents from Expo’s liquidators. In other words, she does not know as to whether Dato Seri Yap had in fact signed the said instruments.

I have considered the directions given by the Federal Court when dealing with issues of forgery and how our Courts should carefully consider whether the litigants have discharged their burden when making such allegations. See Letchuman Chettiar Alagappan v Secure Plantation Sdn Bhd [2017] 5 CLJ 418 where Jeffrey Tan FCJ held: - [51] There is an essential distinction between burden of proof and onus of proof, burden of proof lies upon the person who has to prove a fact and it never shifts, but the onus of proof shifts (Addagada Raghavamma & Anor v. Addagada Chenchamma & Anor 1964 SCR (2) 933). [52] The "burden of proof" in s. 101 is the burden to establish a case which rests throughout on the party who asserts the affirmative of the issue. The "burden of proof" in s. 102 is the burden to adduce evidence, to make out or rebut the claim. The "burden of proof" in s. 102 shifts from one side to the other according to the weight of the evidence. To differentiate the sense used, the "burden of proof" in s. 101 is "burden of proof", while the "burden of proof" in ss. 102 and 103 is dubbed "onus of proof". In some jurisdictions, the s. 101 "burden of proof" is labelled "legal burden" while the s. 102 burden of proof" is referred to as "evidential burden" [62] ….. The burden of proving that the SPA was binding rested with the pursuer (see Ardeshir v. Flora Sasson AIR 1928 PC 208 at 215). If the impugned PA were not valid, then the SPA could not bind the first appellant, that is, even if forgery were not proved. The impugned PA could not be valid if it had not complied with the PA Act. If the impugned PA had not complied with the PA Act, then it remained invalid albeit that forgery was not proved. The Court of Appeal could not proceed straight from the proposition that forgery was not proved to a conclusion that the validity of the impugned PA was therefore proved (see Francis and Ors v. Wells And Anor [2007] EWCA Civ 1350 at para 26). A "judge is not always bound to make a finding one way or the other with regard to the facts averred by the parties. He has opened to him the third alternative of saying that the party on whom the burden of proof lies in relation to any averment made by him has failed to discharge that burden. No judge likes to decide cases on the burden of proof if he can legitimately avoid having to do so. There are cases, however, in which, owing to the unsatisfactory state of the evidence or otherwise, deciding on the burden of proof is the only just course for him to take" (Nulty And Ors v. Milton Keynes Borough Council [2013] EWCA Civ 15 at para. 32 per Toulson LJ, Longmore and Beatson LJJ in agreement), when the onus "becomes the deciding factor" (Lakshmanna v. Venkateswarlu AIR 1949 PC 278). …. [91] Inadvertent or not, the courts below plainly held that only the evidence of a forensic expert was sufficient in law to prove the alleged forgery. "But opinion as to handwriting is not confined to experts, but may be given by any person who is duly acquainted with it. It is not necessary to examine a handwriting expert in every case of disputed writing. No adverse inference can be drawn against a party from the fact that the opinion of the handwriting expert has not been obtained... the principal fact or factum probandum may be proved indirectly by means of certain inferences drawn from factum probans, ie, the evidentiary facts. To put it differently, circumstantial evidence is not direct to the point in issue, but consists of evidence of various other facts which are so closely associated with the fact in issue that taken together, they form a chain of circumstances from which the existence of the principal act can be legally inferred or presumed" (Woodroffe and Amir Ali supra vol. 2 at p. 2236). "The modes of proof envisaged in ss. 45 and 47 of the Act are not exclusive for proving the genuineness or authorship of a document" (Woodroffe and Amir Ali supra vol. 2 at p. 2237). Comparison may be made, by a handwriting expert under s. 45 of the Evidence Act, by anyone familiar with the handwriting of the person concerned as provided by s. 47 of the Evidence Act, or by the court itself. "As a matter of extreme caution and judicial sobriety, the court should not normally, take upon itself the responsibility of comparing the disputed signature with that of the admitted signature or handwriting and in the event of the slightest doubt, leave the matter to the wisdom of the experts. But this does not mean that the court does not have any power to compare the disputed signature with the admitted signature. That power is clearly available under s. 73 of the Act " (Woodroffe and Amir Ali supra vol. 2 at p. 2236). But "if the feature of writing and signature on the documents is so glaring that the court can form an opinion by itself either way, further exercise under s. 45 may virtually become unnecessary or futile" (Woodroffe and Amir Ali supra vol. 2 at p. 2248). That was practically said in Siaw Kim Seong v. Siew Swee Yin & Anor [2008] 5 CLJ 441; [2009] 1 MLJ 349, where the supposed signatures of the plaintiff did not match his admitted signatures upon a cursory visual examination, and where it was said by the Court of Appeal per Gopal Sri Ram JCA, as he then was, delivering the judgment of the court, that the trial judge ought to have acted under s. 73(1) of the Evidence Act 1950 and made the comparison himself and that "had the judge undertaken such an examination he would have concluded, even without the aid of an expert, that the signatures appearing on the assignment and the transfer were plain and undisguised forgeries". It should be clear enough that a finding of forgery could be made without the opinion evidence of a handwriting expert, be it in civil (AGS Harta Sdn Bhd v. Liew Yok Yin ) or in criminal proceedings (Dato' Mokhtar Hashim & Anor v. PP [1983] 2 CLJ 10; [1983] CLJ (Rep) 101; [1983] 2 MLJ 232 at 277).

For the above reasons, I find that the said instruments were forged, and I allow the declaratory orders sought by the Plaintiffs.

D. Exemplary Damages and Costs I also find that this is a suitable case for exemplary damages be imposed against the 5th and 6th Defendants. I find that they have not acted honestly when dealing with the affairs of Cekap Asia and all of them was merely acting at the instructions of Dato Edward Lee.

I find that Lim Litt, Expo and the solicitors handling the suit before Zaini Mazlan J knew of the decision of Suraya Othman J but chose to suppress it. The intention of reinstating Cekap Asia was to only revive the claim for monies that Suraya Othman J held were not due. The liquidators and the said solicitors should have known better but try to circumvent the said decision and abuse the process of Court.

I find that the actions of the 5th and 6th Defendants shows that they have acted with a contumelious disregard to the Plaintiffs rights and their actions are an abuse of Court’s process. I refer to the decision of the Court of Appeal in Tradewinds Properties Sdn Bhd v Zulkiple bin A Bakar & Ors [2019] 1 MLJ 421 and Sambaga Valli a/p KR Ponnusamy v Datuk Bandar Kuala Lumpur [2018] 1 MLJ 784.

I note that exemplary damages are intended to penalize the wrongdoing and should only be awarded in exceptional circumstances. I reproduce the judgment of the Court in Sambaga Valli:- “... we would like to emphasise again that exemplary damages are not intended to compensate the plaintiff and are not recoverable as a matter of right. The amount of the exemplary damages award is left to the judge's discretion and is determined by considering the character of the defendant's misconduct, the nature and extension of the plaintiff's injury and the means of the defendant. The quantum of exemplary damages to be awarded must be appropriate to the wrongdoing inflicted to the parties involved. Exemplary damages must not be uncontrolled or arbitrary; they must be of an amount that is the minimum necessary to achieve their purpose in the context of the particular case.”

I find that the present case, to use the words of Lord Justice Flaux in Axa Insurance UK PLC v Financial Claims Solutions Limited [2018] EWCA Civ 1330, is “a paradigm case” for the award of exemplary damages. This was a sophisticated attempt by Expo, the liquidators and the solicitors involved to unravel the decision of Suraya Othman J and attempt to recover what they have legally lost before the Courts through Cekap Asia. The conduct of those involved were cynical, dishonest and had abused the Courts process.

I find that the Defendants conduct in misleading Zaini Mazlin J and failing to disclose the material facts that would have caused a material difference to the orders made by learned brother. I believe that the conduct of the Defendants was calculated to enable Expo to make a new claim for the same damages that were dismissed by Suraya Othman J earlier. This falls within the category of cases recognized by Lord Devlin in Rookes v Barnard [1964] AC 1129 where he held: - “Where a defendant with a cynical disregard for a plaintiff’s rights has calculated that the money to be made out of his wrongdoing will probably exceed the damages at risk, it is necessary for the law to show that it cannot be broken with impunity. This category is not confined to moneymaking in the strict sense. It extends to cases in which the defendant is seeking to gain at the expense of the plaintiff some object. perhaps some property which he covets – which either he could not obtain at all or not obtain except at a price greater than he wants to put down. Exemplary damages can properly be awarded whenever it is necessary to teach a wrongdoer that tort does not pay”

The Court of Appeal in Sambaga Vali also pointed that 3 factors must be considered by this Court when dealing with exemplary damages:- “… exemplary damages are not intended to compensate the plaintiff and are not recoverable as a matter of right. The amount of the exemplary damages award is left to the judge’s discretion and is determined by considering the character of the defendant’s misconduct, the nature and extension of the plaintiff’s injury and the means of the defendant. The quantum of exemplary damages to be awarded must be appropriate to the wrongdoing inflicted to the parties involved.”

I am also guided by the decision of the English House of Lords in Kuddus v Chief Constable of Leicestershire Constabulary [2001] UKHL 29. The English Court considered that one of the grounds that must be considered in awarding exemplary damages is the outrageousness of the Defendants’ conduct: - “From time to time cases do arise where awards of compensatory damages are perceived as inadequate to achieve a just result between the parties. The nature of the defendant’s conduct calls for a further response from the courts. On occasion conscious wrongdoing by a defendant is so outrageous, his disregard of the plaintiff’s rights so contumelious, that something more is needed to show that the law will not tolerate such behaviour. Without an award of exemplary damages, justice will not have been done. Exemplary damages, as a remedy of last resort, fill what otherwise would be a regrettable lacuna.”

After considering the above, I find that this is a suitable case for exemplary damages to be awarded against the 5th and 6th Defendants. The following facts have been considered by this Court: -

the said defendants were aware or should have been aware of the decision of Suraya Othman J.

(ii) Lim Litt was a witness in the said case. Lim Litt and Heng Ji Keng would have known or should have known that the decision of Suraya Othman J is binding on them as liquidators of Expo.

(iii) Lim Litt and Heng Ji Keng were officers of Court in their capacity as liquidators of the Expo. They knew that they should not have mislead Zaini Mazlan J and should have disclosed the decision of Suraya Othman J to Court. This would have made a material difference to the outcome of the Suit.

(iv) It was wrong and dishonest for Lim Litt and Heng Ji Keng to claim that they merely relied on the advice of their solicitors. They knew that Expo’s claim was dismissed by Suraya Othman J and there is no further claim cause of action against Cekap Asia or even the Plaintiffs for the same subject matter.

The conduct of the parties thereafter shows a blatant disregard of the decision of Suraya Othman J. In fact, the said Defendants actions shows that they wanted to pursue the claim with regard to the payment for the shares that were dismissed by Suraya Othman J. This fraudulent conduct so outrageous that this cannot be condoned or ignored without being adequately addressed by this Court.

(vi) The Plaintiffs have been subject to further unlawful suits by Cekap Asia that were undertaken and orchestrated by the said Defendants. They know allege that they were acting on instructions of Dato Andrew and on the advice of Dinesh Praveen Nair, however as I have said earlier, as liquidators they should have acted independently and ascertained the said action objectively and reasonably. Instead, the said Defendants intentionally disregarded the decision of Suraya Othman J and chose to pursue the frivolous claims against the Plaintiffs.

I therefore find that the 5th and 6th Defendants pay, jointly and severally, to the Plaintiffs exemplary damages to the sum of RM 500,000.00. This constitutes the minimum necessary to deter such conduct in the future and to punish these Defendants. I also find that the quantum of exemplary damages awarded is appropriate to the wrong inflicted on the Plaintiffs and the fraud committed by the said Defendants.

I also award costs of RM 200,000.00 to the Plaintiffs to be paid, jointly and severally, by the Defendants. I have considered the complexity of the claim, the seniority of counsels, the number of days of trials, the interlocutory applications filed, the number of case management undertaken on the file, and the importance of the claim to the litigants. I am aware that on face of it, the costs is rather high, however in view of the importance of the claim to the Plaintiffs and the fact that they have been subject to spurious claims by the Defendants, a high award of costs should be rendered against the Defendants.

E. Orders of this Court Wherefore, I make the following orders: -

That the Court Order dated 28-6-2018 obtained by Expo Electronics Sdn Bhd vide Kuala Lumpur High Court Originating Summons No: WA- 24NCC-131-03/2018 (“the Court Order dated 28-6-2018”) be impeached and / or set aside in its entirety.

The appointment of Abu Bakar bin Ahmad and Syed Nagiff bin Syed Mokhtar as directors of Cekap Asia Sdn Bhd be set aside.

The transfer of one (1) unit of share of Cekap Asia Sdn Bhd to each of Abu Bakar bin Ahmad and Syed Nagiff bin Syed and / or Expo Electronic Sdn Bhd respectively be set aside.

The appointment of Wong Youn Kim as company secretary of Cekap Asia be set aside.

That the 7th Defendant be directed to expunge the documents relating to the appointment and resignation of directors, company secretary and documents relating to changes in shareholding of Cekap Asia Sdn Bhd.

A declaration that the previous company secretary be reinstated as the company secretary of Cekap Asia Sdn Bhd.

That the 7th Defendant be directed to rectify the register to reinstate the directorship, secretary and shareholding information of Cekap Asia Sdn Bhd to the status immediately preceding the date of the Court Order dated 28-6-2018.

That the 7th Defendant be directed to reinstate the status of Cekap Asia Sdn Bhd in the CCM register to the “struck out” status immediately preceding the date of the Impeached Court Order.

A declaration that any and all actions which were carried out by the directors and / or shareholders and / or Cekap Asia Sdn Bhd after 28-6-2018 be declared null and void as if Cekap Asia Sdn Bhd had never been reinstated.

A declaration that any and all actions which were carried out by the directors and / or shareholders and / or Cekap Asia Sdn Bhd after 28-6-2018 be declared null and void.

A declaration that any and all actions which were carried out by the directors and / or shareholders and / or Cekap Asia Sdn Bhd after the reinstatement of Cekap Asia Sdn Bhd on 28-6-2018 be declared null and void.

Exemplary Damages of RM 500,000.00 to the paid jointly and severally by the 1st, 5th and 6th Defendants to the Plaintiffs.

Costs of RM 200,000.00 subject to allocator to be paid jointly and severally by the 1st, 5th and 6th Defendants to the Plaintiffs.

Costs of RM 200,000.00 subject to allocator to be paid jointly and severally by the 2nd, 3rd, and 4th Defendants to the Plaintiffs.

No order as to costs against the 7th Defendant and the 7th Defendant to be bound by the orders made above. Dated 28th May 2025 Dato’ Indera Mohd Arief Emran bin Arifin Judge High Court of Malaya at Kuala Lumpur NCC5 Counsel: Terrence Chan, together with Yeap Xi Jin &Oh Kei Zuin For the Plaintiff Lim Kian Leong & Co Advocates & Solicitors Goik Kenzin for the 2nd, 3rd & 4th Defendants Goik, Ramesh & Loo Advocates & Solicitors Rehan Yogaratnam for 5th & 6th Defendants Gunalan & Associates Advocates & Solicitor Nor Syairah binti Sulaiman for 7th Defendant.