1. ) Golden Plus Holdings Berhad v 1. ) China Idea Development Limited (WA-22NCC-605-12/2020)

GOLDEN PLUS HOLDINGS BERHAD (Company No. 198401000555

GOLDEN PLUS CONSTRUCTION SDN BHD (Company No. 199301030087

GOLDEN PLUS (BVI) PTE LTD (British Virgin Islands Company No. 126387)

SRI SERDANG SDN BHD (Company No. 197601000972 (26965-

D)) PARADIZE BAZAAR SDN BHD (Company No. 199501039962

VENICE HEIGHTS SDN. BHD. (Company No. 201401028069

HANPOPULAR SDN. BHD. (Company No. 201401028022

YANFULL INVESTMENTS LIMITED (Company No. 432136)

YANFULL (SHANGHAI) CO. LTD. (Company No. 913100006072589999) ... PLAINTIFFS

CHINA IDEA DEVELOPMENT LIMITED (Hong Kong Company No.: 1130588)

PACIFIC VICTOR INTERNATIONAL LTD (Hong Kong Company No.: 890052)

PERSONAL REPRESENTATIVES OF

TEH WEI KIAN (NRIC No.: 960531-43-5109)

TEH CHIAO EING, VALARIE (British Passport No.: GBR 548371510)

WU KWOK YING, MARIA (British Passport No.: GBR 548181044)

GOH SIN TIEN (NRIC No.: 500925-08-5335)

HUANG GUOQUAN (PRC Passport No.: EB7450450)

HUANG GUOYUAN (PRC Passport No.: E90189947)

YONG CHOOI LAN (NRIC No.: 690802-10-5332)

TAN SAY HAN (NRIC No.: 521023-08-5443)

SHIU FAI FONG (NRIC No.: 640422-12-5248)

PERSONAL REPRESENTATIVES OF

PERSONAL REPRESENTATIVES OF

PERSONAL REPRESENTATIVES OF (CHINA WILL) ... DEFENDANTS GROUNDS OF JUDGMENT (Application for Stay of Execution by 11th Defendant) INTRODUCTION [1] Before the court is an application by the 11th Defendant, Tan Say Han, filed on 30 April 2025 in Enclosure 727 seeking a stay of execution and/or enforcement of this court's Judgment dated 13 March 2025 and Cost Order dated 10 April 2025 (collectively referred to as “the Judgments”) pending the disposal of his appeal to the Court of Appeal. [2] The 11th Defendant's application is made pursuant to Section 73 of the Courts of Judicature Act 1964 and/or Order 45 Rule 11 of the Rules of Court 2012 and/or the inherent jurisdiction of this court. [3] After careful consideration of the written and oral submissions of both parties, as well as the affidavit evidence, I allow the 11th Defendant's application for a stay of execution, but only in respect of minutes 4 to 11 of the Judgment dated 13 March 2025 and the Costs Order dated 10 April 2025. These are my grounds. BACKGROUND FACTS [4] The Plaintiffs commenced this action against fifteen Defendants, including the 11th Defendant, Tan Say Han, claiming for fraud, conspiracy to defraud, and breach of fiduciary duties, trust and contractual duties arising from a series of conduct dating back to 1997. [5] On 13 March 2025, this court delivered judgment in favour of the Plaintiffs. On 10 April 2025, this court made an order as to costs. The Defendants, jointly and severally, were ordered to pay the following judgment sums and costs to the Plaintiffs (hereinafter collectively referred to as “the Judgment Sum”): a) Special Damages: RMB166,102,428.00 (equivalent to MYR100,046,980.54); b) General Damages: equivalent to MYR6,472,950.24; c) Exemplary Damages (25% of compensatory damages): MYR25,447,967.20; d) Disbursements: MYR1,181,257.56; and e) Costs (11th Defendant only): MYR200,000.00. Total: MYR133,349,195.54 [6] On 11 April 2025, the 11th Defendant filed a Notice of Appeal to the Court of Appeal against the Judgments. [7] On 17 April 2025, the Plaintiffs' counsel issued a letter of demand to the 11th Defendant's solicitors, demanding payment of MYR1,181,257.56 (being the disbursements for which the 11th Defendant is jointly and severally liable) and MYR200,000.00 (being the costs awarded against the 11th Defendant) within 14 days. [8] On 30 April 2025, the 11th Defendant filed the present application for a stay of execution and/or enforcement of the Judgments pending the disposal of his appeal. RESPECTIVE PARTIES' SUBMISSIONS The 11th Defendant's Submissions [9] The 11th Defendant submits that there are special circumstances warranting a stay of execution of the Judgment pending the disposal of his appeal. The main grounds advanced are as below. [10] First, the judgment sum is substantial and massive, amounting to over RM133 million. The 11th Defendant is a 73-year-old individual with no stable income and limited financial means. Such a massive amount is far beyond his financial capacity to pay. [11] Second, enforcement proceedings have already been commenced against him. He has been served with a letter of demand requiring him to pay the judgment sum, and garnishee proceedings have been enforced against him. Bankruptcy against the 11th Defendant is just a matter of time. [12] Third, once the 11th Defendant is adjudged bankrupt, he will be unable to continue his appeal. The appeal would therefore be rendered nugatory. He has filed his Notice of Appeal on 11 April 2025, demonstrating his commitment to pursuing the appeal. [13] Fourth, the stakeholder suggestion made by the Plaintiffs is not workable and reasonable for the 11th Defendant, as he is facing financial difficulty to satisfy the judgment sum. Asking the 11th Defendant to pay into a stakeholder account still defeats the entire purpose of the stay and will still render him penniless. [14] Fifth, the balance of justice weighs in favour of granting a stay application pending the final determination of the appeal. If the stay of execution is granted, the Plaintiffs will not be prejudiced as they are entitled to and will continue to accrue interest on the judgment sum during the pendency of the stay. The Plaintiffs' Submissions [15] The Plaintiffs oppose the 11th Defendant's application and submit that: [16] First, it is a well-established principle that there ought not to be a stay of a monetary judgment regardless of the amount unless the applicant demonstrates the existence of special circumstances justifying the grant of a stay of execution. The 11th Defendant has failed to demonstrate any special circumstances in this case. [17] Second, the risk of being unable to recover the Judgment Sum from the Plaintiffs in the event that the 11th Defendant succeeds in his appeal is baseless and not justified. The 11th Defendant has mischaracterised the Plaintiffs' financial standing as a group, disregarding proper accounting principles. The Golden Plus Group is commercially solvent, with current assets exceeding current liabilities by RM254,675,000 and group cash or cash equivalent of RM1.3 billion. [18] Third, the fear of bankruptcy cannot be used as a tool to justify a stay of execution. According to the Federal Court in Ming Ann Holdings Sdn Bhd v Danaharta Urus Sdn Bhd [2002] 3 MLJ 49, these fears amount to nothing. The 11th Defendant's conduct in offering nothing to secure the Judgment Sum and Costs pending appeal negates any entitlement to a stay on this ground. [19] Fourth, the Plaintiffs have offered a clear solution to address any concerns about recovery of the judgment sum: the judgment sum and costs can be deposited into the Plaintiffs' solicitors' client account to be held as stakeholders in an interest-bearing account pending the outcome of the appeal. This solution would afford both parties equal protection. [20] Fifth, it is the Plaintiffs who would suffer real prejudice if the stay application is allowed. The Plaintiffs have obtained judgment after a lengthy and contested trial. To deprive them of the fruits of that judgment without any substantial security from the Defendants would be unjust. LEGAL PRINCIPLES GOVERNING STAY OF EXECUTION [21] The application for stay of execution is governed by Order 45 Rule 11 of the Rules of Court 2012, which provides: “Without prejudice to Order 47, rule 1, a party against whom a judgment has been given or an order made may apply to the Court for a stay of execution of the judgment or order or other relief on the ground of matters which have occurred since the date of the judgment or order, and the Court may by order grant such relief, and on such terms, as it thinks fit.” [22] It is trite law that the applicant must demonstrate “special circumstances” to justify the grant of a stay of execution. The Federal Court in Kosma Palm Oil Mill Sdn Bhd & Ors v Koperasi Serbausaha Makmur Bhd [2004] 1 MLJ 257 held that: “The onus is on the applicants to demonstrate the existence of special circumstances to justify the grant of a stay of execution. The reasons must relate to the enforcement of the judgment. They must be deposed in the affidavit filed in support of the application.” [23] The Federal Court further observed that while it is a general rule that a successful party should not be deprived of the fruits of litigation without special circumstances, the court has discretion to grant a stay where such circumstances exist. The factors constituting special circumstances are not closed and must be assessed on a case-by-case basis. At paragraph 13 of Kosma Palm Oil Mill, Augustine Paul JCA (as His Lordship then was), citing from Government of Malaysia v Datuk Haji Kadir Mohamad Mastan and another application [1993] 3 MLJ 514 (HC), emphasised that “the list of factors constituting special circumstances is infinite and could grow with time” and that “any attempt to limit the list or close a category would be to impose a fetter on the exercise of the discretion of the court whether to grant or stay an execution; making the discretion less of a discretion.” ANALYSIS AND FINDINGS OF THE COURT Issue 1: Risk of Non-Recovery if Appeal Succeeds [24] The 11th Defendant argues that if he succeeds in his appeal, there is a real and substantial risk that he will be unable to recover the Judgment Sum from the Plaintiffs due to the jurisdictional complexities involving foreign plaintiffs, multiple currencies, and uncertainties about the Plaintiffs' financial position. [25] The Plaintiffs counter that the Golden Plus Group is commercially solvent and financially robust, with current assets exceeding current liabilities and substantial cash reserves. They aver that the 11th Defendant has mischaracterised the financial standing of the group by focusing selectively on individual entities while disregarding proper accounting principles that require assessment at the consolidated group level. [26] After careful consideration, I find that while the Plaintiffs' consolidated financial position appears strong, the jurisdictional complexities arising from the involvement of foreign plaintiffs (including entities in British Virgin Islands, Hong Kong, and China) and multiple currencies (RMB, HKD, USD, GBP, MYR) do create a legitimate concern about potential difficulties in recovery across jurisdictions. [27] The case of Syarikat Berpakat v Lim Kai Kok [1983] 1 MLJ 406 (HC) recognised that where there is a danger of the unsuccessful party not being able to recover from the successful party in the event the appeal succeeds, this may constitute a special circumstance. [28] Three of the nine Plaintiff entities are incorporated in foreign jurisdictions. The 3rd Plaintiff, Golden Plus (BVI) Pte Ltd, is incorporated in the British Virgin Islands. The 8th Plaintiff, Yanfull Investments Limited, is incorporated in Hong Kong. The 9th Plaintiff, Yanfull (Shanghai) Co. Ltd., is incorporated in the People's Republic of China. The 11th Defendant has exhibited as part of his submissions a copy of Schedule 1 of the Reciprocal Enforcement of Judgments Act 1958, which conclusively demonstrates that neither the British Virgin Islands nor China are reciprocating countries under this legislation. [29] The practical implication of this non-reciprocating status is that if the 11th Defendant succeeds in his appeal and obtains judgment for the return of the Judgment Sum, he would face significant difficulties in enforcing such judgment against the 3rd, 8th and 9th Plaintiffs. He would be compelled to initiate fresh proceedings in the British Virgin Islands, Hong Kong and/or China to enforce any Malaysian judgment, with all the attendant costs, delays, and uncertainties that such proceedings would entail. There is no evidence before this court that the 3rd, 8th and 9th Plaintiffs possess assets within Malaysia against which enforcement could readily be effected. [30] The Plaintiffs' response that their holding company is incorporated in Malaysia does not adequately address this concern. The 3rd, 8th and 9th Plaintiffs are separate legal entities with their own legal personalities, distinct from the holding company. The doctrine of separate legal personality, as established since Salomon v Salomon & Co Ltd [1897] AC 22 (HL), means that assets of one company in a group cannot simply be assumed to be available to satisfy the liabilities of another company in that same group, absent specific circumstances such as piercing the corporate veil, which have not been established in this case. [31] Furthermore, I find that the multi-currency nature of the Judgment Sum adds an additional layer of complexity to any potential recovery. The Judgment Sum comprises amounts in five different currencies: RMB (the major component of RMB166,102,428.00), HKD (HKD10,200,000.00), USD (USD50,535.01), GBP (GBP15,454.01), and MYR (various amounts including RM346,810.00 and RM42,399.90). Whilst currency conversion is not insurmountable, the multi-currency nature of the Judgment, combined with the multi-jurisdictional character of the Plaintiffs, creates practical complications for recovery. [32] I am mindful of the Plaintiffs' submission that the 11th Defendant's concerns about money being transferred out of jurisdiction to foreign subsidiaries are speculative and unsupported by evidence. However, the relevant inquiry is whether there are special circumstances that create legitimate difficulties regarding enforcement and recovery. As the Federal Court observed in Kosma Palm Oil Mill, the list of factors constituting special circumstances is infinite and could grow with time. [33] I find that the combination of factors in this case - namely, the presence of three foreign Plaintiff entities incorporated in non-reciprocating jurisdictions with no known assets in Malaysia, the multi-currency nature of the Judgment spanning five different currencies, and the inherent complexities of cross-border enforcement - collectively give rise to legitimate concerns about the practical difficulties the 11th Defendant would face in recovering the Judgment Sum if his appeal succeeds. [34] Whilst I accept that the Plaintiffs' consolidated financial position at the group level shows commercial solvency with substantial assets and cash reserves, this does not fully alleviate the concerns regarding practical enforceability against specific foreign Plaintiff entities in non-reciprocating jurisdictions. The jurisdictional and structural complexities create genuine obstacles to recovery that go beyond mere theoretical concerns. [35] I therefore find that the risk of non-recovery, whilst not determinative on its own, constitutes a relevant factor that adds weight to the case for granting a stay of execution in the particular circumstances of this case. This finding must be considered in conjunction with the other factors addressed in these grounds of judgment in determining whether, taken as a whole, the 11th Defendant has established special circumstances warranting a stay of execution pending his appeal. Issue 2: Stakeholder Solution [36] The Plaintiffs propose an alternative solution to address the 11th Defendant's concerns regarding the risk of non-recovery should his appeal succeed. The Plaintiffs submit that the judgment sum and costs should be deposited into their solicitors' client account to be held as stakeholders in an interest-bearing account pending the outcome of the appeal. The Plaintiffs contend that this arrangement would afford both parties equal protection - enforcement would be deferred, and restitution would be possible in the event of a successful appeal. [37] The 11th Defendant rejects this proposal. He submits in his affidavit affirmed on 30 April 2025 that he does not have sufficient cash or readily ascertainable assets to meet the Judgment Sum. He avers that garnishee proceedings have been enforced against him, and that bankruptcy proceedings against him are just a matter of time. The 11th Defendant argues that if the execution is not stayed, he faces imminent bankruptcy proceedings which would irreparably harm him and his family. He submits that once adjudged bankrupt, the substantial judgment sum is such that he would not have sufficient funds to sustain legal representation to continue his appeal. [38] The Plaintiffs oppose this submission and contend that the size of the judgment debt, by itself, is not a special circumstance justifying a stay of execution. They submit that impecuniosity does not constitute special circumstances warranting a stay of execution. They aver that the judgment is monetary in nature and the fear of having bankruptcy proceedings commenced against the 11th Defendant could be eliminated by simply making payment for the judgment sum and costs. The Plaintiffs contend that the 11th Defendant has not offered any assets as security for the judgment sum, and his conduct in offering nothing to secure the judgment sum and costs pending appeal negates any entitlement to stay on this ground. [39] While the stakeholder proposal appears equitable in theory, I find that it would in practice defeat the very purpose of a stay application in the particular circumstances of this case. The 11th Defendant has deposed that he does not have sufficient financial capacity to pay the judgment sum of approximately RM133 million. Requiring him to pay such a sum into a stakeholder account would still render him penniless and would effectively deny him the relief sought through the stay application. [40] The Plaintiffs have not disputed the 11th Defendant's assertion regarding his financial capacity to pay such a substantial sum. There is no evidence before this court that the 11th Defendant has assets of such magnitude that would enable him to deposit the Judgment Sum into a stakeholder account. In these circumstances, the stakeholder solution is not a viable alternative, as it would require the 11th Defendant to do the very thing he says he cannot do - namely, pay the Judgment Sum. Issue 3: Balance of Justice [41] The 11th Defendant submits that the balance of justice favours granting the stay, as the Plaintiffs will continue to accrue interest on the judgment sum during the pendency of the stay, while he faces irreparable harm through bankruptcy proceedings. [42] The Plaintiffs argue that they would suffer prejudice if deprived of the fruits of their litigation after a lengthy and contested trial. They submit that the balance of justice tilts in favour of the Plaintiffs who have obtained judgment after a lengthy and contested trial, and that to deprive them of the fruits of that judgment without any substantial security from the Defendants would be unjust. [43] In Cocoa Processors Sdn Bhd v United Malayan Banking Corporation Bhd & Ors (No 2) [1989] 1 CLJ 183, the High Court recognised that the balance of justice may favour a stay where greater hardship would be inflicted on the applicant than on the respondent if the stay is refused. [44] I find that the balance of justice in this case weighs decisively in favour of granting the stay. The potential harm to the 11th Defendant - including bankruptcy proceedings, loss of ability to pursue the appeal effectively, and the practical consequences for a 73-year-old individual - far outweighs the temporary inconvenience to the Plaintiffs, who will continue to accrue interest on the judgment sum during the pendency of the stay. [45] The Plaintiffs are entitled to and will continue to accrue interest on the Judgment Sum during the pendency of the stay, thereby protecting their financial interests. On the other hand, the 11th Defendant faces the prospect of bankruptcy with all its attendant consequences, which would be irreversible even if he succeeds in his appeal. The balance of justice therefore tilts strongly in favour of preserving the 11th Defendant's right to pursue his appeal without being rendered bankrupt in the interim. Issue 4: Substantial Judgment Sum and Risk of Bankruptcy [46] The 11th Defendant argues that the Judgment Sum is substantial and beyond his financial capacity, and that if the execution is not stayed, he faces imminent bankruptcy proceedings, which would irreparably harm him and his family. He submits that the substantial nature of the judgment sum relative to an individual's capacity to pay, coupled with his advanced age and the practical consequences of bankruptcy, are factors which together amount to special circumstances warranting a stay. [47] The Plaintiffs contend that the size of the judgment debt, by itself, is not a special circumstance justifying a stay of execution. They rely on the decision of the Court of Appeal in Ming Ann Holdings, where Abdul Hamid Mohamad JCA (as his Lordship then was) held that fear of bankruptcy does not constitute special circumstances as bankruptcy proceedings are a natural consequence of an inability to pay a judgment debt. The Plaintiffs submit that the grounds relied upon by the applicant were “nothing more than 'fear of losing'“, and that “those factors are not 'special circumstances' nor do they show that the appeal, if successful, will be rendered nugatory. They are nothing unusual. Execution is a natural process after obtaining a judgment and winding up is one of them.” [48] I have carefully considered the respective submissions of both parties. I acknowledge the principle established in Ming Ann Holdings. In that decision, the Court of Appeal held that fears relating to winding up proceedings and enforcement do not amount to special circumstances. Abdul Hamid Mohamad JCA stated that the grounds relied upon “are nothing more than 'fear of losing'; fear of losing business, fear of losing customers, fear of losing suppliers, fear of losing goodwill, fear of not being able to collect its debts from third parties, in case the appellant company is wound up.” His Lordship further stated that “those factors are not 'special circumstances' (if we want to use the term) nor do they show that the appeal, if successful, will be rendered nugatory (if we prefer that term). They are nothing unusual. Execution is a natural process after obtaining a judgment and winding up is one of them.” [49] However, it is crucial to recognise that the facts of Ming Ann Holdings are distinguishable from the present matter in several material respects. Ming Ann Holdings involved a corporate entity, namely Ming Ann Holdings Sdn Bhd, where the fear was related to business operations, loss of customers, loss of suppliers, and inability to collect debts from third parties in the event the company was wound up. Here, we are dealing with an individual of advanced age where bankruptcy would have direct and severe personal consequences. The nature of bankruptcy proceedings against an individual, particularly one who is 73 years old, is fundamentally different from winding up proceedings against a corporate entity. An individual facing bankruptcy confronts consequences that touch upon his personal dignity, his ability to conduct his affairs, his capacity to manage his assets, and the impact upon his family members. [50] In the present case, the evidence before this court is that the 11th Defendant is 73 years old. In his affidavit affirmed on 30 April 2025, he has deposed that he does not have sufficient cash to pay the judgment sum, including costs. He has further deposed that enforcement proceedings have already been commenced against him, with garnishee proceedings having been enforced. These are not hypothetical fears but concrete steps already taken towards enforcement. [51] The quantum of the judgment sum in the present case is exceedingly substantial for an individual. The judgment sum of approximately RM133 million represents a sum that is plainly beyond the financial capacity of most individuals, let alone a 73-year-old person with limited income sources. This is not a case of a judgment debtor who could, with effort, satisfy the judgment; rather, this is a case where the judgment sum is so disproportionate to the 11th Defendant's financial capacity that enforcement would inevitably lead to bankruptcy. Issue 5: Nugatory Appeal [52] The 11th Defendant argues that bankruptcy would render his appeal nugatory as he would be unable to continue with it, thereby depriving him of his right to appeal. He submits that once adjudged bankrupt, he will be unable to continue his appeal, and the appeal would therefore be rendered nugatory. Critically, he argues that the personal nature of the claims against him involving allegations of fraud and breach of fiduciary duty means that his personal involvement and input would be crucial for the effective prosecution of the appeal. [53] The Plaintiffs counter that upon bankruptcy, the Official Assignee would be able to continue the appeal on behalf of the bankrupt. They rely on the principle established in Ming Ann Holdings, characterising the 11th Defendant's fears as nothing more than “fear of losing” and stating that “execution is a natural process after obtaining a judgment.” They argue that the 11th Defendant's fear of bankruptcy cannot be used as a tool to justify a stay of execution, and that his conduct in offering nothing to secure the judgment sum and costs pending appeal negates any entitlement to stay on this ground. They contend that the balance of justice tilts in favour of the Plaintiffs who have obtained judgment after a lengthy and contested trial, and that to deprive them of the fruits of that judgment without any substantial security from the Defendants would be unjust. [54] I have carefully considered the submissions of both parties on this critical issue. As I have found earlier in relation to Issue 4, the facts of Ming Ann Holdings are distinguishable from the present matter in several material respects, and when properly analysed within the framework established by the Federal Court in the authorities cited before me, the 11th Defendant has established that the enforcement of the judgment would render his appeal nugatory in practical terms. [55] The starting point for the analysis is the seminal decision of the Federal Court in Re Kong Thai Sawmill (Miri) Sdn Bhd; Ling Beng Sung v Kong Thai Sawmill (Miri) Sdn Bhd & Ors (No 2) [1976] 1 MLJ 131, where Lee Hun Hoe CJ (Borneo), writing for the Federal Court, stated in clear and lucid terms at page 132 that “an appeal which would be nugatory if stay was refused by reason of the poverty of the respondent would be an example of special circumstances.” This principle recognises that where the financial capacity of an appellant is such that enforcement would destroy the appellant's ability to pursue the appeal, the court should intervene to preserve the right of appeal. [56] The Federal Court in Kosma Palm Oil Mill affirmed and expanded upon this principle, with Augustine Paul JCA citing with approval the passage from Mohamed Mustafa v Kandasami (No 2) [1979] 2 MLJ 126 (FC) at page 127, which held that “one of the determining factors that calls for consideration is whether by not making an order of stay of the execution it would make the appeal if successful, nugatory in that it would deprive an appellant of the results of the appeal.” [57] While it is theoretically correct that the Official Assignee may continue an appeal on behalf of a bankrupt, the practical reality in the present case is far more complex. The Official Assignee has wide discretion in determining whether to prosecute appeals and may decide not to pursue an appeal if it does not serve the interests of the estate or the creditors. The Official Assignee's primary duty is to realise the bankrupt's assets for the benefit of creditors, not to vindicate the bankrupt's legal rights or clear his name from allegations of fraud and breach of fiduciary duty. [58] In the present case, there is a very real risk that the Official Assignee would decline to prosecute the appeal. The appeal does not promise any immediate financial benefit to the estate; rather, it challenges findings of fraud and breach of fiduciary duty. Even if the appeal were successful, the Plaintiffs (who are the judgment creditors) would be the primary beneficiaries of any costs order in favour of the appellant, not the estate or other creditors. The Official Assignee would have little incentive to expend public funds on prosecuting an appeal that serves primarily to vindicate the bankrupt's reputation rather than to benefit the estate. [59] Moreover, the bankruptcy of the 11th Defendant would severely impair his ability to give instructions to counsel and participate meaningfully in the appeal process. This consideration is of particular significance in the present case given the nature of the claims against him. The judgment at trial found the 11th Defendant liable for fraud and breach of fiduciary duty. These are intensely personal allegations that go to the heart of the 11th Defendant's character, conduct, and intentions. [60] The effective prosecution of an appeal against such findings necessarily requires the personal involvement and detailed input of the appellant. The 11th Defendant would need to provide instructions to his counsel on matters of fact within his personal knowledge, including his understanding of various transactions, his intentions at the time decisions were made, his knowledge (or lack thereof) of material facts, and his reasons for taking various actions. A bankrupt's ability to give such instructions is severely constrained by the legal consequences of bankruptcy. His personal input would be crucial for mounting an effective appeal, particularly in defending against allegations of fraud and breach of fiduciary duty which turn heavily on questions of knowledge, intention, and state of mind. The Official Assignee, even if disposed to pursue the appeal, could not provide such personal knowledge and testimony. [61] In Smith, Hogg & Co Ltd v The Black Sea and Baltic General Insurance Co Ltd (1962) 162 LTR 11, Scott LJ observed at page 12 that stay of execution would be granted in “very exceptional circumstances, such as for instance, where execution would destroy the subject-matter of the action or deprive the appellant of the means of prosecuting the appeal.” In the present case, whilst the subject matter of the action is monetary damages, the enforcement of the judgment would effectively deprive the 11th Defendant of the practical means of prosecuting his appeal. Bankruptcy would not only deprive him of financial resources to fund the appeal, but would also severely impair his ability to participate meaningfully in the appeal process given the personal nature of the allegations against him. [62] The Federal Court in Kosma Palm Oil Mill emphasised that “the list of factors constituting special circumstances is infinite and could grow with time” and that “any attempt to limit the list or close a category would be to impose a fetter on the exercise of the discretion of the court whether to grant or stay an execution; making the discretion less of a discretion.” In the present case, the combination of factors - the substantial judgment sum relative to an individual's capacity, the advanced age of the 11th Defendant (73 years old), the personal nature of the claims involving fraud and breach of fiduciary duty, the practical limitations on the Official Assignee's ability and willingness to prosecute the appeal, and the severe impairment of the 11th Defendant's ability to participate meaningfully in his own appeal - together constitute special circumstances warranting a stay. [63] I acknowledge the principle enunciated in Ming Ann Holdings that “execution is a natural process after obtaining a judgment.” However, the same principle must be balanced against the countervailing principle that a party should not be deprived of the right to appeal by enforcement measures that render the appeal nugatory. As held in Mohamed Mustafa v Kandasami (No 2), the determining factor is whether refusing a stay would deprive the appellant of the results of a successful appeal. In the present case, I am satisfied that refusing a stay would have precisely this effect. If the 11th Defendant succeeds in his appeal, he would not only have suffered bankruptcy (with all its attendant personal and legal consequences), but would have been deprived of the opportunity to effectively prosecute that appeal due to lack of funds for legal representation and the inability to participate meaningfully in the appeal process. [64] The practical distinction between the present case and Ming Ann Holdings can be summarised thus: in Ming Ann Holdings, the Court of Appeal noted that “all that the applicant has to do to avoid such 'fears' is to settle the judgment debt.” In the present case, it is simply not within the 11th Defendant's power to settle the judgment debt. The evidence establishes that the judgment sum of approximately RM133 million is beyond his financial capacity. The Court of Appeal in Ming Ann Holdings also noted that “there is not even an allegation, what more evidence, that the respondent is not in a financial position to repay the applicant if it need be” and observed that the respondent was Danaharta Urus Sdn Bhd, implicitly a substantial entity. Here, by contrast, the 11th Defendant has provided evidence of his limited financial capacity, and the Plaintiffs have not disputed this evidence or provided any evidence that they would be able to repay the judgment sum if the appeal succeeds. [65] I find that this factor is particularly pertinent in the present case, where the enforcement of the judgment would likely lead to bankruptcy proceedings against the 11th Defendant, substantially impairing his ability to effectively pursue his appeal. The right to appeal is a valuable right that should not be rendered nugatory by premature enforcement measures where, as here, the appellant can demonstrate that enforcement would practically destroy his ability to prosecute the appeal. The balance to be struck is between, on the one hand, the legitimate interest of a successful litigant in enjoying the fruits of the judgment, and on the other hand, the equally legitimate interest of an unsuccessful litigant in having a meaningful opportunity to appeal. In the present case, as I have found in relation to Issue 3, the Plaintiffs will continue to accrue interest on the judgment sum during the pendency of the stay, thereby protecting their financial interests, whilst refusing the stay would irreparably prejudice the 11th Defendant's ability to pursue his appeal effectively. [66] In conclusion on this issue, I find that the 11th Defendant has established that the enforcement of the judgment would render his appeal nugatory in practical terms. The theoretical ability of the Official Assignee to continue an appeal on behalf of a bankrupt does not, in the circumstances of this case, provide an adequate safeguard for the 11th Defendant's right to appeal. The personal nature of the claims against him, involving allegations of fraud and breach of fiduciary duty, requires his personal involvement and input for the effective prosecution of the appeal. The inevitable consequence of refusing a stay - bankruptcy proceedings leading to the inability to fund legal representation and severely impaired ability to participate in the appeal - would effectively deprive the 11th Defendant of his right to appeal, notwithstanding the technical possibility that the Official Assignee might elect to continue the appeal. This constitutes a special circumstance warranting the grant of a stay of execution pending the disposal of the appeal. CONCLUSION AND ORDER [67] In light of the foregoing analysis, I am satisfied that the 11th Defendant has established special circumstances warranting a stay of execution of the Judgment dated 13 March 2025 and Cost Order dated 10 April 2025 pending the disposal of his appeal to the Court of Appeal. [68] I have carefully considered all arguments advanced by the Plaintiffs, including their contentions regarding the 11th Defendant's lack of evidence on their financial position, the proposed stakeholder solution, their view that fear of bankruptcy does not constitute special circumstances, and their position on the Official Assignee's ability to continue the appeal. However, I find these arguments are outweighed by several compelling factors. [69] First, there is a significant risk that the appeal would be rendered nugatory in practical terms if a stay is not granted. As I have found in relation to Issue 5, the judgment sum of approximately RM133 million is exceedingly substantial for a 73-year-old individual with limited income sources. Bankruptcy proceedings would severely impair the 11th Defendant's ability to effectively pursue his appeal, regardless of the theoretical ability of the Official Assignee to continue it. [70] Second, as I have found in relation to Issue 1, while the Plaintiffs' consolidated financial position appears strong, the jurisdictional complexities arising from the involvement of foreign plaintiffs and multiple currencies create a legitimate concern about potential difficulties in recovery across jurisdictions, which, although not decisive on its own, adds weight to the case for a stay. [71] Third, as I have found in relation to Issue 2, the proposed stakeholder solution, while appearing equitable in theory, would in practice defeat the very purpose of a stay application in the particular circumstances of this case, as it would still require the 11th Defendant to pay a sum that is beyond his demonstrated financial capacity. [72] Fourth, as I have found in relation to Issue 3, the balance of justice in this case favours granting the stay of execution. The potential irreparable harm to the 11th Defendant far outweighs the temporary inconvenience to the financially robust Plaintiffs, who will continue to accrue interest on the judgment sum during the pendency of the stay. [73] Finally, the Federal Court recognised in Kosma Palm Oil Mill that the list of factors constituting special circumstances is not closed, and the court must consider the unique circumstances of each case. The combination of factors in this case - including the substantial judgment sum relative to an individual's capacity, the advanced age of the 11th Defendant, the multi-jurisdictional nature of the case, and the practical impact of bankruptcy on the right to appeal - together constitute special circumstances warranting a stay. [74] Accordingly, I make the following orders: a) The execution and/or enforcement of minutes 4 to 11 of the Judgment dated 13 March 2025 be stayed pending the full and final disposal of the 11th Defendant's appeal to the Court of Appeal; b) The execution of the Cost Judgment of the High Court dated 10 April 2025 be stayed pending the full and final disposal of the 11th Defendant's appeal to the Court of Appeal; and c) Costs will follow the event of the appeal. 13 November 2025 ATAN MUSTAFFA YUSSOF AHMAD Judge Kuala Lumpur High Court (Commercial Division) Counsel: For the Plaintiffs: P. Gananathan (with Shasha Chin Sim Cheng and Kaviscyna Balakrisnan) (Messrs Tommy Thomas) For the 11th Defendant: Wong Ka Jun (Messrs Chow Kok Leong & Co.)