1] Khew Keat Seen (No. Kp: 620501-10-5773) v 1] Khew Kok Seng (No. Kp: 721016-14-5467) (BA-23NCVC-462-08/2017)

This is an application by the First Defendant under Order 18 Rule 19

(1)(a) and / or (b) and/ or (d) of the Rules of Court 2012 (“ROC 2012”) dated 9 March 2018 (enclosure 27) to strike out the Plaintiff’s Writ of Summon dated 2 August 2017 and Statement of Claim dated 1 August 2017. 2

The Defendant’s claimed that the Plaintiff’s claim is frivolous and vexatious that amounts to an abuse of Court’s process;

The cause papers for this application are as follows :

The Statement of Claim dated 1 August 2017 against the First Defendant;

the Notis Permohonan filed by the First Defendant pursuant to Order 18 rule 19 on 9 March 2018;

the Afidavit Sokongan Defendan Pertama affirmed by Khew Kok Seng on 8 March 2018 ("the First

the Afidavit Jawapan affirmed by Khew Keat Seen on 20 March 2018 ("the Affidavit In Reply No. 1‖); and

the Afidavit Sokongan Defendan Pertama affirmed by Khew Kok Seng on 2 April 2018 (―the Second Affidavit‖).

To simplify the above affidavits, the Plaintiffs claim’s that they are taking steps to enforce the terms in the said consent judgment. It is simply an enforcement action. The Plaintiffs are now seeking the sale of the subject land by way of enforcement through a new sales agreement with third party as contemplated in the said consent order and the proceeds after paying all incidental expenses shall be distributed to the parties equally. The Plaintiffs’ claim is premised on the alleged breach of the terms of the Consent Judgment by the First Defendant. The First Defendant’s on the other hand alleged that the 3 pleadings failed to disclose and reasonable cause and merely allegation. As such the Plaintiffs are estopped from varying the terms of the same. The said land can still be disposed of in accordance to the terms of the Consent Judgment.

Having gone through the pleadings and affidavits filed by the respective parties, I have concluded the facts below :

The First Plaintiff, Second Plaintiff and the First Defendant are the registered owner of a piece of land known as GM6009, Lot 809, Tempat Sungei Liam, Mukim Ulu Yam, Daerah Ulu Selangor, Negeri Selangor (“the said Land”)(Exhibit KKS-1);

The Plaintiffs and the First Defendant had entered into a Consent Judgment dated 25 June 2015 vide Shah Alam High Court Suit No. 22NCVC-171 - 03/2015 (“the Consent Judgment”) to resolve their disputes that arose in relation to the said Land (Exhibit KKS-2);

The salient terms of the Consent Judgment are inter alia as follows :-

the said Land shall be sold to a third party for a sum of not less than RM 3,000,000.00; 4

(ii) the Plaintiffs and the First Defendant may look for potential purchaser for the said Land within 6 months from the date of the Consent Judgment i.e. on/before 25 December 2015 (“the said Period”);

(iii) upon the expiry of the said Period, a new selling price of the said Land shall be fixed upon the consent of all the Plaintiffs and the First Defendant;

(iv) None of the parties to the Consent Judgment was able to sell the said Land within the said Period;

Thereafter the Plaintiffs requested for the said Period to be extended for another 6 months i.e. on/before 25 June 2016 (“the extension of time”) and proposed to allow the First Defendant “to occupy the [said Land] and to operate [the First Defendant‘s] farm thereon free of rental until its disposal thereof to a third party purchaser‖ (Exhibit KKS-3); 5

(vi) The Plaintiffs’ aforesaid proposal is accepted by the First Defendant;

(vii) On or about February 2016, potential purchaser of the Said Land i.e. G-Pile Sistem Sdn Bhd (“G-Pile Sistem’’) was interested in purchasing the said Land;

(viii) The First Defendant was at all material times willing and ready to enter into sale and purchase of the said Land with G-Pile Sistem;

(ix) The First Defendant was excluded from the negotiation for sale of the Said Land and only discovered that the said Land was to be sold on a ―as is where is" basis together with the fixtures and structures erected on the said Land when the executed Sale and Purchase Agreement (by G-Pile Sistem and the First and Second Plaintiffs) was served on the First Defendant for his execution(Exhibit KKS-4);

The First Defendant then requested to meet G-Pile Sistem to clarify, ―whether 6 the sale of the land is inclusive of [the First Defendant‘s] chicken farm, feed mills, fertilizer factory and livestock"(First Defendant‘s solicitors letter dated 27 April 2016 – Exhibit KKS- 4);

(xi) However, before the First Defendant could meet up with the representative of G-Pile Sistem, the First Defendant was informed by the First Defendant’s former solicitors that G-Pile Sistem had decided not to proceed with the sale and purchase of the said Land anymore;

(xii) On or about August 2017, the Plaintiffs had commenced this action against the First Defendant and Khew Farming Sdn Bhd (“the Second Defendant”); and

(xiii) On 21 February 2018, this Honourable Court had struck out the Writ and the SOC against the Second Defendant (Exhibit KKS-5). 7 THE LAW OF STRIKING OUT

This application is made pursuant to Order 18 Rule 19 (1) (a)(b) and/or (d) ROC 2012 which reads as follows :-

Striking out pleadings and endorsements (O. 18, r. 19)

The Court may at any stage of the proceedings order to be struck out or amended any pleading or the endorsement, of any writ in the action, or anything in any pleading or in the endorsement, on the ground that —

it discloses no reasonable cause of action or defence, as the case may be;

it is scandalous, frivolous or vexatious;

it may prejudice, embarrass or delay the fair trial of the action; or

it is otherwise an abuse of the process of the Court and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be.

No evidence shall be admissible on an application under subparagraph (1)(a).

This rule shall, as far as applicable, apply to an originating summons as if it were a pleading.

The principles governing a striking out application are automatically set out in Bandar Builder Sdn. Bhd. & 2 Ors. v. United Malayan

1 MLRA 611 (FC). It is only in plain and obvious cases where it is clear that the claim is unsustainable is the power to summarily 8 strike out a case exercised. Mohamed Dzaiddin SCJ delivering the judgment of the Federal Court as follows : ―….the principles upon which the Court acts in exercising its power under any of the four limbs of O.18 r.19….are well settled. It is only in plan and obvious cases that recourse should be had to the summary process under this rule………and this summary procedure can only be adopted when it can be clearly seen that a claim or answer is on the face of it “obviously unsustainable” …….The Court must be satisfied that there is no reasonable cause of action or that the claims are frivolous or vexatious or that the defence raised are not arguable……..”

The above case and principles was also followed in the Court of Appeal judgment in Enersafe Sdn. Bhd. v. Megarina Sdn. Bhd.

2 CLJ 1021 (CA), Zulkefli Makinuddin JCA (as he then was) had said this : ―….(12) We find it is most appropriate here to state the well established principle in that the power of striking out pleadings under O.18 r.19…..as invoked by the appellant in this case is too well known that it can only be exercised when the respondent‘s claim on the face of it is obviously bound to fail……‖

Similarly, in another Court of Appeal decision of Sivakumar a/l Varatharaju Naidu v. Ganesan a/l Retanam (2011) 6 MLJ 70, Abdul Malik Ishak JCA held that: 9 ―…….the summary procedure under Order 18 Rule 19 should only be resorted to when it is conspicuously clear that the Plaintiff‘s claim, on the face of it, is obviously unsustainable. The court will always strike out a claim in plain and obvious cases and where the claim in obviously unsustainable. The power to strike out must be exercised by the court sparingly. It is a rule of thumb that if it can be shown that the pleadings do disclose some cause of action or that it has raised some question fit to be decided, then the case should be set down for argument notwithstanding that the chances of success are minimal. The pleadings must be entirely hopeless, baseless or without foundation in law or in equity before they can be struck out…….”

This court is always reminded by plethora of cases that the power to strike out summarily without a trial is a drastic power which should be exercised with utmost caution and should only be exercised in plain and obvious cases (see Tractors Malaysia Berhad v. Too Chee Hing (1975) 2 MLJ 1, Bandar Builders Sdn. Bhd. v. United Malayan Banking Corporation Bhd. (1993) 3 MLJ 36).

Having scrutinized the above, I shall now consider the rival contentions of the parties. FIRST ISSUE Any reasonable cause of action? It is to be noted that the Plaintiffs’ claim is premised on the alleged 10 breach of the terms of the Consent Judgment by the First Defendant. In the Statement of Claim, the relevant portion of particulars and relief claimed by the Plaintiff against the First Defendants reads below :

that the First Defendant had allegedly breached the Consent Judgment as he had failed / refused to cooperate in executing the Sale and Purchase Agreement ("the purported SPA”) with G-Pile Sistem at the material time;

the alleged breach had allegedly caused the sale and purchase of the said Land with G-Pile Sistem unattainable;

a declaration that the First Defendant had breached the Consent Judgment;

the said Land to be sold according to market value;

the Deputy Registrar of the Court to fix the selling price and terms of the sale of the said Land; and

the Plaintiffs be authorised to deal with whoever and in whatever manner in relation to disposal of the said Land including sale and purchase, transfer, satisfying any debts, solicitors’ fees, agents' fees and other payments in relation to the said Land, and 11 that the Plaintiffs are authorised to accept any documents and payments and to execute any documents in relation to the said Land; Having considered the above, to my mind upon the expiry of the said Period and/or the extension of time, the said Land can still be disposed of subject to the selling price being mutually agreed upon by all the Plaintiffs and the First Defendant. The First Defendant had never done anything to prevent, obstruct and/or restrain the Plaintiffs in getting new potential purchaser for the said Land upon the expiry of the said Period and/or the extension of time. More so, the First Defendant is at all material times agreeable to dispose of the said Land subject to the terms of the Consent Judgement. Considering the above, it is my considered view that Pleadings does not disclose any reasonable cause and are merely premature allegation. SECOND ISSUE Is it an abuse of court process??

The learned counsel for the First Defendant’s submitted that it is trite law that a consent order is binding on all its parties who are then estopped from varying the terms of the same. In any event the parties to a consent order wish to set aside the same, the grounds relied upon shall relate to the free consent of the parties. In the case of: Ganapathy Chettier v. Lum Kum Chum & Ors; Meenachi v. Lum 12 Kum Chum (1981) 2 MLJ 145 (FC), Raja Azlan Shah CJ delivering the judgment of the court held that : ―……..The order now appealed from obviously varied the consent order. The appeal was therefore grounded almost entirely on the jurisdiction of the court to vary an order which it had made and which had been drawn up and perfected. The question is whether in the circumstances the jurisdiction exercised by the court can be justified. ………….The answer to the question is obvious and, with respect, is so clearly stated in paragraph 2011 of Volume 2 of either the 1976 or the 1979 Supreme Court Practice that we will merely content ourselves with repeating that an order by consent is evidence of the contract between the parties and is binding on all the parties to the order. It may be pleaded as an estoppel: Kinch v Walcott [19291 AC 482. All the more so, in our view, since there is not the slightest question of any mistake as to facts or law…………….‖ Again, in the case of: Badiaddin Bin Mohd Mahidin & Anor v. Arab Malaysian Finance Bhd (1998) 1 MLJ 393 (FC), Mohd Azmi FCJ delivering the judgement of the court held that: ―…….The grounds referred to for setting aside a consent order of a judgment by consent are grounds which basically relate to consensus ad idem or the free consent of parties to a binding agreement or contract. It is elementary that if it is proved that there are grounds which vitiate such free consent, the agreement is not binding. Now a consent order or a judgment by consent is undoubtedly based on an agreement of both parties where consent 13 to the agreement must or should have been free in the first place. If the agreement upon which a consent order or judgment by consent is based is vitiated by any ground recognized in eguitv as vitiating such free consent, such as fraud, mistake, total failure of consideration (see Huddersfield Banking Co Ltd v. Henry Lister & Sons [18951 2 Ch 273 and the cases cited therein), such a perfected consent order or judgment by consent could be set aside in a fresh action filed for the purpose. Grounds which would vitiate such free consent should also include misrepresentation, coercion, and undue influence and other grounds in equity……………….‖ Further, in the case of: Hock Hua Bank Bhd v. Sahari Bin Murid

1 MLJ 143 (FC), Chang Min Tat FCJ stated that : ―…………….Clearly the court has no power under any application in the same action to alter vary or set aside a judgment regularly obtained after it has been entered or an order after it is drawn up, except under the slip rule in Order 28 rule 11 Rules of the Supreme Court 1957 (Order 20 rule 11 Rules of the High Court 1980) so far as is necessary to correct errors in expressing the intention of the court: Re St Nazaire Co 12 Ch D 88, Kelsey v Doune [1912] 2 KB 482; Hession v Jones [1914] 2 KB 421, unless it is a judgment by default or made in the absence of a party at the trial or hearing. But if a judgment or order has been obtained by fraud or where further evidence which could not possibly have been adduced at the original hearing is forthcoming, a fresh action will lie to impeach the original judgment: Hip Foong Hong v Neotia & Co [1918] AC 888 and Jonesco v Beard [1930] AC 298.The hearing of the action will 14 in a proper case be expedited: Smith v Peizer 65 SJ 607…………………‖ In the case of: Styletech Sdn Bhd v. Kaolin (M) Sdn Bhd & Anor

10 MLJ 91, is similar to the facts of the present suit where it was held that the Court does not have the jurisdiction to set aside through a collateral proceeding a consent judgment which has been recorded by a court of concurrent jurisdiction. Abu Bakar Jais JC has quoted that: “…..Is this court competent to set aside the consent judgment recorded by another court …[45] There is no dispute that the consent judgment was not recorded by this court but by another court of concurrent jurisdiction. I do not think nor agree with the plaintiff that I am at liberty to set aside and declare the same to be a nullity when another court of concurrent jurisdiction has found it fit that such terms as agreed by the first defendant and the second defendant in the previous suit could be incorporated and agreed in the form of the consent judgment recorded. [46] I seek support for my decision herein based on the Federal Court’s case of Badiaddin bin Mohd Mahidin & Anor v Arab Malaysian Finance Bhd [1998] 1 MLJ 393... [47] ………….. What should have been done by the Plaintiff [48] Quite clearly the only recourse for the plaintiff would have been to challenge the consent judgment and have it set aside by initiating direct proceedings in the previous suit itself in the court that 15 recorded the consent judgment as illustrated by Badiaddin. As noted by that case, another court of concurrent jurisdiction as this court now for the OS does not have the jurisdiction to disturb the consent judgment already recorded by another court. [49] In this regard the plaintiff also cannot challenge or attack the consent judgment in a collateral proceeding as done in this OS. The collateral proceeding separated from the previous suit itself is not allowed. The consent judgment must be challenged in the previous suit itself and in this regard, I have explained I do not agree the consent judgment was entered in contravention of the statutory provisions of the Act. Collateral proceeding is not allowed as illustrated by the case of CIMB Investment Bank Bhd (previously known as Commerce International Merchant Bankers Bhd) v Metroplex Holdings Sdn Bhd (2014) 6 MLJ 779; [2014] 9 CLJ 1012 where it is decided as follows; Unless the order is a nullity in the sense as enunciated in Badiaddin Mohd Mahidin & Anor v Arab Malaysian Finance Bhd; dist V Badiaddin’), it could not be attacked in collateral proceedings.................” In the case of: Bukit Baru Villas Sdn Bhd v. Malaysia Building Society Berhad (2016) 1 LNS 694, Mohd Nazlan Mohd Ghazali J held that: ―………….[22] However, the law is so well settled that a consent judgment can only be set aside on specific grounds, as established by the Federal Court in the leading case of Badiaddin Mohd Mahidin & Anor v. Arab Malaysian Finance Berhad [1998] 2 CLJ 75 [23] It is of relevance to note that the plaintiff did not in its 16 statement of claim or in any of its affidavits in reply make mention of, let alone specifically plead any of the aforesaid grounds established by Badiaddin Mohd Mahidin that could legitimately justify the plaintiff setting aside the Consent Judgment. There was no allegation of mistake or fraud or misrepresentation, and indeed it would have resolutely been disingenuous if the plaintiff had alleged coercion on the part of the defendant who accommodated the plaintiff‘s own request for extension of time. [24] ...As such, the attempt by the plaintiff to have the Consent Judgment vitiated is entirely without substance and must fail, and the rule as established in the decision of the former Federal Court in Ganapath v Chettier v. Lum Kum Chum & Ors: Meenachi v. Lum Kum Chum (1981) 2 MLJ 145 that an order by consent is evidence of the contract between parties which is binding on them must thus in the instant case be firmly upheld……………” The learned counsel for the Plaintiff had cited the case of : Hila Ludin bin Abu Hazim v. Malaysia-Thailand Joint Authority (2001) 2 AMR 1290 to support its contentions that only pleadings and not Writ can be struck out. Nevertheless, I noted that the Court went on to say:- ―…………..Oleh kerana itu, walaupun permohonan untuk membatalkan Writ Saman dalam Saman Dalam Kamar itu merupakan suatu salahaturan, namun ia boleh dibaikpulih di bawah A.2 k.1 (1) KKMT, kerana salah aturan itu, pada hemat saya, hanyalah bersifat teknikal dan oleh itu, tidak membawa kepada pembatalan prosiding Saman Dalam Kamar tersebut…………” 17 Further, to my mind the provisions under Order 18 Rule 19 of the Rules of Court 2012 allows Writ of Summons to be struck out. This is clearly stated in the case of : Ikatan Kelab-Kelab Melayu Negeri Pulau Pinang (499-Penang) (suing through its President, Dato' Seri Hj Mohd Yussof Latiff) & Ors v Yayasan Bumiputra Pulau Pinang & Ors and another appeal (2014) 1 MLJ 27(FC), Hashim Yusoff FCJ delivering judgment of the court held that: ―………..however, the respondents filed an application under O18 r19 (1)(a)(b) and (d) of the Rules of the High Court 1980 to strike out the appellants writ of summons and statement of claim ……the striking out application was allowed by the High Court and on appeal to the Court of Appeal, the High Court’s decision was upheld………we see no reason to differ with the decisions of the courts below. We therefore answer the question posed in the negative. The appeal is therefore dismissed with costs……‖ Eventhough the Plaintiffs and the First Defendant had taken the same position of law that the Consent Judgment constitutes a contract binding on the parties to the Consent Judgment, nevertheless the learned counsel for the Plaintiff had submitted that this fresh action is an enforcement action of the terms in the Consent Judgement. To my mind, in the present case, the terms in clause (b) of the Consent Judgment which are in relation to the said land, is an issue within the ambit of the original action itself (Shah Alam High Court Suit No. 22NCVC-171-03/2015). The parties in the Consent Judgement and the parties in the present action are also the same. The Plaintiffs also 18 failed to show up any circumstance that clause (b) of the Consent Judgement had been drawn up outside the ambit of the Shah Alam High Court Suit necessitating enforcement of the Consent Judgment through a fresh suit. In short, the present action is clearly Res Judicata as there is no ground to justify such a collateral proceeding when the Consent Judgment is still valid and enforceable. Based on the above authority, this court is in agreement with the learned Defendant’s counsel submission in that the reliefs sought by the Plaintiffs in the Statement of Claim are unenforceable as they interfere with the terms of the Consent Judgment. To my mind, the Plaintiffs’ conduct in bringing this action in an attempt to amend and/or vary and/or interfere with the terms of the Consent Judgment tantamount to an abuse of court process. When the court process is being used in a mala fide manner by the litigants in furtherance of an ulterior motive, the Court is empowered and has a duty to prevent the court process from abuse. This is clearly stated in the case of : Hadi Hassan v. Suria Records Sdn. Bhd. & Ors (2005) 3 MLJ 522, Abdul Malik Ishak J (as he then was) held that: ―………….[58] Striking out for being an abuse of the process of the court under O 18 r 19(1)(d) of the RHC envisages the situation where the process of the court has not been used in a bona fide manner and that it has been abused. It goes without saying that the court will prevent its machinery from being used improperly (Castro v Murray (1875) 10 Ex 213; and Dawkins v Prince Edward of Saxe Weimar, Willis v Earl Beauchamp (1886) 11 P 59 at 63).......................‖ 19 Again, this court is in agreement with the learned Defendant’s counsel in that the Plaintiff’s action against the First Defendant is mala fide having regards that the disputes between the Plaintiffs and the First Defendant in relation to the said land had already been resolved upon the Consent Judgment being recorded. The Consent Judgment was entered into with the free consent of the Plaintiffs and is still valid and enforceable. In such a situation, the Plaintiffs are estopped from bringing this action as they are bound by the Consent Judgment in that the said land can only be dealt with and disposed of in accordance to the terms of the Consent Judgment i.e. with the mutual agreement of the Plaintiffs and the First Defendant. To my mind, it is obvious that the Plaintiffs’ intention in bringing this action is an attempt to amend and/or vary the terms of the Consent Judgment to the Plaintiffs’ benefit. More so, the Plaintiffs failed to plead in the Statement of Claim any of the vitiating factors to justify the amendment and/or variation of the terms of the Consent Judgment; THIRD ISSUE Is it scandalous, frivolous or vexatious?? Is it academic in nature??

In this case, the Plaintiffs knew very well that upon the expiry of the said Period and/or the extension of time, the said land can still be disposed of subject to the selling price being mutually agreed upon by all the Plaintiffs and the First Defendant. More so, the First Defendant 20 had never done anything to prevent, obstruct and/or restrain the Plaintiffs in getting new potential purchaser for the said land upon the expiry of the said Period and/or the extension of time. All the Plaintiffs need to do is to obtain the agreement of the First Defendant as regards the selling price of the Said Land. If it is so, to my mind it is unnecessary and/or irrelevant for the Plaintiffs to bring this action against the First Defendant as the said Land can still be disposed of in accordance to the terms of the Consent Judgment:. In the case of: Desa Saujana Corp Sdn Bhd & Ors v. James Foong Cheng Yuen, High Court Malaya & Anor (2008) 2 MLJ 11 (CA), Low Hop Bing JCA delivering the judgment of the court held that: ―……..[72] In the context of O 18 r 19(1)(b), 'scandalous' is taken to mean wholly unnecessary and irrelevant and not just unpleasant allegations: see Boey Oi Leng (Trading as Indah Reka Construction and Trading) v Trans Resources Corporation Sdn Bhd [2001] 4 AMR 4807 (HC). [73] ‘Frivolous' or 'vexatious' means that the pleadings are obviously unsustainable…………………..‖ Having considered the above that the Consent Judgement being a perfected order is not capable of being amended or varied, to my mind the reliefs sought by the Plaintiffs in the Statement of Claim would be academic in nature if granted. In the case of: Ahmad Saidi bin Md Isa v. Timbalan Menteri Hal Ehwal & Ors

3 MLJ 208 (CA), Gopal Sri Ram JCA delivering the judgment of the court: 21 ―……….[4] We were entirely in agreement with learned senior federal counsel that the appeal was indeed academic. The subject matter of the appeal was the correctness of the restrictive residence order made against the appellant and to which he had been subject. That order having come to an end, there was no longer a valid lis before us for adjudication. Any views we may express about the validity or otherwise of the order would be wholly academic in the circumstances of this case. It will simply have no effect at all. It will mean that we would act in vain. And it is settled law that a court will not act in vain. Equally it is also settled that the court will not grant academic declarations. see Re Barnato [1949] Ch 258, There is therefore no alternative but to dismiss this appeal…………….‖ Similarly, in the case of : Lai Soon Onn v. Tan Tian Sin & Ors

11 MLJ 476, Noorin Badaruddin JC (as she then was) held that: ―……Subsequently, the third defendant filed an application to strike out the plaintiff‘s SOC pursuant to O 18 r 19(1)(a) of the Rules of Court 2012 (‗the ROC‘)(‗end 9‘) on the ground that the claim disclosed no reasonable cause of action. The third defendant submitted that: (a) ss 357 and 360 of the CMSA did not entitled the plaintiff to the declaratory reliefs sought; (b) the declaratory reliefs sought by the plaintiff were academic in nature because even if the reliefs were granted, the plaintiff could not enforce the same by way of criminal prosecution as the declaratory reliefs sought were worded in such a manner as to declare that the defendants committed a criminal offence under the CMSA; (c) the plaintiff was not entitled to damages because s 357 of the CMSA was only actionable after the ruling by the Securities Commission 22 (‗the SC‘); and (d) the plaintiff‘s failure to sue the joint tortfeasors tantamount to a release/discharge of the present suit against the defendants. It must be noted that the first, second and fourth defendants had filed similar applications (‗ends 21, 22 and 23‘) as in end 9 and the same arguments in end 9 were forwarded....………………………..

(51)Further, this court agrees with the third defendants’ learned counsel that the declaratory reliefs that the plaintiff is seeking are academic...

The above relief sought for are worded in such a manner as to declare that the defendants committed a criminal offence under the CMSA. Even if the declaratory reliefs are granted, the plaintiff cannot enforce it by a criminal proceeding. The plaintiff cannot ask this court to assert the constitutional right of the Attorney General as the public prosecutor in deciding for the prosecution in criminal matters. The principle that the court will not grant declaratory reliefs which are academic in nature was lucidly stated by the Court of Appeal in Ahmad Saidi bin Md Isa v Timbalan Menteri Hal Ehwal & Ors (2006) 3 MLJ 208 as follows: ―……[4] We were entirely in agreement with learned senior federal counsel that the appeal was indeed academic. The subject matter of the appeal was the correctness of the restrictive residence order made against the appellant and to which he had been subject that order having come to an end, there was no longer a valid lis before us for adjudication. Any views we may express about the validity or otherwise of the order would be wholly academic in the circumstances of this case. It will simply have no effect at all. It will mean that we would act in vain. And it is settled law that a court will not act in vain. Equally it is also settled that the court will not grant academic declarations, see Re Barnato [1949] Ch 258. 23 There is therefore no alternative but to dismiss this appeal………………‖ CONCLUSION

In the light of the foregoing and in the upshot, after hearing the submission by both parties, I hold that the First Defendant’s application for striking out under Order 18 Rule 19(1)(a), (b) or (d) and is hereby allowed with cost of RM 5000.00. Dated 23 May 2018. (DATO’ HJ. MOHAMAD SHARIFF BIN HJ. ABU SAMAH) Judicial Commissioner (NCVC 6) High Court of Malaya Shah Alam, Selangor Darul Ehsan Counsel For the Plaintiff: Waheeda Bt Md Yusoff (Messrs. H.C Tan & Zahani) For the First Defendant: Cheong Su Yin (Messrs. Cheong Su Yin & Co.)