Koh Keng Joo v Tan Sri Dato' Seri Khalid Bin Abu Bakar (WA-21NCvC-17-02/2020)

KOH KENG JOO (No. K/P 541102-01-5759)

LIEW SOW YOKE (No. K/P 561014-06-5308) … PLAINTIF-PLAINTIF

KERAJAAN MALAYSIA ... DEFENDAN-DEFENDAN 04/02/2026 16:06:38 WA-21NCvC-17-02/2020 Kand. 250 S/N 7lsjKzrscEWOyxhMheyHlA GROUNDS OF JUDGMENT (Application for Stay of Execution Pending Appeal)

This is an application by the Defendants pursuant to Order 45 rule 11 of the Rules of Court 2012 (“ROC 2012”) seeking a stay of execution of the Judgment dated 5 November 2025 and the consequential Order dated 8 December 2025, pending the disposal of the Defendants’ appeal to the Court of Appeal.

The application concerns the exercise of this Court’s discretion to preserve the status quo pending appeal, and does not involve a reconsideration of the merits of the substantive judgment.

By the Judgment dated 5 November 2025, the Court awarded substantial damages in favour of the Plaintiffs.

In respect of the First Plaintiff, who remains missing, the Court expressly directed that the damages awarded were not payable to the Plaintiff, but instead were to be deposited into an interest-bearing trust account and held by a court-approved trustee until the whereabouts of the First Plaintiff are ascertained. S/N 7lsjKzrscEWOyxhMheyHlA

By a subsequent Order dated 8 December 2025, Amanah Raya Berhad was identified as the appropriate trustee to hold the said monies.

It is therefore clear from the record that, insofar as the damages awarded to the First Plaintiff are concerned, the Judgment does not contemplate immediate payment or enjoyment by the Plaintiff, but rather custodial holding of the monies pending future developments.

The Defendants have filed a notice of appeal against the Judgment, and now seek a stay of execution pending the disposal of that appeal.

The sole issue before this Court is whether the Defendants have established “special circumstances” within the meaning of Order 45 rule 11 ROC 2012, such that a stay of execution ought to be granted pending appeal.

The governing principles on an application for stay of execution are well settled. An appeal does not operate as a stay, and the burden lies on the applicant to demonstrate the existence of special circumstances justifying a departure from the general rule. S/N 7lsjKzrscEWOyxhMheyHlA

The paramount consideration is whether, if a stay is refused, the appeal, if ultimately successful, would be rendered nugatory. This principle is authoritatively stated by the Federal Court in Kosma Palm Oil Mill Sdn Bhd & Ors v Koperasi Serbausaha Makmur Bhd [2004] 1 MLJ 257, where it was held that the court should ordinarily grant a stay where refusal would undermine the practical utility of the appeal.

At page 263 (per Augustine Paul JCA), it states: “The general rule is that an appeal shall not operate as a stay of execution unless the court so orders. Accordingly, the court will not deprive a successful party of the fruits of his litigation until an appeal is determined, unless the unsuccessful party can show special circumstances to justify it.”

The authorities further make clear that what constitutes “special circumstances” is fact-sensitive and depends on the particular circumstances of each case.

Here, the Court is not confined to considerations of financial hardship alone, but may take into account all relevant circumstances relating to the enforcement of the judgment, including its practicality and consequences pending appeal (see Sarwari a/p Ainuddin v Abdul Aziz a/l Ainuddin [2000] 5 MLJ 391). S/N 7lsjKzrscEWOyxhMheyHlA

It is also settled that the merits of the appeal are generally not a relevant consideration in a stay application, save insofar as necessary to assess whether the appeal would be rendered nugatory: Ming Ann Holdings Sdn Bhd v Danaharta Urus Sdn Bhd [2002] 3 MLJ 49.

Whether refusal of a stay would deprive the Plaintiffs of the fruits of litigation

A fundamental concern in stay applications is that the court should not lightly deprive a successful litigant of the fruits of its litigation.

However, the present case is materially distinguishable from the usual run of cases. By the express terms of the Judgment itself, the First Plaintiff is not entitled to receive the damages awarded at this stage.

Even if execution were to proceed, the monies would be immobilised in a trust account and held by a trustee pending the ascertainment of the First Plaintiff’s whereabouts and the outcome of the appeal. S/N 7lsjKzrscEWOyxhMheyHlA

The Plaintiffs therefore do not stand to enjoy, use, or benefit from the damages awarded to the First Plaintiff at this stage. Whether the monies are deposited into a trustee account immediately or held pending appeal, the Plaintiffs have no present enjoyment of the judgment sums.

In these circumstances, I am unable to accept the submission that the grant of a stay would deprive the Plaintiffs of the fruits of the Judgment. The Plaintiffs’ position remains substantively unchanged during the pendency of the appeal.

Risk of the appeal being rendered nugatory

The damages awarded include a very substantial and continuing daily sum, which, if execution is not stayed, would require the Government to deposit significant public funds into a trust arrangement while the appeal remains unresolved.

Should the appeal succeed, whether wholly or in part, the Court would then be confronted with the practical task of reversing payments already made, including:

trust arrangements put in place;

accrued interest;

administrative and accounting consequences flowing from those payments. S/N 7lsjKzrscEWOyxhMheyHlA

In my view, this goes beyond a mere question of repayment. Enforcement of the Judgment pending appeal, in the manner contemplated, would give rise to practical and legal complexities that extend well beyond ordinary inconvenience, and carries with it a real risk of undermining the practical utility of the appellate process.

As stated at page 264 of Kosma Palm Oil Mill’s case: “The paramount consideration governing an application for a stay, whether of execution or of proceeding, is that the appeal, if successful, should not be rendered nugatory. If, upon balancing all the relevant factors, the court comes to the conclusion that an appeal would be rendered nugatory without the grant of a stay, it should normally direct a stay or grant other appropriate interim relief that has the effect of maintaining the status quo.”

I am therefore persuaded that refusal of a stay carries a real risk of rendering the Defendants’ appeal nugatory, within the meaning explained in Kosma Palm Oil Mill’s case.

Practical impossibility and public administration considerations

It is the onus on the applicant to show that there is a special circumstance to justify the grant of a stay of execution, where it must also relate to the enforcement of the judgment. S/N 7lsjKzrscEWOyxhMheyHlA

At page 269 of Kosma Palm Oil Mill’s case, it states: “[21] 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.”

I accept the submission of the Federal Counsel that, viewed realistically, execution of the Judgment, particularly the requirement for daily accrual and deposit of large sums, is not readily compatible with the financial and administrative procedures governing public funds.

The Court again refers to page 266 of Kosma Palm Oil Mill’s case, which states: “[14] The resultant matter for determination is the factors or reasons that may constitute special circumstances. Generally stated, they are circumstances which go to the enforcement of the judgment.”

The Court believes that this is not a mere matter of inconvenience. Extraordinary and recurring payments of this nature by the Government involve multiple layers of approval, accounting, and audit processes which cannot reasonably operate on a daily basis in the same manner as private litigants. S/N 7lsjKzrscEWOyxhMheyHlA

It is my view that enforcement that is structurally impracticable or disproportionate is a relevant consideration in determining whether a stay ought to be granted, and in assessing whether the circumstances of the case justify the preservation of the status quo pending appeal.

Balance of justice

I am satisfied that no material prejudice has been demonstrated on the part of the Plaintiffs if a stay is granted:

the damages are not payable to the First Plaintiff in any event;

there is no suggestion of insolvency or dissipation on the part of the Government; and

no urgent financial necessity has been shown.

On the other hand, refusal of a stay would expose the Defendants to irreversible administrative and financial consequences, notwithstanding that the Judgment is presently under appeal.

Weighing all the circumstances, I am satisfied that the balance of justice favours the preservation of the status quo pending the determination of the appeal.

As a conclusion, the Court believes that what constitutes special circumstances must necessarily depend on the facts of each S/N 7lsjKzrscEWOyxhMheyHlA particular case. The Court must consider all relevant circumstances bearing on the enforcement of the judgment and the justice of the case (see Sarwari a/p Ainuddin v Abdul Aziz a/l Ainuddin [2000] 5 MLJ 391 (High Court) at page 399). This case clarifies that “special circumstances” are not rigid or closed.

For the reasons set out above, I find that the Defendants have established special circumstances within the meaning of Order 45 rule 11 of the ROC 2012.

In particular, I find that:

the Plaintiffs are not deprived of the fruits of litigation by the grant of a stay;

refusal of a stay carries a real risk of rendering the appeal nugatory; and

the nature and mechanics of enforcement in this case justify the Court’s intervention to preserve the status quo

Accordingly, the application for a stay of execution of the Judgment dated 5 November 2025 and the consequential Order dated 8 December 2025 is allowed pending the disposal of the appeal. S/N 7lsjKzrscEWOyxhMheyHlA

Costs of this application shall be costs in the appeal. Dated: 4th February 2026 ………………………………………………… (YA PUAN MAHAZAN BINTI MAT TAIB) JUDGE HIGH COURT OF MALAYA KUALA LUMPUR Counsel for The Plaintiffs : Dato' Jerald Gomez & Michelle Wong Messrs. Jerald Gomez & Associates Advocates & Solicitors Counsel for The Defendants : SFC Nurul Farhana Bt Khalid, FC Fariza Amira Bt Azman & FC Siti Naquiah Bt Mohd Jamel Attorney General’s Chambers, Malaysia (AGC) S/N 7lsjKzrscEWOyxhMheyHlA