1. ) Manjung Aquatic Sdn Bhd (dalam Likuidasi) v 1. ) Mohamad Zahid Bin Putera (WA-22NCC-442-09/2020)

MANJUNG AQUATIC SDN BHD (DALAM LIKUIDASI) …PLAINTIFFS (Company No.: 372609-V)

MANJUNG AQUA FARMING SDN BHD (Company No.: 778622-P)

MOHAMAD ZAHID BIN PUTERA …DEFENDANTS (IC No.: 740601-08-5307)

HUSIN BIN YAHYA (IC No.: 581028-08-6183)

YONG KWAI HEONG (IC No.: 761231-08-6208)

YONG WEI JIEN (IC No.: 930802-08-5677)

EMPEROR MARINE SEAFOOD SDN BHD (Company No.: 913431-K)

PELANTAR CERGAS (M) SDN BHD (Company No.: 189882-T)

ADIL JUTA SDN BHD (Company No.: 282416-H)

GIGIH MUDA SDN BHD (Company No.: 651173-A)

SITIAWAN HATCHERY SDN BHD (Company No.: 626758-P)

[assessment of damages]

The plaintiffs in an assessment of damages against the 3rd defendant have asked for [See Enclosure 448 plaintiffs’ Reply Written Submissions paragraph 8.1]– i. special damages of RM 698,850.00; ii. general damages of RM 34,534,644.00; iii. aggravated damages of RM 8,500,000.00; and iv. exemplary damages of RM 10,000,000.

I heard counsel on 07-03-2025, 11-04-2025 and 13-06-2025. On 12- 08-2025 I had dismissed all the claims with costs of RM 10,000 subject to allocatur. The plaintiffs have appealed to the Court of Appeal on 28- 08-2025. These are my Grounds of Decision. Facts Consent judgment

Parties at a trial had entered into a consent judgment dated 03-03- 2022 [Enclosure 343] [“Consent Judgment”]. The Consent Judgment reads-

a declaration against the 3rd defendant that she has breached her fiduciary duties to the 1st and 2nd plaintiff;

a declaration that the disposal of the lands bearing the postal address of Lot 10162 & 10163, Kawasan Perindustrian 1, Sri Manjung, 32040, Perak and held under Pajakan Negeri 130505, Lot 26132 and Pajakan Negeri 130506, Lot 26133, both in Mukim Sitiawan, Daerah Manjung, Negeri Perak (“said Lot 10162 & 10163”) together with the building erected thereon to the 5th defendant is null and void and that the 5th defendant is holding the lands as a constructive trustee of the 1st plaintiff;

an order to compel the 5th defendant and its officers to take all necessary steps (including signing all necessary forms) to transfer ownership of the said Lot 10162 & 10163 to the 1st plaintiff within 7 months from the date of judgment (or within 4 days after service of the judgment) at its own cost (including the payment of stamp duty, if any) with liberty to apply;

in the alternative to (c) above, an order to allow the Registrar of the High Court to sign all necessary documents to effect transfer of ownership of the said Lot 10162 & 10163 to the 1st plaintiff within 7 months from the date of judgment with any cost of transfer (including the payment of stamp duty, if any) to be borne in full by the 5th defendant with liberty to apply;

an order to compel the 5th defendant to take all necessary steps forthwith, including full payment of any loans to the relevant financial institution/bank and any other cost in relation thereto, to ensure that any charge is discharged 1 month prior to the transfer of ownership of the said Lot 10162 & 10163 to the 1st plaintiff;

a declaration that the 3rd defendant is holding her shares in the 6th – 9th defendants as a constructive trustee of the 2nd plaintiff and the 2nd plaintiff acknowledges that no sums are payable for the said shares;

a declaration that the 4th defendant is holding his shares in the 7th – 9th defendants as a constructive trustee of the 2nd plaintiff and the 2nd plaintiff acknowledges that no sums are payable for the said shares;

an order to compel the 3rd defendant to take all necessary steps (including signing all necessary forms) to transfer the 3rd defendant’s shares in the 6th – 9th defendants to the 2nd plaintiff within 14 days from the date of judgment (or within 4 days after service of the judgment) at the 3rd defendant’s own cost (including the payment of stamp duty, if any) with liberty to apply;

in the alternative to (h) above, an order to allow the Registrar of the High Court to sign all necessary documents to effect transfer of ownership from the 3rd defendant to the 2nd plaintiff with regard to the 3rd defendant’s shares in the 6th – 9th defendants within 14 days from the date of judgment with any costs of transfer (including the payment of stamp duty, if any) to be borne in full by the 3rd defendant with liberty to apply;

an order to compel the 4th defendant to take all necessary steps (including signing all necessary forms) to transfer the 4th defendant’s shares in the 7th – 9th defendants to the 2nd plaintiff within 14 days from the date of judgment (or within 4 days after service of the judgment) at the 4th defendant’s own cost (including the payment of stamp duty, if any) with liberty to apply;

in the alternative to (j) above, an order to allow the Registrar of the High Court to sign all necessary documents to effect transfer of ownership from the 4th defendant to the 2nd plaintiff with regard to the 4th defendant’s shares in the 7th – 9th defendants within 14 days from the date of judgment with any costs of transfer (including the payment of stamp duty, if any) to be borne in full by the 4th defendant;

an order to compel the 3rd defendant and the 5th defendant to return all of the 1st plaintiff and 2nd plaintiff’s accounting records in their possession within 21 days from the date of judgment with liberty to apply;

an order to compel the 3rd defendant and the 5th defendant to affirm an affidavit to state and particularize each document in their possession which forms the 1st plaintiff and 2nd plaintiff’s accounting records within 21 days from the date of judgment with liberty to apply;

an order that the 3rd defendant and the 5th defendant be restrained forthwith from using the 1st and 2nd plaintiff’s letterhead and/or representing themselves to be an agent; employee or director of the 1st and 2nd plaintiff;

an inquiry on account for profit against the 5th defendant for all profits derived (“said Profit”) from the unlawful conversion of the plaintiffs’ assets and diversion of business opportunities and for the 5th defendant to provide a full account to the plaintiffs for the said Profit within 7 days from the date of judgment (or within 4 days after service of the judgment);

an order that the 3rd to 5th defendants are jointly and severally, liable to pay the said Profit to the plaintiffs;

general damages against the 3rd – 5th defendants to be assessed; and

aggravated and exemplary damages against the 3rd – 5th defendants to be assessed. [Emphasis added] Against the 3rd and 5th defendants only

The plaintiffs filed for Summons for Directions dated 01-07-2022 [Enclosure 372] and obtained directions to proceed with assessment of damages and account for profits against the 3rd and 5th defendants. Consent order between plaintiffs and 3rd and 5th defendants

Thereafter, the plaintiffs, 3rd and 5th defendants entered into a consent order dated 07-03-2025 [Enclosure 458] [“Consent Order”] whereby-i. the 5th defendant pays to the plaintiffs RM 1,141,892.03 being profits accounted for by the 5th defendant and accepted as accurate by the plaintiffs; ii. the 3rd defendant shall be jointly and severally responsible for the payment by the 5th defendant in the event that the 5th defendant defaults on the same; iii. The Consent Order shall constitute full and final settlement of the dispute between the 5th defendant and the plaintiffs; and iv. the Consent Order does not and will not in any way preclude the 3rd defendant in the proceedings hereof from maintaining her position in argument in any further proceedings with respect to the assessment of damages [Enclosure 372]. Against the 3rd defendant

Notwithstanding the Consent Order the plaintiffs proceeded with the assessment of damages against the 3rd defendant and asked additionally for – i. special damages of RM 698,850.00; ii. general damages of RM 34,534,644.00; iii. aggravated damages of RM 8,500,000.00; and iv. exemplary damages of RM 10,000,000.00.

I shall address each of the claim one by one. Court’s analysis Special damages of RM 698,850.00

The plaintiffs claim special damages of RM 698,850.00 allegedly being the value of assets of the 2nd plaintiff disposed of by the 3rd defendant. [See plaintiffs’ Written Submissions Enclosure 441 paragraph 6 and plaintiffs’ Reply Written Submissions Enclosure 448 paragraph 5].

The plaintiffs say they didn’t claim this sum earlier and it’s not in the Consent Judgment as they were not aware of it. [See plaintiffs’ Written Submissions Enclosure 441 paragraph 6.4].

It is trite law special damages must be specifically pleaded. [See Damansara Realty (Pahang) Sdn Bhd v Om Cahaya Mineral Asia Bhd [2021] 5 MLJ 1, CA, [155 - 157]. They are not pleaded here. Further this special damages claim is not in the Consent Judgment. I dismiss this claim. General damages of RM 34,534,644.00

The plaintiffs claim this amount – i. allegedly being diminution in the share value of the 1st plaintiff’s investment in the 2nd defendant of RM 8,268,281; ii. allegedly being diminution in the share value of the 2nd plaintiff’s investment in the 6th to 9th defendants of RM 23,166,363; and iii. for dividends declared by the 6th defendant of RM 3.1 million. [See plaintiff’s expert report paragraph 214 in Enclosure 374 pdf page 145].

I reject this claim for these four reasons-i. They are special damages and are not pleaded; ii. They are not in the Consent Judgment; iii. The claim for diminution in the share value is barred by the “reflective loss” principle; and iv. [Assuming the claim is for general damages which is not the case here], general damages and an account of profits are alternative remedies and the aggrieved party is required to elect which remedy to pursue. In the instant case, the plaintiffs have elected for an account of profits of RM 1,141,892.03. The “reflective loss” principle

The claim for diminution in the share value is barred by the “reflective loss” principle. The Federal Court in Auspicious Journey Sdn Bhd v Ebony Ritz Sdn Bhd & Ors [2021] 3 MLJ 549, FC, said – [159] …. The reflective loss principle dictates that a personal claim may only be brought by a member against the directors of a company where he can demonstrate: (1) a breach of duty owed to him personally; and (2) personal loss separate and distinct from that suffered by the company. Thus, no action lies at the suit of a member suing in that capacity to make good a diminution in the value of his shareholding, where it is merely a reflection of the loss suffered by the company: Johnson v Gore-Wood & Co [2002] 2 AC 1, HL at p 35, Koh Jui Hiong v Ki Tak Sang, Mak Siew Wei v Yeoh Eng Kong and other appeals [2020] 1 MLJ 258; [2019] 7 CLJ 470. [160] In the present appeal, many of the losses claimed by Auspicious Journey did not have a direct and personal impact on it in its capacity as minority shareholder of Ebony Ritz. In fact, in most instances, the losses claimed are, in actuality, losses suffered by Ebony Ritz. While the fact of the occurrence of the events giving rise to the losses are relevant for the purposes of establishing oppression, detriment or prejudice, this does not translate into actual loss suffered by Auspicious Journey. In assessing damages in relation to Auspicious Journey’s loss, this issue has to be borne in mind. [emphasis added] [Assuming the claim is for general damages which is not the case here], general damages and an account of profits are alternative remedies Law

In law in certain circumstances a plaintiff can obtain Judgment for both general damages and an account of profits but he must at execution stage elect which to enforce. [See Island Records Ltd v Tring International plc [1995] 3 All ER 444].

In Karen Yap Chew Ling v Binary Group Services Bhd and another appeal [2023] 4 MLJ 792, CA, at [8], the Court of Appeal held that: “The trial court's order granting the respondent both damages and an account of profits had to be set aside. The respondent would have to elect the one or the other.”

In Island Records Ltd v Tring International plc [1995] 3 All ER 444, Lightman J said-Held: “It was well established that a plaintiff could not obtain Judgment for both damages and an account of profits and that once judgment had been entered for one or the other, any right of election was lost; further, that a party should in general not be required to elect between remedies unless and until he was able to make an informed choice but that the exercise of the right of election should not be unreasonably delayed to the prejudice of the defendant. However, it was open to the court to adopt a procedure enabling a plaintiff who had established the liability of the defendant and his right to elect between the alternative remedies to secure the wherewithal to make an informed election before thereafter with reasonable promptitude committing himself to either remedy.” [emphasis added]

In Main-Line Corporate Holdings Ltd v United Overseas Bank Ltd and Another (First Currency Choice Pte Ltd, Third Party) [2009] SGHC 232 [“Main-Line Corporate Holdings”], the Singapore High Court held that: “[25] An account of profits is an example of an alternative remedy known to the law which will give rise to the need for a plaintiff to elect between it and a remedy of damages which is a compensatory remedy. Main-Line’s submission in essence is that it is not necessary to elect where the remedies to which it is entitled are cumulative as opposed to alternative, and in that connection, I have been referred, in particular, to the discussion of the matter which appears in the opinion of Lord Nicholls in Personal Representatives of Tang Man Sit v Capacious Investments Ltd [1996] AC 514 (“Tang Man Sit”). [26] It is not disputed that the authorities make it clear that damages and an account of profits are alternative remedies and the aggrieved party is required to elect which remedy to pursue.” [emphasis added] Application to facts

By the Consent Judgment, the plaintiffs have the right to the remedies of account of profits or damages. Depending on which is easier for the plaintiffs to prove, the plaintiffs make an election on execution. [See Island Records Ltd v Tring International plc [1995] 3 All ER 444 and Main-Line Corporate Holdings at [26]].

The order for an inquiry on account for profit against the 5th defendant requires the 3rd to 5th defendants to jointly and severally pay the said profit to the plaintiffs.

By the Consent Judgment, the plaintiffs have expressly elected to accept RM 1,141,892.03 which is the profit that has been accounted for by the 5th defendant arising from 3rd defendant’s purported breach of fiduciary duties owed to the plaintiffs.

By the Consent Judgment, the 3rd defendant undertook a personal obligation to pay the RM 1,141,892.03 if the 5th defendant defaults.

The plaintiffs had elected for account of profits and accepted RM 1,141,892.03. They cannot now also ask for general damages. That would be recovering in excess of their loss. [See Main-Line Corporate Holdings at [36]].

For all the four reasons above, I reject the claim for RM 34,534,644.00. Aggravated damages of 8,500,000.00

I reject this claim.

A corporate plaintiff cannot be granted aggravated damages. [See Raub Australian Gold Mining Sdn Bhd v Mkini Dotcom Sdn Bhd & Ors [2018] 1 LNS 62, CA, at [91] [“Raub Australian Gold Mining”], Eaton Mansions (Westminster) Ltd v Stinger Compania De Inversion SA [2013] EWCA Civ 1308 English CA, Pearson Hardman Industries (M) Sdn Bhd v Mes Technoservice Malaysia Sdn Bhd [2021] 1 LNS 2197 HC and Golden Season Pte Ltd and others v Kairos Singapore Holding Pte Ltd and another [2015] SGHC 38].

This is what the Court of Appeal said in Raub Australian Gold Mining– [91] The importance of the policy of vindication is echoed in Applause Store Productions v. Raphael [2008] EWHC 1721 where the court held that since a company stands in a slightly different position than an individual claimant as it has no feelings to hurt, a company can only recover for general damages and not for aggravated damages. [emphasis added] Exemplary damages of 10,000,000.00. Law

In Hassan bin Marsom & Ors v Mohd Hady bin Ya’akop [2018] 5 MLJ 141, FC, [“Hassan bin Marsom”], the Federal Court identified only two categories where exemplary damages can be awarded. The two categories are-i. oppressive, arbitrary or unconstitutional action by the servants of the Government; or ii. where the defendant’s conduct has been calculated by him to make a profit for himself which may well exceed the compensation payable to the plaintiff’.

This is what the Federal Court said in Hassan bin Marsom - [123] In approving the Court of Appeal’s decision to award exemplary damages to the respondent, we cite with approval the sentiments expressed the learned judges therein as stated in the following paragraphs of the court’s judgment:

James Foong J (as he then was) in Rohairee Abd Wahab v Mejar Mustafa Omar & Ors [1997] CLJ Supp 39 had set the guidelines for awarding exemplary damages in the following terms: While considering the request for exemplary damages, this Court must bear in mind that the objective for an award under this category is to punish the defendants, and to display the Court’s indignant attitude towards the acts committed by the defendants. However, from the enlightening judgment of Lord Devlin in Rookes v Bernard [1946] AC 1129, such damages must be restricted to situations where there are: … oppressive, arbitrary or unconstitutional action by the servants of the Government’ or where ‘the defendant’s conduct has been calculated by him to make a profit for himself which may well exceed the compensation payable to the plaintiff’. Outside these 2 categories, exemplary damages should not be awarded. … [emphasis added] Application to facts

I reject the claim for exemplary damages. Although a corporate plaintiff can be granted exemplary damages, the plaintiffs’ affidavit in Enclosure 395 for assessment of damages had failed to aver, let alone adduce any evidence in support to show that the facts here fall within the 2 categories for the award of exemplary damages.

The plaintiffs’ two written submissions [Enclosure 441 and 448] had also not referred to any affidavit evidence in support.

As the plaintiffs have failed to adduce evidence to support a claim for exemplary damages, this claim is not allowed.

For the reasons above, I dismiss the plaintiffs’ claim for special damages, general damages, aggravated damages and exemplary damages. Dated: 12th September 2025 …………(signed)……………. Leong Wai Hong Judge High Court of Malaya Kuala Lumpur (NCC 6) Counsel for plaintiffs: K. Vibalanathan. Vib & Co. (Kuala Lumpur) Counsel for 3rd defendant: Alvin Oh, Sew Chang Peng. Sia Siew Mun & Co. (Kuala Lumpur) CASES REFERRED TO: 1) Applause Store Productions v. Raphael [2008] EWHC 1721. 2) Auspicious Journey Sdn Bhd v Ebony Ritz Sdn Bhd & Ors [2021] 3 MLJ 549 FC. 3) Damansara Realty (Pahang) Sdn Bhd v Om Cahaya Mineral Asia Bhd [2021] 5 MLJ 1 CA. 4) Eaton Mansions (Westminster) Ltd v Stinger Compania De Inversion SA [2013] EWCA Civ 1308 English CA. 5) Golden Season Pte Ltd and others v Kairos Singapore Holding Pte Ltd and another [2015] SGHC 38. 6) Hassan bin Marsom & Ors v Mohd Hady bin Ya’akop [2018] 5 MLJ 141 FC 7) Island Records Ltd v Tring International plc [1995] 3 All ER 444. 8) Johnson v Gore-Wood & Co [2002] 2 AC 1, HL. 9) Karen Yap Chew Ling v Binary Group Services Bhd and another appeal [2023] 4 MLJ 792 CA. 10) Koh Jui Hiong v Ki Tak Sang, Mak Siew Wei v Yeoh Eng Kong and other appeals [2020] 1 MLJ 258; [2019] 7 CLJ 470. 11) Main-Line Corporate Holdings Ltd v United Overseas Bank Ltd and Another (First Currency Choice Pte Ltd, Third Party) [2009] SGHC

12) Pearson Hardman Industries (M) Sdn Bhd v Mes Technoservice Malaysia Sdn Bhd [2021] 1 LNS 2197 HC. 13) Raub Australian Gold Mining Sdn Bhd v Mkini Dotcom Sdn Bhd & Ors [2018] 1 LNS 62 CA. 14) Rohairee Abd Wahab v Mejar Mustafa Omar & Ors [1997] CLJ Supp 39. 15) Rookes v Bernard [1946] AC 1129.