1. ) Saidi Bin Abang Samsudin v 1. ) QEOS LED SDN. BHD. (WA-22NCC-450-09/2020)

SAIDI BIN ABANG SAMSUDIN (No. K/P: 590503-13-5445)

ZUL’ AZMAN BIN YA’AKUB (No. K/P: 721125-13-5743) … PLAINTIFFS

QEOS LED SDN. BHD. (No. Syarikat: 897687-A)

SITI KATHEJAH BINTI ABDULLAH (No. K/P: 631228-13-5798)

JEPAK HOLDINGS SDN BHD (No. Syarikat: 138865-H) … DEFENDANTS GROUNDS OF JUDGMENT INTRODUCTION [1] In this action, the Plaintiffs claimed against the 1st Defendant (“D1”) 4,800,000 units of issued and fully paid up shares in the 3rd Defendant (“Jepak”) on the basis that D1 is a constructive trustee for the Second Plaintiff (“P2”) ) of 2,700,000 Jepak shares and the Second Defendant (“D2”) of 2,100,000 Jepak shares, account by D1 and Jepak of all monies received from the Ministry of Education (“MOE”) and/or the Government of Malaysia (“GOM”) from 8.5.2019 to date of Order and the payment of such monies to the Plaintiffs found payable upon the taking of accounts; indemnity from D1 in respect of settlement S/N b0UndLqy6kqSvnGJ34cUvA of all liabilities and debts of Jepak as audited and/or declared as at 31.1.2019 based on payments recede by Jepak from MOE or GOM in respect of work done before and up to 31.12.2018 under the Project (defined hereafter), and damages. [2] During trial agreed to be conducted virtually online by using the Zoom video conferencing platform, lasting 7 days, the Plaintiffs called 4 witnesses to adduce evidence whilst the Defendants called 3 witnesses in support of the Defence. [3] I had on 29.11.22 dismissed the Plaintiff’s claim. This judgment contains the reasons for my decision. Background facts [4] The 3rd Defendant, Jepak is a private limited company incorporated under the laws of Malaysia and is in the construction business which includes civil, electrical and mechanical contract works, design, project management, labour supply, marine work and workshop. It is also in the business of renting out motor vehicles. [5] The 1st Plaintiff (“P1”) was the managing director and a shareholder of Jepak when GOM and/or MOE had on 20.6.2017 awarded Jepak a contract known as “Projek Bersepadu Sistem Solar Photovoltaic (PV) Hibrid dan Penyelenggaraan dan Operasi Genset/Diesel bagi 369 Sekolah Luar Bandar Sarawak” (“Project”) at a contract value of RM 1,325,000,000.00. S/N b0UndLqy6kqSvnGJ34cUvA [6] The Project comprises two portions: (i) operation of gensets and maintenance of generator sets, and (ii) installation of solar photovoltaic system. [7] Prior to December 2018, P1 was the registered owner of 4,800,000 ordinary shares out of the 6,000,000 ordinary shares that were issued and paid up in Jepak. [8] According to P1, payments to Jepak under the Project came to a halt after the 9.5.2018 General Election which saw a change in the government. At the same time, the award came under the scrutiny of the new government and he was being investigated by the Malaysia Anti-Corruption Commission (“MACC”). [9] To protect Jepak and ensure the continuity of the Project, P1 decided to transfer 2,100,000 of his shares in Jepak on 6.12.2018 to his wife, D2 and 2,700,000 shares to P2 to be held on trust for him; with these 2 individuals each signing a trust deed and power of attorney dated 6.12.2018 as well as a Shareholders’ Agreement dated 4.12.2018 pertaining to these shares. [10] It is not disputed that the Trust Deeds, the Powers of Attorney and the Shareholders Agreement, were not registered in the books of Jepak nor was it lodged at the Companies Commission of Malaysia (“CCM”). [11] MOE and/or GOM continued to refuse to make payment to Jepak for work done since January 2018 in respect of the Project. As a result, Jepak suffered from severe cash flow problems which affected its ability to carry out ongoing works in relation to the Project. S/N b0UndLqy6kqSvnGJ34cUvA [12] D1 is a private limited company incorporated under the laws of Malaysia. It belongs to a group of companies under the Qeos Group, which includes D1, Jepak, Qeos Energy Sdn Bhd, Qeos Pte Ltd, and the parent company Quantum Electro Opto Systems Sdn Bhd (“Quantum”) (collectively “Qeos Group”) of which shareholders include Plug & Play Technology Holdings Sdn Bhd, Continuum Capital Sdn Bhd and Innocorp Ventures Sdn Bhd which are government supported. Plug & Play Technology Holdings Sdn Bhd is a subsidiary for Kumpulan Modal Perdana whilst Innocorp Ventures Sdn Bhd is a subsidiary for Agensi Innovasi Malaysia. [13] D1 was initially intended to be appointed as a sub-contractor in the Project for the purposes of carrying out works related to the installation of solar panel systems under the PWD Contract. Jepak had on 30.10.2018 submitted its proposed appointment of D1 as its sub-contractor. The MOE did not respond to the proposal. [14] Arising from non payment from MOE and/or GOM since January 2018, and with legal claims being brought against Jepak, following discussions between P1 and Qeos Group’s Chief Execute Officer, Dr. Gabriel Walter, it was decided that D1 take over the Project which lead to a Cooperation Agreement dated 5.3.2019 (“the Cooperation Agreement") and a Cooperation Supplementary Agreement dated 6.3.2019 (“the Supplementary Agreement”), collectively the “said Agreements” entered into between D1, Jepak and D2 and P2 as registered shareholders of Jepak. S/N b0UndLqy6kqSvnGJ34cUvA [15]

15.1 P2 and D2 will transfer the entire shareholding in Jepak amounting to 6,000,000 share to D1;

15.2 D1 would take over the responsibility of procuring Jepak to settle all audited and declared liabilities and debts existing or due by Jepak until payment is made by MOE and/or GOM as at 31.12019; contribute its technical expertise, experience, knowledge and technology towards performing the Project;

15.3 all businesses of Jepak not related to the Project would be transferred or novated to a ‘Newco’, SAIZ Quantum Engineering Pte Ltd (“SQE”), or any other company or companies as decided by SQE;

15.4 Payment received from MOE would be used to pay off the existing audited debts and liabilities of Jepak, and distributed between D1 and SQE in the agreed proportions;

15.5 a Contingency Fund (“Fund”) is to be set up to finance the ongoing operations of Jepak and facilitate the restructuring of the Jepak’s businesses until payment is received under the Project or the Project is terminated. S/N b0UndLqy6kqSvnGJ34cUvA [16] The Supplementary Agreement governed the operation of the

16.1 Jepak shall set up a bank account which shall be jointly operated by two signatories to be agreed upon by D1,

16.2 D1 is to deposit RM500,000.00 into the said bank account and shall deposit such sums as reasonably required under the Supplementary Agreement;

16.3 The Fund was to be utilised for the purpose of:

16.3.1 making payments to suppliers, creditors for the daily operations of Jepak,

16.3.2 to pay the salaries of Jepak employees; and

16.3.3 to facilitate the restructuring of the business of Jepak including the novation and transfer of businesses unrelated to the Project to SQE or to any other company or companies as decided by SQE including working capital, costs of incorporation, costs of employing staff, costs of purchasing equipment and machinery, costs of engaging professional services, costs of implementing the novation and transfer of businesses, costs of sustaining such novated and transferred businesses, and any other costs related to the restructuring; S/N b0UndLqy6kqSvnGJ34cUvA

16.4 the Fund will not be needed when:

16.4.1 the first payment is received in 2019 under the

16.4.2 the Project is terminated; or

16.4.3 the Cooperation Agreement is terminated. [17] By Letter dated 2.10.2019, MOE terminated the Project for reasons:

17.1 Jepak had failed to proceed regularly and diligently with the performance of its obligations under the contract;

17.2 Jepak had failed to execute the works in accordance with the contract; and

17.3 Jepak had failed to comply with any terms and conditions of the contract. [18] Jepak under D1’s directions, then brought a suit against MOE and GOM for unlawful termination of the PWD Contract in the High Court in Sabah & Sarawak at Kuching Suit No: KCH-22NCvC-62/10- 2019 (HC2) (“MOE Suit”) on 29.10.2019. The MOE Suit trial is presently ongoing. [19] One day after MOE’s termination of the Project, Messrs Mahathir purportedly acting for P2 and D2 issued a notice dated S/N b0UndLqy6kqSvnGJ34cUvA

3.10.2019 to D1 to terminate the said Agreements on the grounds that D1 had breached the said Agreements. [20] On 18.9.2020, the Plaintiffs commenced this action against D1 and D2 on the ground that D1 had allegedly breached the said Agreements. The Statement of Claim was subsequently amended to include Jepak as a Defendant. Parties’ contentions [21] The Plaintiffs in essence contended that:

21.1 Pursuant to the Powers of Attorney, Shareholders Agreements and Trust Deeds, P2 and D2 are Trustees holding 4,800,000.00 Jepak shares for the benefit of P1; P1 is the beneficial owner of the 4,800,000 Jepak shares;

21.2 The shares were transferred to D1 pursuant to the said Agreements which were created for the sole purpose of the Project contract’s continued execution and completion;

21.3 After the Project was terminated by MOE and/or GOM on 2.10.2019, P1 acting on behalf of P2 and D2 have validly terminated the said Agreements:

21.3.1 the substratum of the said Agreements was lost and rendered impossible to perform and void pursuant to s. 57(2) of the Contracts Act 1950; S/N b0UndLqy6kqSvnGJ34cUvA

21.3.2 due to the non-payment and/or insufficient payments by D1 under the said Agreements by:

21.3.2.1 failing to set up the Fund account as required by Clause 2.1 of the

21.3.2.2 failing to pay the RM 500,000.00 within 21 days of the agreement pursuant to Clause 2.2 of the

21.3.2.3 failing to pay the monthly sum of RM 500,000.00 as provided in Clause 3.2 of the Supplementary Agreement;

21.4 Following termination of the Agreements, Plaintiffs have demanded the return of the shares but D1 had refused to return the said shares; and

21.5 D1 is a constructive trustee of the shares in Jepak in favour of P1; the Plaintiffs are entitled to trace the shares in Jepak to D1 as D1 did not pay for the shares and was not a bona fide purchaser for value and cited Tay Choo S/N b0UndLqy6kqSvnGJ34cUvA Foo v Tengku Mohd Saad Tengku Mansur & Ors and Another Appeal [2009] 2 CLJ 363 CA and Takako Sakao v Ng Pek Yuen & Anor [2010] 1 CLJ 381 FC. [22] In essence, the Defendants’ contended that:

22.1 D1 do not admit the Trust Deeds and/or the appointments of attorney are authentic and lawful; had no knowledge of the Powers of Attorney, Shareholders Agreements and Trust Deeds when it signed the said Agreements and only knew about the existence of the trust when they were first referred to in the statement of claim herein; Had D1 known or was made aware of the alleged trust over the Jepak’s shares or the immoral intentions of P1, D1 would never have agreed to sign the said Agreements and incur such considerable expenses and expenditures on behalf of Jepak;

22.2 D1 asserts there is no breach of the alleged trusts by P2 or D2 and D1 is not a constructive trustee for the said shares as there is no element of unconscionability to justify the existence of the constructive trust:

22.2.1 the trusts created to transfer the shares of Jepak to P2 and D2 while allowing P1 to retain control are illegal, immoral unenforceable and void. The trusts were created by P1 with improper and illegal purposes, and with unclean motives inter alia to deceive the authorities including MOE S/N b0UndLqy6kqSvnGJ34cUvA and/or GOM and to conceal D1’s acts of bribery involved in the award of the PWD Contract and/or the Project to Jepak and to avoid the PWD Contract from being invalidated as a result of the corruption investigations; P1 has admitted his involvement in the bribery charges which resulted in the criminal prosecution of Datin Seri

22.2.2 Recital A of the Cooperation Agreement states that P2 and D2 are the legal and beneficial owners of total issued share capital of 6,000,000 ordinary shares in Jepak; Clause 11 of the Cooperation Agreement and Clause 5 of the Supplementary Agreement which contain similar terms provide that parties are not to assign or novate any of its rights and obligations to any third party without the prior written consent of each other; P1 had approved of the terms of the said Agreements, consented to and authorised the entry by P2 and D2 into the said Agreements on the terms as set out therein as admitted by D1 in paragraph 39 of the SOC; as such the Plaintiffs particularly P1 are therefore estopped from relying on the existence of the alleged trusts or invoking the alleged trusts against D1; S/N b0UndLqy6kqSvnGJ34cUvA

22.2.3 any beneficial rights allegedly owned by P1 over the shares in Jepak were extinguished when the shares were transferred by P2 and D2 to D1

22.2.4 D1 is an innocent bona fide third party without notice of the trusts or P1’s interests under the alleged trusts, and has provided value and consideration in exchange for Jepak’s shares as set out in the said Agreements; D1 expended significant amounts of time and monies into continuing the Project, and keeping Jepak alive by maintaining the operations of Jepak, financed the novation and transfer out the businesses that are unrelated to the Project;

22.3 D1 never represented nor guaranteed that the Project would be uninterrupted by the difficulty in collecting payment from MOE and/or GOM, or that MOE and/or GOM would not terminate the Project:

22.3.1 the Cooperation Agreement contains terms in particular cluse 4 and 6 which anticipated non payment and even termination by MOE and/or GOM;

22.3.2 the said Agreements were not intended to be automatically terminated in the event of non-S/N b0UndLqy6kqSvnGJ34cUvA payment or termination of the PWD Contract by the MOE and/or GOM; Termination of the Project by GOM and/or MOE, does not mean that the substratum of the said Agreements are lost, or rendered impossible to perform or frustrated; the main purpose of the Cooperation Agreement is to regulate the relationship between P2, D1, D2 and Jepak with each other and thereafter to regulate their respective participation with regards to the Project, including its execution, proceeds therefrom, and even its termination. Its provisions and mechanisms therein are not dependent or conditional solely upon the subsistence of the Project and PWD Contract. The purpose of the Supplementary Agreement is to regulate the setting up of and management of the Fund which was provided for in Clause 9 of the Cooperation Agreement to finance the ongoing operations of Jepak and facilitate its restructuring including the novation of businesses unrelated to the Project. As D1 has carried out its obligations under the Supplementary Agreement to finance the ongoing operations of Jepak and the novation of the business unrelated to the Project, it cannot therefore be claimed that the substratum of the Supplementary Agreement has been lost; S/N b0UndLqy6kqSvnGJ34cUvA

22.3.3 The termination of the Project and the PWD Contract with MOE and/or GOM was based on and caused by the actions of Jepak before the said Agreements were signed and before Jepak’s shares and control were transferred to D1 as made evident from the Minutes of Meeting of the “Contract Coordination Panel” (“CCP”) of MOE dated 12 July 2018 and 26 November 2018, when MOE, 1 year before the official termination had planned to terminate the

22.3.4 P2 himself had signed letters issued by Jepak including a letter dated 8 August 2019 and letter dated 29 August 2019 replying the letters of GOM and/or MOE denying any breach by Jepak of the PWD Contract, and as such P2 is estopped from stating otherwise;

22.3.5 Jepak in the MOE Suit is claiming for a declaration that the termination of the PWD Contract is unlawful, and alternatively for specific performance that Jepak be allowed to continue with the Project in accordance with the

22.4 D1 denies that it had breached either the Cooperation Agreement or the Supplementary Agreement: S/N b0UndLqy6kqSvnGJ34cUvA

22.4.1 Clause 2.1 of the Cooperation Agreement provides that the Cooperation Agreement is conditional on, inter alia, D1 being given full and complete control and ownership of Jepak and its shares; but the shares in Jepak were only transferred to D1 on 8.5. 2019, meaning the Agreements only became enforceable on 8.5.2019;

22.4.2 since the PWD Contract and/or the Project was terminated on 2.10.2019, D1 is only obliged to pay 5 months’ from 8.5.2019 towards the ‘Fund’, i.e. RM500,000 x 5 = RM2.5 million but D1 had already paid at least RM3.279 million so far, which is far more than the RM 2.5 million that is required or agreed between the parties was estimated as being reasonable for the purposes of novating other business of Jepak that were unrelated to the Project to SQE, and Jepak’s operations and on behalf of Jepak for its expenses (including employees’ salaries, electricity bills, vehicle rental/loan repayments, internet bills, office rentals, etc);

22.4.3 no payments were ever made to the ‘Fund’ because the proposed ‘Fund’ was never set up by P1 or P2 due to complications which P1 and/or P2 alleged they encountered by their company, SQE, which was incorporated in S/N b0UndLqy6kqSvnGJ34cUvA Singapore, in opening a bank account in Singapore for their company, SQE; instead, P1 asked for payments to be made personally to his bank account due to urgent need of funds even though he was not a party to the said Agreements; and as such payments were not being made in accordance with the terms set out in the Supplementary Agreement, D1 was reluctant to continue making such payments personally to P1, and therefore requested that payments instead be made to companies. It was pursuant to this request that P1 instructed that the payments be made instead to Trace Tag Sdn Bhd and Right Master Sdn Bhd; additionally, P1 has to show that the monies received by P1, Right Master Sdn Bhd and Trace Tag Sdn Bhd were properly applied for the purposes set out in the said Agreements and has no right to claim that insufficient monies were paid to him if he has not applied the monies received in accordance with the said Agreements; if there was any delay in making payments to the Fund, it was because of concerns by D1 that the monies would be used for illegal purposes or with illegal intention, particularly because P1 was involved in bribery acts and/or case with Datin Seri Rosmah Mansor. This concern also arose from messages received from P2 that P1 urgently S/N b0UndLqy6kqSvnGJ34cUvA required monies to avoid being arrested and/or jailed;

22.4.4 Further, Clause 7.3 of the Cooperation Agreement provides that any expenses, costs and/or payments whatsoever made arising from any financial liability due by Jepak prior to any payments being received from GOM, insurer or any factoring service provider with regards to the Project may be deducted from the Distribution to the Newco as D1 deems fit; as such D1 is entitled to set off all expenses incurred with respect to Jepak and the Project against any sums owing under the Cooperation

22.5 the said Agreements are not validly terminated:

22.5.1 D1 never received the notice of termination dated 3 October 2019;

22.5.2 there was non-compliance of Clause 13.2 of the Cooperation Agreement as D1 was not given reasonable opportunity to rectify any alleged default by D1 under the

22.5.3 There is no provision for termination in the Supplementary Agreement which instead only provides for cessation of the Fund if the Project S/N b0UndLqy6kqSvnGJ34cUvA is terminated;

22.5.4 The Trust Deeds and Powers of Attorney are not lawful and further D2 did not instruct Messrs Mahathir to issue the notice of termination dated 3.10.2019;

22.6 even if there are grounds to terminate the said Agreements (which is denied) for loss of substratum, frustration or impossibility to perform, the Plaintiffs are not entitled to a recovery of the shares in Jepak as:

22.6.1 there was no total failure of consideration by D1 in view of D1’s performance of the said Agreements including performing or causing Jepak to perform its obligations under the PWD

22.6.2 There is no provision which requires the return of the shares in Jepak to P2 or D2 in the event the Cooperation Agreement is terminated. Clause 13.2 of the Cooperation Agreement only requires D1 to return all of P2 and D2’s documents which are already in D1’s possession;

22.6.3 P1, P2 and/or D2 have been unjustly enriched by all the efforts and monies of D1 which were invested into Jepak, the Project, the PWD S/N b0UndLqy6kqSvnGJ34cUvA Contract and the recovery of amounts due under the PWD Contract, as well as the financial assistance to restructure Jepak’s other businesses for P1, D2 and their family;

22.7 D1 contends that P1 is not credible. Before D1 was invited to work on the Project. P1 had offered other parties to work together on the Project which have all failed. Such parties included TNB Repair and Maintenance Sdn Bhd, Optimal Power Solutions Sdn Bhd and Applied Energy Solutions Sdn Bhd, andBuiltamont International Sdn Bhd where there were allegations made including that P1 had received commitment fees, but ultimately reneged on his promises. The pattern appears similar with the instant action wherein P1 and his family having obtained all the benefits under the said Agreements, now intend to terminate the said Agreements. D1 also contends that P2, as the representative or nominee of P1, is not credible - he himself had signed letters issued by Jepak to MOE denying any breach of the PWD when he was still a shareholder and/or director of Jepak. D3 [23] D3 contends that:

23.1 there are no documents registered in the books of Jepak nor lodged at the CCM to show that:

23.1.1 P1 is the beneficial owner of 4,800,000 shares S/N b0UndLqy6kqSvnGJ34cUvA in Jepak;

23.1.2 that P2 and D2 are trustees of 2,700,000 and 2,100,000 shares respectively in Jepak;

23.2 Jepak’s records show that D2 and P2 are respectively the registered owners of 3,300,000 and 2,700,000 shares in Jepak as at date of transfer to D1 on 8.5.2019;

23.3 In submissions post trial, Jepak argued that the Trust Deeds, Powers of Attorney and Shareholders’ Agreement were not registered in the books of Jepak nor was it lodged at the Companies Commission of Malaysia for the sole reason that P1 wanted to conceal from GOM and MOE his interest in Jepak.

23.4 the reason for non payment for work done on the Project is due to reasons appearing from the Minutes of Meeting of the “Contract Coordination Panel” (“CCP”) of MOE dated 12 July 2018 and 26 November 2018 which amongst others state:

12.7.2018 minutes

23.4.1 as at May 2018, the scheduled works progress was 50%, but the actual progress was only 18% with a 32% delay;

23.4.2 there were problems with the Project including: S/N b0UndLqy6kqSvnGJ34cUvA

unnotified and un-approved appointment of sub-contractors by Jepak;

(ii) weak progress of works, and unnotified and unapproved amendment to the contractual document for the Project with regards to the date of possession for the site for solar PV hybrid installation;

(iii) frequent changes in the appointment of the construction consultants (Civil & Structure and Mechanical & Engineering) which caused the concept designs to be amended frequently and resulted in the failure to finalise the construction drawings;

23.4.3 the meeting concluded by deciding that:

the Project be terminated after all outstanding payments have been made to Jepak, subject to a written response from the Ministry of Finance regarding rate of payment which can be implemented;

(ii) JPN Sarawak be allowed to implement an interim solution by supplying diesel to the schools whose electricity connection were interrupted via the appointment of an alternative supplier. S/N b0UndLqy6kqSvnGJ34cUvA Minutes dated 26.11.2018

23.4.4 as at August 2018, the scheduled progress for works should be 61.5%, but the actual progress was only 24% with a delay of 37.5%;

23.4.5 it was recommended that the Project be terminated based on default by Jepak in failing to execute the works in accordance with the contract terms, failing to proceed regularly and diligently with the performance of Jepak’s obligations under the contract, failing to obtain the prior written consent of the Ministry of Education to subcontract works and/or termination on grounds of national interest;

23.4.6 the meeting concluded by deciding as follows:

a second termination notice be issued;

(ii) no meetings be convened with the contractor, i.e. Jepak;

(iii) suspension of all approvals of designs and components;

(iv) suspension of interim payments no. 13, 14 and 15 due to the issue of falsified signatures by principals. S/N b0UndLqy6kqSvnGJ34cUvA

23.5 the minutes show one year before actual termination and before D1 surfaced, MOE was planning to terminate the Project;

23.6 there was no record in Jepak to show that D1 was made aware prior entering into the said Agreements that:

23.6.1 MOE was planning to terminate the Project due to Jepak’s delay in carrying out the works;

23.6.2 That MOE had issued a Notis Untuk Tujuan Penamatan pertama dated 12.10.2018; Analysis and Findings [24] Just before trial commenced, the parties agreed (due to the ongoing MOE Suit where Jepak is claiming for a declaration that the termination by MOE and/or GOM of the PWD Contract is unlawful, and alternatively for specific performance that Jepak be allowed to continue with the Project in accordance with the PWD Contract) (i) to drop the issue of non-performance of the MOE contract so is not to overreach matters tried in the Kuching High Court; (ii) that in the event the said Agreements are found to be terminated or frustrated due to loss of substratum, D1 shall not be precluded from claiming sums paid in accordance with or pursuant to the said Agreements and for such other remedies available - Pg 7 NOP enc 139. [25] I will deal with the issues agreed by the parties but not necessarily in the order as set out below by them: S/N b0UndLqy6kqSvnGJ34cUvA

25.1 Whether the First Defendant had been in breach of the Cooperation Agreement dated 05.03.2019 and the Cooperation Supplementary Agreement dated 06.03.2019 by virtue of their non-payment and/or insufficient payments to the Plaintiffs pursuant to the said agreements?

25.2 Whether at the point of termination of the Project by the Ministry of Education and/or Government of Malaysia vide letter dated 02.10.2019, the substratum of the Cooperation Agreement dated 05.03.2019 and Cooperation Supplementary Agreement dated 06.03.2019 is brought to an end?

25.3 If the answer to Q1 and Q2 is YES, whether the 1st Defendant is required to return their shareholding of the Third Defendant to the Second Plaintiff and Second Defendant respectively with interests intact?

25.4 Whether the First Defendant is holding the shares in the Third Defendant as a constructive trustee for the Second Plaintiff and Second Defendant upon termination of the Cooperation Agreement dated 05.03.2019 and the Cooperation Supplementary Agreement dated 06.03.2019?

25.5 Whether the right to terminate the Cooperation Agreement and the Supplementary Agreement belongs only to the contracting parties, i.e. Zul (P2), Kathejah (D2), and QEOS (D1)? S/N b0UndLqy6kqSvnGJ34cUvA

25.6 Whether the procedure for termination of the Cooperation Agreement and the Supplementary Agreement was done legally in accordance with the terms therein?

25.7 Whether QEOS has performed its contractual bargain pursuant to the Cooperation Agreement and the Supplementary Agreement entitling it to the shares of Jepak or whether QEOS is merely a constructive trustee with respect to the shares?

25.8 Whether the Trust Deeds and Powers of Attorney were created and set up by Saidi for illegal and/or immoral purposes?

25.9 If the answer to Q8 is YES, whether Saidi is entitled to invoke equitable remedies including for declaration for the return of the Shares?

25.10 Whether in the event this Honourable Court finds that the Plaintiffs, particularly Saidi, are entitled to the return of the shares in Jepak, Qeos should be reinstated to the position or compensated for all liabilities, losses, expenses, and costs (including legal costs) incurred and paid by Qeos with respect to Jepak including for the restructuring and novation of Saidi and Kathejah’s businesses from Jepak, the continued implementation of the Project, the sustenance of Jepak’s operations, the loss by the investors and business partners of Qeos S/N b0UndLqy6kqSvnGJ34cUvA and/or Jepak, the recovery of claims on behalf of Jepak against the GOM and/or MOE, as well as the defence against claims against Jepak by its creditors? Whether the First Defendant had been in breach of the Cooperation Agreement dated 05.03.2019 and the Cooperation Supplementary Agreement dated 06.03.2019 by virtue of their non-payment and/or insufficient payments to the Plaintiffs pursuant to the said agreements? [26] Answering this question involves a construction of the salient terms of the said Agreements as to the exact obligations of the parties before a breach can be asserted. [27] In this regard, clause 9 of the Cooperation Agreement envisage the setting up of the Fund. The salient terms of the Supplementary Agreement provides: “2 SETTING UP OF THE FUND

2.1 The Parties agree that Jepak shall set up a bank account (“Fund Account”) under its name for the purposes of the Fund pursuant to the Cooperation Agreement. The Fund Account shall be jointly operated by two signatories to be agreed upon by the Parties.

2.2 Qeos agrees to deposit FIVE HUNDRED THOUSAND (RM500,000.00) into the Fund Account as soon as practicable after the execution of this Agreement and in any event not later than 21 days and shall deposit additional amounts where necessary under this Agreement

3.1 The Fund shall only be utilised for the following purposes, unless otherwise consented to by Qeos: S/N b0UndLqy6kqSvnGJ34cUvA

3.1.1 to make payments to suppliers and creditors where necessary for the daily operations of Jepak;

3.1.2 to pay the salaries of Jepak’s employees; and

3.1.3 to facilitate the restructuring of Jepak’s businesses whereby the businesses (and their respective contracts) other than the Project will be novated and transferred to SAIZ Quantum Engineering Pte Ltd (“SQE”) or to any other company or companies as decided by SQE, which will also involve the following: a) working capital; b) costs of incorporating SQE; c) costs of employing staff for SQE; d) costs of purchasing equipment and machinery of SQE; e) costs of engaging professional services including corporate secretaries, accountants and lawyers; f) costs of implementing the novation and transfer of business; g) costs of sustaining such novated and transferred businesses; h) costs of reimbursing Jepak’s investors for their loss of income in Jepak in the interim until payment is received from the Government; and i) any other costs related to the restructuring.

3.2 With regards to Clause 3.1.3, the Parties agree as follows:

3.2.1 that monthly sum of RINGGIT MALAYSIA FIVE HUNDRED THOUSAND (RM500,000.00) is reasonable to cover the expenses for the purposes of Clause 3.1.3; and

3.2.2 that said monthly sums are to be paid from the Fund S/N b0UndLqy6kqSvnGJ34cUvA Account to a bank account set up under the name of SQE.

4.1 The Parties agree that the Fund shall have served its purpose and shall no longer be needed in the following events:

4.1.1 the first payment being received with regards to the Project;

4.1.2 the Project is terminated; or

4.1.3 the Cooperation Agreement is terminated. (collectively “Cessation Events”, individually “Cessation Event”).

4.2 Upon the occurrence of any Cessation Event:

4.2.1 QEOS shall no longer be required to make any deposit of monies into the Fund Account;

4.2.2 no further payment shall be made out of the Fund Account save with the prior written consent of QEOS. Failure to obtain QEOS’ consent shall render such payments void and unenforceable and the transferee of such monies shall hold such monies on trust for QEOS as a bare trustee pending their return to QEOS; and

4.2.3 any balance remaining in the Fund Account shall be utilised in such manner as agreed between the Parties. In the event no agreement is arrived at, such balance shall be returned to QEOS.” [28] An interpretation of these clauses make plain that the sum of RM500,000.00 was not mandatory, but instead considered a reasonable sum to meet the purposes set out in Clause 3.1; which is for expenses of Jepak as well as for the restructure of Jepak for novation and transfer of businesses out of Jepak whether to SQE or other companies decided by SQE. S/N b0UndLqy6kqSvnGJ34cUvA [29] I am of the respectful view that the Plaintiffs’ contention of failure by D1 to deposit the sum of RM500,000.00 within 21 days of Agreement and that the 21 days’ clock starts ticking from the date of the Agreement is untenable as there is a condition precedent in cl 2.1.1 of the Cooperation Agreement which provides for D1 to have full control and ownership of Jepak. As the Jepak shares were transferred only on 8.5.2019, in my view, 21 days should only start running on 8.5.2019 (the date of the shares transfer); that this date is to be used is not disputed by the Plaintiffs who themselves accepted that the 21 days’ requirement would commence after the transfer of the shares in Jepak, i.e. 8.5.2019 - 1 see Q&A 29 of WSPW1 and Q34 of WSPW

[30] D1 had made payment of the following funds: No. Date Amount Recipient 1 27.2.2019 RM30,000 Saidi 2 12.3.2019 RM200,000 Saidi 3 2.4.2019 RM270,000 Saidi 4 30.4.2019 RM9,000 Saidi 5 29.5.2019 RM2,750 Saidi 6 31.5.2019 RM50,000 Saidi 7 1.6.2019 RM250,000 Saidi 8 2.7.2019 RM100,000 Saidi 9 15.7.2019 RM30,000 Saidi 10 17.7.2019 RM70,000 Trace Tag International Sdn Bhd 11 2.8.2019 RM100,000 Right Master Sdn Bhd 12 17.8.2019 RM20,000 Right Master Sdn Bhd 13 20.8.2019 RM80,000 Right Master Sdn Bhd 14 25.8.2019 RM20,228 Right Master Sdn Bhd 15 19.9.2019 RM50,000 Right Master Sdn Bhd Total RM1,281,978.00 [31] Both P1 in Q&A 35 of WSPW4 and P2 in Q&A Q30 of WSPW1 admitted that a total sum of RM1,281,978.00 was paid to P1, Trace Tag International Sdn Bhd and Right Master Sdn Bhd; these monies S/N b0UndLqy6kqSvnGJ34cUvA were received on behalf of SQE, which was to be set up to which all businesses and assets unrelated to Jepak would be transferred or novated. From the above table, since P1 had by 2.4.2019 already received RM500,000.00, D1 had as such complied with the 21 days’ requirement to deposit the sum of RM500,000.00. [32] The transfer of assets and properties to be transferred out of Jepak to P1 and/or his family as set out in the Schedule to the Cooperation Transition Agreement dated 2.9.2019 made between D1, Jepak (signed by Zul), D2 and Dayang Casandra (P1 and D2’s daughter) were completed including:

32.1 Sublot 71, Lot 7668, Bintulu Sentral Phase 2;

32.2 Agriexpert Management Sdn Bhd;

32.3 Matadaw Power Solution Sdn Bhd;

32.4 Right Master Sdn Bhd;

32.5 Nanocarb Technology Sdn Bhd; and

32.6 transfer of selected employees to DDEL Travel & Services Sdn Bhd on the transferred businesses. [33] I accept D1’s arguments and fail to see how D1 had breached its obligations to make payment as:

33.1 There was no evidence that the RM1,281,978.00 was used by P1 for the purposes set out in the Supplementary Agreement or for the benefit of the novation and transferred businesses; S/N b0UndLqy6kqSvnGJ34cUvA

33.2 SQE did not rent any office in Singapore or hire any employees from Singapore;

33.3 There were no complaints of default or lack of funds for working capital was ever made by P1, P2 or D2;

33.4 The novation and transfer of businesses were all successfully transferred and there were no complaints regarding the novation and transfer of businesses;

33.5 The costs of implementing the novation and transfer of assets and businesses listed in the Cooperation Transition Agreement to restructure Jepak as set out in Clause 3.1.3 of the Supplementary Agreement was funded entirely by D1;

33.6 The Fund account was not set up due to P1 insisting on managing the funds as stated in DW3’s Q&A40 of WSDW3 (Enclosure 133) was not challenged in cross-examination; and

33.7 The SQE account was never set up by the Plaintiffs (who are the shareholders and directors of SQE). [34] Further the Plaintiffs did not give up control of the board of directors of Jepak until 25.7.2019. In any case, as control over the bank accounts of Jepak was only given to D1 after the signing of the Cooperation Transition Agreement, there was no delay in setting up the Fund. It is to noted that 2.9.2019 was just a month before MOE S/N b0UndLqy6kqSvnGJ34cUvA terminated the Project. AS provided in the Supplementary Agreement, there was no need of the Fund after the Project was terminated. Taking the Plaintiffs’ case to the highest, even if the date of share transfer is taken, which is 8.5.2019, a sum of RM500,000 to be paid a month from May 2019 to MOE’s termination letter of 2.10.2019 is 5 months; making a total sum of RM2.5m to be paid by D1. D1 paid the sum of RM4,397,329.96 which far exceeded the RM2.5 m as shown by the supporting documents for the costs expended by D1 found in CBD 10 to CBD 16 (Enclosure 96 to Enclosure 102). [35] That it was not D1’s fault that the SQE’s bank account were not set up was admitted by P2 during cross-examination: NOP page 12 of Enc.141 41 “DZS Now, I put to you that the failure to open this bank account was not because of QEOS, do you agree? Kegagalan untuk bukakan akaun oleh SQE bukan disebabkan oleh QEOS, setuju atau tidak? ZUL I agree.” [36] Having weighed the evidence, I find it inherently probable that D1 had to make payment directly instead of through the Fund Account because the SQE account was never set up; that there was urgency so to do to keep Jepak and the Project alive at the time. [37] The complaint that it was the Defendants’ fault for not opening the Fund account, for not getting the Plaintiffs’ approval for payment, and that this was calculated to deprive the Plaintiffs of any say and to S/N b0UndLqy6kqSvnGJ34cUvA shut them out from Jepak is untenable as these were not put to the Defendants’ witnesses. [38] With respect, based on evidence adduced, I find D1 has complied with its obligations under the Cooperation Agreement to fund the operations of Jepak and the Project, as well as the novation and transfer of the other businesses of Jepak to the entities of P1 and his family. [39] Reading the said Agreements as a whole, I agree with D1 and D2’s counsel and reiterate my finding that the RM500,000.00 is not a strict amount to be paid monthly but instead a sum which was considered reasonable and can be adjusted depending on whether the purpose of the Fund has been met. As alluded earlier, that P1 or his companies has received RM1.2 million cannot be disputed; P1 did not establish at all that the money have been utilized for the purposes set out in the Supplementary Agreement. [40] I am inclined to agree with the Defendants that in truth, P1 benefitted as his other businesses divested from Jepak became risk free from the ramifications of the Project’s performance and demands from creditors. [41] The Answer is a NO - I do not find any breach by D1 regarding the payment of funds pursuant to the Cooperation Agreement and Supplementary Agreement. Even If I am wrong, the said Agreements as discussed hereafter were not properly terminated for alleged breach. S/N b0UndLqy6kqSvnGJ34cUvA Whether at the point of termination of the Project by the Ministry of Education and/or Government of Malaysia vide letter dated 02.10.2019, the substratum of the Cooperation Agreement dated 05.03.2019 and Cooperation Supplementary Agreement dated 06.03.2019 is brought to an end? [42] So as not to overreach into the MOE suit and avoid multiplicity of proceedings, the Plaintiffs have by amendments to the SOC withdrawn their claim that D1 had failed to contribute sufficient technical expertise, experience, knowledge and/or technology towards the Project, resulting in warning notices by the Government and/or MOE. [43] The Plaintiffs’ position as such is that the Cooperation Agreement and Supplementary Agreement ought to be terminated in view of the termination of the Project regardless of fault or breach, i.e. that the Cooperation Agreement and Supplementary Agreement can no longer be performed and are frustrated. [44] Following the expositions by Gopal Sri Ram JCA (as he then was) on the ambit of s. 57 of the Contracts Act 1950 in Guan Aik Moh (KL) Sdn Bhd & Anor v Selangor Properties Bhd [2007] 4 MLJ 201 (CA) at [7] and cited with approval by the FC in Pacific Forest Industries Sdn Bhd & Anor v Lin Wen-Chih & Anor [2009] 6 MLJ 293, for frustration to apply, Plaintiffs will have to prove:

44.1 the termination of the Project was not anticipated or provided for in the agreements;

44.2 the Plaintiffs were not responsible for the termination of the Project; S/N b0UndLqy6kqSvnGJ34cUvA

44.3 the termination of the Project renders the agreements radically different from what was undertaken thereunder, such that this court finds it practically unjust to enforce the original promise between the parties. [45] It behoves the court then to consider the purpose of the said Agreements and what terms were employed. In this regard,

45.1 the main purpose of the Cooperation Agreement is to regulate the relationship between P2, D1, D2 and Jepak inter se each other and regulate their respective participation in relation to the Project, including its execution, distribution of proceeds and termination. These provisions I find do not depend solely upon the subsistence of the Project; D1 is to take over Jepak and, implement the Project and restructuring of businesses unrelated to the Project;

45.2 the purpose of the Supplementary Agreement on the other hand is to regulate the setting up of and management of the Fund provided in Clause 9 of the Cooperation Agreement, in order to finance the operations of Jepak and the restructuring of businesses unrelated to the Project. [46] For the 1st element for frustration to apply that the termination of the Project was not anticipated or provided for in the agreements, firstly, termination of the Project whether lawful or otherwise is now fought out in the MOE Suit at the Kuching High Court; second, the S/N b0UndLqy6kqSvnGJ34cUvA possibility of termination of the Project was already anticipated by the Parties and provided for in the Cooperation Agreement and the Supplementary Agreement which express a clear intention that the said Agreements are to survive the termination of the Project:

46.1 Clause 6.3 of the Cooperation Agreement provides that payment received from the Project would be distributed to D1 after Clauses 6.1 and 6.2 are fulfilled, and Clause 6.2 itself takes into account the termination of the

46.2 Clause 4.2 of the Supplementary Agreement governs the obligations of the parties therein upon the occurrence of a cessation event which includes the termination of the Project and termination of the

46.3 there continue to exist obligations to be carried out after the Project has been terminated, including that no further payment is to be made from the Fund without the prior written consent of D1 as acknowledged by P1 in cross examination: pg. 71 NOP Enc 142: “DZS It says here, “No further payment shall be made out of fund account, save the prior written consent of QEOS.” I put to you after the project is terminated, there is a restriction, terdapat halangan atas Mdm Siti dan En Zul supaya mereka tidak dibenarkan untuk membuat bayaran S/N b0UndLqy6kqSvnGJ34cUvA jika tidak mendapatkan kebenaran QEOS dulu. Setuju atau tidak? SAIDI Setuju. Follow the agreement.” pg. 72 NOP Enc 142: “DZS I refer back to the signing parties, this Jepak Holdings. Mdm Siti, Zul Azman and QEOS. Now, I put to you that after the termination of the project, there are still some obligations which QEOS, Zul, Mdm Siti and Jepak need to comply with. You agree or disagree? SAIDI Yes, I agree. Thank you. Can I next refer you to your Question 34 of your witness statement? SAIDI Ok. Yes.” Sorry, could you refer back to Question 33? I missed the question. My apologies. SAIDI Ok. Yes,So, I earlier brought you through the agreement. So, now, I am putting to you that at the point of the, at the date of the agreements, there was always a possibility that the project would be terminated. You agree or disagree? SAIDI You repeat, please. Saya mencadangkan semasa perjanjian-perjanjian ditandatangani, memangnya terdapat jangkaan dan risiko dalam pengetahuan semua pihap-pihak bahawa projek akan ditamatkan oleh Kerajaan. Setuju atau tidak? SAIDI That I am not sure. S/N b0UndLqy6kqSvnGJ34cUvA [47] The 2nd element, that the Plaintiffs were not responsible for the termination of the Project is not present as there is overwhelming evidence from the minutes of meeting prepared by the Contract Coordination Panel of the MOE dated 12.7.2018 and 26.11.2018 that MOE had already decided to terminate the Project even before the Cooperation Agreement and Supplementary Agreement were signed. [48] As for the 3rd element, that the termination of the Project renders the said Agreements radically different from what was undertaken thereunder, such that this Court finds it practically unjust to enforce the original promise between the parties, this element absent as D1 had performed the obligations due to be performed by it under the said Agreements, which is to finance the ongoing operations of Jepak and novation of the businesses. [49] Taking into account that D1’s obligation has already been performed, the Plaintiffs cannot claim that the Agreements are frustrated or rendered impossible to perform; in this regard, there is also the ongoing Kuching HC trial of the MOE suit where whether termination by MOE is lawful is being contested and to be adjudicated. I find all 3 elements for frustration are not present. I can do no better than quote the words of Sri Ram JCA: “If any of these elements are not present on the facts of a given case, then s 57 does not bite” [50] The answer to the 2nd question is a resounding NO! S/N b0UndLqy6kqSvnGJ34cUvA If the answer to Q1 and Q2 is YES, whether the 1st Defendant is required to return their shareholding of the Third Defendant to the Second Plaintiff and Second Defendant respectively with interests intact? [51] As the first 2 questions are answered in the negative, this issue does not arise. If I am wrong, to answer the 3rd question, it is necessary to look at clause 13 of the Cooperation Agreement which states: “DEFAULT

13.1 Shareholders’ Default If any of the Shareholders shall default in carrying out its obligations with the terms of this Agreement, QEOS shall give them reasonable opportunity to rectify such default. Should the Shareholders or any of them be unable to rectify the default(s), QEOS shall be entitled to the remedies of specific performance of this Agreement or damages.

13.2 QEOS’ Default If QEOS shall default in performing its obligations in accordance with the terms of this Agreement, QEOS shall be given reasonable opportunity to rectify such default(s). Should QEOS be unable to rectify such default(s), the Shareholders shall be entitled to terminate this Agreement whereupon QEOS shall forthwith return all of the Shareholders’ documents which are already in QEOS’ possession with the Shareholders’ interests intact. Thereafter, this Agreement shall be deemed null and void and have no further effect and neither Party hereto shall have any claims against the other.” [52] The question of D1 defaulting does not arise on the facts here; The Letter of termination (at Pages 3523 to 3526 (PDF pages 24 to 27) of CBD 17 Enc. 103 is premised on D1’s fault in breaching the Cooperation Agreement by failing to contribute its knowledge and S/N b0UndLqy6kqSvnGJ34cUvA expertise to complete the Project and to set up the Fund as a result of which MOE has terminated the Project has been shown to be without merits:

52.1 whether MOE has lawfully terminated the Contract was disputed firstly by P2 himself in his 2 letters dated 29.8.2019 and 21.10.2019 to MOE; the 2nd letter was in response to MOE’s termination letter of 2.10.2019 and yet the very next day, on 3.10.2019, the letter of termination of the said Agreements was caused by P1 to be issued by Messrs Mahathir;

52.2 This inconsistent position taken by the Plaintiffs amounts to reprobating and approbating the termination of the project by MOE and fits precisely into what Scrutton LJ said in Verschures Creameries v Hull & Netherlands Steampship Co Ltd [1921] 2 KB 608: “A person cannot say at one time that a transaction is valid and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, and then turn round and say it is void for the purpose of securing some other advantage. That is to approbate and reprobate the transaction.” [53] From the evidence adduced before the court, it could not be said that D1 had completely failed in performing its side of the bargain. In my view, the Plaintiffs have not acted reasonably and in good faith in issuing the letter of termination. As such, it was not open to the Plaintiffs to put an end to the said Agreements and seek a return of the shares from D1. S/N b0UndLqy6kqSvnGJ34cUvA [54] Even if I am wrong, a man cannot take advantage of his own wrong. Second, there is no fundamental breach by D1 that goes to the root of the contract entitlingP2 and D2 to the shares back. In the words of Lord Upjohn in Hongkong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha Ltd [1962] 2 QB 26: “the question to be answered is, does the breach of the stipulation go so much to the root of the contract that it makes further commercial performance of the contract impossible, or in other words is the whole contract frustrated? If yea, the innocent party may treat the contract as at an end. If nay, his claim sounds in damages only.” [55] I have already found that the Plaintiffs cannot succeed on the facts of this case based on frustration or that the substratum is lost. But if I am wrong, clause 13.2 provides that “the Shareholders (i.e. Zul and Siti) shall be entitled to terminate this Agreement whereupon QEOS shall forthwith return all of the Shareholders’ documents which are already in QEOS’ possession with the Shareholders’ interests intact.” This clause does not entitle the Plaintiffs to a return of the shares in Jepak. Nothing is mentioned about return of the shares. [56] P1 at page 95 NOP enc 142 also agreed that if there is no breach by D1, the Cooperation Agreement cannot be terminated: “DZS Saya cadangkan kalau tidak ada kemungkiran oleh QEOS, 2 perjanjian-perjanjian tidak boleh ditamatkan. Setuju atau tidak? SAIDI Ya, setuju” [57] It bears repetition that whether MOE has lawfully terminated the Project is played out at the ongoing MOE Suit where in prayer a, S/N b0UndLqy6kqSvnGJ34cUvA paragraph 59 of the SOC in the MOE Suit, there is sought a declaration that the notice of termination issued by the Government of Malaysia/MOE is unlawful and that Jepak is entitled to continue to complete the Project. [58] I thus can be forgiven for agreeing with D1 and D2 that, “given that the MOE Suit is ongoing to-date, it is premature for the Plaintiffs to take the position that the Project has been terminated, whether unlawfully or lawfully”. The answer to this 3rd issue is a NO. The answer to the next few issues dealt with hereafter also bears on why the answer here is a “NO”. Whether the right to terminate the Cooperation Agreement and the Supplementary Agreement belongs only to the contracting parties, i.e. P2, D2, and D1? [59] The answer is in the affirmative as:

59.1 P1 is not a party to these 2 Agreements; there was no privity of contract between P2, D2, D1 and him. As such, only P2, D2, and D1 can enforce and/or rely on these 2 Agreements to exercise the right of termination, see Kepong Prospecting Ltd & Ors v Schmidt [1968] 1 MLJ 170 PC, Badiaddin bin Mohd Mahidin & Anor v Arab Malaysian Finance Bhd [1998] 1 MLJ 393 FC; Suwiri Sdn Bhd v Government of the State of Sabah [2008] 1 MLJ 743 FC. These Agreements cannot confer rights or impose obligations on P1; S/N b0UndLqy6kqSvnGJ34cUvA

59.2 The said Agreements were not in place when the trust deeds were entered into and therefore cannot be the subject matter of the Trust Deeds or Powers of Attorney;

59.3 Even if the Trust Deeds are valid, once the shares were transferred to D1, P1 has no beneficial interest in P2 and D2’s shares;

59.4 I reject P1’s reliance on the Powers of Attorney said to have been given by P2 and D2 to P1 as both Powers of Attorney dated 6.12.2018 were authenticated by one Satinder Singh Sandu, a Sarawak advocate which is not in compliance with s. 3(1) (b) Powers of Attorney Act

The Powers of Attorney were not registered with the High Court as required by s. 4 of the Powers of Attorney Act 1949 which reads: “4 Deposit of power of attorney

Except as hereinafter provided no instrument purporting to create a power of attorney shall, after the commencement of this Act, have any validity to create such power within Peninsular Malaysia until-

a true copy of the said instrument duly compared therewith and marked by the Senior Assistant Registrar with the words "true copy"; or

where the original instrument is deposited in the registry of the Supreme Court in Singapore, an office copy of such instrument, has been deposited in the office of a Senior Assistant Registrar. S/N b0UndLqy6kqSvnGJ34cUvA

59.5 Not only that, D2 did not authorize P1 to instruct Mesrs Mahathir to issue the letter of termination.

59.6 Additionally, under clause 11 of the Cooperation Agreement and clause 5 of the Supplementary Agreement, rights in the said Agreements are not assignable to P1 to enable him to purport to terminate the said Agreements. Whether the procedure for termination of the Cooperation Agreement and the Supplementary Agreement was done legally in accordance with the terms therein? [60] Clause 13.2 provides that if D1 “shall default in performing its obligations in accordance with the terms of this Agreement, QEOS shall be given reasonable opportunity to rectify such default(s)”. I find that the procedure in clause 13.2 of the Cooperation Agreement was not complied with. D1 was not given any opportunity to rectify any alleged default which makes their termination wrongful. [61] In SPM Membrane Switch Sdn Bhd v Kerajaan Negeri Selangor [2016] 1 MLJ 464, the Federal Court reversed the decision of the High Court and the Court of Appeal on the central issue on the interpretation of an agreement and held that the termination of the agreement therein was wrongful. The Federal Court not only held there must not only be a valid reason to terminate but communication of that reason to the other party to the agreement and emphasized compliance of the specific requirements of a termination clause, failing which a notice of termination would be defective. Zainun Ali, FCJ pronounced: S/N b0UndLqy6kqSvnGJ34cUvA [23] It is trite law that ‘if a party refuses to perform a contract (i.e. wishes to terminate), giving a wrong or inadequate reason or no reason at all, he may yet justify his refusal it there were at the time facts in existence which would have provided a good reason, even if he did not know of them at the time of his refusal’ (see Chitty on Contract (32nd Ed) E Peel (eds) at 24-014). The question of valid termination, therefore, turns upon whether or not there was in fact a valid reason at the time of termination and not on whether or not the terminating party (subjectively) knew or believed there to be one. …… [74] Under cl 9, the review procedure gives the opportunity for the respondent to review the appellant’s performance, but this is by no means unilateral as a matter of procedure. The terms of cl 9 make this clear. Clause 9.1 for instance, oblige the parties to agree upon the terms and conditions of the review prior to any review occurring. This is clearly meant to protect the interests of both parties, that is to say the interest of the respondent in ensuring that the unsatisfactory situation is remedied (whether by the appellant, or where there is discharge or termination, by its substitute), and the interest of the appellant in avoiding breach and termination of the contract. Arguably the purpose of this clause leans in favour of protecting the position of the appellant against wilful termination for one, and to provide an added layer of protection in that it is given the opportunity to ‘remedy the unsatisfactory situation’ in 30 days. It cannot be the case that the respondent is allowed to circumvent the purpose of cl 9 by invoking unilateral termination under cl 8.1(b) when cl 9.3 itself refers to cl 8.1(b) as a means of protecting the respondent’s interests. In this regard, cl 9.3 provides that if the state government finds the unsatisfactory situation is not remedied at the end of 30 days … the state government shall have the option of treating the unsatisfactory performance as an event of default which entitles the state government to terminate this agreement pursuant to cl 8.1(b) and accordingly the state government shall be entitled to all reliefs provided under cl 8.” S/N b0UndLqy6kqSvnGJ34cUvA [62] In Perbadanan Menteri Besar Kelantan v Syarikat Perusahaan Majubina Sdn Bhd [2016] 4 MLJ 570, the Court of Appeal also upheld the two-tier process for termination: “[15] In our view, it is quite clear from a reading of cl 51 that while the appellant has a right to determine the contract for any of the reasons or defaults set out in cll 51(a)(i)–(v), it is obliged to first of all, through the SO, issue a notice of default. The respondent is given 14 days to get its act together, to bring its work up to speed or deal with any of the other complaints identified by the appellant or SO. The object of such a notice is to warn the respondent of the possibility of drastic action of determination of contract. At the same time, it affords the respondent an opportunity to remedy the particular default complained of. Once such a notice has been issued, then the appellant is entitled to determine the employment of the respondent without further notice where the respondent either continues in the default or subsequently repeats the default. In view of the detrimental and sometimes referred to as the ‘draconian’ step as it serves to bring the contract to an end, there must also be strict compliance of cl 51. (Emphasis added.)” [63] In DC Contractor Sdn Bhd v Universiti Pertahanan Malaysia [2014] 11 MLJ 633, Mary Lim J (as she then was), held that ‘When interpreting and constructing termination clauses in particular, a strict approach ought to be adopted’: “[56] When interpreting and constructing termination clauses in particular, a strict approach ought to be adopted. This was the view expressed in Fajar Menyensing Sdn Bhd v Angsana Sdn Bhd [1998] 6 MLJ 80 which was discussed with approval by the Court of Appeal in

Pembinaan LCL Sdn Bhd v SK Styrofoam (M) Sdn Bhd [2007] 4 MLJ Although the court in Fajar Menyensing Sdn Bhd was discussing about the service of the notice of termination, I am of the view that this applies with equal force when dealing with the operation and application S/N b0UndLqy6kqSvnGJ34cUvA of the whole termination clause; and not merely an aspect of it. This case is no exception. The provisions of cl 51 ought to be given a strict interpretation since its application has decisive and far-reaching implications to the relationship and contractual obligations of the contracting parties. That impact includes ending relationships, and freeing parties from their respective obligations; or conferring on them certain rights following a proper right of termination, if there is such a right.” [64] In Malaysia termination clauses ought to be construed strictly was settled by the Federal Court in Catajaya Sdn Bhd v Shoppoint Sdn Bhd & Ors [2021] 2 MLJ 374 at [66]. On the facts of that case, it was held that of not only notice must be given to the party that breaches the terms but that the party is given an opportunity to rectify the breach. [65] In the instant case, as it was in SPM Membrane, Catajaya, and Perbadanan Menteri Besar Kelantan v Syarikat Perusahaan Majubina Sdn Bhd, it was strictly a matter of what the agreement provided. In the instant case, an objective approach to the construction of the Cooperation Agreement would produce the result that there was no freestanding right to terminate the agreement, except in accordance with the mechanism in clause 13.2. The prerequisite in clause 13.2 dictates D1 be given a reasonable opportunity to rectify the default. However, Messrs Mahathir’s letter purported to instantaneously terminate the Cooperation Agreement which is wrong. The Supplementary Agreement being supplemental to the Cooperation Agreement do not stand on its own and was also not properly terminated. The answer to this question is a NO. S/N b0UndLqy6kqSvnGJ34cUvA Whether the First Defendant is holding the shares in the Third Defendant as a constructive trustee for the Second Plaintiff and Second Defendant upon termination of the Cooperation Agreement dated 05.03.2019 and the Cooperation Supplementary Agreement dated 06.03.2019? Whether the Trust Deeds and Powers of Attorney were created and set up by Saidi for illegal and/or immoral purposes? Whether Saidi is entitled to invoke equitable remedies including for declaration for the return of the Shares? [66] Firstly, as alluded earlier, the Plaintiffs are not entitled to terminate the said Agreements and neither is the purported termination lawful for reasons already given. [67] As for whether D1 is holding the shares in Jepak as a constructive trustee for P2 and D2, it is necessary to consider what was stated in the Cooperation Agreement and the expositions on what a constructive trust is and whether it should be imposed in this case. [68] Looking at the plain and unambiguous language used in the Cooperation Agreement, D1 agreed to take over the Project by taking over the shares of Jepak, implement the Project and transfer out businesses unrelated to the Project. [69] Clause 2.1.1 expressly provides that D1 be given full and complete control and ownership of Jepak and its shares which involved all shares in Jepak to be transferred to D1. D1 did not get the shares for free - it had to take over liabilities and incur substantial expenditures, and time to take over the project as P1, P2 and D2 at the material time needed help to continue the technical works and S/N b0UndLqy6kqSvnGJ34cUvA financing of the Project and were unable to sustain the operations of Jepak and the Project. [70] The remedial device of a constructive trust is only employed against a party where it would be unconscionable to allow that party to keep property which they are not entitled to, in this case the Jepak shares to prevent their unjust enrichment. [71] The Federal Court explained the concept and application of a constructive trust in Perbadanan Kemajuan Pertanian Selangor v. JW Properties Sdn Bhd [2017] 8 CLJ 392 after a survey of the leading authorties on the subject such as Takako Sakao v. Ng Pek Yuen & Anor. [2010] 1 CLJ 381; [2009] 6 MLJ 751 (FC) and Tay Choo Foo v. Tengku Mohd Saad Tengku Mansur & Ors. And Another Appeal [2009] 2 CLJ 363; [2009] 1 MLJ 289 CA: "[58] From decided case authorities it has been established as a principle of law that constructive trust arises by operation of law whenever the circumstances are such that it would be unconscionable for the owner of the property (usually but not necessarily the legal owner) to assert his own beneficial interest in the property and deny the beneficial interest of another. (See the cases of (1) Takako Sakao v. Ng Pek Yuen & Anor. [2010] 1 CLJ 381; [2009] 6 MLJ 751 (FC) and (2) Vellasamy Pennusamy & Ors. v. Gurbachan Singh Bagawan Singh & Ors. [2012] 2 CLJ 712; [2010] 5 MLJ 437 (CA)). [59] It has also been held that a constructive trust is a trust which is imposed by equity in order to satisfy the demands of justice and good conscience without reference to any express or presumed intention of the parties. (See the case of Hassan Kadir & Ors. v. Mohamed Moidu Mohamed & Anor. [2011] 5 CLJ 136 (FC)). A S/N b0UndLqy6kqSvnGJ34cUvA constructive trust is a remedial device that is employed to prevent unjust enrichment. It has the effect of taking the title to the property from one person whose title unjustly enriches him, and transferring it to another who has been unjustly deprived of it. (See the case of Tay Choo Foo v. Tengku Mohd Saad Tengku Mansur & Ors. And Another Appeal [2009] 2 CLJ 363; [2009] 1 MLJ 289 CA)." (Emphasis added) [72] The following excerpt from Halsbury's cited in Tay Choo Foo v. Tengku Mohd Saad Tengku Mansur & Ors. And Another Appeal [2009] 2 CLJ 363 sums up the concept and application of constructive trusts: “[93] On constructive trusts, Halsbury’s Laws of England (4th Ed - Reissue) Vol 48 at pp 301–306 reads as follows: Nature of constructive trust. A constructive trust attaches by law to specific property which is neither expressly subject to any trusts nor subject to a resulting trust but which is held by a person in circumstances where it would be inequitable to allow him to assert full beneficial ownership of the property. Such a person will often hold other property in a fiduciary capacity and it will be by virtue of his ownership of or dealings with that fiduciary property that he acquired the specific property subject to the constructive trust. A stranger who receives property in circumstances where he has actual or constructive notice that it is trust property being transferred to him in breach of trust will, however, also be a constructive trustee of that property. A person who holds property on a constructive trust is a constructive trustee in respect of it. He cannot claim for himself any increase in value of the property or any profits earned by it. If he becomes bankrupt, the property is not available for his general creditors but for the beneficiaries in whose favour the constructive trust subsists." S/N b0UndLqy6kqSvnGJ34cUvA [73] In my respectful view, the ingredients of a constructive trust are not found on the facts of this case since there are no elements here to show that the Jepak shares are held by D1 in circumstances where it would be inequitable to allow D1 to keep the shares. [74] In attempting to paint D1 as having unjustly benefitted from clinging on to the shares, I find that:

74.1 there are no particulars pleaded on the alleged benefits received by D1 by virtue of holding the shares in Jepak, no evidence has been led on this point and the issue was never put to the Defendants’ witnesses in cross-examination; any benefit if at all, is indirect in the form of monies that may be recoverable by Jepak IF the MOE Suit is decided in favour of Jepak - a ‘pie in the sky’ at the moment;

74.2 Neither did the Plaintiffs plead that there was RM3m alleged to be in Jepak’s account. In fact DW3 provided in re-examination a rebuttal to P1’s assertion: NOP pg. 23 enc 144: “DZS It was put to you that Qeos had benefitted from the RM3,000,000 and that the monies were used by Qeos to pay the expenses of Jepak. Now, you disagreed that Qeos benefitted and you also stated that the monies were used by Jepak to pay the expenses of Jepak. Is there anything you want to say about these answers, Dr Gabriel? S/N b0UndLqy6kqSvnGJ34cUvA GABRIEL Yes, Qeos in Jepak, we are merely shareholders. We cannot 2 move money from two companies as though that it has no 3 accounting responsibility or audit responsibility. That money is Jepak, Jepak was operating the project, Jepak was the one under the contract, Jepak is run by its directors. So, Jepak had a liability of more than a RM100,000,000, it has to manage those liabilities. Qeos over time put in money into Jepak, we do not take money out of Jepak, we put money into Jepak. We pay for things on behalf of Jepak but of course it’s recorded as we saw in the accounts. So, we never transferred the money out of Jepak, you know, so this allegation of course, it shows a lack of understanding on accounting, proper accounting practices, you don’t just transfer money, you make payments so that you can withstand the audits.”

74.3 In fact, it was P1 who benefited. As stated earlier, he has collected in excess of RM1.2m, his other businesses were divested from Jepak and became become risk free from the ramifications of the Project’s performance and demands from creditors. [75] I find P1 did not come to court with clean hands. Amongst others, as he is seeking a declaration which is an equitable remedy, the trusts were never disclosed to D1. Both DW3 Gabriel and DW2 Ghazali testified that they were unaware of the trusts and the Powers of Attorney. P1 under cross examination was unsure if he did disclose the trusts. S/N b0UndLqy6kqSvnGJ34cUvA [76] There is also no evidence adduced at all to suggest that D1 had notice of the trust, and assisted in breach of trust. Nor is there a scintilla of evidence to suggest there was dishonest appropriation of the shares by D1. [77] Significantly, D1 was given the assurance and representation that the shares in Jepak were owned legally and beneficially by P2 and D2 and these shares are free from any encumbrances as stated in Recital A of the Cooperation Agreement. D1 had acted on the Cooperation Agreement where Recital A stated that D2 and P2 are the legal and beneficial owners of the shares. [78] Recitals may be taken into account in the interpretation of a contract — Luggage Distributors (M) Sdn Bhd v Tan Hor Teng @Tan Tien Chi & anor [1995] 1 MLJ 719 at p 747: “It is a cardinal rule in the interpretation of contracts that recitals may be taken into account as an aid to construction and this is all the more so where there is ambiguity in the document. Further, in an appropriate case, the court may construe a recital as carrying with it an obligation to carry into effect that which is recited.” [79] In my respectful view, the recital, in the circumstances of the present case, creates a right in the Defendants to treat what was stated as correct. The following cross-examination of D1 fortifies this view: NOP Enc 143 pg. FK En Saidi, I’m going to ask some other questions as well. I will try to be quick, En Saidi. En Saidi, when Siti and Zul signed the cooperation agreement, you had full knowledge of the terms and conditions in the agreement dan awak juga bersetuju. Betul? S/N b0UndLqy6kqSvnGJ34cUvA SAIDI Betul. [80] In any case, I find there was no breach of trust or dishonesty in the transfer of the shares as the intention to transfer the shares to D1 is also very apparent from the clear judicial admission made by P1 himself that he authorized P2 and D2 to enter into the Cooperation Agreement and Supplementary Agreement; see para 39 reAmended SOC, enc 129 which reads: [81] The term ‘judicial admission’ is explained in the case of Hu Chang Pee v Tan Sri Datuk Paduka (Dr) Ting Pek Khiing [1999] 3 MLJ 402, where Hasan JC, stated: “The learned authors in The Law of Evidence by Ratanlai and Dhirajlal (17 Ed, 1987) made the following comments relating to s 17 of the Evidence Act at p 53: Admissions may be oral or contained in documents, e.g., letter, depositions, affidavits, plaints, written statements, deeds, receipts, horoscopes. Admissions in pleadings are judicial admissions. They can be made the foundation of rights. (Emphasis added.) [82] In Yam Kong Seng & Anor v Yee Weng Kai [2014] 4 MLJ 478 (FC) at [16], Suriyadi Halim Omar FCJ reiterated that it is trite law that a judicial admission made in a pleading stands on a higher footing than evidentiary admission. S/N b0UndLqy6kqSvnGJ34cUvA [83] In light of the judicial admission that D1 authorized P2 and D2 to enter into the Cooperation Agreement where Recital A states these 2 persons are the legal and beneficial owners of the shares, with utmost respect, it is both cheeky and clutching at straws for P1 to now postulate that he is the beneficial owner. Estoppel also applies against both Plaintiffs as per the ratio in Boustead Trading (1985) Sdn Bhd v. Arab Malaysian Merchant Bank Bhd [1995] 3 MLJ 331, at p. 345 where the Federal Court held that: “When the parties to a transaction proceed on the basis of an underlying assumption — either of fact or of law — whether due to misrepresentation or mistake makes no difference — on which they have conducted the dealings between them — neither of them will be allowed to go back on that assumption when it would be unfair or unjust to allow him to do so. If one of them does seek to go back on it, the courts will give the other such remedy as the equity of the case demands.” [84] In addition, P1 himself acknowledged that he no longer has beneficial rights after the transfer of the 4,800,000 shares to P2 and D2: NOP at pg. 113 enc 141: Ok, thank you. Now, I put to you, based on what I’ve just asked you earlier, that actually you have no beneficial rights in the shares in Jepak anymore because the shares have been transferred away to Qeos. SAIDI Yes. After transfer is no more lah but I got the deed assignment, deed trust. Please answer the question. I put to you that you no longer have any beneficial interest in the shares after they were transferred to Qeos. S/N b0UndLqy6kqSvnGJ34cUvA SAIDI Yes, no. Yes or no? SAIDI Yes, I not… yes, no beneficiary after I transfer. [85] Cadit qaestio! [86] The answer to the question whether D1 is holding the shares in Jepak as constructive trustee for P2 and D2 is a NO. [87] It is therefore not necessary to consider whether the Trust Deeds and Powers of Attorney were created and set up by D1 for illegal and/or immoral purposes but for completeness’ sake will be addressed. [88] To recapitulate, P1’s shares in Jepak were transferred to P2 and D2 on 6.12.2018. The Trust Deeds dated 6.12.2018 and Shareholders’ agreement dated 4.12.2018 were not recorded in Jepak’s books nor were the trusts registered or declared to CCM. P1’s reason for this is as stated in Q&A 21 of his Witness Statement - that the creation of the trusts and PA was to avoid scrutiny and investigation by the authorities; i.e., to conceal his interest from MOE and/or GOM: “Q: Can you inform the Court of the intention behind the Trust Deeds and Powers of Attorney, and Shareholder Agreements dated 6 December 2018? A: In the year 2018, as I mentioned above, the award of the Project came under scrutiny by the new government. I was being investigated at the material time. In order to protect Jepak and ensure the continuity of the Project, I was advised to transfer my shares out to the S/N b0UndLqy6kqSvnGJ34cUvA Second Plaintiff and the Second Defendant. The Trusts, Powers of Attorney and Shareholder Agreements were executed on the understanding that I was the principal in Jepak. I was still running Jepak as I was prior to the Trust. The transfer was merely to prevent Jepak from encountering any real business difficulties and obstructions in performing the Project.” [89] P1 admitted that the MACC was also investigating: “13. Q: How did the outcome of the general election affect the Project? A: The new government for no reason, decided to stop payments in relation to the Project to Jepak. At the same time, the award of the project came under the scrutiny of MACC [90] Under cross-examination by D3’s counsel, it was established that he was remanded. Under cross examination by D1 and D2’s counsel, he said he did not pay a bribe to RM secure the Project: Pg. 118, 119 enc 141 “DZS I put to you, you were involved in the trial of Rosmah binti Mansor, do you agree? SAIDI As a witness, yes. I put to you that in the course of trial, you admitted to having to pay her bribes to secure this contract, do you agree? SAIDI No Do you agree that in the course of the trial of Rosmah binti Mansor, you had admitted to agreeing to pay her bribes to secure the project? SAIDI No. Right, I’m giving him a donation to… sumbangan only. S/N b0UndLqy6kqSvnGJ34cUvA Ok. I put it to you that Rosmah was, at the end of it, charged with bribery, do you agree? SAIDI That I’m not sure yet.” [91] P1 was clearly economical with the truth in his evidence to this court. The trial in this action started on 7.3.2023. This court is entitled to take judicial notice that 6 months before this trial started, in September 2022, Rosmah binti Mansor was convicted of all 3 charges as reported in Public Prosecutor v Rosmah bt Mansor [2022] 11 MLJ 801: ‘The first charge: Case No WA-45–9–03/2019 Bahawa kamu, diantara bulan Januari dan April 2016, di Lygon Cafe, G- 24, Ground Floor, Sunway Putra Mall, 100, Jalan Putra, Chow Kit, di dalam Wilayah Persekutuan Kuala Lumpur, telah secara rasuah meminta bagi diri kamu melalui Rizal bin Mansor (No K/P: 740809–06– 5065) suatu suapan, iaitu, wang sejumlah RM187,500,000.00 yang merupakan 15% daripada nilai kontrak daripada Saidi bin Abang Samsudin (No K/P: 590503–13–5445) yang merupakan Pengarah Urusan Jepak Holdings Sdn Bhd (No. Syarikat: 138865-H), sebagai dorongan untuk melakukan suatu perkara yang dicadangkan, iaitu, membantu Jepak Holdings Sdn Bhd mendapatkan ‘Projek Bersepadu Sistem Solar Photovoltaic (PV) Hibrid dan Penyelenggaraan dan Operasi Genset/Diesel bagi 369 Sekolah Luar Bandar Sarawak’ bernilai RM1,250,000,000.00 secara rundingan terus daripada Kementerian Pendidikan Malaysia, dan oleh yang demikian kamu telah melakukan suatu kesalahan di bawah perenggan 16(a) (A) Akta Suruhanjaya Pencegahan Rasuah Malaysia 2009 [Akta 694] yang boleh dihukum di bawah subseksyen 24(1) Akta yang sama. S/N b0UndLqy6kqSvnGJ34cUvA The second charge: Case No WA-45–9–03/2019 Bahawa kamu, pada 07 September 2017, di No. 11, Jalan Langgak Duta, Taman Duta, di dalam Wilayah Persekutuan Kuala Lumpur, telah secara rasuah menerima bagi diri kamu suatu suapan, iaitu, wang sejumlah RM1,500,000.00 daripada Saidi bin Abang Samsudin yang merupakan Pengarah Urusan Jepak Holding Sdn Bhd, sebagai suatu upah bagi diri kamu kerana telah melakukan suatu perkara, iaitu, membantu Jepak Holdings Sdn Bhd, mendapatkan ‘Projek Bersepadu Sistem Solar Photovoltaic (PV) Hibrid dan Penyelenggaraan dan Operasi Genset/Diesel bagi 369 Sekolah Luar Bandar Sarawak’ bernilai RM1,250,000,000.00 secara rundingan terus daripada Kementerian Pendidikan Malaysia, dan oleh yang demikian kamu telah melakukan suatu kesalahan di bawah perenggan 16(a)(A) Akta Suruhanjaya Pencegahan Rasuah Malaysia 2009 [Akta 694] yang boleh dihukum dibawah subseksyen 24(1) Akta yang sama. The third charge: Case No WA-45–19–07/2019 Bahawa kamu, pada 20 Disember 2016, bertempat di kediaman Seri Perdana, Persiaran Seri Perdana Presint 10, 62250 Putrajaya, dalam Wilayah Persekutuan Putrajaya, telah secara rasuah menerima suatu suapan untuk diri kamu, iaitu wang tunai sejumlah RM5,000,000.00 daripada Saidi bin Abang Samsudin (No K/P: 590503–13–5445) yang merupakan Pengarah Urusan Jepak Holdings Sdn Bhd (No Syarikat:138865-H) melalui Rizal bin Mansor (No K/P: 740809–06– 5065) sebagai upah kerana telah membantu Jepak Holdings Sdn Bhd mendapatkan projek yang dikenali sebagai ‘Projek Bersepadu Sistem Solar Photovoltaic (PV) Hibrid dan Penyelenggaraan dan Operasi Genset/Diesel bagi 369 Sekolah Luar Bandar Sarawak’ bernilai RM1,250,000,000.00 secara rundingan terus daripada Kementerian Pendidikan Malaysia, dan oleh yang demikian kamu telah melakukan suatu kesalahan di bawah perenggan 16(a)(A) Akta Suruhanjaya Pencegahan Rasuah Malaysia 2009 [Akta 694] yang boleh dihukum di bawah subseksyen 24( 1) Akta yang sama.” S/N b0UndLqy6kqSvnGJ34cUvA [92] As for P1’s testimony to this court that the moneys paid were a “sumbangan”, the High Court in the criminal trial found: The court found Were the monies solicited and accepted political donations? [149] A donation, for any purposes is still deemed as gratification as provided under s 3 of the MACC Act 2009. Saidi had offered to give a political donation to UMNO or Najib when he first met the accused. Saidi however had under cross-examination and re-examination stated that the payments to the accused were actually a commission and that it sounded better when labelled as a political donation. [150] From the evidence, it is clear that the monies offered and paid were not political donations. The real purpose was to ensure that Jepak is awarded the project. Saidi had to enlist the accused’s help as he was faced with obstacles from Mahdzir. The circumstances of the monies offered, given and received defies it being in the nature of a political donation. …. [93] The High Court in finding the 3 charges proven beyond a reasonable doubt concluded at [239] that: “(a) solicitation for RM187.5m under the first charge was corruptly solicited as an inducement;

the gratification of RM1.5m under the second charge was corruptly received as a reward; and

the gratification of RM5m under the third charge was corruptly received as a reward, for herself to help Jepak in getting the project awarded to it through direct negotiations. The accused’s defence was a bare denial devoid of credible evidence and unsubstantiated in order to create a reasonable doubt. In the upshot, the prosecution has succeeded in proving its case beyond a S/N b0UndLqy6kqSvnGJ34cUvA reasonable doubt in respect of all three charges. The accused is therefore guilty of all three charges under s 16(a)(A) of the MACC Act 2009. [94] I deal with the Plaintiffs’ reply submission where the following points were taken:

94.1 The transfers to P2 and D2 were not done to hide from MOE and/or GOM and there was no reason to hide that P1 was the beneficial owner as it was a requirement of GOM that P1 must be the shareholder and shall remain the shareholder at all times. With respect, I find this submission less than attractive, and appears to me to be a mere afterthought after I have treated his evidence with extreme caution. It is positively ironical and belies P1’s own evidence in examination in chief as set out at paragraph 88 above. It begs the burning question why he transferred out his shares and bothered to have the Trust Deeds, Powers of Attorney and Shareholder Agreement created in the first place? In any case, P1 certainly did not produce any approval of MOE or GOM for transfer of the shares to P2 and D2. The maxim – Allegans contraria non est audiendus (‘He is not to be heard who alleges things contradictory to each other’) is applicable here. In Yamamori (Hong Kong) Ltd v Davidson & Ors [1992] 2 MLJ 410 the High Court cited Broom’s Legal Maxims (1st Ed) at p 103, with approval: S/N b0UndLqy6kqSvnGJ34cUvA ‘This elementary rule of logic, which is frequently applied in our courts of justice, will receive occasional illustration in the course of this work. We may for the present observe that it expresses, in other language, the trite saying of Lord Kenyon, that a man shall not be permitted to ‘blow hot and cold’ with reference to the same transaction, or insist, at different times, on the truth of each of two conflicting allegations, according to the promptings of his private interest.’ (emphasis added)

94.2 Rosmah’s case is not a fact in issue here and s.43 of the Evidence Act 1950 bar the Defendants from use of Rosmah’s case to invoke the maxim of unclean hands. I do not agree. Clearly, the existence of the judgment is relevant as showing a fact in issue here – whether bribery was involved and to avoid the PWD Contract from being invalidated, P1’s declared motive to transfer the shares, and creation of the Trust Deeds and Powers of Attorney as a deception on MOE and/or GOM. The finding of fact on the guilt in the criminal case is as much an indictment on P1 as participant in the bribery. I am of the respectful view that reference to the judgment in the criminal case does not run foul of s. 43 of Evidence Act 1950 which provides that: “Judgments, orders or decrees other than those mentioned in ss. 40, 41 and 42 are irrelevant unless the existence of such judgment order or decree is a fact in issue or is relevant under some other provisions of this Act.” (Emphasis added) S/N b0UndLqy6kqSvnGJ34cUvA

94.3 P1 contended he was not charged for giving bribes. In this regard, I find P’s own evidence which was not challenged in re-examination to be illuminating as to why: NOP Pg. 47 enc 142 “DZS Thank you. I put to you that MACC did not charge you because you became the witness, agree or disagree? SAIDI Yes, agree.” [95] That P1’s hands were unclean is also brought to the fore by the following:

95.1 There are also the various suits by TNB Remaco (RM43m), Builtamont International (RM26m) Optimal Power Solutions (RM 5m) General Environmental Solutions (RM3 m) being commitment deposit paid in exchange for the same solar contract against Jepak and

95.2 In fact when cross examined by Jepak’s counsel, P1 agreed that:

95.2.1 only Builtamont has been paid back its monies,

95.2.2 Two different companies, TNB Remaco and Smooth Plus were appointed contractors for the same solar project in 2017: S/N b0UndLqy6kqSvnGJ34cUvA NOP Pg. 41 enc 143: “FK Ok. So kita ada satu, ulang balik, En Saidi. Kalau En Saidi setuju saya cakap, Kerajaan Malaysia punya kontrak bulan Jun 2017. Then you have appointment of TNB Remaco for the solar project in 2017 as well. Now, you have SPSB appointed in September 2017 as well. Setuju ke saya kata there are two contractors appointed in respect of the solar project dalam tahun yang sama? SAIDI Ya, betul.” [96] It is more than obvious to this Court even by P1’s own evidence that the creation of the trust was to avoid scrutiny and investigation by the authorities; to mislead and deceive MOE. [97] Testing the parties’ evidence against the totality of the contemporaneous documents and looking at not just the provisions of the Cooperative Agreement but also the nature of the Project Contract which is to supply electricity to schools in rural areas in Sarawak, the surrounding circumstances and the conduct of the parties towards each other, in my judgment there is no unconscionable conduct on the part of D1 at all. The Trust Deeds, including the Powers of Attorney are nullities. Over and above the Powers of Attorney not being properly authenticated and registered as alluded earlier, it is also because the Trust Deeds and Powers of Attorney are products of and inextricably connected with the concealment of the true ownership of the shares from MOE and/or GOM. Having been created and set up by P1 for illegal and/or immoral purposes, the answer to Question 8 is a YES. S/N b0UndLqy6kqSvnGJ34cUvA [98] The Plaintiffs cited Dato’ P.B Ashok P.B Krishnan Pillai & Ors v Azrin Fazrina Jamri & Anor [2022] 1 LNS 541; [2022] MLJU 495 to contend that secret trusts may be enforced. That decision however was overturned by the Court of Appeal on 5.7.2023 in Court of Appeal W- 02(NCC)(W)-253-02/2022 which held in that case that the trust agreement was a deception on the MOE and therefore the trust agreement is void by reason of illegality and against public policy. The Court of Appeal went on to say that the transaction was therefore tainted with illegality right from the start and thus unenforceable. With regards to the application of Patel v Mirza case, the Court of Appeal is of the considered opinion that the courts will not enforce contracts which are tainted with illegality and against public policy. See Merong Mahawangsa Sdn Bhd v Dato’ Sahzryl Eskay Abdullah [2015] 8 CLJ 212 FC. [99] In accordance with well-established law, here, the loss must lie where it falls. See, Suntoso Jacob v Kong Miao Ming [1986] 2 MLJ 170 which was heard before Lai Kew Chai, J. In the course of the trial counsel for the respondent indicated to the learned Judge that if it was found that the said shares were transferred to the respondent on trust for the appellant there would be a further issue whether the transfer was made to deceive the public administration of Singapore, namely: the registrar of ships. The appellant was then cross-examined as to the circumstances surrounding the transfer of the said shares. Evidence then emerged that the transfer was to show to the Registrar of Ships that more than 50% of the said shares of the company were owned by a Singapore citizen. At the conclusion of the trial, the learned Judge found that the respondent did not pay or provide any consideration for the said shares transferred to him; however he dismissed the claim on S/N b0UndLqy6kqSvnGJ34cUvA the ground that the appellant had practiced a deception on the Registrar of Ships, Singapore, and that the Court would not lend its aid to a person who founded his claim on an illegal act. The learned Judge said: “The Plaintiff himself admitted that the true ownership of the said Shares had to be kept away from the Registrar of Singapore Ships in order to obtain registration. I am satisfied on the evidence that the Plaintiff had transferred the said Shares to the First Defendant in order that the Registrar of Singapore Ships would get a false picture. Although the First Defendant had alone signed the registration papers containing the false representation, it was all done with the knowledge and consent of the Plaintiff. The Plaintiff is therefore confronted with the principle stated a long time ago by Lord Mansfield: ‘No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act.’ see Holman v Johnson [1775] 1 Cowper 343. A similar situation had arisen in Palaniappa Chettiar v Arunasalam Chettiar [1962] 28 MLJ 143. I have no doubt that the Plaintiff had practised a deception on the Registrar of Singapore Ships. To the Plaintiff, I have to say: ‘Let the said Shares lie where they fall.” [100] The Court of Appeal affirmed the Lai Jew Chai J’s decision: At pg. 174 “To recover the property he has to rely on the trust created in his favour and in so doing the illegal purpose of the transfer that gave rise to the trust emerged. Even if the appellant is relying on the resulting trust of the said Shares by virtue of the transfer thereof to the respondent without any payment, the unlawful purpose of the transfer cannot be ignored. It is too artificial to sever the purpose from the transaction, i.e. the transfer of the said shares to the Respondent without any payment, S/N b0UndLqy6kqSvnGJ34cUvA and look at only the transaction in isolation and say that it was not tainted by the unlawful purpose. The intention of the parties and the purpose of the transaction are clearly relevant. Where a transaction which on the face of it is lawful is entered into for an unlawful purpose or to achieve an unlawful end, the transaction is tainted with illegality and is unenforceable..” At 175 “There is one further difficulty in the way of the appellant's case which is even more formidable and seems to us to be insurmountable. And it is this. The appellant's claim that the respondent held the said shares on trust for him – whether on the basis of a resulting trust arising in his favour by reason of the voluntary transfer or on the basis of the blank share transfer and the board resolution – is one founded on equity. In seeking the assistance of the Courts to enforce this equity, the appellant must come with clean hands; one of the maxims of equity is that he who comes into equity must come with clean hands. In this connection, it is necessary to examine the past conduct of the appellant immediately antecedent to the transaction that gave rise to the trust; plainly on his past conduct the appellant fails to satisfy the test required of him in equity. On the finding of fact of the learned Judge, which Mr. Hague accepted without reserve, the appellant in transferring the said shares to the respondent without any payment by the latter had practised a deception on the public administration. The part played by him in this deception had soiled his hands and he can hardly except the Court to give effect to and enforce the trust in his favour. In Groves v Groves (1829) 3 Y & J 163; 148 ER 1136 the plaintiff alleged that the property in question was conveyed without consideration to a grantee and claimed for the return thereof, basing his claim on a resulting trust arising by operation of law. The claim was dismissed on the ground, inter alia, that the original conveyance was made for an illegal purpose. The Lord Chief Baron on this point said, at p. 174 [ 148 ER p 1141]: S/N b0UndLqy6kqSvnGJ34cUvA “When a grantor, so far as he can, completes the transaction for an illegal purpose, and leaves it in the power of the grantee, during his whole life, to make, at his pleasure, the illegal use of the gift originally intended, he deserves all the consequences attached to the illegality of his act. If the crime is not completed, the merit is not his, and therefore, in such a case, I should not think myself bound to relieve him, against the heir of the grantee. The plaintiff asks for equity and does not come with clean hands to receive it.” [101] It is settled jurisprudence that the concept of unclean hands was one that was founded upon equity. In Wan Senik bin Wan Omar v. Majlis Perbandaran Selayang, [2017] 10 CLJ 102; [2017] 6 MLJ 229, Abang Iskandar, JCA (now PCA) delivering Judgment of the Court of Appeal explained thus: "[20] ...The concept of unclean hands was one that was founded upon equity. The principle derives originally from the judgment of Lord Mansfield in Holman v. Johnson [1775] 1 Cowp 341, in which it was said that 'no court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act'. [21] Learned Justice Bingham LJ (as he then was) in Saunders v. Edwards [1987] 1 WLR 1116 overlaid the principle with the following gloss: Where the claimant's action in truth arises ex turpi causa he is likely to fail. Where the claimant has suffered a genuine wrong to which the allegedly unlawful conduct is incidental, he is likely to succeed. [22] It has its genesis in the Latin maxim of ex turpi causa non oritur actio, which essentially means that a right cannot arise from a wrong. In essence, the underlying jurisprudence is that the court ought not to be aiding such a litigant. Subsequent development of the law has led to the principle that a man should not benefit by his own wrong (see, the case S/N b0UndLqy6kqSvnGJ34cUvA of Vellino v. Chief Constable of Greater Manchester [2001] EWCA Civ 1249 per Sir Murray Stuart-Smith)." [102] In Singma Sawmill Co Sdn Bhd v Asian Holdings (Industrialised Buildings) Sdn Bhd [1980] 1 MLJ 21, the Federal Court reminded that where a contract is contaminated by turpis causa, the courts do not overlook the fact that they do not assist a person who comes with unclean hands. [103] Here, the Plaintiffs have sought the court’s assistance with unclean hands. This is a case where the transactions in the said Agreements were carried into execution. They were not merely executory. It follows that the Jepak shares which were registered in D1’s name remain his. P1 must suffer the loss occasioned to him as he cannot, being in pari delicto enforce the Trust Deeds and Powers of Attorney even if it cannot be disputed that these documents were not ex-facie illegal. The trust arrangement by itself was not unusual. However, demonstrably at the outset, the whole arrangement of the Trust Deeds and Powers of Attorney was a guise to circumvent scrutiny by the authorities and was therefore against public policy within the ambit of s. 24(e) of the Contracts Act 1950. P1 is not an innocent party; to allow the claim and declarations sought will be repugnant to public policy, an affront to the public conscience and contrary to public interest. [104] It follows, the answer to Question 9 is a NO. P1 is not entitled to invoke equitable remedies including for declaration for the return of the Shares. S/N b0UndLqy6kqSvnGJ34cUvA [105] I find the main thrust of the Plaintiffs’ case based on a breach by D1 of the Cooperation Agreement and the Supplementary Agreement to seek a return of the Jepak shares is without merit and their complaints against the Defendants detailed in the evidence presented to this court are not credible. [106] By contrast, after hearing and observing the Defendants’ witnesses, I find that they are straightforward and credible witnesses. I found their evidence coherent, convincing and accord with the inherent probabilities of the case, and I accept their evidence. The reason for D1’s involvement in the Project also strikes a chord with a universal rule not to suffer the children: NOP pg. 102/103 enc 144 “DZS I will clarify with the witness, My Lady. Dr Gabriel, you were last referring to Recital (D), I believe. Is there anything else you want to add before we move on to the next question? GABRIEL The point that I was trying to make was that we wanted to do this project as a catalyst. You know, whether or not it was 10 schools, 18 schools, you know, we didn’t want to do the whole thing or to take over Jepak, that wasn’t the intention. The intention was to demonstrate our technology to the world, to create a reference in Sarawak, specifically in Baram where I was a former student. And my rural school where I studied, did not have electricity until today, even after they terminate the project. And I wanted to contribute to the advancement of the technology in that area.” [107] For reasons given, it is not necessary to answer Question 10. S/N b0UndLqy6kqSvnGJ34cUvA [108] I find the Plaintiffs have not proven their case on a balance of probabilities. As such, the claim is dismissed with costs subject to allocator. Dated: 25th September 2023 - sgd - ……………………….. Liza Chan Sow Keng Judge High Court of Malaya at Kuala Lumpur COUNSEL: For the Plaintiffs : Dinesh Kanavaji Messrs Melissa Ram For the 1st and 2nd Defendants : Shim De Zhen Messrs Yeoh Shim Siow & Lay Kuan For 3rd Defendant : Faizal Khalid Messrs Sabri Ahmad & Co. CASES CITED: Tay Choo Foo v. Tengku Mohd Saad Tengku Mansur & Ors. And Another Appeal [2009] 2 CLJ 363; [2009] 1 MLJ 289 Takako Sakao v. Ng Pek Yuen & Anor. [2010] 1 CLJ 381; [2009] 6 MLJ 751 Pacific Forest Industries Sdn Bhd & Anor v Lin Wen-Chih & Anor [2009] 6 MLJ 293 Verschures Creameries v Hull & Netherlands Steampship Co Ltd [1921] 2 KB 608 S/N b0UndLqy6kqSvnGJ34cUvA Hongkong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha Ltd [1962] 2 QB 26 Kepong Prospecting Ltd & Ors v Schmidt [1968] 1 MLJ 170 Badiaddin bin Mohd Mahidin & Anor v Arab Malaysian Finance Bhd [1998] 1 MLJ 393 Suwiri Sdn Bhd v Government of the State of Sabah [2008] 1 MLJ 743 SPM Membrane Switch Sdn Bhd v Kerajaan Negeri Selangor [2016] 1 MLJ 464 Perbadanan Menteri Besar Kelantan v Syarikat Perusahaan Majubina Sdn Bhd [2016] 4 MLJ 570 Catajaya Sdn Bhd v Shoppoint Sdn Bhd & Ors [2021] 2 MLJ 374 DC Contractor Sdn Bhd v Universiti Pertahanan Malaysia [2014] 11 MLJ 633 Perbadanan Kemajuan Pertanian Selangor v. JW Properties Sdn Bhd [2017] 8 CLJ 392 Luggage Distributors (M) Sdn Bhd v Tan Hor Teng @Tan Tien Chi & anor [1995] 1 MLJ 719 Hu Chang Pee v Tan Sri Datuk Paduka (Dr) Ting Pek Khiing [1999] 3 MLJ 402 Yam Kong Seng & Anor v Yee Weng Kai [2014] 4 MLJ 478 Boustead Trading (1985) Sdn Bhd v. Arab Malaysian Merchant Bank Bhd [1995] 3 MLJ 331 Yamamori (Hong Kong) Ltd v Davidson & Ors [1992] 2 MLJ 410 Public Prosecutor v Rosmah bt Mansor [2022] 11 MLJ 801 Dato’ P.B Ashok P.B Krishnan Pillai & Ors v Azrin Fazrina Jamri & Anor [2022] 1 LNS 541; [2022] MLJU 495 S/N b0UndLqy6kqSvnGJ34cUvA Merong Mahawangsa Sdn Bhd v Dato’ Sahzryl Eskay Abdullah [2015] 8 CLJ 212 Suntoso Jacob v Kong Miao Ming [1986] 2 MLJ 170 Wan Senik bin Wan Omar v. Majlis Perbandaran Selayang, [2017] 10 CLJ 102; [2017] 6 MLJ 229 Singma Sawmill Co Sdn Bhd v Asian Holdings (Industrialised Buildings) Sdn Bhd [1980] 1 MLJ 21 STATUTE/LEGISLATION REFERRED: Ss. 24 (e), 57 of the Contracts Act 1950 Ss. 3, 4 of the Powers of Attorney Act 1949 Section 15 of the Civil Law Act 1956 Section 43 of the Evidence Act 1950 S/N b0UndLqy6kqSvnGJ34cUvA