1. ) TAN LIANG SWEE v Suruhanjaya Sekuriti Malaysia (WA-25-123-03/2024)

A declaration that the “Notice of Application (Ex-Parte)” dated 25.3.2024 (Enclosure 1) to seek leave to commence judicial review proceedings (“Judicial Review Application”) is irregular/defective.

A declaration that the Ex-parte Order dated 20.6.2024 (Enclosure 12) is null/void/void ab initio.

The Ex-parte Order dated 20.6.2024 (Enclosure 12) be set aside;

The Notice of Hearing of Application for Judicial Review dated 15.7.2024 (Enclosure 13) and the “Notice of Application (Ex-Parte)” dated 25.3.2024 (Enclosure 1) be struck out without liberty to file afresh.

The proceedings in the Judicial Review Application be stayed pending the full 55 and final disposal of this application;

Costs and further order that this Court deems fit.

1.2 On 10.03.2025:

I allowed this application at a global cost of RM10,000.00, and 60

L.19 (Notice of Application for an Injunction) is withdrawn by the applicants, with cost.

1.3 Aggrieved, the applicants filed this appeal, my reasons are as follows: BRIEF FACTS 65 [2] The statement of facts filed under O.53 r.3(2) RC 2012, is summarised as follows:

The first applicant (A1) and the second applicant (A2) are both directors and shareholders of Midana Management Sdn Bhd, Midana Capital Inc. and Midana Investment Holdings Ltd 70 (collectively, the "Midana Entities").

Midana Management Sdn Bhd is incorporated in Malaysia but does not carry any business investment activities.

Midana Capital Inc. and Midana Investment Holdings Ltd. have been incorporated in the British Virgin Islands. However, these 75 companies only conduct their business and investment activities in Singapore and Hong Kong.

On 23.06.2021:

The Security Commission (SC) issued a Notice to Show 80 Cause to the applicants respectively, to which the applicants replied on 05.07.2021.

On 11.05.2023, again, the respondent issued a Notice to Show Cause to the applicants respectively, which the applicants accordingly replied on 24.05.2023.

On 19.01.2024, the SC notified both applicants that they are found to have breached the statutory provisions of the Capital Market Services Act 2007 (CMSA): a. Section 354(1)(a) read together with section 58 CMSA, for carrying on the business of a regulated activity to trade in securities without holding a 90 Capital Market Services Licence. b. Section 354(1) of the CMSA, read together with:

Section 212(5)(a) of the CMSA for the failure of Midana Entities to obtain recognition by the SC.

(ii) Section 212(5)(b) of the CMSA for the failure of Midana Entities to 95 register a disclosure document with the SC; and

(iii) Section 367 CMSA, regarding the preparation, publication of subscription or purchase, or making an invitation to subscribe or purchase Foreign Shares in Malaysia. (collectively referred to as "Violations")

2.1 On 20.06.2024:

The applicants were granted leave for judicial review.

On 10.07.2024, the parties agreed to a stay order pending the disposal of this Judicial Review application. 105

2.2 On 28.08.2024, the SC filed the present application to strike out the leave granted to the applicants. On 10.03.2025, after examining the cause papers and hearing the parties’ submissions, I allowed this application with a global cost of RM10,000.00 (including the withdrawal 110 of L.19 for an injunction). THE RESPONDENT’S (SC) ARGUMENTS [3] The 3 grounds proffered by SC are as follows (briefly): 115

3.1 A2 failed to comply with mandatory provisions of O.53 r.3(2) and/or r.4 RC 2012 in his failure to file an affidavit verifying the facts he purportedly relied upon in the JR Application and as stated in the 120 Statement under O.53 r.3(2) RC 2012 dated 26.03.2024 (L.2), and/or failure to serve such affidavit verifying the facts on the respondent, before the ex-parte order dated 20.06.2024 (L.12 - Leave Order) was obtained and/or granted, which rendered the ex-parte Notice of Application dated 25.03.2024 (L.1) irregular and/or defective and 125 consequently, the Leave Order would be rendered null/void/void ab initio.

3.2 The applicants:

The burden cannot be shifted to the AGC to ensure that the applicants’ papers seeking leave to commence JR against the SC 130 are in order.

The leave application filed by the applicants’ states that the grounds were contained in the affidavits affirmed by A1 and A2.

Therefore, a false impression has been presented to both this court and the AGC that both applicants had filed their affidavits 135 verifying the facts, when this was not the case.

3.3 The chronology of the events will show that there is no delay in the filling of this setting aside application as follows:

On 25.6.2024, the Leave Application, Statement and A1’s JR 140 affidavit in support were served on SC.

On 10.7.2024, the Stay Order (L.35) was granted without objection from the parties.

On 16.7.2024, the Notice of Hearing of the JR was served on SC.

On 22.7.2024:

1st case management (CM), the SC was directed to file its JR affidavit in reply on or before 02.09.2024.

At this CM, the solicitors for the applicants sought “leave” for A2 to file a “supplemental affidavit in support,” to which SC objected and submitted that any affidavit in support ought to 150 have been filed when the Leave Application was filed, and therefore, filing a further affidavit is not in order under the RC

2012.

The SC reserved its rights.

The learned Deputy Registrar took notice and directed SC to 155 put in a letter of preliminary objection before filing of SC’s JR affidavit in reply.

On 28.8.2024, SC filed this Setting Aside Application, based on the following grounds:

Filing a corrective or supplemental affidavit by A2 cannot 160 remedy the non-compliance.

Given that the due compliance of the requirements under the O.53 r.3 and r.4 is a mandatory requirement before leave can be granted for the JR Application, the filing of the “supplemental affidavit in support” by A2 two months after the 165 Leave Order was granted cannot in any way override such mandatory requirements.

Neither leave nor extension of time was ever sought to file A2’s JR Affidavit in Support.

At all material times, before the Leave Order was granted, A2 170 did not inform the Court of the non-filing of the requisite affidavit on his part nor sought any leave or extension of time for him to comply with the said mandatory requirement.

In seeking directions from the Deputy Registrar to file a “supplemental affidavit in support” after the Leave Order was 175 obtained, the Applicants have only gone on to imply or indicate that the necessary affidavit verifying the facts had been filed, when it was not at all the case.

Paragraph 12 of the Applicants’ Written Submission is inaccurate, and the cases cited on extension of time are 180 irrelevant to the issues at hand.

It was impressed upon this court that:

Although SC is not a party to the Leave Application, it is nonetheless prejudiced by the Leave Order given that the SC is indisputably an aggrieved party for the Leave 185 Order that was granted, which allowed the review of its sanctions on the applicants.

(ii) It is not for the SC to waive the mandatory compliance of O.53 r.3(2) and 4.

(iii) In the circumstances, SC’s consent to the Stay Order 190 does not negate the mandatory requirement's non- compliance on filing the affidavit verifying the O.53 Statement by A2.

(iv) Nor can it negate that SC, this Court, and the AGC were misled and therefore prejudiced in being unable to make 195 an informed assessment of the Leave Application.

Accordingly, it was argued that it can’t in any way be taken that SC adopted any position to endorse or acquiesce to such non-compliance. 200 I agree with the submissions above, that filing a corrective or supplemental affidavit by A2 two months after the Leave Order was granted, cannot remedy the non-compliance of the mandatory provisions of O.53 r.3 and r.4 RC 2012. 205 B Second Ground 3.4 A1 and A2 failed to provide complete and frank disclosure of all material facts relating to the Leave Application in both the Statement and/or A1’s Affidavit in Support, affirmed on 26.03.2024 (L.3). 210 3.5 In addition, the Court was alluded to the fact that not only did the applicants fail to provide complete and frank disclosure that there was non-compliance with the mandatory O.53 r.3 and 4 by A2, but they also failed to provide complete disclosure of their correspondence with SC following the sanctions imposed. The Applicants did not attempt to 215 address this material non-disclosure on their part in their submissions.

3.6 The applicants do not have any regard for the law or the well-settled principle that an applicant seeking an ex-parte order must act in utmost good faith and completely disclose all material facts: 220

It is settled law that the Court relies on the full and frank disclosure of the applicants to decide whether it is appropriate to grant ex parte orders for their JR Application.

In electing not to disclose the material correspondence that would reveal that the applicants had been given ample opportunities to 225 put forward their written representation and an avenue to review the Sanction Decisions under the CMSA, they had deliberately deprived the Court as well as the AGC of the material information to assess whether or not the applicants had a prima facie arguable case for JR Application.

The applicants' intentional non-disclosure shows that they intended to mislead this Court and the AGC by giving the false impression that they were not afforded opportunities to present written representation and the review mechanism under the CMSA, which is not the case.

This JR Application is frivolous and/or vexatious and/or premature and bound to fail. It renders the Leave Order null and void. C Third Ground 3.7 The Leave Application is bound to fail since the applicants failed to 240 resort to the statutory review mechanism under section 364 of the CMSA before filing the Leave Application:

The failure to exhaust the statutory review mechanism is fatal.

The applicants’ understanding and interpretation of section 364 of the CMSA is misconceived, where they submitted that section 364 245 gave the Applicants an option whether to proceed with the review.

Section 364 merely stipulates that SC can review its decision. Nothing in Section 364 suggests or states what the Appellants had contended.

It is settled law that the applicants should exhaust the internal 250 review procedure before applying for judicial review.

The Applicants did not provide any supporting material to establish that there has been a “serious breach of natural justice” or “abuse of power”, which is the only way that would avail or enable the applicants to resort to JR, bypassing the internal review procedure 255 provided by the CMSA.

The allegations and assertions are not supported by the correspondence between SC and the Applicants. It is trite law that the right to be heard does not necessitate oral or physical hearing:

The correspondence exhibited in L.23 at pp.48-117 shows 260 that the applicants were given ample opportunities to defend themselves, vide written explanations.

(ii) They did so via the applicants' 1st and 2nd Written Explanations, respectively.

(iii) They were further invited to put forward written 265 representations for SC to review the Sanction Decisions, which the Applicants had outright declined.

(iv) Therefore, any contention that they have been denied their rights is unsustainable. The review findings by SC are clear, sufficient and adequate.

3.8 The applicants must be estopped from asserting that they were not given the opportunity to make a plea of mitigation in the circumstances. Ignorance of the law is no excuse. It is untenable for the applicants to contend that the procedures, rules and/or regulations by SC are 275 inaccessible, or that they were not aware of it. This is even more so when A1 in his Letter of Disagreement in exhibit “SC-8” at L. 23 p. had stated that he would consult his lawyer on this matter.

9 There is no breach of natural justice, illegality and/or unlawful treatment 280 by SC as contended by the applicants and in the circumstances, SC pray for an order in terms of L.22 with costs. THE APPLICANT’S ARGUMENTS [4] In opposing, the applicant raised four (4) issues as follows (briefly): -

1 Even if the court agrees with SC and sets aside the Leave Order, the Applicants respectfully submit that it is not open for the Court to strike out the present JR proceedings for the following reasons:

The irregularity only applies to A2 (if any) and not A1. In any event, the alleged irregularity (if any) has been cured.

The setting aside order only applies to A2.

The merits of the JR have not been heard, and there was a complaint of a breach of natural justice.

There is a 90-day limitation to file for a JR. A limitation would be set-in if the matter is struck out herein. The balance of justice lies 295 in favour of the applicants.

4.2 The applicants submit that the Court could only order the leave application to be reheard to preserve the JR proceedings. It was argued that there should always be liberty to file afresh so that the merits of the JR could 300 be heard and determined, with due adherence to the rules of natural justice. In the circumstances, the applicants ask for L.22 to be dismissed with costs. I am unpersuaded by the above arguments taken by the applicants. It is my order that the ex-parte leave granted by the Court would encompass both 305 applicants. The facts before this court showed that the ex-parte leave was secured under a breach of legal duty to deliver a full and frank disclosure of all material facts including the ones that could adversely impact the position of the applicants in the leave application. The applicants elected to conceal those facts that would be addressed in my findings herein. They did not come 310 with clean hands. THE LAW [5] In a nutshell:

5.1 Full and Frank Disclosure: The application for leave for JR made ex parte mandates a legal 315 requirement that the applicant disclose the affidavit evidence full and frank disclosure: Tuan Sarip Hamid & Anor v Patco Malaysian Berhad [1995] 3 CLJ 627, SC, which set aside leave to commence JR for failure to observe the full and frank disclosure requirement. Whenever a party makes an ex parte application to courts for an order, 320 the plaintiff is mandated by law to make full and frank disclosure of all material facts: Kosma Palm Oil Mill Sdn Bhd & 2 Ors v Koperasi Serbausaha Makmur Berhad [2004] 1 AMR 417; [2004] 1 MLJ 316; [2004] 1 CLJ 239, CA it was observed that the requirement of full and frank disclosure, including of facts or information which may be 325 unfavourable to a plaintiff.

5.2 Procedural legal requirements (briefly): The Federal Court in Hoh Kiang Ngan v Mahkamah Perusahaan Malaysia [1996] 4 CLJ 687, FC observed that the prerogative writs or 330 remedies sought from the Court under JR Applications are discretionary and require the applicant to be able to establish an error of law by the decision maker. The Court of Appeal in Ngu Toh Tung v Superintendent of Lands & Survey [2006] 1 CLJ 30, CA requires the applicant to be able to show substantial injustice that has been 335 suffered to warrant the award of prerogative writs in a JR proceeding.

5.3 The ex-parte application for leave to commence JR proceeding must be filed within ninety (90) days from the date the decision is received by the complainant in compliance with the legal requirements of O.53 340 r.3(1) and (2) RC 2012.

The ex parte application must be accompanied by a Statement under O.53 r.3(2), setting out the complaint, relief sought and the grounds in support. In Musa Keran v Public Services 345 Commission Malaysia [1995] 1 LNS 297, HC, the Court declined to allow an applicant to rely on any grounds or seek any reliefs not set out in the statement. It was observed that the rules had statutory force and must prima facie be obeyed.

The applicant must also file an affidavit verifying the facts relied 350 on to support the application for leave for JR: O.53 r.3(2).

Before the ex parte application for leave hearing:

The applicant’s solicitor is legally required to serve the foregoing cause papers on the AGC not later than three (3) days before the hearing date: O.53 r.3(3).

Once leave is granted, it must be filed in Court as an ex parte order.

When leave is granted, the applicant must file a notice of hearing (Form 110) within fourteen (14) days from the date the leave was granted: O.53 r.4(1). Failure to do so, an applicant may apply for 360 an extension of time: O.53 r.3(7).

4 Setting aside of Order: O. 53 r.9 RC 2012 365 The court has jurisdiction to set aside the leave granted ex parte. But the application to discharge the leave must be made in time and will be dismissed if the applicant suppressed material facts when seeking leave, but other grounds may be relied on: President Hotel Sdn Bhd v Datuk Bandar & Anor (Crest Trading Sdn Bhd as Intervener) 370 [1995] 3 AMR 2350; [1995] 1 LNS 167; [1995] 4 MLJ 517. FINDINGS [6] I have considered all the cause papers and the respective submissions by the parties.

1 I find the SC has established its burden in L.22 to strike out the ex-parte leave to commence JR granted to the applicants. As I have stated at para 3 above, the filing of a corrective or supplemental affidavit by A2 two months after the Leave Order was granted, cannot remedy the non-compliance of the mandatory provisions of O.53 r.3 and r.4 RC 380

Based on the facts and materials before me, I find that the ex-parte leave was granted under false pretenses when the applicants failed to be forthcoming with the presiding Judge, on their statutory non-compliance of the legal procedures concerning leave applications to commence JR at the hearing of the ex-parte application.

6.2 I also take cognisance, as stated by SC, that it is irrefutable that the ex parte order was obtained without the applicant providing full and frank disclosure of all material facts within their knowledge. It is a trite law in that respect that ex-parte leave in such circumstances must be 390 extinguished. The applicants did not come with clean hands.

6.3 I find exceptional circumstances that warrant setting aside the ex parte order:

In concealing that A2 omitted to file the required affidavit as 395 mandated by O.53 r.3(2), the applicants intentionally misled the Court.

They are legally responsible to be forthcoming to the Court with all facts, even those that may be determinantal to their cause.

The applicants evidently failed to resort to and exhaust the 400 statutory review mechanism under section 364 of the CMSA, which is a statutory provision and is therefore premature and fatal.

6.4 This irregularity goes to the root of the matter and is not merely procedural; therefore, it cannot be cured by invoking O.1A RC 2012. 405 CONCLUSION [7] By and large, considering the foregoing L.22 is allowed. Prayers 1, 2, 3, 4 (with liberty), 5(no order), 6 and 7. A global cost of RM10,000.00 is awarded to the SC. 410 Dated 27.05.2025. HAYATUL AKMAL ABDUL AZIZ 415 JUDGE HIGH COURT OF MALAYA KUALA LUMPUR Counsels: 420 Marcus Lee Messrs Marcus Lee Advocates & Solicitors for the Applicants 425 Janet Chai Pei Ying, together with Charles Chong Tet Hong