Tatsuno Corporation v Flowfuel Sdn Bhd (WA-22IP-54-09/2023)

1.

TATSUNO ENGINEERING & SERVICE MALAYSIA SDN BHD [Company No.: 201301023930 (1053759-H)] …PLAINTIFFS AND FLOWFUEL SDN BHD [Company No.: 201001025079 (908986-W)] …DEFENDANT GROUNDS OF JUDGMENT (Enclosure 83 – Plaintiff’s Application to seek directions for account of profits) A.

These are my Grounds of Judgment with respect to the Plaintiffs' Notice of Appointment dated 1.9.2025 for an account of profits and S/N uoYyw53IkuTbyLvyz7dtw assessment of aggravated and/or exemplary damages, arising from this Court's Judgment dated 10.4.2025 ("the Judgment").

By way of the Judgment dated 10.4.2025, this Honourable Court held that the Defendant, Flowfuel Sdn Bhd was responsible for trademark infringement and passing off in relation to the Plaintiffs’ Registered Trademarks. This Court, in particular, found that the Defendant vended seven (7) sets of petrol dispenser pumps affixed with the Plaintiffs’ Registered Trademarks whose pumps featured false information plates. Six (6) units were sold to Rayn Revenue Sdn Bhd (“Rayn Revenue”) and one (1) unit to Wan Arfa Enterprise (“Wan Arfa”). This Court ruled that such conduct constitute trademark infringement and passing off (hence collectively the “Infringing Products”).

Paragraph 10 of the Judgment granted the Plaintiffs the option to elect for either an inquiry as to damages or an account of profits to be rendered by the Defendant. Paragraph 11 of the Judgment further provided that aggravated and/or exemplary damages would be assessed at the same stage as the elected remedy.

At the case management on 2.7.2025, the Plaintiffs elected to proceed with an account of profits. B.

The background facts have been set out in detail in the Grounds of Judgment dated 19.5.2025. For present purposes, the following material facts are germane. S/N uoYyw53IkuTbyLvyz7dtw

The 1st Plaintiff, Tatsuno Corporation is the registered owner of the “ ” mark and the 2nd Plaintiff, Tatsuno Malaysia is the registered owner of “ ” mark respectively, collectively referred to as the ‘Plaintiffs’ Registered Trademarks’

The Defendant, Flowfuel Sdn Bhd, is a company in the business of, among other things, supplying and selling refurbished petrol dispenser pumps to petrol station operators and dealers in Malaysia.

The Plaintiffs brought this action on 6.9.2023 upon discovering that dispenser pumps bearing the Plaintiffs' Registered Trademarks with false information plates were located at Petron Bandar Dungun (operated by Wan Arfa Enterprise) and Shell Senawang (operated by Rayn Revenue Sdn Bhd).

On 10.4.2025, this Court entered Judgment in favour of the Plaintiffs, finding that the Defendant was liable for trademark infringement and passing off. The salient findings in the Grounds of Judgment included:

(a) The Defendant sold 6 units of infringing dispenser pumps to Rayn Revenue pursuant to invoice IV-10059 dated 14.6.2022 for a total consideration of RM201,750.00; S/N uoYyw53IkuTbyLvyz7dtw

(b) The Defendant sold 1 unit of infringing dispenser pump to Wan Arfa pursuant to invoice IV-06928 dated 5.2.2020 for a consideration of RM20,000.00;

(c) The dispenser pumps bore information plates with the Plaintiffs' Registered Trademarks containing false serial numbers and specifications that did not correspond with the Plaintiffs' records; and

(d) The Defendant's claim that the pumps were the Plaintiffs' original pumps sourced from Meinhardt EPCM Sdn Bhd ("Meinhardt") was found to be "inherently incredible" the serial numbers on the Infringing Products did not match the Plaintiffs' records, and the testimony of DW3 (Praveen a/l Ramakrishnan, former procurement manager of Meinhardt) confirmed that Meinhardt sold the pumps on an "as-is" basis without modification or repair.

The total revenue received by the Defendant from the sale of the 7 Infringing Products is RM221,750.00. This figure is undisputed. C. THE LAW GOVERNING ACCOUNT OF PROFITS Nature and Purpose of Account of Profits

The assessment of an account of profits is governed by Order 43 of the Rules of Court 2012 (ROC 2012).

An account of profits is a well-established equitable and restitutionary remedy. Its primary purpose is not to compensate the S/N uoYyw53IkuTbyLvyz7dtw plaintiff for any loss suffered but rather to strip from the infringer the gains made through the wrongful act, thereby preventing the infringer's unjust enrichment at the expense of the plaintiff. The remedy operates upon the conscience of the wrongdoer, compelling it to disgorge the profits obtained through the infringement and to restore them to the aggrieved party. It is, in essence, a remedy directed at the wrongdoer's gain rather than the victim's loss.

The foundational principle was authoritatively stated by the High Court of Australia in Dart Industries Inc v. Décor Corporation Pty Ltd & Another (1993) 26 IPR 193 (cited by both parties): "The purpose of an account of profits is not to punish the defendant but to prevent its unjust enrichment." "The object of an account of profits is to make the infringer give up its gain in order to prevent its unjust enrichment."

The significance of this dual formulation cannot be overstated. The first limb makes plain that the remedy is not penal in character wherein it is not designed to punish the defendant or to make an example of it. The second limb identifies the precise measure of recovery: the infringer's gain, which I shall explain below means its true profit and not its gross turnover. These twin propositions form the analytical backbone of the entire exercise of assessment.

In the Malaysian context, the principle was affirmed in Kiwi Brands

(M) Sdn Bhd v. Multiview Enterprises Sdn Bhd [1998] 2 CLJ Supp 194 (also reported at [1998] 6 MLJ 38), where the Court held that in a trademark case, the plaintiff is entitled to the profit on each S/N uoYyw53IkuTbyLvyz7dtw item wrongfully sold, and that the plaintiff need not prove that the sale was made to a customer who was actually deceived (citing Lever v. Goodwin (1887) 36 Ch D 1).

The rationale is that every infringing sale represents a transaction which the infringer was not entitled to make, and the profit derived from each such transaction is, in principle, recoverable. Applied to the facts before me, this means that the Defendant is liable to account for the profit on each of the 7 units of Infringing Products sold to Rayn Revenue Sdn Bhd (6 units) and Wan Arfa Enterprise (1 unit), without any need for the Plaintiffs to demonstrate that the end purchasers or any downstream consumers were in fact misled by the offending information plates.

It follows from the equitable nature of this remedy that the Court must be astute to avoid two opposing extremes. On the one hand, the Court must not permit the infringer to retain any gains attributable to the infringement, for to do so would defeat the very object of the remedy and leave the wrongdoer in possession of the fruits of its wrong. On the other hand, the Court must not make an award that is excessive, speculative, or punitive in character, for such an award would itself create an unjust enrichment in favour of the plaintiff at the expense of the defendant.

The remedy is concerned with the disgorgement of the defendant's net gains, not its gross receipts. The object is to have the infringer give up its gain and not its revenue. S/N uoYyw53IkuTbyLvyz7dtw Net Profit, Not Gross Revenue

It is well settled that the profit to be accounted for is the net profit, that is, the gross revenue less the costs properly and legitimately attributable to the generation of that revenue. As stated in Kiwi Brands (supra), referring to Delfe v. Delamotte [1857] 3 K & J 581: "The case of Delfe v. Delamotte [1857] 3 K & J 581 lays down the proposition that the account is in relation to the net profits, like for an example, in relation to the sale price of the infringing article it must be less the manufacturing and delivery costs..."

This principle necessarily implies that the infringer is entitled to deduct from the gross revenue those costs legitimately and properly incurred in generating that revenue. The inquiry is directed at identifying the infringer's true gain, not its turnover. Reasonable Approximation, Not Mathematical Exactness

In performing the assessment of net profit, the Court is guided by the principle that mathematical exactness is neither required nor expected. What the law demands is a reasonable approximation. This was affirmed in Celanese International Corp and Another v. BP Chemicals and Another [1998] All ER (D) 493.

The doctrine of reasonable approximation does not license speculation, but neither does it permit the Court to insist upon a counsel of perfection that the circumstances cannot support. S/N uoYyw53IkuTbyLvyz7dtw Deductible Costs — Direct Costs and Overheads

The governing principles on the deductibility of costs were comprehensively set out by Kitchin LJ (as he then was) in the English Court of Appeal decision in Hollister Incorporated and another v. Medik Ostomy Supplies Ltd [2012] EWCA Civ 1382, at paragraphs [74]–[85]. In summary: a) An infringer is entitled to deduct any direct costs associated with the infringement, that is, costs that were solely incurred in connection with the infringing activity, and which would not have been incurred but for that activity; b) An infringer may also deduct any overheads to the extent that they have been increased by the infringement, that is, the incremental portion of overhead costs that is genuinely attributable to the infringing activity; c) However, it is not permissible for a defendant to allocate a proportion of its general overheads to an infringing activity where those overheads would have been incurred in any event, regardless of whether the infringement had taken place. Such overheads are not caused by the infringement and their deduction would understate the gain that the infringement has yielded; and d) The evidential burden rests upon the infringer to demonstrate that the relevant costs and overheads are properly attributable to the infringing activity. S/N uoYyw53IkuTbyLvyz7dtw

These principles were affirmed and applied in OOO Abbott v. Design & Display Ltd [2016] EWCA Civ 95, where the Court of Appeal endorsed the following propositions at paragraph 45: "(1) Costs associated solely with the defendant's acts of infringement are to be distinguished from general overheads which supported both the infringing business and the defendant's other businesses. ... (4) The evidential burden is on the defendant to establish any of the above." Burden of Proof

Both parties are agreed, and I accept, that the evidential burden of proving deductible costs lies upon the Defendant. This follows from Section 103 of the Evidence Act 1950, which provides that the burden of proof as to any particular fact lies on the person who wishes the Court to believe in its existence. It is reinforced by the express holding in OOO Abbott (supra) that "the evidential burden is on the defendant to establish any of the above".

This is a burden to be discharged not by assertion alone, but by evidence whether documentary, or by way of credible sworn testimony supported by such documentation as is reasonably available, or by a combination of the two.

Furthermore, the principle in Celanese (supra) is instructive and operates as an important qualification upon the doctrine of reasonable approximation. While mathematical precision is not required, the infringer remains under a positive duty to provide S/N uoYyw53IkuTbyLvyz7dtw proper discovery and to supply relevant information so as to enable the Court to carry out a reasonable assessment. As the Court there observed: "This does not absolve the defendant of the necessity of giving proper discovery or supplying relevant information to allow the court to carry out the assessment... It is no justification for pulling a figure out of the air which bears little relationship to any of the relevant facts."

A lack of information does not justify speculation or the adoption of unsupported figures plucked from thin air. But equally, where original records are genuinely unavailable as distinct from merely withheld or never created and where a reasonable and transparent methodology of estimation has been employed and explained, the Court may properly accept such estimates as a reasonable approximation. The line between a legitimate estimate and an impermissible figure "pulled out of the air" is to be drawn by reference to whether the figure bears a rational and demonstrable relationship to the relevant facts, or whether it is, on examination, arbitrary, internally inconsistent, or unsupported by any credible foundation. The Overarching Equitable Discretion

Ultimately, the assessment of an account of profits is an exercise of the Court's equitable jurisdiction, and not a mechanical or arithmetical computation to be performed without regard to fairness and the justice of the case. The Court must arrive at a figure that is just and fair, having regard to the totality of the evidence and to all S/N uoYyw53IkuTbyLvyz7dtw the circumstances of the case, and which achieves the twin objectives that lie at the heart of the remedy: the stripping from the infringer of the gains it has wrongfully made, while at the same time avoiding any unjust enrichment of the plaintiff.

As provided in Order 43 Rule 6 of the Rules of Court 2012, the Court must make "all just allowances" in taking the account. That phrase is significant: it directs the Court not merely to permit those deductions that are strictly and exhaustively proven, but to make all just allowances, a formulation which imports a measure of equitable judgment and which is wholly consonant with the doctrine of reasonable approximation discussed above. It is with these principles, and against this legal framework, that I now turn to the competing contentions of the parties and to the assessment of the disputed heads of cost. D.

The starting point for the account of profits is the Defendant's gross revenue from the sale of the 7 Infringing Products. This is established by two invoices issued by the Defendant itself: No. Document Description Reference

The invoice IV-10059 issued by the Defendant to Rayn Revenue Sdn Bhd (‘Rayn Revenue’) dated 14.6.2022 being the revenue received by the Defendant for the sale of 6 units of pg 143 – 144, Exhibit SU-4, PAIS S/N uoYyw53IkuTbyLvyz7dtw Infringing Products, i.e.,

The invoice IV-06928 issued by the Defendant to Wan Arfa Enterprise (‘Wan Arfa’) dated 5.2.2020 being the revenue received by the Defendant for the sale of 1 unit of Infringing Products, i.e., RM20,000.00. pg 146, Exhibit SU-4, PAIS TOTAL REVENUE

The Defendant does not dispute this total revenue figure. Both parties are agreed that the Defendant derived a total gross revenue of RM221,750.00 from the sale of the 7 Infringing Products. I accept this as established and undisputed. E. DEDUCTIBLE COSTS — ACQUISITION COSTS

The central dispute between the parties concerns the costs that should be deducted from the gross revenue to arrive at the net profit. The first category of costs in dispute is the acquisition cost of the 7 Infringing Products.

The Defendant claims the following acquisition costs:

(a) For the 6 units sold to Rayn Revenue: The Defendant asserts that these were sourced from Meinhardt EPCM Sdn Bhd ("Meinhardt"). Based on a bulk purchase price of RM154,600 for 102 units or 112 units (per the invoice EPCM/19-206, as contended by the Plaintiffs), the average acquisition cost per unit S/N uoYyw53IkuTbyLvyz7dtw was between RM1,380.36 and RM1,515.69. The Defendant tabulated the total acquisition cost for 6 units at RM9,094.14 (based on RM1,515.69 per unit).

(b) For the 1 unit sold to Wan Arfa: The Defendant asserts an acquisition cost of RM8,000.00, claiming this unit was individually sourced from an ex-Shell station in Kedah.

The Plaintiffs challenged the Defendant's claimed acquisition costs on several grounds:

(a) This Court found at the liability stage that the Defendant's claim that the pumps were the Plaintiffs' original pumps sourced from Meinhardt was "inherently incredible" (Paragraph 22 of the Grounds of Judgment). The serial numbers of the Infringing Products did not match the Plaintiffs' records, and Meinhardt sold the pumps on an "as-is" basis without modifications.

(b) The Defendant's own affidavits revealed contradictory accounts as to the source of the Infringing Products. In the Defendant's affidavit of compliance, the Defendant stated that all pumps were purchased from Meinhardt and/or CBRE GWS Sdn Bhd. In the supplementary affidavit of compliance, the Defendant instead claimed that the pump supplied to Wan Arfa was sourced from an ex-Shell station.

(c) The Plaintiffs accepted that the acquisition cost for the Meinhardt units should be based on the invoice EPCM/19-206, but contend S/N uoYyw53IkuTbyLvyz7dtw that the correct average is RM1,380.36 per unit (based on 112 units, not 102 units), giving a total of RM8,282.16 for 6 units.

(d) The Plaintiffs rejected the RM8,000.00 cost for the Wan Arfa unit as a "bare allegation" unsupported by documentation, and argued that if any deduction is allowed, it should correspond to the average Meinhardt cost of RM1,380.36. F. FINDINGS ON ACQUISITION COSTS

(i) The 6 units sold to Rayn Revenue

I begin with the acquisition cost for the 6 units sold to Rayn Revenue. The Defendant's case is that these units were sourced from the bulk purchase of used dispenser pumps from Meinhardt, as evidenced by the invoice EPCM/19-206.

I note at the outset that this Court's finding at the liability stage that the Defendant's claim that the Infringing Products were the Plaintiffs' original pumps sourced from Meinhardt was "inherently incredible" related to the issue of product identity and provenance for the purpose of establishing infringement, specifically the fact that the serial numbers did not match. That finding does not, in my judgment, necessarily preclude the Defendant from relying on the Meinhardt invoice to establish the cost of acquisition of the base units that the Defendant subsequently refurbished and sold. The two inquiries are distinct: one concerns the identity and authenticity of the products as original Tatsuno products (which was rejected), and the other S/N uoYyw53IkuTbyLvyz7dtw concerns the financial cost of acquiring used dispenser pumps from a particular supplier (which is a separate factual question).

However, I am mindful that the Defendant's own evidence on this point has been internally inconsistent. In the affidavit of compliance, the Defendant stated that all pumps were purchased from Meinhardt and/or CBRE GWS Sdn Bhd. In the supplementary affidavit of compliance, the Defendant gave a different account for the Wan Arfa unit. These inconsistencies do affect the credibility of the Defendant's evidence on sourcing. Nevertheless, the invoice EPCM/19-206 is a contemporaneous third-party document evidencing a bulk purchase of used dispenser pumps, and I am prepared to accept it as evidence of the base cost of acquisition for the units that were sold to Rayn Revenue, even if the Defendant's broader provenance narrative was rejected at the liability stage.

Turning to the calculation, the invoice EPCM/19-206 at pages 152– 153 of the PAIS reflects a total purchase of 112 units of dispenser pumps (not 102 units as stated by the Defendant) for a sum of RM154,600.00. The Plaintiffs correctly point out that the Defendant erred in calculating the average cost on the basis of 102 units. The correct average cost per unit is: RM154,600.00 ÷ 112 = RM1,380.36 per unit

Accordingly, the total acquisition cost for the 6 units sold to Rayn Revenue is: RM1,380.36 × 6 = RM8,282.16 S/N uoYyw53IkuTbyLvyz7dtw

I find that this amount is properly deductible as a direct cost of acquisition attributable to the 6 Infringing Products sold to Rayn Revenue.

The acquisition cost of the single unit sold to Wan Arfa is more contentious. The Defendant claims an acquisition cost of RM8,000.00, asserting that this unit was individually sourced from an ex-Shell station in Kedah. The Plaintiffs rejected this as a "bare allegation" unsupported by any documentation.

I have carefully considered the Defendant's evidence. Mr. Lakhbir Singh, the Defendant's director, stated in sworn testimony that the unit sold to Wan Arfa was acquired from an ex-Shell station in Kedah at a cost of approximately RM8,000.00, and that original documentation was unavailable due to the passage of time. The Defendant has not produced any invoice, receipt, or other contemporaneous document to substantiate this claimed cost.

I further note the internal inconsistency in the Defendant's own evidence: the Defendant's Detailed Costing Analysis at pages 20– 22 of the DAIR states an acquisition cost of RM4,500.00 for the Wan Arfa unit, yet the Defendant's submissions asserted a cost of RM8,000.00. This unexplained discrepancy between the Defendant's own documents significantly undermines the credibility of the claimed figure. S/N uoYyw53IkuTbyLvyz7dtw

The Plaintiffs submitted that if any deduction is allowed, it should be at the average Meinhardt cost of RM1,380.36. The Defendant argued that this is commercially illogical because the Wan Arfa unit was a separately sourced refurbished dispenser sold at RM20,000.00, and the Meinhardt average was for a bulk purchase of older, unrefurbished units.

In my judgment, the truth lies somewhere between the extremes advocated by the parties. On the one hand, I am not satisfied, on a balance of probabilities, that the acquisition cost was RM8,000.00 as claimed in the Defendant's submissions, given the total absence of documentation and the inconsistency with the Defendant's own costing analysis (which stated RM4,500.00). On the other hand, I accept that it is commercially plausible that a single, individually sourced unit may have cost more than the average price obtained through a bulk purchase of 112 units.

Applying the principle that what is required is a reasonable approximation, and exercising the Court's equitable discretion, I am of the view that a fair and reasonable estimate of the acquisition cost for the Wan Arfa unit is RM4,500.00 this being the figure stated in the Defendant's own Detailed Costing Analysis, which was prepared prior to litigation strategy and is therefore, in my judgment, likely to be a more reliable reflection of the Defendant's genuine assessment of the cost.

Accordingly, the total acquisition cost for the 1 unit sold to Wan Arfa that I allow as a deduction is RM4,500.00. S/N uoYyw53IkuTbyLvyz7dtw

Hence, the total deductible acquisition costs are therefore: Item Amount (RM) 6 units to Rayn Revenue (RM1,380.36 × 6) 8,282.16 1 unit to Wan Arfa 4,500.00 Total Acquisition Costs 12,782.16 G. DEDUCTIBLE COSTS — REFURBISHMENT AND DIRECT

The second and more significant category of costs in dispute relates to the refurbishment and direct costs claimed by the Defendant. The Defendant's business, as stated in the Defendant’s affidavit in reply and the trial evidence, involves the supply and sale of refurbished petrol dispenser pumps. The Defendant contends that significant costs were incurred to bring the used/ex-stock units to a marketable, compliant, and saleable condition, and that these costs must be deducted as direct costs of generating the revenue.

The Defendant's director, Mr. Lakhbir Singh, provided a Detailed Costing Analysis at pages 20–22 of the DAIR (Exhibit LS-2), supported by sample supplier invoices (Exhibit LS-3), together with an explanation of the methodology of cost allocation. The claimed refurbishment costs include:

(a) Inspection work;

(b) Disassembly and assembly work; S/N uoYyw53IkuTbyLvyz7dtw

(c) Cleaning work;

(d) Painting work (including primer, thinner, clear coat, and related materials);

(e) Component testing and replacement;

(f) Product and logo stickers;

(g) Transportation costs; and

(h) Various materials and parts.

The Defendant relies on Mr. Lakhbir Singh's testimony during re-examination at trial, where he stated: "For Dungun it was a refurbished dispenser. It was sold the refurbished. And for Senawang, it was Meinhardt used, I mean new, old stock dispenser, but still we brought it back to our store. We need to refurbish it, because we bought it from Meinhardt in 2019 and En Zaharin bought it from us in 2022. So it was two years kept in our warehouse, so we still need to bring it back to our store, refurbish it, do the necessary tests, and only then we sent it over to En Zaharin's side for the calibration and other purpose."

The Defendant argues that these costs are direct costs necessary to render the used/ex-stock units marketable and saleable, and are analogous to "manufacturing and delivery costs" as contemplated in Kiwi Brands (supra) and Delfe v. Delamotte (supra). The S/N uoYyw53IkuTbyLvyz7dtw Defendant submits that the refurbishment work is, in the context of its business, the very "manufacturing process" that transforms a raw input (a used pump) into a finished, saleable product.

The Defendant further submitted that where original records are unavailable, a reasonable approximation based on sample costs and sworn testimony is necessary to achieve equity, and that the Plaintiffs have failed to produce any evidence to contradict the costing analysis.

The Plaintiffs deny the deductibility of the claimed refurbishment costs. According to the Plaintiffs the Defendant failed to produce a single document to show that refurbishment has been made. Further, during the trial, En Zaharin (PW1) from Rayn Revenue had testified that the Defendant had represented to him that the dispenser pumps were unused dispenser pumps although they are old stock.

The Plaintiffs had also affirmed in its affidavit that based on their experience in keeping unused dispenser pumps for even periods of 7 years, there is no need to carry out any major refurbishment costs. In the present matter, if such major refurbishment had been carried out by the Defendant, the Defendant would have been able to produce documentary evidence to show such costs had been incurred. However, according to the Plaintiffs, not a shred of evidence was produced by the Defendant to prove these assertions. The Defendant’s only reference to other costs arise from sample invoices exhibited at pages 24 – 49, Exhibit LS-3, DAIR which S/N uoYyw53IkuTbyLvyz7dtw learned counsel for the Plaintiff argued has nothing to do with the 7 Infringing Products.

It is trite law that the party who alleges a fact bears the burden of proving it. This principle is codified in section 103 of the Evidence Act 1950: The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.

As the Defendant asserts that refurbishment costs were incurred prior to the sale of the Infringing Products, the burden lies on the Defendant to substantiate that claim with credible evidence. It is the Plaintiffs’ case that since the Defendant produced no actual invoices evidencing that such refurbishment costs were incurred, an adverse inference should therefore be drawn against the Defendant and no other deduction of costs should be allowed other than the acquisition costs.

Learned counsel for the Plaintiffs relied on the case of Juahir bin Sadikon v Perbadanan Kemajuan Ekonomi Negeri Johor [1996] 3 MLJ 627, wherein Siti Norma Yaakob JCA (as she then was) held that: “He who alleges must prove such allegations and the onus is on the appellant to do so. See s 103 of the EA. Thus, it is incumbent upon the appellant to produce … his witnesses to prove the allegation. The fact that the appellant was unable to secure the attendance of … a S/N uoYyw53IkuTbyLvyz7dtw witness does not shift the burden to…produce the witness … There is no obligation in law for the respondent to produce the witness as the obligation rests with … the party who alleges, and the fact that the appellant was unable to do so is fatal to his case. For this very reason too, the adverse inference under s 114(g) is invoked against the appellant.”

Further, pursuant to section 82(1)(a) of the Income Tax Act 1967, every taxpayer is legally obliged to maintain business records for 7 years, and this statutory obligation cannot be waived. The section provides that:

Duty to keep records and give receipts

(a) shall keep and retain in safe custody sufficient records for a period of seven years from the end of the year to which any income from that business relates to enable that income from that business for each year of assessment or the adjusted loss from that business for the basis period for any year of assessment to be readily ascertained by the Director General or an authorized officer…

Learned counsel for the Plaintiffs submitted that the Defendant was able to produce sample invoices dated around the relevant period (pg24–49, Exhibit LS-3, DAIR) but failed to produce the actual invoices for the alleged refurbishment costs. The fact that the Defendant would have such documents in its possession but failed to disclose them further justifies an adverse inference being drawn. In the premises learned counsel submitted that the Defendant’s S/N uoYyw53IkuTbyLvyz7dtw inability to exhibit actual invoices relating to the 7 Infringing Products suggests either that the actual costs were far lower than alleged or that no such costs were incurred at all. Accordingly, it is the Plaintiffs’ case that the Defendant has failed to prove that refurbishment costs were actually incurred and is therefore not entitled to any deduction of any other costs other than the acquisition costs. H.

(i) Whether Refurbishment Costs Are in Principle Deductible

I deal first with the threshold legal question of whether, in principle, refurbishment costs may be deducted in an account of profits in the present context.

I accept the Defendant's submission that refurbishment costs, in the context of a business that acquires, refurbishes, and resells used goods, are properly characterised as direct costs of generating the revenue. The principle in Kiwi Brands (supra), referencing Delfe v. Delamotte, is clear: the account is in relation to the net profits, and the sale price must be reduced by "manufacturing and delivery costs." In the Defendant's business model, the refurbishment of used petrol dispenser pumps is the equivalent of a manufacturing process it is the process by which raw material (a used pump) is transformed into a finished, saleable product. Without refurbishment, the used pumps cannot be sold and no revenue can be generated. S/N uoYyw53IkuTbyLvyz7dtw

The Plaintiffs' characterisation of refurbishment costs as "general overheads" is, in my judgment, a misapplication of the Hollister principles. General overheads, in the Hollister sense, refer to fixed costs of running a business that would be incurred regardless of whether the infringing activity took place such as rent, utilities, salaries of employees engaged in non-infringing work, and similar expenses. In contrast, the direct costs of refurbishing a specific unit for sale including inspection, parts replacement, cleaning, painting, and testing are costs that are incurred solely because of and in connection with the act of preparing that unit for sale. These are variable costs directly attributable to the infringing activity.

The Plaintiffs' argument that no refurbishment costs should have been incurred for the 6 Rayn Revenue units because they were "unused ex-stock" is contradicted by the Defendant's sworn testimony at trial. Mr. Lakhbir Singh testified that even the "new old stock" units purchased from Meinhardt in 2019 required refurbishment before sale in 2022, having been stored in the Defendant's warehouse for approximately two years. This testimony is commercially plausible and was not challenged by cross-examination evidence to the contrary at the liability stage. Items stored for two years in a warehouse, even if originally unused, would reasonably require inspection, cleaning, testing, and potentially component replacement before they could be sold as functioning, compliant petrol dispenser pumps to end customers. I therefore reject the Plaintiffs' submission that no refurbishment costs were incurred for the Rayn Revenue units. S/N uoYyw53IkuTbyLvyz7dtw

Accordingly, I find as a matter of principle that refurbishment costs being direct, variable costs incurred solely in connection with the preparation of the specific Infringing Products for sale are in principle deductible in computing the Defendant's net profit. They are not "general overheads" within the meaning of the Hollister principles. They are the functional equivalent of manufacturing costs in the Defendant's refurbishment business, as contemplated by the principles in Kiwi Brands (supra) and Delfe v. Delamotte (supra).

Insofar as the Defendant’s alleged failure to produce original invoices, invoking adverse inference under Section 114(g) of the Evidence Act 1950, and alleging a potential breach of Section 82(1)(a) of the Income Tax Act 1967, I find that the Plaintiffs’ contention that an adverse inference is applicable is incorrect and erroneous because the Defendant has produced sample invoices from the same relevant period ([DAIR, Exhibit LS-3] – detailing paint, component, and labour costs). This constitutes admissible and sufficient documentary evidence allowing the court to achieve the necessary “reasonable approximation” of costs, thereby rendering the adverse inference inapplicable.

The principles governing the drawing of an adverse inference hinge upon assessing whether the party withholding evidence demonstrates a real and genuine interest in furnishing the documents and whether reasonable steps were taken to obtain or produce them (see Beyond Hallmark Sdn Bhd v Cheah Siu Hui [2021] MLJU 1120). That authority is critically distinguishable: the defendant therein was an advocate and solicitor operating a legal firm, obligated to maintain strict, comprehensive records concerning S/N uoYyw53IkuTbyLvyz7dtw millions in client monies, rendering its failure to produce such fundamental documentation “astoundingly incredulous and absurd”, when digital banking services are common and accessible nowadays. The excerpts of the judgment are as follows: “[24] This Court is in full agreement with the counsel for the Plaintiff that it is astoundingly incredulous and absurd for the D2 (as an advocate and solicitor, a litigation lawyer running his own legal firm) can plainly and brazenly admit that he has no possession of documents of records of transactions which are only six (6) years old. And this is far more perplexing considering the D2 deals with immense amount of monies up to the millions of ringgit. … [33] Regarding the two (2) accounts, (namely; the RHB Bank Bhd (at Mid Valley Branch, KL A/C No: 21409900025410) and Citibank Bhd (at Jalan Ampang KL bank accounts at A/C No: 0291791018) in which monies received from MNL were allegedly deposited into), notwithstanding the status or even dormancy of the accounts, this Court cannot accept the D2’s purported difficulty or failure to obtain the accounts’ past bank statements. In this digital era and age and the advent of online banking (where transactions and records of transactions are at your fingertips) it is unimaginable that the D2 would still be unable to access the relevant records and statements. [34] Furthermore, the letters of the D2 issued to the Banks are hardly any proof of due diligence and effort to resolve the D2’s inability to access the banking records. Indeed, the mere issuance of the letters lack any real probity and urgency from the D2 to resolve his ‘problems’. The concept S/N uoYyw53IkuTbyLvyz7dtw of digital banking and digital banking service is not at all revolutionary today and has been implemented since years ago. And yet the D2 is only keen on pursuing the archaic form of communication via letters. The D2 did not bother to persevere and explore other forms of communications via e-mail or social media. Indeed, there are no exhibits enclosed to that effect. It is entirely questionable that after all this time, the D2 could not even get a hold of (and thereafter exhibit) any particulars of any Bank officer that he is dealing with to resolve the matter. It is far too indolent and lackadaisical for the D2 to simply sit on those letters and expect all the investigative and ground work to be done for him (and not by himself). Clearly the D2 has no real or genuine interest at all to properly furnish into Court all the relevant documents entailing the D2’s dealings of the monies he received from MNL.” (Emphasis added)

In sharp contrast, I find that the Defendant operates a refurbishing business where the supply of spare parts is incidental. This operation is not akin to a fiduciary business involving financial custodianship or subject to the strict regulatory and statutory record-keeping duties applicable to law firms. The documents sought are miscellaneous bulk-order parts invoices, commonly purchased in bulk across multiple projects. This commercial reality renders the precise isolation of specific invoices to individual infringing goods impossible, meaning these records are inherently incapable of the perfect specificity demanded by the Plaintiffs.

Notwithstanding these practical limits imposed by the business model, the Defendant has proactively discharged its evidential burden and satisfied the standard of reasonable diligence required S/N uoYyw53IkuTbyLvyz7dtw by Beyond Hallmark (Supra). This effort is evidenced by the production of a detailed costing analysis substantiated by sample supplier invoices covering the relevant trading period [DAIR, at Paragraph 8]. These documents qualify as contemporaneous documentary evidence sufficient to provide a reliable approximation of costs incurred. Accordingly, there is no basis to draw an adverse inference because the Defendant has not been evasive, indifferent, or non-cooperative; rather, it has shown genuine effort to assist the Court by supplying all documents reasonably obtainable.

Furthermore, it must be stressed that the issue of an alleged offense under the Income Tax Act 1967 is irrelevant to the present civil action for an account of profits as it falls exclusively within the jurisdiction of the tax authorities to be dealt with separately.

Having established that refurbishment costs are in principle deductible, I turn to the critical question of whether the Defendant has discharged its evidential burden of proving the quantum of those costs.

I remind myself of the applicable principles. The burden lies on the Defendant to prove the deductible costs on a balance of probabilities (refer Section 103 of the Evidence Act 1950; OOO Abbott (supra) and Hollister (supra)). The standard is not mathematical exactness but a reasonable approximation as stated in Celanese (supra). However, the infringer is not absolved of the duty to provide proper discovery and relevant information: Celanese (supra) at paragraph S/N uoYyw53IkuTbyLvyz7dtw

It is no justification for "pulling a figure out of the air which bears little relationship to any of the relevant facts."

The Defendant's evidence on refurbishment costs consists of the following:

(a) The sworn testimony of Mr. Lakhbir Singh, the Defendant's director, in the DAIR at Paragraphs 5, 6, 7, 8, 10, and 11, describing the nature of the refurbishment work and the costs involved;

(b) The Detailed Costing Analysis at pages 20–22 of the DAIR (Exhibit LS-2), setting out a breakdown of costs per unit for the Rayn Revenue and Wan Arfa sales;

(c) Sample supplier invoices exhibited at Exhibit LS-3 of the DAIR;

(d) An explanation of the methodology of cost allocation, based on the sample invoices and Mr. Lakhbir Singh's experience in the business; and

(e) Mr. Lakhbir Singh's oral testimony during re-examination at trial, confirming the nature and extent of refurbishment work undertaken.

Against this, the Plaintiffs have mounted a vigorous attack on the reliability of the Detailed Costing Analysis. The Plaintiffs highlight the following deficiencies, which I have carefully considered: S/N uoYyw53IkuTbyLvyz7dtw

(a) Internal inconsistency in acquisition costs: The Detailed Costing Analysis states acquisition costs of RM4,500.00 per unit for Wan Arfa and RM4,650.00 per unit for Rayn Revenue. However, in the Defendant's written submissions, the Defendant argues for an acquisition cost of RM1,515.69 per unit (Rayn Revenue, based on the Meinhardt invoice) and RM8,000.00 (Wan Arfa, based on Mr. Lakhbir Singh's testimony). The Defendant has offered no reconciliation of these three different sets of figures. This is a significant discrepancy that undermines the reliability of the Detailed Costing Analysis.

(b) Inflated sticker costs: The Detailed Costing Analysis claims display sticker costs of RM500.00 per unit for Wan Arfa and RM900.00 per unit for Rayn Revenue. However, the sample invoice at page 40 of Exhibit LS-3, DAIR records sticker costs at RM178.00 each. Even allowing for different types of stickers or multiple stickers per unit, the figures claimed are substantially higher than the documentary evidence supports, and no explanation for the discrepancy has been provided.

(c) Unsupported cost items: The Detailed Costing Analysis includes costs for items such as primer, clear coats, "break cover/scarf," and "short outlet elbow Sunny XE," for which no invoices have been exhibited.

(d) Inconsistent paint-related entries: There are repeated entries for the same materials (normal thinner, primer, "Farecla G3") with inconsistent amounts, suggesting either duplication or arbitrary figures. S/N uoYyw53IkuTbyLvyz7dtw

(e) Inconsistent transportation charges: For the 6 units delivered to Senawang (Rayn Revenue), the transportation charges vary between RM1,000.00 and RM1,500.00 per unit, with no explanation for why deliveries to the same destination would cost different amounts.

(f) Arbitrary quantities: The quantities of materials stated for each unit appear to be arbitrary, with no explanation of how they were derived or whether they correspond to actual usage for the specific Infringing Products.

I have weighed the Defendant's evidence against the Plaintiffs' contentions with care. First, the internal inconsistencies in the Detailed Costing Analysis are troubling. An analysis that contains three different acquisition cost figures for the same products — RM4,500.00/RM4,650.00 in the costing table, RM1,380.36– RM1,515.69 per the Meinhardt invoice, and RM8,000.00 in the written submissions without any reconciliation or explanation, cannot be accepted at face value as a reliable document. The Defendant has failed to explain these discrepancies.

Second, the inflation of sticker costs beyond the documentary evidence (RM178.00 per sticker on the sample invoice versus RM500.00–RM900.00 claimed) further erodes the credibility of the Detailed Costing Analysis. Where the Defendant's own sample invoice contradicts the figures in its costing analysis, the Court is entitled to prefer the contemporaneous documentary evidence. S/N uoYyw53IkuTbyLvyz7dtw

Third, I accept the Plaintiffs' point that for certain line items such as primer, clear coats, break covers, and certain replacement parts no invoices at all (whether specific or sample) have been produced. For these items, the Defendant's evidence rests entirely on Mr. Lakhbir Singh's unsupported assertion in the costing table. While I accept that mathematical exactness is not required, the principle in Celanese (supra) is clear that a lack of information is "no justification for pulling a figure out of the air which bears little relationship to any of the relevant facts."

Fourth, I am mindful of the Defendant's explanation that original records were unavailable due to the passage of time, and that the costing analysis was based on sample invoices and Mr. Lakhbir Singh's experience. I accept that this explanation has some force, particularly for a small business dealing in refurbished goods where meticulous per-unit costing records may not be maintained. The Defendant is not a large corporation with sophisticated accounting systems. However, this consideration cuts both ways: the passage of time and absence of records does not entitle the Defendant to claim inflated or unsupported figures, nor does it relieve the Defendant of the obligation to provide such records as are available and to give honest and consistent evidence.

Fifth, notwithstanding the deficiencies in the Detailed Costing Analysis, I am satisfied that the Defendant has established, on a balance of probabilities, that some refurbishment costs were necessarily incurred. The commercial reality of the Defendant's business acquiring used or old-stock petrol dispenser pumps, storing them, refurbishing them, and selling them at a substantial S/N uoYyw53IkuTbyLvyz7dtw mark-up necessarily entails costs beyond mere acquisition. Mr. Lakhbir Singh's trial testimony on this point was given during re-examination under oath and was not contradicted by cross-examination evidence. The Plaintiffs' position that the Defendant incurred virtually no costs beyond acquisition yielding a profit margin of approximately 96% is itself commercially implausible and, if accepted, would result in an award that is punitive rather than restitutionary, contrary to the principles in Dart Industries (supra).

The question, therefore, is not whether refurbishment costs were incurred, but what quantum of refurbishment costs the Court can fairly and reasonably allow. This is where the exercise of equitable judgment and the principle of reasonable approximation become critical.

I now turn to assess each category of refurbishment cost claimed by the Defendant, bearing in mind the evidential standard and the deficiencies identified above. In doing so, I adopt the approach of examining each cost category, determining whether it is in principle deductible, assessing the evidence for the quantum claimed, and arriving at a reasonable approximation where appropriate.

(a) Component Testing and Replacement

The Defendant claims costs for component testing and replacement for each unit. This is a cost category that is plainly deductible in principle a used petrol dispenser pump must be tested and non-S/N uoYyw53IkuTbyLvyz7dtw functioning components replaced before it can be sold as a working unit. This is a direct cost solely attributable to the preparation of the specific unit for sale.

However, the Defendant's evidence on the quantum of component testing and replacement costs is unsatisfactory. The Detailed Costing Analysis lists various replacement parts and testing costs, but the figures do not consistently correspond to the sample invoices exhibited at Exhibit LS-3, DAIR. The Plaintiffs have pointed out specific discrepancies, and the Defendant has failed to reconcile them.

I am nonetheless satisfied that some cost of component testing and replacement was necessarily incurred. No used or stored petrol dispenser pump could be sold without at least basic testing and some component replacement. Doing the best I can on the available evidence, and applying the principle of reasonable approximation, I allow a modest figure for component testing and replacement per unit. I have regard to the sample invoices exhibited by the Defendant while they do not relate specifically to the 7 Infringing Products, they give an indication of the order of magnitude of such costs in the Defendant's business. Where specific sample invoices support a particular line item, I give weight to those invoices. Where no supporting documentation exists, I allow only a minimal amount reflecting the bare minimum of testing that any prudent seller of refurbished goods would undertake.

For the 6 units sold to Rayn Revenue, I allow a component testing and replacement cost of RM1,500.00 per unit (total: RM9,000.00). S/N uoYyw53IkuTbyLvyz7dtw This figure reflects a conservative estimate that accounts for basic electrical and mechanical testing, replacement of worn seals and gaskets, and calibration-related work, consistent with the lower end of the range indicated by the sample invoices.

For the 1 unit sold to Wan Arfa, which was described as a "refurbished" dispenser (as distinct from the "new old stock" Rayn Revenue units) and which was sold at a lower price of RM20,000.00 compared to the per-unit price of RM33,625.00 for the Rayn Revenue units, I allow a component testing and replacement cost of RM1,200.00. The lower allowance reflects the lower sale price and the absence of any specific documentation for this unit.

(b) Product and Logo Stickers

The Defendant claims costs for product and logo stickers. The Plaintiffs have pointed out that the sample invoice at page 40 of Exhibit LS-3 records sticker costs at RM178.00 each, whereas the Defendant claims RM500.00 per unit (Wan Arfa) and RM900.00 per unit (Rayn Revenue).

I note at the outset that the affixing of information plates and stickers bearing the Plaintiffs' Registered Trademarks with false information is the very act of infringement for which the Defendant has been found liable. There is a question of principle as to whether the cost of creating and affixing the infringing labels the instruments of the infringement itself should be deductible from the profits earned through that infringement. S/N uoYyw53IkuTbyLvyz7dtw

In my judgment, the cost of manufacturing the infringing information plates and false stickers should not be deductible as a matter of equitable principle. To allow the Defendant to deduct the cost of producing the very instruments of its wrongdoing would be to require the Plaintiffs to subsidise the infringement. This is analogous to the principle that a counterfeiter cannot deduct the cost of manufacturing counterfeit goods from an account of profits.

However, to the extent that stickers unrelated to the infringing marks (for example, generic product safety labels, handling instructions, or branding stickers that do not constitute the infringement) were necessary to render the units saleable, such costs may in principle be deductible. The Defendant has not drawn any distinction between infringing stickers/information plates and non-infringing stickers. In the absence of any evidence differentiating the two, and given the centrality of the false information plates to the finding of infringement, I disallow the entirety of the claimed sticker costs.

Accordingly, no deduction is allowed for product and logo sticker costs.

(c) Painting

The Defendant claims painting costs including primer, thinner, clear coat, "Farecla G3" polishing compound, and related materials. Painting and cosmetic refurbishment of a used or stored dispenser pump is a commercially plausible and necessary step to render the unit presentable and saleable. I accept that painting is a direct cost in principle deductible. S/N uoYyw53IkuTbyLvyz7dtw

However, the Plaintiffs have identified significant inconsistencies in the Defendant's claimed painting costs: repeated entries for the same materials with different amounts, and the absence of invoices for certain paint-related items. The Detailed Costing Analysis, in this regard, is unreliable as to the specific quantum claimed.

Doing the best I can, and having regard to the sample invoices that do corroborate the purchase of some painting materials, I allow a reasonable painting cost per unit. I note that painting a single petrol dispenser pump is not an extensive operation it involves surface preparation, priming, spraying, and clear-coating of the external panels of a unit approximately the size of a large appliance. Based on the sample invoices and general commercial knowledge, I allow a painting cost of RM800.00 per unit for the Rayn Revenue units (total: RM4,800.00) and RM600.00 for the Wan Arfa unit.

(d) Cleaning and Inspection Work

The Defendant claims costs for cleaning and inspection work. The Plaintiffs characterise these as "general overheads" that are not deductible.

I have already found earlier that the Plaintiffs' characterisation is incorrect. Cleaning and inspection of a specific unit being prepared for sale are direct, variable costs incurred solely in connection with that unit. However, I note that cleaning and inspection work was performed by the Defendant's own staff using the Defendant's own facilities. There is no evidence that the Defendant hired external S/N uoYyw53IkuTbyLvyz7dtw contractors or purchased specific cleaning materials solely for the 7 Infringing Products.

Where work is performed by the infringer's own employees using existing facilities, the position is more nuanced. Under the Hollister principles, the salaries of employees who would have been paid regardless of the infringing activity are general overheads that cannot be allocated to the infringement. The Defendant has not shown that it hired additional staff or incurred incremental labour costs specifically because of the refurbishment of the 7 Infringing Products. Therefore, to the extent that the claimed cleaning and inspection costs represent an allocation of the Defendant's existing staff salaries, they fall within the category of general overheads that are not deductible under Hollister.

However, I accept that there may have been incremental consumable costs associated with cleaning (cleaning agents, solvents, rags, etc.) and that some inspection costs may have involved the purchase of testing materials or the engagement of calibration services. To the extent that such costs were incremental — i.e., they would not have been incurred but for the refurbishment of the Infringing Products they are in principle deductible.

In the absence of specific evidence quantifying the incremental cleaning and inspection costs (as distinct from general staff time), I allow a modest figure of RM300.00 per unit for the Rayn Revenue units (total: RM1,800.00) and RM250.00 for the Wan Arfa unit. This reflects the likely cost of consumable materials and basic testing, S/N uoYyw53IkuTbyLvyz7dtw while excluding the non-deductible allocation of general staff overhead.

(e) Assembly and Disassembly Work

The Defendant claims costs for assembly and disassembly work. Similar to cleaning and inspection, the Plaintiffs characterise these as general overheads.

The same analysis applies. To the extent that assembly and disassembly was performed by the Defendant's existing employees, the labour cost is a general overhead that is not deductible. To the extent that specific materials, tools, or components were consumed during the assembly/disassembly process, those incremental costs are deductible.

However, I note that costs for replacement parts and components have already been separately addressed under "Component Testing and Replacement" above. The assembly/disassembly labour cost, being performed by existing staff, is a general overhead. I therefore do not allow a separate deduction for assembly and disassembly work, as the incremental material costs have already been captured under component testing and replacement.

(f) Transportation Costs

The Defendant claims transportation costs for delivering the units to the customers. Transportation is plainly a direct cost of sale — it is incurred solely because of and in connection with the specific sale, S/N uoYyw53IkuTbyLvyz7dtw and would not have been incurred but for the infringing transaction. The principle in Kiwi Brands (supra) explicitly refers to "delivery costs" as deductible.

For the 6 units sold to Rayn Revenue (delivered to Shell Senawang), the Defendant claims transportation costs ranging from RM1,000.00 to RM1,500.00 per unit. The Plaintiffs point out the unexplained discrepancy in charges for deliveries to the same destination.

I accept that transportation costs were incurred. The variation between RM1,000.00 and RM1,500.00 per unit may reflect different delivery dates, different transport arrangements, or the number of units delivered per trip. In the absence of specific delivery invoices, I adopt the lower figure of RM1,000.00 per unit for the 6 Rayn Revenue units (total: RM6,000.00), as this is the minimum the Defendant itself claims and is commercially reasonable for delivering heavy industrial equipment from the Defendant's warehouse to Senawang, Negeri Sembilan.

For the 1 unit sold to Wan Arfa (delivered to Petron Bandar Dungun, Terengganu), a longer distance is involved. The Defendant's Detailed Costing Analysis claims a transportation cost (which, based on the submissions, appears to be approximately RM1,000.00–RM1,500.00). Given the greater distance to Dungun, Terengganu compared to Senawang, Negeri Sembilan, I allow a transportation cost of RM1,500.00 for the Wan Arfa unit.

(g) Other Miscellaneous Costs S/N uoYyw53IkuTbyLvyz7dtw

The Defendant's Detailed Costing Analysis includes various other line items such as "break cover/scarf," "short outlet elbow Sunny XE," and other miscellaneous components for which no invoices not even sample invoices have been produced. For these items, the Defendant's evidence consists solely of entries in the costing table with no supporting documentation whatsoever.

While I accept the principle that mathematical exactness is not required, I am unable to allow deductions for cost items that are entirely unsupported by any evidence beyond a self-serving entry in an unverified costing table. As stated in Celanese (supra), a lack of information is "no justification for pulling a figure out of the air." The Defendant has failed to discharge even the minimum evidential burden for these items.

I therefore do not allow deductions for miscellaneous cost items that are unsupported by any documentation.

The total refurbishment costs that I allow as deductions are summarised as follows: Rayn Revenue (6 units): Cost Category Per Unit (RM) Total (RM) Component Testing & Replacement 1,500.00 9,000.00 Product & Logo Stickers 0.00 0.00 S/N uoYyw53IkuTbyLvyz7dtw Painting 800.00 4,800.00 Cleaning & Inspection 300.00 1,800.00 Assembly & Disassembly Work 0.00 0.00 Transportation 1,000.00 6,000.00 Miscellaneous 0.00 0.00 Sub-total per unit 3,600.00 21,600.00 Wan Arfa (1 unit): Cost Category Per Unit (RM) Total (RM) Component Testing & Replacement 1,200.00 1,200.00 Product & Logo Stickers 0.00 0.00 Painting 600.00 600.00 Cleaning & Inspection 250.00 250.00 Assembly & Disassembly Work 0.00 0.00 Transportation 1,500.00 1,500.00 Miscellaneous 0.00 0.00 Sub-total 3,550.00 3,550.00 Total Allowed Refurbishment Costs: RM25,150.00 I. DEDUCTIBLE COSTS — GENERAL OVERHEADS

The Plaintiffs submitted that the Defendant's claimed costs for inspection work, assembly work, cleaning work, and painting work are "general overheads" under the Hollister principles and are therefore not deductible. I have addressed the characterisation of these costs above and found that: S/N uoYyw53IkuTbyLvyz7dtw

(a) The material/consumable component of cleaning, inspection, and painting costs is deductible as a direct cost;

(b) The labour component, to the extent it represents the Defendant's existing staff performing work that would have been part of their regular duties, is a general overhead that is not deductible; and

(c) Assembly and disassembly labour costs are general overheads that are not separately deductible.

The Defendant has not separately claimed any other overheads (such as warehouse rent, utilities, insurance, or general administrative costs) as deductible. To the extent that such overheads are embedded in the Detailed Costing Analysis, they are not deductible under the Hollister principles unless the Defendant can show they were increased by the infringement. No such evidence has been adduced.

Accordingly, I do not allow any additional deduction for general overheads beyond what has already been addressed under the refurbishment cost categories above. J.

I now draw together my findings to compute the Defendant's net profit from the sale of the 7 Infringing Products. S/N uoYyw53IkuTbyLvyz7dtw Item Amount (RM) Gross Revenue 221,750.00 Less: Deductible Costs Acquisition Cost — Rayn Revenue (6 units) (8,282.16) Acquisition Cost — Wan Arfa (1 unit) (4,500.00) Refurbishment Costs — Rayn Revenue (6 units) (21,600.00) Refurbishment Costs — Wan Arfa (1 unit) (3,550.00) Total Deductible Costs (37,932.16) Net Profit 183,817.84

I observe that this figure results in an effective profit margin of approximately 82.9% on the gross revenue. While this is still a high margin, it is materially lower than the approximately 96% margin contended for by the Plaintiffs (which was based on deducting acquisition costs alone). The margin reflects the reality that the Defendant's primary cost was the acquisition of cheap used/old-stock pumps at approximately RM1,380.00 per unit (from Meinhardt) or RM4,500.00 (for the Wan Arfa unit), which were then sold at RM20,000.00–RM33,625.00 per unit after refurbishment and the affixing of false information plates bearing the Plaintiffs' Registered Trademarks. The substantial mark-up underscores the value that the infringing use of the Plaintiffs' trademarks added to the products, which is precisely what an account of profits is designed to capture.

The Defendant contended that the true net profit did not exceed RM46,050.00, based on the Detailed Costing Analysis. I have rejected significant portions of the Defendant's claimed costs as unsupported, internally inconsistent, or inflated. The Defendant's S/N uoYyw53IkuTbyLvyz7dtw figure of RM46,050.00 implied total costs of approximately RM175,700.00 — costs that the Defendant was simply unable to substantiate on the evidence before the Court. A net profit of RM46,050.00 would represent only a 20.8% margin, which, while not inherently implausible for some businesses, is inconsistent with the evidence of very low acquisition costs and the nature of the Defendant's business as established at trial.

Equally, the Plaintiffs' figure of RM212,087.48 (or RM212,655.86 as initially calculated) which essentially treated the Defendant's costs as negligible beyond acquisition was excessively high and failed to account for the necessary refurbishment costs that the Defendant's business model plainly required.

I am satisfied that RM183,817.84 represents a just and reasonable approximation of the Defendant's net profit from the sale of the 7 Infringing Products. This figure properly balances the need to strip the Defendant of its gains from the infringement while making fair allowance for the legitimate costs incurred.

Accordingly, I order that the Defendant shall account to the Plaintiffs in the sum of RM183,817.84 as the net profit derived from its acts of trademark infringement and passing off. K.

Pursuant to Paragraph 11 of the Judgment, the Plaintiffs seek an assessment of aggravated and/or exemplary damages. The Plaintiffs claim a global sum of RM300,000.00 in aggravated and S/N uoYyw53IkuTbyLvyz7dtw exemplary damages. The Defendant contends that such an award is unwarranted and that the account of profits itself serves as a sufficient deterrent. The Law on Aggravated Damages

Aggravated damages are compensatory in nature. They are awarded where the manner in which the wrong was committed, or the defendant's conduct subsequent to the wrong, has aggravated the injury to the plaintiff. Aggravated damages compensate the plaintiff for the increased hurt, humiliation, or distress caused by the defendant's conduct. They are not punitive in nature but are assessed by reference to the plaintiff's suffering.

In the context of intellectual property infringement, aggravated damages may be awarded where the defendant's conduct demonstrates a flagrant disregard for the plaintiff's rights, where the infringement was deliberate and calculated, or where the defendant's post-infringement conduct such as denial, concealment, or continued infringement has exacerbated the harm suffered by the plaintiff.

The relevant considerations include:

(a) Whether the infringement was deliberate and calculated;

(b) Whether the defendant had knowledge of the plaintiff's rights; S/N uoYyw53IkuTbyLvyz7dtw

(c) Whether the defendant's conduct subsequent to the infringement (including during litigation) was aggravating;

(d) The nature and extent of the plaintiff's injury beyond mere financial loss; and

(e) Any other circumstances that render the plaintiff's injury more serious. The Law on Exemplary Damages

Exemplary damages (also known as punitive damages) are awarded not to compensate the plaintiff but to punish the defendant and to deter future wrongdoing. They are awarded only in exceptional circumstances. The foundational authority is Rookes v Barnard [1964] AC 1129, as reaffirmed and succinctly summarised by the Learned Zawawi Salleh JCA (later FCJ) in the Court of Appeal case of Sambaga Valli a/p KR Ponnusamy v Datuk Bandar Kuala Lumpur & Ors and another appeal [2018] 1 MLJ 784. Aggravated damages are a species of compensatory damages. They are awarded as additional compensation where the claimant suffers intangible injury, caused or exacerbated by the exceptional conduct of the defendant (para 32 of Sambaga Valli.

Exemplary (or punitive) damages are additional damages awarded to signify the Court’s disapproval and condemnation of the defendant’s conduct, and to punish and deter such behaviour (para 33 of Sambaga Valli: S/N uoYyw53IkuTbyLvyz7dtw [32] Now, aggravated damages are classified as a species of compensatory damages, which are awarded as additional compensation where there has been intangible injury to the interest of personality of the plaintiff, and where this injury has been caused or exacerbated by the exceptional conduct of the defendant. [33] The exemplary damages or punitive damages — the two terms now regarded as interchangeable — are additional damages awarded with reference to the conduct of the defendant to signify disapproval, condemnation or denunciation of the defendant’s tortious act, and to punish the defendant. Exemplary damages may be awarded where the defendant has acted with vindictiveness or malice, or where he has acted with a ‘contumelious disregard’ for the right to the plaintiff. The primary purpose of an award of exemplary damages may be deterrent, or punitive and retributory, and the award may also have an important function in vindicating the rights of the plaintiff (see Rookes v Barnard [1964] 1 All ER 367; AB and others v South West Water Services Ltd [1993] 1 All ER 609; Broome v Cassell & Co Ltd [1971] 2 QB 354, Laksmana Realty Sdn Bhd v Goh Eng Hwa and another appeal [2006]

The Federal Court of Australia in Geneva Laboratories Ltd v Prestige Premium Deals Pty Ltd (No. 5) [2017] FCA 63 offered further guidance on assessing exemplary damages, noting that:

Having regard to the statutory set of criteria in s 115(4) of the Copyright Act and in s 126(2) of the Trade Marks Act, and applying parity of reasoning in relation to exemplary damages, the following points can be made about these overlapping considerations: … S/N uoYyw53IkuTbyLvyz7dtw

It is the Plaintiffs’ case that the Defendant has demonstrated exceptionally bad conduct which has caused substantial injuries to the Plaintiffs as follows: a) The Defendant forged Information Plates on the dispenser pumps which may pose a hazard to the public. b) Misleading customers into thinking that the Infringing Products are of good quality when in reality the quality is so bad that the Infringing Products malfunctioned the first week after it was installed at the petrol station. S/N uoYyw53IkuTbyLvyz7dtw c) As the Infringing Products still carry the Plaintiffs’ trademark, the Defendant’s wrongful act undoubtedly affects the Plaintiffs’ reputation and goodwill in the dispenser pump industry. d) The Plaintiffs’ relationship with customers in Malaysia had been severely affected due to the Defendant’s misrepresentation. e) During the trial, despite clear and undisputed documentary evidence, the Defendant persistently refused to admit wrongdoings but instead kept advancing inconsistent and incredulous explanations through its witnesses in an attempt to conceal its infringing acts. Such behaviour demonstrates deliberate dishonesty and insolence towards this Honourable Court and warrants an award of aggravated and exemplary damages. f) The Defendant also wasted judicial time by calling an irrelevant witness to testify in Court. DW4 admitted during trial that he had no connection or relations with Petron Dungun and Shell Senawang stations. He also admitted that he had no knowledge or involvement with the events at the petrol stations where the infringing acts occurred nor did he know of the dispenser pumps supplied by the Defendant to those petrol stations. His testimony was wholly irrelevant to the issues before this Honourable Court. g) The Defendant’s decision to call DW4, knowing his lack of knowledge, was a deliberate tactic to waste judicial time and divert attention from its wrongdoings. Such conduct is not S/N uoYyw53IkuTbyLvyz7dtw merely negligent; it is high-handed and calculated to frustrate the administration of justice. This falls squarely within the category of exceptional conduct that justifies aggravated damages and supports the need for exemplary damages to deter similar abuse of process. h) The Defendant’s director (DW5) was also found to be evasive and untruthful.

(i) For example, there were instances where he claimed that there is only one instance where he replaced the false information plate, but it was later established during trial that he has done the replacement more than once at Shell Senawang station. This shows he had clearly lied in Court in his witness statement [pg. 11, Q&A 14 of WSDW5].

In sum, learned counsel for the Plaintiffs submitted that the continuous sales of the Infringing Products over a few years (i.e., 2020 to 2022) demonstrates the planned and wilful nature of the Defendant’s conduct which warrants a strong deterrent message through exemplary damages. Taking into account the Defendant’s profit-driven conduct, the Plaintiffs submitted that a global sum of RM300,000 should be awarded as aggravated and exemplary damages. Such an award would (i) reflect the seriousness of the Defendant’s conduct, (ii) serve as an effective deterrent to similar infringing behaviour, and (iii) reaffirm public confidence that Malaysian courts will not tolerate flagrant violations of intellectual property rights. S/N uoYyw53IkuTbyLvyz7dtw

In support of the quantum sought, the following cases were relied on by the Plaintiffs to demonstrate comparable awards of aggravated and/or exemplary damages. No. Case Damages a) Junzhi Wang & Anor v TC Pharmaceutical Industries Co Ltd [2023] MLJU 2143 Exemplary damages of RM300,000 b) Motordata Research Consortium Sdn Bhd v Ahmad Shahril bin Abdullah & Ors [2017] MLJU 1187 Global sum for exemplary damages, aggravated damages, Statutory Damages and Additional Damages of RM300,000 c) Philip Morris Brands Sarl v Goodness for Import and Export & Ors [2017] MLJU 897 Exemplary damages of

The Defendant submitted that the account of profits itself serves as a deterrent by stripping the Defendant of its gains, and that the award of aggravated and/or exemplary damages on top of an account of profits would amount to double punishment.

I do not accept this submission in its entirety. An account of profits and aggravated/exemplary damages serve different purposes. An account of profits is a restitutionary remedy wherein it restores to the plaintiff the gains wrongfully obtained by the defendant. It does not compensate the plaintiff for its own losses, nor does it punish the defendant. At most, an account of profits restores the status quo S/N uoYyw53IkuTbyLvyz7dtw ante by removing the defendant's unjust enrichment. Aggravated damages compensate the plaintiff for the aggravated injury. Exemplary damages punish and deter. These are conceptually distinct functions.

However, I accept that the Court must exercise caution in awarding exemplary damages on top of an account of profits, to avoid disproportionality. The Court must consider whether the account of profits, together with any aggravated damages, is sufficient to achieve the objectives of punishment and deterrence, or whether additional exemplary damages are necessary. L. FINDINGS ON AGGRAVATED AND/OR EXEMPLARY DAMAGES Aggravated Damages

Having considered the totality of the evidence before this Court, including the findings made at the liability stage and the conduct of the Defendant throughout these proceedings, this Court finds that the following features of aggravation are present:

(i) Deliberate and Calculated Infringement

This Court found at the liability stage that the Defendant had infringed the Plaintiffs' Registered Trademarks by selling dispenser pumps bearing information plates containing the Plaintiffs' marks with false information. The Defendant's witness, DW3 (Praveen A/L Ramakrishnan), a former procurement manager of Meinhardt S/N uoYyw53IkuTbyLvyz7dtw EPCM Sdn Bhd, testified that Meinhardt sold pumps on an "as-is" basis without modification or repair. This Court found the Defendant's claim that the infringing pumps were original pumps sourced from Meinhardt to be "inherently incredible" (Paragraph 22, Grounds of Judgment dated 19.05.2025).

The information plates bearing the Plaintiffs' Registered Trademarks with false serial numbers and specifications did not originate from the Plaintiffs' or Meinhardt's handling of the products. The irresistible inference is that the false information plates were applied deliberately whether by the Defendant itself or at its direction in order to misrepresent the dispensers as genuine Tatsuno products, thereby enhancing their marketability and sale price.

This was not an innocent or inadvertent infringement. The Defendant, being in the business of refurbishing and selling petrol dispensers, would have been fully aware of the significance of information plates bearing the Tatsuno brand and the false particulars contained therein. The deliberate application of the Plaintiffs' Registered Trademarks with fabricated information demonstrates a calculated decision to exploit the Plaintiffs' goodwill and reputation for commercial advantage.

Throughout the proceedings, the Defendant has offered shifting and contradictory accounts regarding the source of the infringing products. In the Defendant's affidavit of compliance, it was stated that all pumps were purchased from Meinhardt and/or CBRE GWS S/N uoYyw53IkuTbyLvyz7dtw Sdn Bhd. Subsequently, in the supplementary affidavit of compliance, the Defendant claimed that the pump supplied to Wan Arfa was sourced from an ex-Shell station in Kedah. At the liability stage, this Court found the Defendant's claims regarding the provenance of the pumps to be inherently incredible. These contradictory accounts, maintained even at the Account of Profits stage, demonstrate a persistent pattern of obfuscation and a lack of candour before this Court, which aggravates the injury to the Plaintiffs.

Even after this Court's Judgment finding the Defendant liable for trademark infringement and passing off, the Defendant has continued to contest the basic factual underpinnings of its infringement in a manner that suggests a refusal to genuinely acknowledge the wrongfulness of its conduct. This Court notes that the Defendant's approach to the Account of Profits stage including its failure to produce adequate documentation of costs and its provision of a costing analysis riddled with inconsistencies and unsupported figures is further indicative of a lack of good faith engagement with the court process.

The 1st Plaintiff, Tatsuno Corporation, is an established and reputable manufacturer of fuel dispensing equipment with registered trademarks in Malaysia. The 2nd Plaintiff, Tatsuno Engineering & Service Malaysia Sdn Bhd, is the registered owner of the associated S/N uoYyw53IkuTbyLvyz7dtw mark and is responsible for the Tatsuno brand's presence in this jurisdiction. The Defendant's act of selling refurbished dispensers bearing false information plates with the Plaintiffs' Registered Trademarks poses a direct threat to the quality assurance, safety standards, and brand integrity that the Plaintiffs have built over time.

Petrol dispensers are precision instruments subject to metrology and safety standards. The introduction into the market of dispensers bearing the Tatsuno brand with false specifications and serial numbers — dispensers over which the Plaintiffs had no quality control is capable of causing serious reputational harm and undermining consumer and regulatory confidence in the Plaintiffs' products. This harm extends beyond mere economic loss and warrants recognition through aggravated damages. Exemplary Damages

Having considered the totality of the evidence before this Court, the Defendant's conduct justifying exemplary damages can be deduced as follows:

(i) Conduct Calculated to Profit

The Defendant's infringement falls squarely within the Rookes v Barnard category of conduct calculated to yield a profit that may exceed the compensation payable. The Defendant purchased used or old stock dispensers at low prices as low as RM1,380.36 per unit from the Meinhardt bulk purchase and sold them at prices ranging from RM20,000.00 (Wan Arfa) to RM33,625.00 per unit (Rayn S/N uoYyw53IkuTbyLvyz7dtw Revenue), in each case bearing the Plaintiffs' Registered Trademarks with false information. The substantial mark-up was achievable precisely because the dispensers were presented to purchasers as bearing the reputable Tatsuno brand with specific (albeit false) technical specifications. The Defendant's business model, in relation to the infringing products, was thus premised on the exploitation of the Plaintiffs' trademarks and goodwill.

This Court is satisfied that the Defendant made a conscious and calculated commercial decision to profit from the use of the Plaintiffs' Registered Trademarks, knowing or recklessly disregarding the fact that such use was unauthorised and that the information on the plates was false. In such circumstances, an award of exemplary damages is appropriate to ensure that the Defendant does not retain any advantage from its deliberate wrongdoing and to signal that such conduct will not be tolerated.

The Plaintiffs have submitted that an award of exemplary damages is necessary to serve as a deterrent against future infringement. This Court agrees. The fuel dispensing industry in Malaysia is a specialised market where consumers, petrol station operators, and regulatory bodies rely heavily on brand identification and the information contained on product plates for quality assurance and safety compliance. If trademark infringers in this industry are not adequately deterred, the integrity of the market will be undermined. An award of exemplary damages sends a clear message that deliberate trademark infringement for commercial gain will be met S/N uoYyw53IkuTbyLvyz7dtw with meaningful consequences beyond mere disgorgement of profits.

Furthermore, this Court notes that the nature of the infringement — the falsification of information plates on safety-critical equipment has implications beyond mere commercial harm. Petrol dispensers are subject to calibration, metrology, and safety requirements. Dispensers bearing false specifications and serial numbers may compromise the ability of regulatory authorities to trace, inspect, and ensure the safety and accuracy of such equipment. This public safety dimension further supports the need for a deterrent award.

The Defendant has submitted that the claim for a global sum of RM300,000.00 in aggravated and exemplary damages is "arbitrary and punitive," and that the primary remedy of an account of profits itself serves as a sufficient deterrent by preventing unjust enrichment.

This Court has considered the Defendant's submission but respectfully disagrees. Aggravated and exemplary damages serve fundamentally different purposes from an account of profits. An account of profits is a restitutionary remedy aimed at disgorging the infringer's net gain. Aggravated damages compensate for the additional injury caused by the manner of the infringement. Exemplary damages punish and deter particularly egregious conduct. These are distinct remedies that address different aspects of the wrong, and the availability of one does not preclude the other where the circumstances so warrant. S/N uoYyw53IkuTbyLvyz7dtw

The Defendant further contends that its conduct does not meet the "high threshold" for such a substantial punitive award. Having reviewed the totality of the evidence and the findings made at the liability stage, this Court finds that the threshold has been met for the reasons set out above namely, the deliberate and calculated nature of the infringement, the fabrication of information plates, the contradictory and incredible explanations offered, the persistent lack of candour, and the potential impact on public safety and the Plaintiffs' goodwill.

In assessing the appropriate quantum, this Court has taken into account the following factors:

(a) The deliberate and calculated nature of the infringement;

(b) The fabrication of information plates bearing the Plaintiffs' Registered Trademarks with false information;

(c) The Defendant's contradictory and incredible explanations regarding the source of the infringing products, maintained throughout the proceedings;

(d) The potential harm to the Plaintiffs' goodwill, reputation, and brand integrity;

(e) The potential public safety implications of introducing falsely branded precision equipment into the market; S/N uoYyw53IkuTbyLvyz7dtw

(f) The need for deterrence, both specific (against this Defendant) and general (against other potential infringers in the industry);

(g) The scale of the infringement (7 units sold to 2 parties, generating gross revenue of RM221,750.00);

(h) The Defendant's conduct during the Account of Profits stage, including the provision of unreliable and inconsistent costing information; and

(i) The principle of proportionality — the award should be sufficient to mark the court's disapproval and serve its deterrent purpose, but should not be so excessive as to be oppressive or out of proportion to the nature and scale of the wrongdoing.

The Plaintiffs have sought a global sum of RM300,000.00 for aggravated and exemplary damages. This Court considers that sum to be on the high side given the relatively limited scale of the infringement (7 units to 2 purchasers). However, the aggravating features identified above particularly the deliberate fabrication of information plates, the persistent lack of candour, and the public safety implications warrant a substantial award.

Having weighed all relevant considerations, this Court awards the following: a) Aggravated damages of RM75,000.00: This sum reflects the additional injury to the Plaintiffs occasioned by the manner of the Defendant's infringement specifically, the deliberate S/N uoYyw53IkuTbyLvyz7dtw fabrication of false information plates, the contradictory and incredible explanations maintained throughout the proceedings, the impact on the Plaintiffs' brand integrity and goodwill, and the Defendant's lack of candour during the Account of Profits stage. The sum is proportionate to the gross revenue derived from the infringement (RM221,750.00) and represents approximately one-third thereof, which this Court considers appropriate given the severity of the aggravating features present. b) Exemplary damages of RM100,000.00: This sum is intended to punish the Defendant for its calculated decision to profit from the unauthorised use of the Plaintiffs' Registered Trademarks through the fabrication of false information plates, and to deter both this Defendant and others from similar conduct. The amount is set at a level that is meaningful relative to the Defendant's commercial operations and the profits derived, while remaining proportionate to the scale of the infringement. This Court is mindful that the sum should be sufficient to ensure that trademark infringement of this nature involving falsification of product information on safety-critical equipment is not treated as a mere cost of doing business.

The total award of RM175,000.00 in aggravated and exemplary damages is, in this Court's judgment, just, proportionate, and appropriate in the circumstances. It reflects the seriousness of the Defendant's conduct while avoiding the risk of being oppressive or disproportionate to the nature and scale of the infringement. S/N uoYyw53IkuTbyLvyz7dtw

In this regard I agree with the Defendant’s stance in that the Plaintiffs’ claim for a global sum of RM300,000.00 is excessive and punitive. The cases cited are distinguishable on their facts, for example:

(a) Junzhi Wang involved deliberate counterfeiting;

(b) Motordata Research Consortium Sdn Bhd involved deliberate copyright infringement and breach of confidence; and

(c) Philip Morris Brands SARL involved counterfeiting or malicious/fraudulent activities;

It is clear that the present facts of the case involved genuine conduct of refurbishing the petrol dispensers by the Defendant, and apart from the findings by the Court that the pumps were illegitimate, due to the mismatch of the information plates that could not be found in the Plaintiffs’ records.

In summary, my decision on the Account of Profits and the claim for aggravated and exemplary damages are as follows: Item Amount (RM) Gross Revenue 221,750.00 Less: Deductible Costs Acquisition Cost — Rayn Revenue (6 units) (8,282.16) Acquisition Cost — Wan Arfa (1 unit) (4,500.00) S/N uoYyw53IkuTbyLvyz7dtw Refurbishment Costs — Rayn Revenue (6 units) (21,600.00) Refurbishment Costs — Wan Arfa (1 unit) (3,550.00) Total Deductible Costs (37,932.16) Net Profit RM 183,817.84 Aggravated Damages RM 75,000 Exemplary Damages Total [Net Profit+ Aggravated Damages + Exemplary Damages RM 100,000 Total

Pursuant to section 11 of the Civil Law Act 1956, the Court has the discretion to award interest on the sum found due to the Plaintiffs. The Plaintiffs are entitled to interest on the net profit to be disgorged from the date the profits were made, or from the date of the Judgment, or from such other date as the Court considers just, up to the date of realisation. The appropriate rate and period of interest shall be determined by the Court. I hereby order that interest be fixed at rate of 5 % from the date of the judgement until realisation. Costs of these proceedings to be fixed at RM 10,000.00. Dated this day of 30th June 2026. -Sgd-EDWIN PARAMJOTHY MICHAEL MUNIANDY JUDICIAL COMMISSIONER COMMERCIAL DIVISION (NCC 7) HIGH COURT OF MALAYA KUALA LUMPUR S/N uoYyw53IkuTbyLvyz7dtw Counsel: For the Plaintiffs : Cindy Goh Joo Seong and Yau Khai Zen (Messrs. Cheang & Ariff) For the Defendant : Lim Chaw Zen (Messrs. Adnan Sundra & Low) S/N uoYyw53IkuTbyLvyz7dtw