Thai Odyssey Sdn. Bhd. v Chuah Seong Keat (WA-22NCC-218-05/2021)

THAI ODYSSEY SDN. BHD. [REGISTRATION NO. 199401025563 (311244-V)]

THAI ODYSSEY GROUP SDN. BHD [REGISTRATION NO. 201001038163 (922087-M)]

DIN TAN YONG CHIA

DION TAN YONG CHIEN

JARED ANG TZER SHEN

DIANA TAN SHEIK NI

THAI OYDSSEY MANAGEMENT SERVICES SDN BHD [REGISTRATION NO. 202101043862 (1444162-D)] … PLAINTIFFS

CHUAH SEONG KEAT

THUAN CHEW BOON

CHOO KIM WONG

LAI YIP POON

SPA ODYSSEY VENTURE BERHAD [REGISTRATION NO. 201701037084 (1251255-M)]

SPA ODYSSEY GROUP SDN. BHD. [REGISTRATION NO. 201801005904 (1267918-V)]

SPA ODYSSEY PROCUREMENT SDN. BHD. [REGISTRATION NO. 201901011381 (1320709-W)] ... DEFENDANTS GROUNDS OF JUDGMENT A. Introduction [1] By a notice of application in enclosure 288 (“Setting Aside Application”), the applicant, Tan Sri Dato’ Tan Chee Sing, sought to set aside a subpoena dated 7 February 2024 which required his attendance as a witness at the trial of this action (“Subpoena”). [2] For the reasons explained below, the court allowed the Setting Aside Application. B. Background Facts [3] This action was filed to recover monies of the 1st and 2nd plaintiffs that were alleged to have been misappropriated by the 1st to 3rd defendants. The plaintiffs claimed the 1st to 3rd defendants, who were at all material times the directors and employee of the 1st and 2nd plaintiffs committed breaches of their duties, fraud, deceit and conspiracy to defraud. It is the plaintiffs’ case that the 1st to 3rd defendants had made false claims, caused wrongful payments to be made, wrongfully diverted funds, and placed themselves in positions of conflicts of interest, in advancing their personal interests to the detriment of the 1st and 2nd plaintiffs. [4] The 1st and 2nd defendants filed a counterclaim against the 3rd to 6th plaintiffs and the applicant. In the counterclaim, the 1st and 2nd defendants alleged that there was an understanding in existence that the business of companies within the Thai Odyssey group is a joint venture partnership between the 1st defendant and the applicant. [5] On 17 February 2022, this court struck out the counterclaim. The Court of Appeal affirmed this decision on 2 December 2022. [6] Leading up to the trial, the 1st to 3rd defendants filed the Subpoena, to compel the applicant to testify at the trial. The applicant filed the Setting Aside Application to set aside the Subpoena. C. Considerations and Findings [7] In an application to set aside a subpoena, the onus is on the party issuing the subpoena to show that the witness is material and relevant to the case. In this regard, the witness must be in a position to give evidence on facts relevant to the proceedings. [8] In Wong Sin Chong & Anor v Bhagwan Singh & Anor [1993] 4 MLJ 679, the Supreme Court held at page 686B to F of the judgment that: “The right of a party to the attendance of witnesses is a crucial part of our judicial system, but the right must be protected against any oppression or abuse. Thus in Raymond v. Tapson [1883] 22 Ch. D. 430 CA, it was held that any party may without leave of the Court, issue a subpoena for the examination of a witness at any stage of an action; but the Court will exercise a control over the privilege to prevent it being oppressively used. In that case, the plaintiffs had subpoened a solicitor, who had acted for both parties in a mortgage transaction, in order to examine him with respect to the monies received by him on account of both parties. The Court held that the plaintiff was entitled to issue the subpoena and to examine the witness. But, where no useful result would be obtained by the attendance of a witness, the subpoena should be refused - see Re. Mundell, Fenton v. Cumberlege [1883] 52 LJ Ch. 756. At p. 452, Mallal’s Supreme Court Practice, 2nd Edn., citing Raymond v. Tapson (ante) as authority, it is stated that: An oppressive subpoena (for purposes of annoyance, or in spite, to a man’s wife or unmarried daughters and the like) will be set aside by the court, on application on behalf of the witness, as being an abuse of the party’s privilege to issue a subpoena without leave. It is further stated at page 453 that: The court has inherent jurisdiction to set aside a subpoena which is issued from an improper motive and not for obtaining relevant evidence, and there is no distinction, on the point, between civil and criminal proceedings: The King v. Baines [1909] 1 KB 258.” (emphasis added) [9] The Court of Appeal in ECM Libra Investment Bank Berhad v Foo Ai Meng & Ors [2013] 3 MLJ 35 further elaborated on the principle that a witness compelled to testify must be in a position to give evidence relevant to the case. In upholding the decision of the High Court to set aside the subpoena, the court held that: “The test to compel is a strict test. The witnesses who can be compelled are those 'who have seen the facts or who know the facts' …” [10] In the present case, it is the 1st to 3rd defendants’ case that the testimony of the applicant is necessary for them to defend specific allegations raised by the plaintiffs, namely allegations concerning false claims made for angpow payments; wrongful advances for runner fees; wrongful funding to PT Thai Odyssey Indonesia (“PTTO”); unauthorised payments to the 5th defendant; and the payment mechanisms of the 1st and 2nd plaintiffs. [11] The 1st to 3rd defendants contended that the applicant had knowledge of and authorised these claims and payments. [12] However, from my assessment of the facts of the case, I find the applicant’s testimony to be unnecessary, and would not be relevant to the allegations raised by the plaintiffs. It would also not assist the court in reaching a determination of this matter. [13] There are three reasons for my finding. [14] First, it is beyond dispute that the applicant is not a shareholder or a director of the 1st and 2nd plaintiffs. All parties, including the 1st and 2nd defendants, had confirmed and testified that the applicant was never involved in the management of the Thai Odyssey companies. Specifically, in Originating Summons No. WA-24NCC-559-12/2020, an oppression action filed by the defendants against the plaintiffs, the 1st defendant had repeatedly asserted under oath that the applicant had no involvement in the management and operations of the Thai Odyssey business. The 1st defendant affirmed that he had the full authority to manage the operations of all companies under the Thai Odyssey group. [15] Notwithstanding these assertions, the Subpoena was nonetheless issued to the applicant in his capacity as a joint venture partner of the 1st defendant. This is clear in the 1st to 3rd defendants’ list of witnesses, which was prepared for the trial. In the list, the scope of the applicant’s testimony is described as “Joint Venture partner with the 1st Defendant for the Thai Odyssey business”. [16] It is important to note that in Thai Odyssey Sdn Bhd & Ors v Chuah Seong Keat & Ors [2022] MLJU 1550, this court had found that the 1st and 2nd plaintiffs operated as a corporatised business with the power of management resting with the board of directors. The allegation by the 1st and 2nd defendants of a partnership between the 1st defendant and the applicant was rejected, and the 1st and 2nd defendants’ counterclaim against inter alia the applicant was struck out. This decision was affirmed by the Court of Appeal. Thus, any attempt to raise the issue of partnership with the applicant or the applicant’s involvement in the 1st and 2nd plaintiffs is barred by res judicata. [17] Second and related to my finding that the applicant is not connected to the Thai Odyssey business, it would follow that even if there had been approvals or acknowledgements by the applicant on the angpow payments, the advances for runner fees, the funding to PTTO, the payments to the 5th defendant, and the payment mechanisms of the 1st and 2nd plaintiffs – which the plaintiffs alleged had an unlawful element to them – the approvals or acknowledgments would in any event not be able to absolve the 1st to 3rd defendants of their duties towards the 1st and 2nd plaintiffs. [18] In Zaharen bin Hj Zakaria v Redmax Sdn Bhd and other appeals [2016] 5 MLJ 91, the Court of Appeal found that the defence of the 2nd defendant who was a director of the company, that he was following the instructions of his superior, does not absolve him from a claim for breach of his fiduciary duties. The court held that the 2nd defendant’s legal duty was to protect the interest of the company, and that duty continued for as long as he remained a director of the company. [19] As such, any testimony that may be given by the applicant in respect of his approvals or acknowledgments of the 1st to 3rd defendants’ conduct would not protect the 1st to 3rd defendants from liability. In this regard, the applicant’s testimony would be irrelevant to the issues raised in this action. [20] My third and final reason for finding the applicant’s testimony to be unnecessary and irrelevant is because existing documentary evidence and testimonies of other witnesses are likely to be sufficient to enable the issues before the court to be determined. [21] The 1st and 2nd plaintiffs are corporatised businesses, and as such, it is more likely than not that the allegations and defences raised would be supported by documentary evidence. Further, the parties currently before the court are directly involved in the business and management of the 1st and 2nd plaintiffs, and with their direct involvements, their testimonies are more relevant and would assist the court in the determination of this matter.

[22] Based on the considerations as set out, the court finds that the 1st to 3rd defendants have not shown how the applicant’s evidence would be relevant or necessary to these proceedings. Instead, the issuance of the Subpoena appears to have been driven by another motive, which is to put pressure on the plaintiffs, who are the children of the applicant, to settle this action. Such improper motive is oppressive to the plaintiffs and an abuse of the process of the court. [23] As such, the court allowed the Setting Aside Application, with costs. Dated 6 March 2025 ADLIN ABDUL MAJID Judge High Court of Malaya Kuala Lumpur Counsel: Applicant : HR Dipendra (together with Hoo Kit Yee of Messrs. Ramesh Dipendra Jeremiah Law Plaintiffs : Yee Mei Ken (together with Mattheus Goon, Melvin Moi Kan Sen and Lai Xuan Chi) of Messrs. Shearn Delamore & Co 1st to 3rd defendants : Voon Su Huei of Messrs. Thomas Philip 4th defendant : Venkat Arun (together with Joan Marie Jacob) of Messrs. Ven & Associates