Advance Information Marketing Berhad [Reg. No.: 200401006266 (644769-D) v 1. Mak Siew Wei (Nric No.: 750130-08-6707) (WA-22NCC-415-09/2021)

MAK SIEW WEI

SANSTON FINANCIAL GROUP LIMIT …DEFENDANTS (Heard Together With) IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR IN THE FEDERAL TERRITORY OF WILAYAH PERSEKUTUAN (COMMERCIAL DIVISION) ORIGINATING SUMMONS NO.: WA-24NCC-396-09/2021 BETWEEN MAK SIEW WEI (NRIC No.: 750130-08-6707) …PLAINTIFF

ADVANCE INFORMATION MARKETING BERHAD (Company No.: 644769-D) 2

BOARDROOM.COM SDN. BHD. (Company No.: 820910-X) …DEFENDANTS GROUNDS OF JUDGMENT (Enclosure 3 in Suit 415 and Enclosure 1 in OS 396) [1] This judgment relates to 2 separate but related actions which were heard together. In Suit No. WA-22NCC-415-09/2021 (‘Suit 415’), an application was made via Enclosure 3 seeking an injunction to restrain a shareholder from convening a general meeting under section 310 of the Companies Act 2016 (‘the Act’). Separately, in Originating Summons No. 24NCC-396-09/2021. (‘OS 396’), Enclosure 1 is the application by the said shareholder seeking the Company’s Records of Depositors for his proposed general meeting. Background Facts [2] Mak Siew Wei (‘MSW’) is a shareholder of Advance Information Marketing Berhad (‘the Company’) holding at least 10% of the issued share capital of the Company. [3] The Company is a public listed company incorporated in Malaysia with a total issued share capital of RM 26,605,866.60, having its registered address at Level 5, Block B, Dataran PHB, Saujana Resort, Section U2, Shah Alam, Selangor. 3 [4] The Company principally carries business in the provision of managed customer loyalty services (‘MCLS’) in Malaysia and Indonesia which comprises of the sales and marketing services, client relationship management, digital fulfilment and outsourced contact centre management. [5] The current Company’s Board of Director comprises of the following individuals: No.

Dato Ir’ Lim Siang Chai

Chean Meng Hee

Azizullaili Bin Haji

Ang Huat Keat

Lee Kean Teong

Dato’ Kang Chez Chiang Independent Non-Executive Director [6] Boardroom.com Sdn Bhd (‘Boardroom’) is the share registrar of the Company in accordance with Securities Industries (Central Depositories) Act 1991 (‘SICDA’). [7] On 24.08.2021, MSW had written to the Board of Directors of the Company stating his intention to move resolutions and to call for an Extraordinary General Meeting (‘the Proposed EGM’) of the 4 Company pursuant to Section 310(b) of the Act to be held on 08.10.2021 (‘the Special Notice’). [8] It is MSW’s intention to move the following proposed resolutions as ordinary resolutions at the Proposed EGM:-

That Ang Huat Keat, Lee Kean Teong and Azizullaili Bin Haji Jalaluddin are removed as directors of the Company with immediate effect;

That MSW, Mejar Dato’ Ismail Bin Ahmad, Choong Mun Kit and Kang Teik Yih are appointed as directors of the Company with immediate effect; and

That any person appointed as Director of the Company since the date of MSW’s Special Notice dated 24.08.2021 been issued up to the time before the commencement of the Proposed EGM and any adjournment thereof, be removed as a director of the Company with immediate effect. [9] On the same day, MSW had also written to Boardroom requesting for the Company’s Record of Depositors (‘the Company’s ROD’) with his undertaking to pay for the costs of obtaining the Company’s ROD from Boardroom. [10] Pursuant to the Special Notice, MSW had requested as follows:-

The Company’s ROD dated 07.09.2021 to be furnished to him on or before 09.09.2021 for the purpose of facilitating 5 the dispatch of the Notice of EGM (‘the EGM Notice’) to shareholders (‘the 1st ROD’); and

The Company’s ROD dated 29.09.2021 to be furnished to him before 01.10.2021 for the purpose of determining the shareholders who are entitled to attend and vote at the Proposed EGM (‘the 2nd ROD’). [11] Notwithstanding MSW’s request as abovementioned, the Board of Directors of the Company and Boardroom failed and/or neglected and/or refused to provide the 1st ROD. [12] On 03.09.2021, the Company made a Bursa Announcement regarding a change in its Board of Directors whereby one Chean Meng Hee (‘Chean’) was appointed as an executive director of the Company. [13] On the same day, another Bursa Announcement was also made regarding a change in its Board of Directors whereby one Dato’ Zainuddin bin Yaacob had resigned from his position as the Deputy Chairman of the Company. [14] As neither the Company nor Boardroom at the material time had furnished the 1st and 2nd RODs to MSW to allow the Proposed EGM to be convened, MSW filed Enclosure 1 in OS 396 herein seeking the necessary reliefs against them. [15] Thereafter, Boardroom furnished the 1st ROD on 13.09.2021. 6 [16] On 13.09.2021, the Company commenced a suit against MSW vide Suit 415 whereby the Company, inter alia, sought for an injunction to restrain the Plaintiff from convening and/or proceeding and/or taking further steps to convene the Proposed EGM or any adjournment thereof or any other EGM. [17] Vide Suit 415, the 1st Defendant had also filed Enclosure 3 being an application seeking to, among others, restrain the Plaintiff from convening and/or proceeding and/or taking further steps to convene the Proposed EGM or any adjournment thereof or any other EGM pending disposal of Suit 415. [18] More specifically, Enclosure 3, prayed for the following reliefs, inter alia:

An interlocutory injunction restraining MSW (by himself, agents, servants, nominees or otherwise) from convening and/or proceeding and/or taking any further steps to convene the Proposed EGM of the Company scheduled on 8.10.2021

(ii) An interlocutory injunction restraining MSW (by himself, agents, servants, nominees or otherwise) from interfering with the affairs and/or the management of the Company, until the disposal of the suit herein. [19] Enclosure 1 of OS 396 and Enclosure 3 of Suit 415 were heard together before me. 7 The Company’s Case [20] The Company’s main contention in support of Enclosure 3 in Suit 415 and in opposing Enclosure 1 in OS 396 rests on the argument that MSW’s exercise of his proprietary rights as a shareholder in convening the Proposed EGM lacks bona fide and is an abuse of the court process. [21] Learned counsel for the Company outlined what he termed as ‘systematically abusive acts’ committed by MSW through the multiplicity of proceedings in Court and that his actions would attack the integrity of the Proposed EGM (which MSW himself had requisitioned for) and to manipulate its outcome. To use the phrase used by learned counsel for the Company – MSW’s actions tantamount to ‘thumbing his nose at the Court’. [22] Since MSW’s requisition notice is not proper or is mala fide, learned counsel for the Company contended that this Court has unlimited jurisdiction to stop the Proposed EGM pending the disposal of the Suit 415. In support, learned counsel for the Company urged this Court to take account of the following facts. [23] In November 2020, MSW started his ‘first’ move by commencing a suit against the Company and its directors seeking relief, inter alia to remove the Directors of the Company, namely Ang Huat Keat, Lee Kean Teong, Azizullaili and Yeoh Siok Chen. This is suit WA- 22NCC-537-11/2020 (‘Suit 537’) which is an action based on section 360(1)(d) of the Capital Market and Services Act 2007 (‘CMSA’) alleging various breaches of, inter alia, the Take Over 8 and Merger Code and Listing Requirements by the directors of the Company. [24] On 22.03.2021, TA Securities Holdings Berhad (‘TASHB’), on behalf of the Company, had announced that the Company proposed to undertake a private placement of new ordinary shares representing not more than 20% of the total number of issued shares of the Company (‘the Proposed Private Placement’) to independent third-party investor(s). This exercise was pursuant to the mandate given at 16th Annual General Meeting of the Company (‘16th AGM’). [25] The Company had convened an AGM which was held on 27.5.2021 to seek mandate of the shareholders for the listing of the Proposed Private Placement. [26] Simultaneously, MSW also requisitioned an EGM which was held on 27.5.2021 to seek to suspend the Proposed Private Placement. Learned counsel for the Plaintiff described this as MSW’s ‘second’ move. [27] On 27.05.2021, the Company’s 17th Annual General Meeting (‘the May 2021 AGM’) and the Extraordinary General Meeting (‘the May 2021 EGM’) which was requisitioned by MSW were held. [28] The outcome of the proposed agendas of the May 2021 AGM and the May 2020 EGM were inter alia, as follows: 9 NO. AGENDAS OUTCOME

To re-elect Dato Ir’ Lim Siang Chai (‘LSC’) who is retiring by rotation in accordance with Clause 105(1) of the Company’s Constitution Passed 2. To re-elect Mak Siew Wei (the 1st Defendant) who is retiring by rotation in accordance with Clause 105(1) of the Company’s Constitution Rejected 3. Authority to issue and allot shares pursuant to Sections 75 and 76 of the Act Passed 4. The Proposed Private Placement by TASHB be suspended and ceased with immediate effect (‘the PPP resolution’) Rejected [29] MSW did not seek to remove the said directors in the May 2021 EGM. [30] As the result of the May 2021 AGM, the Board of Directors of the Company was authorised to complete the listing for the Proposed Private Placement as mandated by the shareholders. [31] Prior to the May 2021 AGM and EGM, on 25.5.2021, MSW commenced an Originating Summons No BA-24NCC-63-05/2021 (‘OS 63’) in the High Court at Shah Alam which was premised on minority oppressions seeking reliefs, inter alia that 10

Lee Kean Teong, Azizullaili and Ang Huat Keat (the same directors of the Company as in the High Court’s Suit 537) be disqualified from acting as the directors of the Plaintiff.

(ii) The Proposed Private Placement be suspended. [32] According to learned counsel for the Company, the OS 63 which he termed as the ‘third’ move is a collateral attack on the outcome of the May 2021 AGM and May 2021 EGM. [33] The OS 63, being an oppression suit was carbon-copied to Bursa Malaysia without any legal justification in highlighting that an order was sought to suspend the Proposed Private Placement. This is characterised as the ‘fourth’ move. [34] As a result of the aforesaid, Bursa Malaysia, withheld the Proposed Private Placement pending the outcome of the OS 63 on 18.6.2021. Learned counsel for the Company referred this as the ‘fifth’ move. [35] In August 2021, 10 days before the Company’s Requisition Notice, the Company’s share price suddenly soared from 0.22 per share to RM 0.88 per share as at 20 August 2021 and thereafter plunged back to RM 0.30 one day before the EGM was requisitioned by MSW. [36] According to learned counsel for the Company, the irresistible inference is that MSW had manoeuvred tactically by manipulating the Company’s share price in order to ensure that he would be 11 able to manipulate the outcome of the Proposed EGM. It is contended that this is in contravention of section 176 of the CMSA. [37] Following from the aforesaid, on 24.08.2021, MSW then exercised his shareholders’ rights to requisition to convene the Proposed EGM. [38] As far as the EGM’s requisition notice is concerned, learned counsel for the Company urged this Court to take note of the following: -

Having filed Suit 537 and OS 63, MSW has requisitioned for an EGM to seek to remove the very same directors of the Company and to replace them with himself and his nominees whose interest are presumably aligned with him;

(ii) In MSW’s requisition notice, he had failed to disclose or had suppressed material information that Chong Mun Kit (MSW’s nominee) is related to a substantial shareholder, namely Chong Loong Men who owns 22,897,190 shares of the Company.

(iii) In the circumstances, MSW has made a false or misleading statement in the requisition notice under section 207 of CMSA 2007.

(iv) Furthermore, it is alleged that MSW and Chong Loong Men had acted in concert to avoid triggering a mandatory offer, yet attempt to take control of the Company. This is in contravention of Rule 4.01 of the Rules on Take-Overs, Mergers and Compulsory Acquisitions. 12 [39] Quite apart from the aforesaid, the Company alleges that in early August 2021, it had discovered that there was an unknown transaction in the sum of RM 1,698,911.06 which was misappropriated through the Company’s wholly owned subsidiary, Pride Group Limited to a company called Stanston Financial Group Limited (‘Stanston’) which was and/or is directly or indirectly related MSW (‘the Unauthorised Transaction’) on or around 24.09.2010. [40] At that material time, MSW was still the director of the Company. As such, it is the Company’s case that MSW was in a position of conflict of interest which ought to have been disclosed to the Company whilst transacting the monies to Stanston. No such disclosure was ever made by MSW to the Plaintiff. [41] The Company further claimed that MSW had directly and/or indirectly caused a circular resolution dated 26.08.2010 (‘the Impugned Resolution’) to be passed by the former Board of Directors which purportedly gave a corporate guarantee in favour of the Stanston for all monies demanded by Stanston against the Company’s subsidiary Pride Group Limited. [42] Despite the conflict of interest as aforementioned, MSW had not abstained from voting for or against the Impugned Resolution which clearly contravened the Act. [43] The Company claimed that it discovered that the sum of RM 1,698,911.06 was only returned to the Company by Stanston on or about 25.11.2010, an act to hide the fact that the Company’s 13 monies were misappropriated by MSW. A Police Report was lodged in regard to this alleged misappropriation of funds. [44] The Company contended that MSW took the aforesaid ‘moves’ with the view to prevent any new shareholders from the Proposed Private Placement from voting against his proposed resolutions in the Proposed EGM. Accordingly, it is claimed that the integrity of the Proposed EGM has now been compromised. [45] It is the Company’s position that the Private Placement Exercise ought to be proceeded with first, before any EGM is held for the proposed resolutions affecting the entire Board of Directors bearing in mind that the Private Placement was approved by the shareholders in May 2021 AGM. Court’s deliberation and decision [46] Section 310 of the Act provides that a meeting of members may be convened by the Board or any member holding at least 10% of the issued share capital of a company or a lower percentage as specified in the constitution. [47] A shareholder’s right to convene a general meeting under Section 310(b) of the Act is one of the key rights provided by law to shareholders to marshal all shareholders of a company together at an appointed date, place and time to provide the opportunity to the shareholders to deliberate and to resolve on proposals properly tabled before them that may affect the directions of the company. It is an essential right to invoke the internal democratic process of 14 the company [See: Tuan Haji Ishak Ismail v. Leong Hup Holdings Berhad & Other Appeals [1996] 1 CLJ 393 (COA); Datuk Johari Abdul Ghani & Ors v. QSR Brands Bhd & Ors [2007] 1 CLJ 85 (COA); Seacera Group Berhad v. Dato’ Tan Wei Lian & Ors; Dato’ Seri Mak Hon Leong & Anor v NWP Holdings Berhad [2021] 1 LNS 998 (HC); Golden Plus Holdings Berhad v. Teo Kim Hui & Anor [2020] 1 LNS 851 (HC)]. [48] I agree with learned counsel for MSW that the Company’s case at its highest, does not justify quashing MSW’s statutory shareholder right to convene the Proposed EGM. [49] The filing of Suit 537 and OS 63 are separate and independent from the exercise of the statutory shareholder right to convene the Proposed EGM. The focus of Suit 537 is the alleged breach of the Take Over and Merger Code and or the Listing Requirements by the directors of the Company whereas the OS 63 is an oppression action based on inter alia, the allegation of improper allotment of shares. Whilst it is true that the reliefs sought in both the Suit 537 and OS 63 include the removal or more accurately the disqualification of the directors of the Company, such reliefs are based on the specific causes of action that are pleaded in the respective actions. Further, the removal of directors constitutes but one of many other reliefs prayed. [50] Thus, with respect to learned counsel for the Company, the argument that MSW is precluded from exercising his rights as shareholder to convene an EGM on the ground that he had commenced Suit 537 and OS 63 simply cannot be sustained. 15 [51] Further, whether the OS 63 is in fact a collateral attack on the May 2021 EGM is a matter for the Company to raise in OS 63 action itself, if it thinks appropriate but in my view, this cannot be a ground for an injunction to restrain MSW from convening the Proposed EGM under section 310 of the Act. In any case, no application has been taken to strike out the OS 63 for abuse of process. [52] Learned counsel for the Company contended that the filing of the OS 63 was intended to cause Bursa Malaysia to suspend the Proposed Private Placement and this would in turn affect the ‘integrity’ of the Proposed EGM as the ‘new shareholders’ who would have subscribed to the Company’s shares under the Proposed Private Placement would not be able to vote at the Proposed EGM. [53] With respect, the contention by learned counsel for the Company presupposed that MSW was in a position to influence the decision of Bursa Malaysia on the suspension of the Private Placement Exercise. There is no such evidence. [54] Further, it cannot be the case that once a Private Placement Exercise has been approved by the shareholders of the Company, no shareholder is entitled to convene an EGM until the Private Placement Exercise is completed. As rightly contended by learned counsel for MSW, there is simply no legal justification for the existing directors of the Company to entrench themselves through an application to this Court for an injunction to restrain MSW as a shareholder from convening an EGM to remove them until after the 16 completion of the Private Placement Exercise which would result in a change in the composition of the shareholders. [55] As regards the Company’s share price which it is alleged suddenly soared from 0.22 per share to RM 0.88 per share as at 20 August 2021 and thereafter plunged back to RM 0.30 one day before the EGM was requisitioned by MSW, there is no evidence before this Court that MSW was in any way involved in the share spike at all. [56] Next, the claim that the Company had recently discovered an unknown transaction in the sum of RM 1,698,911.06 which was misappropriated through the Company’s wholly owned subsidiary, Pride Group Limited to a company called Stanston which was and/or is directly or indirectly related to MSW on or around 24.09.2010 appears to be a desperate act to support the claim that MSW lack bona fide in convening the Proposed EGM. [57] In the first place, this allegation pertains to a transaction that had taken place more than 10 years ago and relates to MSW’s position qua director of the Company. This transaction, even if true, surely cannot have any bearing at all on MSW’s seeking to exercise his rights qua shareholder to convene an EGM under section 310 of the Act. Indeed, no authorities have been cited by learned counsel for the Company in support of his proposition. [58] Finally, the Company had alleged that the nomination of Choong Mun Kit suggests that MSW is acting in concert with one Datuk Chong. This claim is wholly unsupported. In the first place, both individuals in fact bear different surnames. Secondly, apart from 17 linking the surnames, there is no evidence adduced by the Company in support of the allegation that parties are acting in concert at all. [59] In the light of the aforesaid, the balance of convenience simply does not lie in favour of granting the injunction applied for by the Company which would result in MSW being deprived of his proprietary right as a shareholder as conferred by section 310 of the Act. The loss of MSW’s proprietary right and coupled with the potential manipulation of the voting composition of the Company are all losses that would be suffered by MSW that cannot be compensated by damages. [60] In this regard, I would respectfully adopt the Singapore High Court case of Tong Kok Chai v Ocean Front Pte Ltd & Anor [1988] 3 MLJ 125, 127 wherein it was held that “the impairment of (one’s) right as a shareholder… is not really a matter that could be adequately compensated by payment of damages.” [61] On the other hand, the current directors are not prevented from making their respective cases before the Proposed EGM not to be removed. [62] One cannot help but note that the Company had stated in its affidavit under Enclosure 15 where it sets out at paragraph 15 that ‘… the Proposed EGM which sought to remove Ang as one of director (sic) in the Incumbent Board of Directors is tainted with bad faith for amongst others, to wrest control of the Plaintiff’s management’. 18 [63] In other words, it would seem that the injunction is being sought by the Company to safeguard Ang’s control of the Company’s Board of Directors. As rightly contended by learned counsel for MSW, Ang’s control of the Board is in the interest of Ang, and not necessarily of the Company. Any shareholder seeking to “wrest control of the Plaintiff’s management” is merely exercising his shareholder rights, and cannot be said to be acting in bad faith. [64] In the premises, I dismissed with costs the Company’s application under Enclosure 3 in Suit 415. [65] With the dismissal of Enclosure 3 in Suit 415, the contention by the Company that the OS 396 ought not to be allowed on the ground that MSW lacks bona fide for the same reasons raised in Suit 415 also must fail. [66] Accordingly, I allowed the prayers 1, 2 and 3 of OS 396 with the amendment to prayer 3 such that the time stipulated therein is revised to 12 noon on 2.10.2021. Dated the 6th day of October 2021 ONG CHEE KWAN Judicial Commissioner High Court of Kuala Lumpur, NCC2 19 COUNSEL:

Joshua Kevin, Damien Chan, Jeff Ng and Ian Hannibal Liang for the Plaintiff in Suit 415 and the 1st Defendant in OS 396

Tan Choon Heong, Eric for the 1st Defendant in Suit 415 and the Plaintiff in OS 396 Messrs. Ong Kok Bin & Co. (Kuala Lumpur)

Tuan Haji Ishak Ismail v. Leong Hup Holdings Berhad & Other Appeals [1996] 1 CLJ 393 (COA).

Datuk Johari Abdul Ghani & Ors v. QSR Brands Bhd & Ors [2007]

Seacera Group Berhad v. Dato’ Tan Wei Lian & Ors; Dato’ Seri Mak Hon Leong & Anor v NWP Holdings Berhad [2021] 1 LNS 998

Golden Plus Holdings Berhad v. Teo Kim Hui & Anor [2020] 1 LNS

Tong Kok Chai v Ocean Front Pte Ltd & Anor [1988] 3 MLJ 125

Sections 75, 76 and 310 of the Companies Act 2016

Section 360(1)(d) of the Capital Market and Services Act 2007

Companies Act 1965