Ang Jimmy Tjun Min v Tjiang Giok Moy (JA-28NCC-200-12/2024)

TJIANG GIOK MOY (Netherlands Passport No. BJK16K2R4)

ANG EILEEN (Singapore Passport No. K1857087P)

SRI SKUDAI SDN. BHD. [Registration No. 197701002575 (33608-D)] …RESPONDENTS GROUNDS OF JUDGEMENT

The Petitioner has filed an application for leave to cross-examine the First (“R1”) and Second Respondents (“R2”) in relation to the Petitioner’s Petition to wind up the Third Respondent, Sri Skudai Sdn. Bhd. (the “Company”) pursuant to subsection 469 (3) of the Companies Act 2016 [Act 777], Order 38 rule 2(2) of the Rules of Court 2012 (“ROC 2012”) and/or Order 92 rule 4 of ROC 2012.

After considering all cause papers, the written submissions and oral submissions of the parties, I dismissed the Petitioner’s application in Enclosure 38 and awarded RM3,000.00 costs, subject to allocator fees, to be paid by the Petitioner to R1 and R2 within fourteen (14) days from this Order.

Below are the grounds of my decision.

The background facts in this application are gathered from the Affidavits and submissions filed by the parties and stated in chronological order.

The Petitioner is—

the son of the late Ang Tiong Loi (the “Deceased”) and R1;

(ii) the executor of the estate of the Deceased;

(iii) current shareholder of the Company holding 125,000 of its shares equivalent to 25% of its total paid-up share capital; and

(iv) the brother to R2.

R1 is—

the mother to the Petitioner and R2;

(ii) the lawful spouse of the Deceased; and

(iii) current shareholder of the Company holding 250,000 of its shares equivalent to 50% of its total paid-up share capital.

R2 is—

the daughter of the Deceased and R1;

(ii) current shareholder of the Company holding 125,000 of its shares equivalent to 25% of its total paid-up share capital; and

(iii) the sister to the Petitioner.

The Third Respondent (the “Company”) is –

a company incorporated on 29.06.1977;

(ii) was founded by the Deceased;

(iii) its principal business is investment holding in shares and letting of properties;

(iv) current shareholders are the Petitioner, R1 and R2;

current directors are—

the Petitioner;

Siah Chin Neo;

Jeffrey Khoo Chu Kim @ Chiu Chun Chin;

R1;

R2; and

Loong Caesar.

After the demise of the Deceased, the shares of the Company were bequeathed to the Petitioner, R1 and R2 in the manner as follows: Shareholders Number of Shares Percentage (%) Petitioner 125,000 25 R1 250,000 50

The Petitioner alleges that there existed an understanding among the shareholders that all substantive matters of the Company would be decided unanimously.

The relationship between the Petitioner and R1 and R2 subsequently deteriorated, leading to disputes and various legal proceedings in multiple jurisdictions.

The Petitioner further alleges that resolutions were passed and appointments made, including the appointment of directors and company secretary, without his consent and contrary to the alleged understanding among shareholders.

Consequently, the Petitioner filed a Winding-Up Petition on 24.12.2024 against the Company under paragraph 465(1)(f) and (h) of Act 777, alleging among others, breakdown of mutual trust and confidence, existence of a quasi-partnership, exclusion from management, and allegations of oppression amongst family shareholders.

On 30.06.2025, pending the hearing of the Winding-Up Petition (Enclosure 1), the Petitioner filed Enclosure 38 to cross-examine R1 and R2 on issues arising from affidavit evidence (the “identified issues”) as follows:

the decision of the Company was made by simple majority of the Board;

(ii) R1, R2 and the Petitioner have never come together in association to pursue a common or mutual venture when R1, R2 and the Petitioner became shareholders of the Company; and

(iii) Loong Caesar was appointed as the director of the Company for the best interest of the Company. ISSUE TO BE DETERMINED

The issues to be determined are as follows:

whether cross-examination of R1 and R2 advances the cause of justice; and

whether cross-examination of R1 and R2 would amount to a fishing expedition. ANALYSIS AND COURT’S FINDINGS Whether cross-examination of R1 and R2 advances the cause of justice

The Petitioner submits that there are material conflicts in affidavit evidence on the identified issues which cannot be resolved without cross-examination of R1 and R2.

It is contended that cross-examination of R1 and R2 would advance the cause of justice as there are no undisputed contemporaneous documents capable of resolving the conflicts in affidavit evidence.

The Petitioner relies on, inter alia, the following legal principles:

the Court’s discretion under Order 38 rule 2(2) of the ROC 2012 to order cross-examination;

the principles laid down in Indrani a/p Rajaratnam & Ors. v Fairview Schools Bhd. [2001] 4 MLJ 56 and Charles Koo Ho-Tung & Ors v Koo Lin Shen & Ors [2015] 1 LNS 755; and

the requirement that cross-examination should be allowed where it advances the cause of justice.

The Petitioner contends that the Respondents’ reliance on authorities such as Nasser Ali Azayez Maktoum Al Sheraifi & Ors. v Affinity Heights Sdn. Bhd (in receivership) [2018] 11 MLJ 684 and Petrochemical Commercial Company International Ltd. & Ors. v Nexus Management Group Sdn. Bhd. & Ors. [2020] 1 LNS 886 is misplaced and distinguishable on the facts.

The Petitioner seeks, inter alia, leave to cross-examine R1 and R2 and consequential directions relating thereto.

The Respondents on the other hand, submit that the burden lies on the Petitioner to justify the necessity of cross-examination and that such power is to be exercised sparingly in winding-up proceedings.

It is contended that there is sufficient affidavit evidence before the Court and that cross-examination would not advance the cause of justice.

The Respondents further submit that—

the application is unsupported by contemporaneous documents;

the Petitioner is merely making bare assertions;

cross-examination of R1 and R2 would amount to a fishing expedition; and

the Petitioner’s application was made at a delayed stage of the winding-up proceedings and lacks bona fide to succeed in its application.

The Respondents rely on the following authorities to support their contentions:

Nasser Ali Azayez Maktoum Al Sheraifi & Ors v Affinity Heights Sdn. Bhd (in receivership) (supra);

Indrani a/p Rajaratnam & Ors v Fairview Schools Bhd. (supra); and

Tetuan Kumar Jaspal Quah & Aishah v The Co-operative Central Bank Ltd. [2007] 4 MLJ 638.

Order 38 rule 2(2) of the ROC 2012 provides that for any cause or matter begun by originating summons and on any application made by any party, the Court may order the attendance for cross-examination of any person making such affidavit.

I refer to the case of Indrani A/P Rajaratnam & Ors. v Fairview Schools Bhd.(supra) where the Court of Appeal decided that – “The grant or the refusal of an application under O 38 r 2(3) of the RHC is very much an exercise of a judge’s power of discretion and the question that must be determined is whether Abdul Malek Ahmad J (as he then was) had exercised his discretion judicially. From his written judgment, it is very clear that the learned judge considered the following factors when exercising his discretion.”. [Emphasis added]

Based on the above authority, it is clear that the Court’s power to order cross-examination of a deponent is discretionary and must be exercised judiciously based on the facts of each case.

In winding-up proceedings, such power is to be exercised sparingly, given that such proceedings are ordinarily determined on affidavit evidence.

It is well-established law that winding-up petitions are typically heard and decided based on affidavit evidence. This is important because Act 777 and the Winding-up Rules 1972 do not provide a corresponding right to cross-examine affidavit evidence, unlike the provisions set out in the ROC 2012. Accordingly, in filing this application, the Petitioner carries a heightened burden to convince this Honourable Court to exercise its discretion.

In this regard, I draw guidance from the case of Nasser Ali Azayez Maktoum Al Sheraifi & Ors v Affinity Heights Sdn Bhd (in receivership) (supra) where Justice Mohd Nazlan held that— “[18] Apart from the important rule that the petitions for winding up are heard on affidavit evidence, the fact that the Companies Act 1965 and the Companies Winding-up Rules 1972 do not expressly provide for a similar right to apply for the cross-examination of the affidavits as found in the RC 2012 cannot be emphasised enough. This should rightfully m e a n that the granting of such order for cross-examination in a winding up context ought to be exceptional and only rarely to be granted. ”. [Emphasis added]

Based on the authority above, the burden lies on the Petitioner to demonstrate the necessity of cross-examination of R1 and R2.

The Court of Appeal in the case of Tetuan Kumar Jaspal Quah & Aishah v The Co-operative Central Bank Ltd. (supra) has laid down three prime considerations in exercising the discretion to allow or disallow the cross-examination on affidavit as follows: “[ 25] You can discern from the authorities referred by the parties that three prime considerations would influence the court in the exercise of its discretion to allow or disallow cross-examination on affidavit . Firstly, the truth of the averment in the affidavit must be challenged or the issues of fact identified. Secondly, cross-examination should only be allowed if the disputed fact is relevant to the issue to be decided and must be limited to that issue only. And thirdly, cross-examination would not advance the cause of justice and should be refused if there is sufficient affidavit evidence or contemporaneous documents to enable the court to properly decide without the need of cross-examination.”. [Emphasis added]

In the present case, the Petitioner relies on alleged conflicts in affidavit evidence on the identified issues as highlighted in paragraph 34.1 of the written submission of the Petitioner (see pages 14-16 of Enclosure 61) and contends these issues cannot be resolved by undisputed contemporaneous documents and hence, the cross-examination is necessary and it will advance the cause of justice.

The Petitioner further submits there is no contemporaneous documents for the first issue whereas for the second and third issues, the undisputed contemporaneous document could not resolve the conflict in affidavit evidence. Therefore, cross-examination is crucial as it will assist the Court to determine the essential and significant issue, namely whether the Company is a quasi-partnership.

The Respondents oppose Enclosure 38 on the basis that—

there is no new evidence being presented with this cross-examination application and it casts serious doubt on the true motivation behind the application and accordingly, the application cannot be said to have been made bona fide as alleged; and

it is not for the Respondents to disprove the Petitioner’s case, the legal burden of proof lies squarely on the Petitioner to substantiate his own allegations with credible evidence.

The proposed cross-examination would merely result in the Respondents repeating the averments already made in their affidavits and referring to the documents already filed. Such an exercise would serve no useful purpose and would amount to a waste of the Court’s time and resources. A mere dispute as to the Respondents’ averments is insufficient to warrant a cross-examination.

I am of the view that the existence of mere discrepancies or disputes in affidavit evidence does not, by itself, warrant cross-examination unless such conflicts are material and incapable of resolution on affidavit evidence.

As decided in the case of Tetuan Kumar Jaspal Quah & Aishah v The Co-operative Central Bank Ltd. (supra), that merely believing that there are inconsistencies or conflicts between affidavit evidence and what actually occurred does not, on its own, amount to disputing the truth of any particular fact or establishing a real issue that can be resolved through cross-examination. Without such a challenge, there is no basis to require cross-examination. I quote the relevant decision at page 652 where it was stated as follows: “[26]…Merely believing that there are material discrepancies between facts deposed in the said affidavit and what actually happened does not challenge the truth of any fact therein stated nor does it identify any dispute that could be resolved by cross-examination. As such there is nothing to necessitate cross-examination. The matter should have rested there but for the indulgence of the court below.”. [Emphasis added]

Further, the High Court in the case of Nasser Ali Azayez Maktoum Al Sheraifi & Ors (supra) held that the respondent cannot just dispute the averments but not provide any basis for the refuting them — “[ 26] The point to note is that the petitioners had produced by way of exhibits, supporting documents to strengthen their averments vis a vis the petition which runs into five thick volumes. On the other hand, in contradistinction, many of the averments in reply made by the respondent were not accompanied by documents in support. Thus, the true motivation of the respondent in filing this instant application is in some doubt, and good faith cannot readily be imputed. … [33] The respondent cannot just dispute but not provide any basis for refuting the averments by the petitioners.”. [Emphasis added]

I am of the considered view that the Petitioner’s reliance on an alleged lack of contemporaneous documents in the Respondents’ affidavits is misconceived. The Respondents are not required to disprove the Petitioner’s case instead the burden rests on the Petitioner to prove his allegations with credible evidence.

Further, I am of the view that the proposed cross-examination would merely result in the Respondents reiterating the averments already set out in their affidavits and referring to documents already on record. Such an exercise would serve no useful purpose and would amount to a waste of the Court’s time and resources. A mere disagreement with the Respondents’ averments is insufficient to justify cross-examination.

In this regard, I am guided by the case of Nasser Ali Azayez Maktoum Al Sheraifi & Ors (supra) where it was decided that— “[36] The proposed cross-examination of the petitioners would in all likelihood only result in the petitioners repeating their averments and making reference to the documents already exhibited. Moreover, there is no doubt that the best evidence rule applies in respect of the key documents exhibited in the petition and affidavits, such as the agreements, forensic report, correspondences and cause papers. That these are contemporaneous documents that concern the matters existing at that point in time cannot be emphasised enough. In that sense, they even have higher evidential value relative to oral evidence. … [ 38] I t is imperative to state that the mere fact that the respondent claimed to dispute the relevant averments of the petitioners is manifestly insufficient a basis to warrant cross-examination … the respondent must do more that merely dispute without adequate substantiation by producing its own documentary evidence to furnish a basis for its disputation. … In my view, in this situation, no useful purpose would be served by ordering them to be cross-examined.”. [Emphasis added]

In the instant case, I find there is sufficient affidavit evidence before this Court to enable the Petition to be determined without the need for cross-examination. All material facts are set out in the respective affidavits filed by the parties. Any absence of documents or evidence necessary to support the Petitioner’s case arises from the Petitioner’s own omission and is not a matter for the Respondents to remedy.

In this regard, I draw guidance in the case of Dato' Dr Henry Ooi Kwee Lim v Majlis Perubatan Malaysia [2012] 1 MLJ 549 where it was decided that— “[23] I am of the view that there is sufficient affidavit evidence supported by contemporaneous documents to enable the appeal to be heard properly without the need to cross-examine Dr Wan Mazlan whose affidavit has long been filed in court. All the material facts and evidence can be found in the respective affidavits filed by both parties.”. [Emphasis added]

Enclosure 38 filed by the Petitioner is founded on dissatisfaction with the Respondents’ response. The Petitioner claims that there is lack of documentary evidence to prove that the decision of the Company is to be made unanimously and not by simple majority as alleged by the Respondents as the Company is a family-owned company.

I find that apart from identifying certain issues on which the Petitioner seeks to cross-examine the Respondents, the Petitioner has failed to demonstrate how such cross-examination would elicit any information beyond what has already been affirmed in the affidavits, or produce any evidence capable of contradicting or challenging the Respondents’ position. See Petrochemical Commercial Company International Ltd. & Ors. v Nexus Management Group Sdn. Bhd. & Ors. (supra). Whether cross-examination of R1 and R2 would amount to a fishing expedition

The Petitioner denies the purpose of the cross-examination of R1 and R2 is for the purpose of a fishing expedition as the cross-examination if allowed would be confined to the identified issues.

The Respondents contended that there was inexplicable delay in filing the Enclosure 38 and no explanation was given as to the inordinate delay. The Respondents further argue that the Petitioner’s delay in filing Enclosure 38 just before the hearing of the Winding-Up Petition renders it a mere afterthought.

It is difficult to see how the Petitioner can contend that this application was made at the earliest available opportunity, particularly in the absence of any explanation for the delay. Cross-examination should only be permitted in the most genuine cases.

I refer to the case of Low Wee Heng v Low Wee Houng & Anor [2020] 1 LNS 1462 where it was decided that— “[67]…This court must be cautious and circumspect when considering whether or not to allow such applications to avoid it from turning into an exercise to annoy, harass or intimidate the deponent. It can only be used in the most genuine of cases. [ 68 ] I take into consideration the Plaintiff and the 2 nd Defendant are not strangers. They are son and mother respectively and both have been directors of the company for more than 20 years. They have close family ties and furthermore they used to share a home together . [ 69] The Plaintiff was aware and had knowledge of the facts of the case. He had access to the family documents and records. I must say that I have reservations on the bona fides of this application. I have reservations on whether the application was made in good faith or whether i t is merely a tactical response to the application by the 2 nd Defendant to dispose of the case.”. [Emphasis added]

Based on the authority above, in the exercise of its discretion, I have considered that the Petitioner is the son of R1 and the brother of R2. I also consider that the Petitioner and the Respondents have been involved in the Company for a considerable period of time, during which the Petitioner would have had full knowledge of, and access to, all relevant facts, as well as family documents and records. Notwithstanding such access, the Petitioner has failed to adduce before this Court any documentary evidence in support of his allegations. This omission suggests the absence of any such supporting evidence.

The absence of any supporting evidence for this application reveals the Petitioner’s true motive, namely, to embark on a fishing exercise for oral evidence in support of the Petition.

I must guard against permitting cross-examination as a fishing expedition. The absence of supporting contemporaneous documents is a relevant consideration in assessing whether the application is bona fide.

The timing of the application is a relevant factor in assessing whether it was made bona fide. This application in Enclosure 38 made by the Petitioner at such a late stage of the Winding-Up Proceedings without sufficient justification weighs heavily against the exercise of discretion by this Court.

Having considered the pleadings, affidavits, and submissions of all parties, I am of the view that the Petitioner has not established sufficient grounds for the grant of leave to cross-examine R1 and R2. The application is not supported by any cogent evidence and has failed to meet the threshold required for this Court to exercise its discretion to allow the application.

Accordingly, I dismiss Enclosure 38 with costs of RM3,000.00 to be awarded to R1 and R2, subject to allocator fees and to be paid within fourteen (14) days from this Order by the Petitioner. Dated 11 April 2026. Signed by: Sgd. …………………….. Wong Mee Ling Judge High Court of Malaya Johor Bahru Johor Darul Ta’zim. Counsel/Solicitor for the Petitioner: Mr. Eric Tan and Ms. Jamie Chan Messrs Ong Kok Bin & Co Counsel/Solicitor for the Respondents: Mr. Prakash Menon and Mr. Shawn Tan Messrs Raslan Loong, Shen &