Ber: Lim Tee Keong … JUDGMENT DEBTOR v 1. TA Securities Holding Berhad (NO.: 29-3142-1999)

TA Securities Holding Berhad

TA Centre Berhad … RESPONDENTS HEARD TOGETHER BANKRUPTCY CASE NO.: 29-3142-1999 Ber: Lim Tee Keong … JUDGMENT DEBTOR (NRIC No.: 2148359/491012-10-5475) Ex-parte: HLG Securities Sdn Bhd … JUDGMENT CREDITOR Dato’ Lai Khee Sin @ Joseph Lai ... APPLICANT

TA Securities Holding Berhad

TA Centre Berhad … RESPONDENTS 2 GROUND OF JUDGMENT Introduction [1] This an appeal against the Deputy Registrar’s decision of 7.2.2017. The Appellants who are Mr. Gerard Lim (Enclosure 52) and Dato’ Joseph Lai (Enclosure 50), appealed to set aside and/or rescind the Ex Parte Order dated 8.9.2016 and the Summons dated 1.11.2016 issued under section 31 of Bankruptcy Act 1967 (Section 31 Summons) (BA 1967). [2] The Respondents who are the Creditors, filed an Ex Parte Order seeking for the public examination of ten persons (proposed examinees), for interrogatory to be issued on the proposed examinees and to obtain the discovery of documents against the proposed examinees under section 31 of BA 1967. [3] In this judgment, Mr. Gerard Lim and Dato’ Joseph Lai will be addressed as ‘the Appellants’ and at times the Appellants’ names ‘Mr. Gerard Lim’ and ‘Dato’ Joseph Lai’ and the word ‘the Appellants’ will be used interchangeably. The Respondents will be addressed as the Creditors. [4] This Court dismissed the appeals with cost and the reasons now follow. 3 Background Facts [5] The relevant factual background giving rise to this application based on the written submission of both counsels may be briefly stated as follows:

The deceased, is the late Lim Tee Keong (the Bankrupt) who is the eldest son of the late Tan Sri Lim Goh Tong, the prominent entrepreneur and founder of Genting Group. There was an Adjudication Order and Receiving Order (AORO) made against the Bankrupt on 18.2.2003. The Bankrupt filed his Statement of Affairs on 9.6.2003. The Bankrupt had since passed away on 14.4.2014.

Subsequent to the AORO, a public examination was conducted on 31.3.2004, 1.6.2004 and 19.8.2004 by the Director General of Insolvency (DGI) to determine the whereabouts of the Bankrupt’s assets.

Prior to 14.4.2014, the Bankrupt filed an application for an order of discharge under section 33 of BA 1967 on 11.3.2013 to which the DGI prepared a report following section 33(3) of BA

1967.

The Bankrupt’s application to discharge the AORO was dismissed by the Deputy Registrar of the High Court and on appeal, was dismissed by the High Court Judge, the Honourable Justice Dato’ Mohamad Zabidin on 10.5.2014. 4

The Bankrupt appealed against the High Court Judge’s decision to the Court of Appeal which was dismissed on 4.8.2014. At the Court of Appeal, the Creditors claimed that a copy of the Bankrupt’s Will surfaced for the first time.

On 14.4.2016, the Bankrupt’s application for leave to the Federal Court against the Court of Appeal’s decision was dismissed. Prior to the leave hearing of the Federal Court, an action commenced at the High Court of Malaya at Kuala Lumpur in Suit No. WE-22NCVC-101-02/2016 (the Suit 101) by the Bankrupt’s sons against the executors of the Bankrupt’s Will.

The Creditors claimed that the Suit 101 disclosed among others, the existence of the “Tee Keong Family Trust” (LTK Trust) where the Bankrupt’s brothers, Tan Sri Lim Kok Thay and Datuk Lim Chee Wah are trustees of the LTK Trust and a direct reference to the Bankrupt’s Last Will implying the existence of real and personal property that the Bankrupt may inherit after his death.

Mr. Gerard Lim is one of the shareholders of the company Eco Vector Sdn Bhd (Eco Vector), Guardian and Appointor under LTK Trust and company Infoline Sdn Bhd (Infoline) which is the shareholder of the trustee of the LTK Trust. Dato’ Joseph Lai, is a Director of company Amaline (M) Sdn Bhd (Amaline), the Guardian and Appointor of LTK Trust. 5

The Appellants claimed that on 5.8.2016, the Creditors filed the Summons in Chambers (Enclosure 49) under Rule 53 of Bankruptcy Rules 1969 and section 31 of BA 1967.

The Creditors stated that they filed a Summons in Chambers dated 1.9.2016 (Enclosure 49) applying for leave to administer interrogatories to and/or obtain discovery of documents pursuant to section 31 of BA 1967 and Rules 52 and 54 of Bankruptcy Rules 1969 from the proposed examinees.

This Court on 8.9.2016 granted the Order requiring the proposed examinees (Enclosure 49) to be examined before the Court (Annexure A of Appellants’ counsel’s written submission) and Section 31 Summons under section 31 of BA 1967 dated 1.11.2016 were served to be examined on 29.11.2016 (Annexure B of Appellants Counsel’s written submission). Both Enclosure 52 and Enclosure 50 were dismissed by the Deputy Registrar on 7.2.2017 and hence this appeal. The Appellants’ submissions [6] The learned counsel for the Appellants advanced several grounds for this appeal and at the oral submission submitted the main grounds that, the Creditors are merely relying on unsubstantiated allegations made in the statement of claim in Suit 101 to the effect that the Bankrupt may have certain assets, and the Ex Parte Order and Section 31 Summons were very wide and oppressive. 6 [7] The counsel for the Appellants argued that the Creditors were assuming that the Bankrupt had died leaving a Last Will testament and therefore the Bankrupt may have some assets. It was submitted by the counsel that the Appellants have no involvement with the Bankrupt, personally or financially. It was also submitted that the Bankrupt was not a beneficiary of the LTK Trust. It was brought to this Court’s attention that this fact is known to the Creditors whom had asked the Bankrupt during the public examination in 2004 conducted by the DGI (Notes of proceedings,

31.3.2004, at page 6 of Exhibit OGT -1 of Creditors’ Affidavit in Support and on 1.6.2004 at page 11-12 of Exhibit OGT-1). [8] The counsel for the Appellants argued that the Creditors are using the allegations made in Suit 101 against the Appellants who are outsiders. The counsel asserted that the father of the Bankrupt removed the Bankrupt from the LTK Trust as beneficiary and argued that the Creditors cannot simply summoned the Appellants as the rule to compel to give evidence is a strict rule where there must be sufficient materiality for person to be summoned to give evidence before the Court: Wong Sin Chong & Anor v Bhagwan Singh & Anor [1993] 3 MLJ 679, SC; case of Ismail Hasnul; Abdul Ghafar v Hasnul [1968] 1 MLJ 108, FC and Dea Ai Eng (P) v Dr. Wong Seak Shoon & Anor [2007] 2 MLJ 357. [9] It was also submitted that both Appellants are not a party to the Suit 101 and the Creditor have not explained the reasons why the Appellants, a shareholder of Eco Vector and Infoline, and of Amaline (M) respectively, could provide information on the LTK Trust or what information the Creditors would want to seek that may lead to the assets of the Bankrupt. It 7 was brought to this Court’s attention that the sons of the Bankrupt challenged the Grant of Probate relating to the Last Will and testament and Suit 101 was brought against the brothers of the Bankrupt. [10] It was submitted that the Creditor’s Affidavit merely stated that the Bankrupt died leaving a Last Will and testament without detailing the assets and documents required and that the ex-parte application by the Creditors should not be made following section 19 of BA 1967. The counsel for the Appellants submitted that following Rule 53 (1) of Bankruptcy Rules 1969, the Appellants are not a party to the proceeding and questioned whether the interrogatory issued are permissible. The Creditors’ Submission [11] The learned counsel for the Creditors averred at length as to why interrogatories and discovery of documents should be allowed particularly when it is not disputed, following section 31(1) of BA 1967, that the Creditors had proven their debts for the sums of RM10,168,257.25 and RM384,246.02 respectively. The counsel for the Creditors argued that they possess a valid reason to apply based on the fact that the Court of Appeal in dismissing the bankrupt’s application to be discharged under section 33 of Bankruptcy Act 1967, proves to show that the investigation into the assets of the Bankrupt by the DGI was inadequate: Lim Tee keong v HLG Securities Sdn Bhd [2016] 3 MLJ 201, CA. [12] The counsel for the Creditors further submitted that there are two events which led the Creditors in making the application under section 8 31(1) of BA 1967 where barely a month before the Bankrupt’s death, it came to Creditors’ attention that the Bankrupt executed a Will and appointed his two brothers as the executors and trustees of his estate and the other is the Suit 101 initiated by the Bankrupt’s two sons against their uncles. [13] It was brought to this Court’s attention that the Plaintiff under Suit 101 claimed that during their grandfather’s lifetime, separate trusts for the benefit of each of his three sons and their respective lineages were set up and in the case of the Bankrupt, the LTK Trust was vested in the two brothers of the Bankrupt and a trust corporation controlled by the brothers. [14] The Creditors’ counsel submitted that based on the statement of claim in the Suit 101, there is further reason to believe that the Bankrupt may not have been forthright to the DGI in declaring its assets. The Creditors also submitted that there are two proceedings seeking for a copy of the Deed of Trust from Infoline (Suit 1489) which leave to appeal is pending at the Federal Court and the other is seeking the Trust Accounts of Infoline (Suit 111) at the Kuala Lumpur High Court. [15] It was submitted that the Creditors filed an application under section 31(1) BA 1967, for the benefit of all the other creditors who have filed their proof of debts and argued that there is no requirement under section 31 of the BA 1967 that they must first write to the proposed examinees. Contrary to the Appellants’ submission, the Creditors asserted that an application under section 31 BA 1967 is made Ex Parte and the proposed examinees 9 are at liberty to apply for the Ex Parte Order against them to be set aside after the Ex Parte Order is served under section 92 of BA 1967. [16] The Creditors submitted that Mr. Gerard Lim being one of the two shareholders of Eco Vector who is a shareholder of Amaline and shareholder of Infoline will have access to information and documents that would assist the estate of the Bankrupt. This Court heard that the other shareholder of Amaline is Tan Sri Lim Kok Thay to which Amaline is the appointed Guardian and Appointor of the LTK Trust and Infoline is the Trustee of LTK Trust. [17] In relation to Dato’ Joseph Lai, the Creditors submitted that Dato’ Joseph Lai is a Director of Amaline which is the Guardian and Appointor of the LTK Trust, whom may be in possession of information relating to the Bankrupt’s beneficial rights under the LTK Trust including confirmation as to whether the estate of the Bankrupt is vested with any assets upon the Bankrupt’s death. [18] The counsel for the Creditors averred that the Court of Appeal decision in the case of Infoline Sdn Bhd (Sued as Trustee of Tee Keong Family Trust) v Benjamin Lim Keong Hoe, Civil Appeal No.: W-02- (NCVC)(A)-2086-12-2015) shows that the confidentiality of the trust is not absolute and the estate of the bankrupt and creditors are entitled to investigate into the Trust to satisfy themselves that there were no attempts made to conceal the Bankrupt’s assets from the hands of his creditors. 10 [19] The Creditors pointed to the Court that under the late Lim Goh Tong’s Will, there are many “trusted employees” where the trustees are of different companies and the Appellants are not just any one but have links with the Bankrupt, either as an employee or good friends. It was also submitted that the Bankrupt’s mother had recently passed on and there is a possibility of knowing the whereabouts of the Bankrupt’s assets based on the principle that such discovery is assumed to be true: Yekambaran s/o Marimuthus v Malayawata Steel Berhad [1994] 2 CLJ 581. The Creditors also pointed out the Affidavit In Support of the Originating Summons by the Bankrupt’s daughter, Marie Lim Seok Leng (pages 19 – 26 of Creditors’ ‘Affidavit Jawapan’ (English Translation)) claiming that there should be assets of the Bankrupt. [20] Regarding the application made Ex Parte as submitted by counsel for the Appellants, the Creditors argued that following Rule 53 of Bankruptcy Rules 1969 the discovery can be made ex-parte and Section 31 Summons comes with a qualifier that is, focusing on LTK Trust which could be examined and cross-examined before the Court. THE COURT’S FINDING [21] Having read the written submissions and the oral submissions by both counsels on their main grounds, for the purpose of this judgment, I shall be brief. I start by firstly laying down the governing law on discovery for bankruptcy matter which is section 31of BA 1967, particularly subsection (1) is reproduced here for easy reference: 11 “31. Discovery of debtor’s property.

The court may, on the application of the Director General of Insolvency or of any creditor who has proved his debt at any time after receiving order has been made against a debtor, summon before it the debtor, or any wife of his, or any person known or suspected to have in his possession any of the estate or effects belonging to the debtor, or supposed to be indebted to the debtor, or supposed to be indebted to the debtor, or any person whom the court deems capable of giving information respecting the debtor, his dealings or property, and the court may require any such person to produce any documents in his custody or power relating to the debtor, his dealings or property.” [22] I am mindful that following section 31 of BA 1967, this Court has the discretionary power to order for the discovery of any document which must be relevant and related to the factual issues. The language of section 31(1) BA 1967 must be read with reference to the facts of this instant case. Based on the Ex Parte Order, it allowed the Creditors to carry out the interrogatories and to obtain discovery of documents from the proposed examinees as follows: “(i) Tan Sri Lim Kok Thay;

(ii) Datuk Lim Chee Wah;

(iii) Datin Agnes Tan Bee Gaik;

(iv) Madam Joanne Fok Chan Kok;

Joseph Lai Khee Sin: 12

(vi) Roselind Niap Kam Lian;

(vii) Quah Chek Tin;

(viii) Yap Chong Chew;

(ix) Gerard Lim Ewe Keng;

Mak Siew Wei.” It was also stated at paragraph 2 of the Order that the proposed examinees are summoned to appear before the Court, “untuk membantu dalam mendapatkan balik aset-aset mendiang bankrap, Lim Tee Keong”. [23] Upon careful perusal of the affidavit of the Appellants, they merely aver among others that the Creditors have not shown that the Appellants could be of some assistance to provide information as to the Bankrupt’s assets. The Appellants involvement towards Bankrupt’s assets were denied and that seeking information of the Appellants’ companies are inappropriate as the said companies are not involved in the two proceedings (Suite 1489 and Suit 101). [24] The Creditors on the other hand, narrated at length each and every proposed examinees, of their connections with the Bankrupt’s assets in the affidavit. For instance, one of the proposed examinee is Tan Sri Lim Kok Thay, the Bankrupt’s brother who is a shareholder of Amaline which is the guardian and appointor of LTK Trust and the other brother is Datuk Lim Chee Wah who is also with Amaline to which this Court finds indeed necessary to cross-examine them. The Bankrupt’s wife Datin Agnes Tan Bee Gail and his mistress Joanne Fok Chau Kok who were not called in for 13 public examination by DGI previously, as rightly pointed out by the Creditors, should be cross-examined. [25] The Creditors also attached the affidavit of the Bankrupt’s daughter whom explained at length the benefits that she obtained from the LTK Trust by Infoline. It was highlighted in the Appellants’ affidavits that the application for a copy of the Deed of Trust from Infoline had been successful before the High Court and the Court of Appeal, currently pending leave to the Federal Court. This Court holds the view that based on the Creditors’ affidavits and the documents attached, it would be a reasonable inference that there are assets of the Bankrupt and the Creditors are entitled to investigate to satisfy themselves: Infoline Sdn Bhd (Sued as Trustee of Tee Keong Family Trust) v Benjamin Lim Keong (supra) case. [26] The procedure for discovery is prescribed in Rule 53 of Bankruptcy Rules 1969 and subrule (1) stated that a party may, with the leave of the Court, administer interrogatories to or obtain discovery of documents from any other party to the proceeding and the leave application may be made ex parte. I do not see any handicap in the Creditors’ application. The reading of section 31 of BA 1967 is not to establish liability, it is to assist for discovery in bankruptcy proceedings which is clearly spelled out in the Ex Parte Order this Court viewed that the language of Rule 53(1) of Bankruptcy Rules 1969 enables a party to obtain discovery of documents from any other party to the proceeding. 14 CONCLUSION [27] To conclude, based on the facts and the documentary evidence before me which includes the affidavit in support by the Appellants and the Creditors, it is this Court’s finding that the proposed examinees do provide the links to the Bankrupt’s assets. The Creditors’ affidavit epitomized an approach to discovery of facts which the Creditors had perfected. In light of the above reasons, the appeals were dismissed with cost. Dated: 12 December 2017 (ZALITA BINTI DATO’ ZAIDAN) Judicial Commissioner Shah Alam High Court 15 COUNSEL FOR THE APPLICANTS SHAMALA DEVI A/P BALASUNDARAM Messrs. Chooi & Company Level 5, Menara BRDB 285 Jalan Maarof Bukit Bandaraya 59000 Kuala Lumpur [Ref: 20162615 SDB] Tel: 03-2055 3888 Faks:03-2055 3880 COUNSEL FOR THE RESPONDENTS ONG CHEE KWAN ERI FU Messrs. Christopher & Lee Ong Level 22, Quill 7 No. 9, Jalan Stesen Sentral 5 Kuala Lumpur Sentral 50470 Kuala Lumpur [Ref: ONCK/319578/01]