to attest signatures, under any written law or when otherwise required to do so as though such Justice of the Peace were a Second Class Magistrate. (emphasis ours) [16] Ian Chin J then concluded that under the above-mentioned provisions, a JP in Sabah is deemed to be a Second Class Magistrate and therefore can attest an affidavit for the purpose of bankruptcy proceedings. The Court of Appeal upheld the decision of Ian Chin J. The Federal Court also upheld the said decision. The Federal Court judgment is reported as Hong Kim Sime v Malayan Banking Bhd [1999] 3 CLJ 731. Chong Siew Fai CJ at the Federal Court held that a JP in Sabah can administer oaths and affirmations as he or she were a Second Class Magistrate under section 99 (2) of the SCA 1948 and Regulation 2 of the Subordinate Courts (Powers of Justices of the Peace) (Sabah) Regulations 1990. Therefore, under section 128(a) of the Bankruptcy Act 1967, a JP is competent to attest an affidavit as a Second Class Magistrate. [17] The learned Judicial Commissioner in the instant case noted that the Federal Court did not say that a JP cannot attest an affidavit in a non-bankruptcy case. His Lordship then proceeded to hold that a JP in Sabah can do so for the following reasons. Under the Fourth Schedule of the SCA 1948, an Assistant Registrar of the Subordinate Courts is an ex officio Second Class Magistrate. Under section 2 of the SCA 1948, “Registrar” includes an “Assistant Registrar” of the Subordinate Courts. His Lordship then considered the general law that authorises the taking of affidavits which is section 11 of the Courts of Judicature Act 1964. It authorises a “Registrar” to attest an affidavit. Therefore, the learned S/N lFUmnBjcwk6Lb2mZNrBnnw Judicial Commissioner reasoned that a JP in Sabah is empowered to attest affidavits for “any legal proceedings in the Subordinate Courts and the High Court”. Section 11 of the CJA 1964 [18] We note that the only general provision that refers to the taking of affidavits is section 11 of the CJA 1964. There is no general provision in the Rules of Court 2012 or its predecessor Rules of High Court 1980 or the Subordinate Court Rules 1980 that governs the taking of affidavits. There is no general provision in the SCA 1948 in respect of the attestation of affidavits either. That is the reason for the reference to section 11 of the Courts of Judicature Act 1964 in the Hong Kim Sime case by the High Court and the Federal Court. In the Hong Kim Sime case, as we pointed out earlier, both the Federal Court and High Court had also regard to another provision, i.e. section 128 of the Bankruptcy Act 1967 that permits attestation of an affidavit by a Magistrate. This is the reason, the taking of an affidavit by a JP in Sabah who is deemed to be a Second-Class Magistrate was held to be valid. Likewise, there may well be a provision in other laws that permits the taking of an affidavit by a Magistrate. One such law is section 424 of the Criminal Procedure Code which provides that an affidavit used in criminal courts may be sworn before a Magistrate. [19] Coming back to the facts of the instant case, section 11 of the Courts of Judicature Act 1964 was cited by the learned Judicial Commissioner. His Lordship found that a JP in Sabah has the power to attest an affidavit under it for the reason he is deemed to be a Second Class Magistrate. However, we are of the view that His Lordship erred in holding that the JP S/N lFUmnBjcwk6Lb2mZNrBnnw can avail this provision to attest an affidavit for general use in civil proceedings for two reasons. [20] His Lordship held that since an Assistant Registrar of the Subordinate Courts is an ex officio Second Class Magistrate, a JP is also an Assistant Registrar. In other words, His Lordship conflated the office of a Second Class Magistrate with that of the Assistant Registrar. We should think that he erred in doing so. The Fourth Schedule of the SCA 1948 enacts that some public officers are, by virtue of office, deemed to be First Class or Second Magistrates. For example, a State Secretary is an ex officio First Class Magistrate and an Assistant Registrar of the Subordinate Court is an ex officio Second Class Magistrate. But the schedule does not state the converse, i.e. it does not deem that a Second Class Magistrate is also an “Assistant Registrar”. Therefore, it is wrong to say that because an Assistant Registrar is an ex officio Second Class Magistrate, the latter is also an Assistant Registrar. Otherwise, a First Class Magistrate would also be deemed to be a State Secretary merely because the latter is an ex officio First Class Magistrate. The public officers listed in the Fourth Schedule are ex officio Magistrates only because of a specific provision to that effect in the law. [21] However, we would hasten to add that unlike a Second Class Magistrate, a First Class Magistrate is also a “Registrar” because of section 10(4) of the Courts of Judicature Act 1964. The said provision enacts that First Class Magistrates are also Senior Assistant Registrars of the High Court if its registry is within the local limits of their jurisdiction. [22] In our view, the second error of the learned Judicial Commissioner is this. His Lordship had regard to the definition of “Registrar” in section 2 S/N lFUmnBjcwk6Lb2mZNrBnnw of the SCA 1948 which includes an “Assistant Registrar”. However, the meaning of “Registrar” in section 11 of the Courts of Judicature Act 1964 should be discerned from the Act itself. The Act limits the meaning to all ranks of Registrars of the Superior Courts only. There is no reference to the Registrars of Subordinate Courts. In the premises, even if a JP is deemed to be an Assistant Registrar of the Subordinate Courts, he or she cannot come within the ambit of section 11(a) of the Courts of Judicature Act 1964. But as we said earlier, a JP in Sabah is deemed to be a Second Class Magistrate for the limited purpose of Regulation 2 of the Subordinate Courts (Powers of Justices of the Peace) (Sabah) Regulations 1990 only. There is no provision in any law that deems that a JP is also an Assistant Registrar of the Subordinate Courts. [23] For all the above reasons, we are of the view that a JP in Sabah who is deemed to be Second Class Magistrate cannot attest affidavits for general use in civil proceedings unless specially authorised by law such as section 128 of the Insolvency Act 1967. [24] Counsel for the respondent urged us to hold that the attestation of an affidavit in support of the ex parte application by JP is a mere irregularity that cannot invalidate evidence. He cited section 9 of the Sabah Oaths Ordinance (Cap 89) that states as follows: No omission to take any oath or make any affirmation, no substitution of any one for any other of them, and no irregularity whatever in the form in which any one of them is administered shall invalidate any proceeding or render inadmissible any evidence whatever in or in respect of which such omission, substitution or irregularity took place, or shall affect the obligation of a witness to state the truth. S/N lFUmnBjcwk6Lb2mZNrBnnw [25] In our view, the said ordinance cannot apply to affidavits as it only refers to oaths and affirmations administered to a witness in a judicial proceeding. Secondly, the defect question is not a mere irregularity in form as the attestation was made before an unauthorised person. For the same reason, we find it difficult to agree with counsel for the respondent that Order 2 of the Rules of Court 2012 can cure the defect. However, we find that the part of the appeal against the grant of the ex parte order is academic. We shall address this issue below. Whether appeal against ex parte order is academic? [26] Counsel for the respondent argued that regardless whether the affidavit to support the ex parte Mareva injunction is defective, the instant appeal against the grant of it is academic and therefore the appeal should be dismissed. The reason for this argument is that the ex parte Mareva injunction in question has lapsed and a fresh inter parte injunction was granted. We find merit in this argument for the following reasons. [27] The ex parte Mareva injunction which is the subject of the instant appeal was granted on 11.1.2021. Order 29 rule 1(2B) provides that unless earlier revoked or set aside, an ex parte interim injunction shall automatically lapse 21 days from the date it was granted. In the premises, the ex parte order lapsed on 1.2.2021. On the same date, the respondent applied for an ad interim injunction on inter parte basis. The application was supported by a fresh affidavit sworn before a Commissioner of Oaths on 29.1.2021. An ad interim Mareva injunction was granted on 1.2.2021. The Mareva Injunction was granted on 26.4.2021. S/N lFUmnBjcwk6Lb2mZNrBnnw [28] As correctly pointed out by counsel for the respondent, the ex parte Mareva injunction order and the subsequent inter parte ad interim Mareva injunction and inter parte Mareva injunction orders are distinct and separate orders. In RIH Services (M) Sdn Bhd v Tanjung Tuan Hotel Sdn Bhd [2002] 3 CLJ 83, this court held that an ad interim order made after expiry of the ex parte injunction order is a fresh order and not an extension of the ex parte order. It follows that since the ad interim Mareva injunction order is a separate order and not an extension of the previous ex parte order, it is not affected by any defect in the latter order. Similarly, the Mareva injunction granted after full argument is also a fresh order. In the premises, the appeal against the ex parte Mareva injunction order is academic and, on this ground, we dismiss it. [29] We are mindful that in the RIH Sevices case, it was stated that the court could still consider whether a lapsed ex parte injunction order should have been made in the first place not for the purpose of setting it aside but to determine whether damages that should be awarded. An inquiry as to damages would be ordered if there was inequitable conduct on the part of the plaintiff such as non-disclosure of material facts or misrepresentation in the application for the ex parte injunction. However, in the instant case, the main complaint is based on a technicality, i.e. that the first affidavit in support was sworn before a JP. For this reason, we see no reason to order any inquiry as to damages in respect of the lapsed ex parte order. [30] Before we proceed to consider the appeal against the inter parte Mareva injunction order, for sake of completeness, we observe that before the learned Judicial Commissioner, some procedural points were argued by the counsel for the appellant. It was argued that the ex parte Mareva S/N lFUmnBjcwk6Lb2mZNrBnnw injunction order that was served on the appellant’s solicitors was not endorsed with a return date. Furthermore, the sealed copy of the ex parte Mareva injunction order dated 11.1.2021 was not served within seven days in accordance with Order 29 rule (2BA). The learned Judicial Commissioner dismissed the above-mentioned issues raised in the form of preliminary objections and gave detailed reasons. We find it unnecessary to address the above issues at any length as the appellant did not raise them in the memorandum of appeal. In any event, we agree with the learned Judicial Commissioner who accepted the explanation for non-compliance and delay and found that no prejudice was occasioned. [31] Before us, the issue of delay in applying for the Mareva injunction as the judgment on liability was pronounced in 2015 was also raised. This ground of appeal was pleaded in the memorandum of appeal. This issue does not appear to have been addressed by the learned Judicial Commissioner. In the instant case, it is apparent that the respondent was alerted to the risk of dissipation when she became aware of the intention of the appellant to sell 80% of his shares in Sunlight Seafood in December of 2020. The ex parte application was made in January of 2021. Thus, we find no merit in this ground of appeal. Appeal against Inter parte Mareva injunction order [32] Insofar as the inter parte order is concerned, we are of the view that the respondent can rely on the affidavits that were attested before the Commissioner for Oaths. These affidavits refer to the contents of the earlier affidavit sworn before the JP. However, as these affidavits were properly attested, we see no reason why the respondent could not have relied on it. In any event, the basic fact that judgment against the appellant S/N lFUmnBjcwk6Lb2mZNrBnnw on liability had been granted is not disputed. And in paragraph 32 of the affidavit in opposition, the appellant has agreed that he has entered into a sale and purchase agreement to transfer his shares in Sunlight Seafood Sabah. In the premises, the learned Judicial Commissioner had sufficient admissible evidence before him to consider whether there was an arguable case and whether there was risk of dissipation. [33] As we said earlier, the learned Judicial Commissioner found that the test for a Mareva injunction prayed had been satisfied by the respondent. The respondent had obtained judgment against the appellant and all appeals against the said decision had been dismissed. Therefore, a good arguable case had been established by the respondent. In respect of the issue whether there were assets within the jurisdiction, His Lordship held that the respondent had disclosed sufficient affidavit evidence to prove that fact. In respect of the crucial issue of risk of dissipation of assets, His Lordship had regard to the fact that Justice Gabriel Gumis had earlier found as a fact in 2015 that the appellant fraudulently concealed the fact that he set up Sunlight Seafood to replace Sunlight Aqua as the company to enter into a joint venture with a subsidiary of Sabah Foundation. For this reason, His Lordship held that the risk of dissipation could be inferred. [34] The learned Judicial Commissioner held as follows in respect of the risk of dissipation of assets: Where there has been a breach of contract and dishonesty, the courts were inclined to find that there was a real risk of dissipation. Bumi Armada Navigation Sdn Bhd v. Mirza Marine Sdn Bhd [2015] 5 CLJ 652 and Rosnah bt Kamarul Zaman & Ors v. Extreme Chocolate Sdn Bhd & Anor [2010] 1 LNS 113; [2011] 7 MLJ 249 are both cases where the High Court found that as a result of the breach of contract and breach of payment terms of the settlement agreement S/N lFUmnBjcwk6Lb2mZNrBnnw respectively, the breaching party was held to have lacked honesty and probity. For that reason, the risk of dissipation could be inferred. …..His Lordship Judicial Commissioner Gabriel Gumis (as he then was) in his grounds of judgment dated 30 December 2015 found that the defendant had breached the contract and had fraudulently concealed the fact that he incorporated Sunlight Seafood to replace Sunlight Aqua as the company to enter into a joint venture with Inno Resource to develop the Pitas Project. [35] For the same reasons, we do not disagree with the finding of the learned Judicial Commissioner that there is a real risk of dissipation of assets by the appellant before the court can assess the damages payable to the respondent. We also note that in the memorandum of appeal, the appellant did not raise any ground of appeal in respect of the finding of the learned Judicial Commissioner that the respondent satisfied the test for the grant of a Mareva injunction. [36] The appellant pleaded in the memorandum of appeal that the terms of the Mareva injunction order were “oppressive and onerous and far too wide as well as ambiguous in its terms”. We find no merit in this ground of appeal for the following reasons. In Motor Sports International Ltd & Ors v Delcont (M) Sdn Bhd [1996] 3 CLJ 483, this court held that where a plaintiff claims an exact sum, a Mareva injunction that restrains the defendant from dissipating his asset must specify an upper limit and that if does not, the order would be too wide and oppressive. In the instant case, the upper limit specified in the Mareva injunction order in respect of the value of assets that must not be removed from Malaysia is RM30 million. This figure was not fixed arbitrarily by the learned Judicial Commissioner in the instant case as the High Court when granting judgment on liability in 2015 made a finding that one Nobel Pang had S/N lFUmnBjcwk6Lb2mZNrBnnw agreed to buy the respondent’s shares in Sunlight Aqua for RM30 million. We are also of the view that the ancillary order for disclosure of information in paragraph 4 of the ex parte order that was adopted in the inter parte order is not too wide or oppressive. The disclosure order was prayed in aid of the Mareva injunction as without it, the respondent would have no knowledge of the assets of the appellant. Any dissipation of the assets of the appellant would render the judgment of the High Court that was rendered in favour of the respondent in 2015 nugatory. However, we shall vary paragraph 4 as there is no upper limit specified in respect of disclosure of assets. In the premises, we shall vary the inter parte order dated 26.4.2021 to read that the extent of the disclosure by the appellant of his assets be limited to unencumbered assets to the tune of RM30 million only. Conclusion [37] In summary, whilst we agree with counsel for the appellant that a JP in Sabah is not authorised to attest an affidavit for use in general civil proceedings, by operation of law, the ex parte order in question has automatically lapsed. Therefore, the appeal against the grant of it is academic. We find it unnecessary to consider ordering an inquiry into damages because there is plainly no inequitable conduct on the part of the respondent in applying for the ex parte order. The only error committed was technical, i.e., it was assumed based on the Hong Kim Sime case, a JP in Sabah could attest the affidavit in support. In respect of the inter parte Mareva injunction order, we were satisfied that the learned Judicial Commissioner had correctly found that the test for the grant of it had been satisfied. S/N lFUmnBjcwk6Lb2mZNrBnnw [38] For all the above reasons, we dismissed the appeal subject to the variation that disclosure of assets be limited to unencumbered assets to the tune RM30 million only. We granted costs of RM10,000 to the respondent subject to payment of allocatur. SGD (RAVINTHRAN PARAMAGURU) Judge Court of Appeal Malaysia Dated: 30th April 2023 Parties Appearing: For The Appellant: Jeyan Marimuttu Eric Chong [Messrs J. Marimuttu & Partners] For The Respondent: Alexdecena @ Alexander Decena Jordan Christian Kong Tzu Fui [Messrs Jayasuriya Kah & Co] S/N lFUmnBjcwk6Lb2mZNrBnnw