Dr Mansur Bin Hussain & 3 Lagi v Barisan Tenaga Perancang (M) Sdn Bhd & 4 Lagi (W-02(NCC)(W)-428-03/2016)

IN THE COURT OF APPEAL AT PUTRAJAYA CIVIL APPEAL NO W-02(NCC)(W)-428-03/2016 BETWEEN

1. DR MANSUR BIN HUSSAIN

2. SITI RUHANI BINTI ABDUL SAMAD

3. MUHAMMAD HAZIM BIN MANSUR

4. MASA BUILDER SDN BHD ... APPELLANTS AND

1. BARISAN TENAGA PERANCANG (M) SDN BHD

2. CHAI WOON CHET

3. CHIAM AH CHING

4. MOKHZANI BIN JALANI

5. KAMARUDIN BIN MOHAMAD ... RESPONDENTS [In the matter of High Court of Malaya at Kuala Lumpur Civil Suit No 22NCC-366-09/2014 Between Barisan Tenaga Perancang (M) Sdn Bhd ... Plaintiff And

1. Dr Mansur bin Hussain

2. Siti Ruhani binti Abdul Samad

3. Nor Hashim & Associates

4. Shaik Mohamed & Co ... Defendants Heard together with (FIRST COUNTER CLAIM)

1. Shaik Mohamed & Co ... Plaintiff and

2. Barisan Tenaga Perancang (M) Sdn Bhd ... Defendant and SECOND COUNTER CLAIM

1. Dr Mansur bin Hussain

2. Siti Ruhani binti Abdul Samad

3. Muhammad Hazim bin Mansur

4. Masa Builder Sdn Bhd ... Plaintiffs And

1. Chai Woon Chet

2. Chiam Ah Ching

3. Mokhzani bin Jalani

4. Kamarudin bin Mohamad

5. Barisan Tenaga Perancang (M) Sdn Bhd ... Defendants] CORAM: ABANG ISKANDAR BIN ABANG HASHIM, JCA BADARIAH BINTI SAHAMID, JCA MARY LIM THIAM SUAN, JCA JUDGMENT OF THE COURT Brief salient facts of the case [1] Dr Mansur bin Hussain ("Dr Mansur") and his wife Puan Siti Ruhani binti Abdul Samad ("Puan Siti") were, and are still, the directors and shareholders of Masa Builder Sdn Bhd ("MBSB"). [2] MBSB was the holding company of Barisan Tenaga Perancang (M) Sdn Bhd ("BTP") until 8 October 2012. As far as the records of the Companies Commission of Malaysia ("CCM") reflect, Dr Mansur and Puan Siti were also directors of BTP until 25 April 2013. At all times, Puan Siti was a passive director and was not involved in the affairs of BTP. [3] In 2006 Dr Mansur acquired BTP to carry out a project on its lands held under HS(D) 62897, PT No. 8087, HS(D) 62898, PT No. 8088, HS(D) 62898, PT No. 8088 and HS(D)62899, PT No. 8089, all in Bandar Selayang, Daerah Gombak, Negeri Selangor ("the Lands"). BTP was developing the Lands into a residential development known as Selayang Springs Condominium, Selayang ("the Project"). The total gross development value of the Project was RM783, 697,078.00. [4] The purchase of the Lands was financed by Dr Mansur using his own funds as well as funds from a bridging loan facility and term loan facility totalling RM60 million from Bank Rakyat. Both Dr Mansur and Puan Siti were the guarantors of the Bank Rakyat Facilities. [5] Problems occurred and the Project faced financial strain since BTP did not receive progress payments from the purchasers of Cedar Block, one of the blocks in the Project. Most of BTP's consultants and contractors were also chasing BTP for payment for work done for the Project. Dr Mansur's case [6] Mr. Tan and Mr. Yang were among the contractors for the Project, who were owed by BTP. They introduced Datuk Chai Woon Chet ("Datuk Chai") to Dr Mansur as an Ah Long. [7] Dr Mansur decided to get a RM6 million loan from Datuk Chai. Datuk Chai agreed to give a short-term loan of RM6 million to Dr Mansur with interest at 8% per month on the principal loan for a duration of six months. BTP was to utilize the loan to first pay the outstanding debts due to LCL M&E Engineering Sdn Bhd ("LCLSB"), a contractor of the project and, to Mr. Yang. [8] In addition, Datuk Chai would have a separate agreement for the sale of Dr Mansur's shares of BTP and an option to re-purchase those shares upon Dr Mansur's payment of the principal loan sum and interest in six months. [9] Dr Mansur contended that, he had no choice but to accept and sign the agreement to sell the shares in BTP to Datuk Chai in order to retain customer confidence and to ensure that Damar Block be completed as soon as possible. [10] The loan transaction was in the form of the Share Sale Agreement dated 8 October 2012 (" $ 1^{\mathrm{st}} $ SSA") where Dr Mansur and Puan Siti as the BTP's company secretary executed and forwarded the documents relating to the transfer of shares in BTP to Messrs Shaik Mohamad, solicitor for Dr Mansur and Puan Siti. [11] An Option Agreement ("OA") also dated 8 October 2012 between Mr. Chiam Ah Ching ("Mr. Chiam"), a "proxy" of Datuk Chai and Encik Muhammad Hazim bin Mansur ("Encik Hazim"), Dr Mansur's son, was signed and witnessed by Datuk Chai. The OA was an agreement for Dr Mansur to pay interest to Datuk Chai. Dr Mansur was informed by Mr Wong Choong Wai ("Mr Wong"), an advocate and solicitor witnessing Mr. Chiam's signature in the OA that, if Dr Mansur could repay the full loan and interest of RM2.934 million to Datuk Chai, his BTP's shares would be re-transferred "to the person named in the OA". [12] Dr Mansur was not "the person named in the OA" though he intended that his name to be in the OA. He was then told by Mr Wong that to maintain a semblance of legality in the transaction, it was best to name a third party in the OA. As such Dr Mansur named his son, Encik Hazim in the OA. [13] Dr Mansur contended that, MBSB did not receive the full loan of RM6 million. Datuk Chai informed that it was due to a deduction to pay legal fees of RM53,440.00 and the first payment of interest of RM489,000.00. [14] BTP used the loan to pay BTP's debt and proceeded on the second block for Cedar Block. It was later that Dr Mansur found out that Datuk Chai was actually the chairman of LCLSB. Dr Mansur made six payments to Datuk Chai before he stopped. [15] When Datuk Chai demanded further payments, it was Dr Mansur's contentions that, Datuk Chai had threatened him and his family. Dr Mansur had made several police reports. Thereafter, Dr Mansur met Datuk Chai to discuss settlement of the principal sum and interest on 24 April 2013. Datuk Chai came up with new terms and proposed settlement to Dr Mansur. If accepted, Dr Mansur must withdraw the police reports made by Dr Mansur against Datuk Chai. [16] On the advice of Encik Shaik Mohamed bin Mohd. Sahed ("Encik Shaik") from Messrs Shaik Mohamed & Co, Dr Mansur did not sign the proposed agreement made by Datuk Chai. When Dr Mansur refused to sign the agreement proposed by Datuk Chai, Datuk Chai who had been appointed as BTP's director on 8 October 2012, used the undated resolution of BTP's Board of Directors ("BOD") to appoint one Mr. Chong Chung Soon (Mr. Chong) as a director of BTP on 24 April 2013. Datuk Chai and Mr. Chong then used Dr Mansur and Puan Siti's undated letters of resignation to cause the resignation of Dr Mansur and Puan Siti as BTP's directors on 25 April 2013. It was alleged that the appointment of Mr. Chong as BTP's director and the resignations of Dr Mansur and Puan Siti as BTP's directors, were illegal and done without the knowledge and consent of Dr Mansur and Puan Siti. [17] Dr Mansur stopped taking part in the management of BTP's affairs on 2014 when he was served with the injunction order. BTP stopped all work on the site of the Project on 2 June 2013 when Datuk Chai locked up the Project site. [18] Datuk Chai resigned as BTP's director on 3 May 2013. Encik Mokhzani bin Jalani ("Encik Mokhzani") and Encik Asriman Shah were appointed as BTP's directors. BTP's present directors are Encik Mokhzani and Encik Kamarudin bin Mohamad ("Encik Kamarudin"). Encik Mokhzani, Encik Asriman and Encik Kamarudin are Datuk Chai's proxies. Datuk Chai' case [19] Datuk Kenny Ng Bee Ken ("Datuk Kenny Ng") was the advocate and solicitor who prepared the $ 1^{\mathrm{st}} $ SSA and the OA on the instruction of Datuk Chai. MBSB was represented by Dr Mansur and MBSB's solicitor is Encik Shaik from Messrs Shaik Mohamed & Co. Dr Mansur consulted Encik Shaik during the related negotiations. Encik Shaik was present at the negotiations in respect of $ 1^{\mathrm{st}} $ SSA and the OA. Dr Mansur signed both agreements as witnessed by Encik Shaik. [20] Datuk Chai's solicitor, Datuk Kenny Ng who is a partner in Messrs Azri, Lee Swee Seng & Co. ("Messrs ALSS") denied that the $ ^{1st} $ SSA and the OA were sham agreements to disguise an illegal moneylending transaction. Encik Hazim did not exercise the option to purchase BTP's shares under the OA. [21] Datuk Chai testified that he is an investor and entrepreneur. He is the Group Managing Director of two listed companies. Datuk Chai contended that he was never been involved in moneylending business. Datuk Chai was the chairman of LCLSB which provided mechanical and electrical services to the Project. Datuk Chai was introduced by Mr. Tan, one of LCLSB's directors. [22] Datuk Chai met Dr Mansur who informed him about the Project's cash flow problems. Dr Mansur invited Datuk Chai to be his joint venture partner. Datuk Chai was not keen to team up with Dr Mansur because he did not really know or trust Dr Mansur. He was, however, prepared to buy all the shares in BTP. Dr Mansur refused. [23] Dr Mansur subsequently approached Datuk Chai to sell MBSB's entire shareholding in BTP on a 'fire sale' basis as Dr Mansur was in urgent need of funds. The bank account statement of BTP stood at less than RM10.00 at the material time. [24] In such a circumstance, Datuk Chai had no time to do a full due diligence study of BTP's liabilities. It was agreed between Datuk Chai and Dr Mansur that based on a rough assessment of the risks involved in the Project, the purchase price of BTP's shares be fixed at RM6 million and the option fee be fixed at RM489,000.00 per month. The $ ^{1st} $ SSA and the OA reflected the agreement between them. [25] Datuk Chai was appointed as BTP's director on 8 October 2012 pursuant to clause 5.2 of the $ 1^{\mathrm{st}} $ SSA. This was to enable Datuk Chai to protect his interest in BTP during the Option Period. [26] Datuk Chai caused his employee, Mr. Low, to deposit RM5,457,560.00 into MBSB's bank account. This sum constituted the full payment for the BTP's shares after Dr Mansur had agreed to the set-off of the $ ^{1st} $ Option Fee and Legal Fees from the RM6 million price for the shares. Dr Mansur did not protest or complain against such set-off. [27] Datuk Chai denied making any demand for Dr Mansur to pay interest for late payment of the option fees. Datuk Chai also denied having engaged any bill collector to make demand to Dr Mansur on his behalf. There was no such need as Datuk Chai exercised his right as owner of the BTP shares upon the lapse of the Option Period. [28] On 24 April 2013 Datuk Chai went to BTP's office to collect BTP's documents and asked Puan Hadijah ("BTP's company secretary") to hand over her resignation letter. Police arrived at BPT's office since there was a report made alleging Datuk Chai had damaged BTP's premises. [29] Datuk Chai then collected BTP's documents and Puan Hadijah's resignation letter. Datuk Chai lodged a police report in respect of the incident on 24 April 2013. Datuk Chai denied threatening or bringing undue pressure on Puan Hadijah. [30] After receiving BTP's documents from Puan Hadijah, Datuk Chai resigned and handed over his BTP shares to his nominees. According to Datuk Chai, all the above were carried out legitimately pursuant to his right under the $ 1^{\mathrm{st}} $ SSA. The High Court Suit [31] In the Original Suit in High Court, the main suit was filed by BTP against the Defendants, Dr Mansur, Puan Siti, Messrs Nor Hashim & Associates and Messrs Shaik Mohamed & Co, which prayed, among others, for: a. a declaration that Dr Mansur and Puan Siti are not entitled to hold themselves out as directors of BTP; b. an injunction to restrain Dr Mansur and Puan Siti from entering, interfering and preventing them from engaging with BTP or BTP's Land. [32] A Consent Order was entered on 2 March 2015 between BTP, Dr Mansur and Puan Siti for an interlocutory injunction, (injunction) to restrain Dr Mansur and Puan Siti from holding, interfering, entering or engaging BTP and BTP's land pending the disposal of the Original Suit. [33] On 14 January 2016, Messrs Shaik Mohamed & Co. settled their dispute with BTP by way of a settlement agreement and entered into a Consent Order. Thus, both the Original Suit and the $ 1^{\mathrm{st}} $ counterclaim between BTP and Messrs Shaik Mohamad was settled. [34] In the $ 1^{\mathrm{st}} $ Counterclaim, Messrs Shaik Mohamed & Co. counterclaimed against BTP for a sum of RM 1,257,055.50 being the professional fee owed by BTP. [35] In the $ 2^{\mathrm{nd}} $ Counter-claim, the Plaintiffs, namely Dr Mansur, Puan Siti, Encik Hazim and MBSB, prayed among others, for: a. a declaration that the removal of Dr Mansur and Puan Siti as BTP's directors pursuant to the $ 1^{\mathrm{st}} $ SSA is null, void and unenforceable; b. a declaration that the appointment of Mr. Chiam, Encik Mokhzani and En. Kamarudin as BTP's directors to replace Dr Mansur and Puan Siti are null, void and unenforceable; c. a declaration that the OA between Mr Chiam and Encik Hazim is null and void and any interest and/or fee received by Datuk Chai and Mr Chiam be refunded in full to Encik Hazim; d. a declaration that the $ 1^{\mathrm{st}} $ SSA is null and void; and e. damages for the abuse and threat caused by Datuk Chai and Mr Chiam which had caused undue pain and suffering to Dr Mansur and Puan Siti. Findings of learned High Court Judge [36] The learned High Court Judge ("HCJ") allowed BTP's claims in the Original Suit and dismissed the $ 2^{\mathrm{nd}} $ counterclaim by Dr Mansur with costs. The HCJ found, among others,: a. Dr Mansur was not a credible witness, in particular the fact that he was aware that BTP breached section 67(1) of Companies Act 1965 ("CA") and section 7A (3), Housing Development (Control and Licensing) Act 1966 ("HDCLA"). Thus the whole of Dr Mansur's evidence was rejected. b. both Datuk Chai and Datuk Kenny Ng were credible witnesses and accepted Datuk Chai's version of the events; c. a presumption did not arise under section 10OA of Moneylenders Act 1951 ("MA") as there was no evidence to support such a presumption and to show that Datuk Chai was carrying on a moneylending business. In any event, even if the presumption had arisen, Datuk Chai had adduced sufficient evidence to rebut such a presumption on a balance of probabilities; d. an adverse inference should be drawn against Dr Mansur for his failure to call Puan Hadijah to give evidence at the trial. The fact that Datuk Chai went to the offices of BTP on 24 April 2013 and met with Puan Hadijah for the purpose of securing documents to allow for the change of management of BTP was not in dispute. Both sides had lodged police reports on the incident; e. even if the $ 1^{\mathrm{st}} $ SSA and the OA were illegal and unenforceable under sections 5(1) and 15 of MA, the court would not come to the aid of a person whose cause of action was based on an illegal act. On this ground alone, the $ 2^{\mathrm{nd}} $ Counterclaim fails. Further, the court is not able to exercise its discretion to order a restitution or compensation for Dr Mansur under section 66 Contracts Act 1950 as Dr Mansur was clearly in pari delicto and therefore barred by the doctrine of ex turpi causa non oritur actio. The issue was one that arose in the defence to the Original Action and a declaratory relief to that effect in respect of which no cause of action was required in any event, was sought in the $ 2^{\mathrm{nd}} $ Counterclaim; f. the discretion to grant the declarations sought would not be exercised as BTP should be allowed to rehabilitate the Project and the interest of the purchasers of the Project should be paramount in this case. Moreover, Dr Mansur was not entitled to any relief because he was privy to the breaches of the CA, HDA and the Injunction; and g. the Original Action should be allowed as Dr Mansur could not hold himself out to be a director of BTP, had trespassed the Lands belonging to BTP, unlawfully interfered with the business of BTP and had made misrepresentations which had caused loss and damage to BTP. [37] Dissatisfied with the decision, Dr Mansur, Puan Siti, Encik Hazim, and MBSB (hereinafter will be referred to collectively as the Appellants) appealed to the Court of Appeal. On the other hand, the BTP, Datuk Chai, Datuk Chiam, Encik Mokhzani, and Encik Kamarudin will be referred to as the Respondents. The Appeal [38] We heard the appeal on three occasions namely on 5 April 2017, 10 August 2017 and 19 October 2017. Before us, the central question was whether the $ 1^{\mathrm{st}} $ SSA and the OA contravened the MA. The enquiry advanced by the Appellants are: a. whether the true bargain between Datuk Chai and Dr Mansur was for Datuk Chai to advance a short term loan of RM6 million, repayable in 6 months with interest of RM489,000 per month; b. if the learned HCJ concluded that the true bargain was in the nature of a loan, the learned HCJ then had to determine whether the said loan was in contravention of the MA. This was a question of law, determined on the basis of the conclusions of fact arrived at by the learned HCJ, by reference to the presumption under section 10OA, MA. [39] The Appellants also submitted before us the misdirections committed by the learned HCJ, as follows: a. the learned HCJ erred in evaluating the evidence and drawing adverse inference against Dr Mansur for not calling Puan Hadijah as a witness (the " $ 1^{st} $ Misdirection"); b. The evidence warranted the invoking of a presumption under section 10OA, MA had arisen. That presumption was not rebutted by the Respondents (the " $ 2^{\mathrm{nd}} $ Misdirection"); and c. The learned HCJ was not entitled to grant the relief sought in the $ 2^{n d} $ Counterclaim and was, in any event, required to dismiss the Original Action (the " $ 3^{r d} $ Misdirection" ). [40] We will deal with these complaints in turn, though it may not necessarily in the order or sequence that they were identified. Our findings On the issue that the issue that the agreement was in fact a sham, illegal in contravention of the Money Lending Act 1951. [41] Upon hearing parties, the complaints of the Appellants may be summed up as follows. They were mainly centred on the $ 1^{\mathrm{st}} $ SSA which the Appellants had submitted before us to be an illegal agreement and therefore unenforceable. [42] The Appellants had raised the issue that the so-called the $ ^{1 \mathrm{st}} $ SSA and OA were but sham arguments/documents to disguise what in actual fact had been an illegal money-lending transaction. It was, according to the Appellants, couched in such a way to give them a 'semblance of legality.' [43] That, it was in essence, an illegal money-lending transaction in contravention of the MA. As such it was urged upon us by learned counsel for the Appellants that it was erroneous on the part of the HCJ to have found it to be valid and therefore enforceable against his clients. [44] What is a sham document? This is not entirely a novel tool of recent invention created by less than honest as well as outright dishonest minds in order to circumvent an otherwise applicable legal compliance. It has been described as a created document which does not correspond with the purported transaction or the true agreement between the parties. We said it was not novel because as early as in 1967, the English Queen's Bench in the case of Snook v London and West Riding Investments Ltd (1967) 2 QB 786 ("the Snook case") had recognised such documents and called them out for what they were. Lord Diplock LJ [as His Lordship then was] in Snook case [supra] had occasion, at page 802, to say the following: "As regards the contention of the plaintiff that the transactions between himself, Auto Finance and the defendants were a 'sham', it is, I think necessary to consider what, if any, legal concept is involved in the use of this popular and pejorative word. I apprehend that, if it has any meaning in law, it means acts done or documents executed by the parties to the 'sham' which are intended to give to third parties or to the court the appearance of creating between the parties legal rights and obligations different from the actual legal rights and obligations (if any) which the parties intend to create. But one thing, I think, is clear in legal principle, morality and the authorities ...that for acts or documents to be a 'sham', with whatever legal consequences follow from this, all the parties thereto must have a common intention that the acts or documents are not to create the legal rights and obligations which they give the appearance of creating. No unexpressed intention of a 'shammer' affect the rights of a party against whom he deceived." [45] Not less than three decades later, the Court of Appeal in Hitch and others v Stone (Inspector of Taxes) (2001) STC 214 referred to the Snook case [supra] and laid down the applicable test to ascertain a sham document, which to our mind, deserves reproduction here. The steps to be taken in such determination are stated as follows: "[64] An inquiry as to whether an act or document is a sham requires careful analysis of the facts and the following points emerge from the authorities. [65] First, in the case of a document, the court is not restricted to examining the four corners of the document. It may examine external evidence. This will include the parties' explanations and circumstantial evidence, such as evidence of the subsequent conduct of the parties. [66] Second, as the passage from Snook makes clear, the test of intention is subjective. The parties must have intended to create different rights and obligations from those appearing from (say) the relevant document, and in addition they must have intended to give a false impression of those rights and obligations to third parties. [67] Third, the fact that the act or document is uncommercial, or even artificial, does not mean that it is a sham. A distinction is to be drawn between the situation where parties make an agreement which is unfavourable to one of them, or artificial, and a situation where they intend some other arrangement to bind them. In the former situation, they intend the agreement to take effect according to its tenor. In the latter situation, the agreement is not to bind their relationship. [68] Fourth, the fact that parties subsequently depart from an agreement does not necessarily mean that they never intended the agreement to be effective and binding. The proper conclusion to draw may be that they agreed to vary their agreement and that they have become bound by the agreement as varied (see for example Garnac Grain Co Inc v HMF Faure & Fairclough Ltd [1966] 1 QB 650 at 683-684 per Diplock LJ, which was cited by Mr Price). [69] Fifth, the intention must be a common intention (see Snook). This is relevant to issue 3 below." [46] It had been observed that the policy considerations that underpin the concept of sham are the protection of the rule of law, to prevent abuse of fundamental legal principles and the prevention of evasion of statutes, among others. It was also commented that the Snook case [supra] had narrowed down the test for sham. See the relatively recent case of Autoclenz Ltd v Belcher [2011] UKSC 41, a landmark case in the UK on labour law and contract law; and the related article by Toby Graham, appearing in Trusts and Trustees, volume 22, Issue 8, October 2016. Indeed, on the authority of the case of Sri Kelangkota Rakan Engineering JV Sdn Bhd v Arab Malaysian Prima Realty Sdn Bhd [2001] 1 MLJ 324, the courts are entitled to go behind the impugned agreement or transaction to ascertain the true nature of such agreement or transaction. In the case of Lori Malaysia Bhd v Arab Malayasian Finance Bhd [1999] 2 CLJ 997, it was there observed by our apex court that in other Common Law countries, courts were slow to declare commercial contracts as void on ground of illegality, but having said that if the circumstances so warrant, the courts would not shy away, from doing what would be in accord with what the law expects to be done, as a keeper of the public conscience. The fact that the apex court had done that could be seen in the recent case of Merong Mahawangsa Sdn Bhd & Anor v Dato' Shazryl Eskay bin Abdullah [2015] 5 MLJ 619 FC, among others. [47] So in the context of this case before us, was the learned HCJ correct when he decided in the way he did, in that the $ ^{1st} $ SSA and the OA were not sham documents and were therefore valid and enforceable by Datuk Chai against the Appellants? The Appellants submitted before us that the transaction involved by them and the Respondents was in actual fact, an illegal money-lending transaction whereby Datuk Chai was actually an Ah Long or otherwise an unlicensed money-lender. Since it was a loan transaction involving payment of interest, Datuk Chai must be licenced under the MA in order to properly carry on such a business. In other words, the $ ^{1st} $ SSA and the OA were just a ruse created by both colluding parties to disguise what in actuality was an illegal money-lending transaction. It was, inter alia, contended by the Appellants that the $ ^{1st} $ payment was interest payment so typically characteristic of an Ah Long transaction [illegal money lending transaction]. [48] The Respondents submitted to the contrary and went on to explain that the documents pertaining to the $ 1^{\mathrm{st}} $ SSA and the OA were drafted by experienced lawyers from both sides. As to the $ 1^{\mathrm{st}} $ payment alleged by the Appellants to be interest payment, there was an explanation for this, according to the Respondents, which is this. It was actually a payment of legal fees and as the Appellants had no immediate funds to pay for it, it was the request of Dr Mansur himself that the sum due be deducted from the RM6 million. It was also submitted by learned counsel for the Respondents that apart from the oral assertion by Dr Mansur to the effect that the $ ^{1st} $ SSA and the OA were sham documents, there was no documentary evidence that would tend to support his contention that the parties were in fact transacting a money-lending transaction. It would be a monumental task for the Appellants to overturn the two legal documents in the form of the $ ^{1st} $ SSA and the OA which were prepared not by one lawyer acting for the two parties, but by different lawyers acting for each of the parties, where the interests of both parties were protected. Indeed, there were provisions that enabled the Appellants to buy back the shares, an option that was always open to them within an agreed time-frame. The fact that the final outcome of an otherwise arm's-length agreement may turn out bad or ugly for one of the parties is not a valid ground for the court to strike it down and to read into it that the same agreement was actually a sham. We were aware of the fact that the true nature of a commercial transaction is determined not by the label that parties assigned to it, but rather by the court looking closely at the provisions contained in the documents and the conduct of parties in relation to the execution of the impugned agreement. It is substance over form. In the UK Supreme Court case of Progress Property Co Ltd v Moorgarth Group Ltd [2010] UK SC 55 it was decided by their Lordships that labels attached by the parties are not decisive, and Lord Walker, who wrote the leading speech, inter alia, said that if on analysis the transaction was an attempt to extract value by the pretence of an arm length's sale, it would be unlawful. However, if it was a genuine arm's length dealing negotiated in good faith, then it would stand even if it was a bad bargain. In this case, the fact that both parties were represented by their respective lawyers as instructed by the parties themselves had indeed made it difficult for the learned HCJ to conclude that the $ 1^{\mathrm{st}} $ SSA and the OA were nothing but sham documents. The oral evidence of Encik Shaik in his cross-examination that these very documents were genuine commercial agreements hammered out at arm's length by both parties had gone quite far to put paid to the Appellants' allegation that the $ 1^{\mathrm{st}} $ SSA and the OA were sham documents. The evidence led before the trial court had also shown that parties abided or tried to abide by the terms of the agreement as contained in the $ 1^{\mathrm{st}} $ SSA and in the OA. Its implementation was overseen by their respective lawyers. To top it all, there was no evidence led by the Appellants to evince to the court that the performance of the $ 1^{\mathrm{st}} $ SSA was at variance or in conflict with what was contemplated by the $ 1^{\mathrm{st}} $ SSA itself. The Appellants' allegation was not backed by any documentary evidence, contemporaneous or otherwise. It was oral evidence of one man against contemporaneous documentary evidence and conduct of parties consistent with the SSA and the OA. It did not help that the Appellants had failed to prove to the satisfaction of the learned HCJ that Datuk Chai was an unlicensed money-lender. In such circumstances, a valid question to be asked must be, 'where was the sham element?' [50] Having concluded that the documents relating to the SSA and the OA were not sham documents, and were therefore enforceable against the Appellants who had breached its provisions for no-repayment, the learned HCJ went on to consider and ruled that even if the transaction may be a money lending transaction, the Appellants had failed to prove that Datuk Chai was an unlicensed money lender under the MA, and that further even if the presumption under section 10OA of the MA was applicable against Datuk Chai, the latter had rebutted it successfully. We reproduce the learned HCJ's finding on these issues, as appeared in paragraphs 54 to 57 of his Grounds of Judgement, like so: "[54] Dr. Mansur had not adduced any evidence to prove that Datuk Chai had-

(1) carried on;

(2) advertised;

(3) announced himself as carrying on; or

(4) held himself out as carrying on - moneylending business within the meaning of s. 5(1) and (2) MA. Accordingly, I find as a fact that Dr Mansur has failed to discharge the legal burden under ss. 101(1), (2) and 102 EA to prove on a balance of probabilities that Datuk Chai had carried on a moneylending business. This means that ss. 5(1) and 15 MA cannot apply to the $ ^{1 s t} $ SSA and OA.

55. Even if this court assumes that a rebuttable presumption has arisen under s.10OA MA (whereby Datuk Chai is presumed to have carried on moneylending business), I find as a fact that Datuk Chai had adduced sufficient evidence to rebut such a presumption on a balance of probabilities. This is due to the undisputed evidence that Datuk Chai has his own construction and property development companies. In other words, there is irrefutable evidence that Datuk Chai carries on a legitimate business other than moneylending.

56. Once this court is satisfied that Datuk Chai did not carry on a moneylending business, the following ensues-

(1) there is no room for ss. 5(1) and 15 MA to invalidate the $ 1^{\mathrm{st}} $ SSA and OA;

(2) the fact that this court finds Encik Kamarudin lacks credibility (for reasons stated in the above paragraph 44), cannot invalidate the $ 1^{\mathrm{st}} $ SSA and OA under ss. 5(1) and 15 MA; and

(3) Datuk Chai's failure to call Mr. Chiam, Encik Mokhzani, Mr. Wong and Mr. Ho in this case, cannot impugn the $ 1^{\mathrm{st}} $ SSA and OA under ss. 5(1) and 15 MA.

57. Guindarajoo (cited by Mr. Ravi) can be easily distinguished from this case because in Guindarajoo, the defendant/administrator of a deceased person's estate did not give evidence or call any witness to rebut the plaintiff's evidence that the plaintiff was entitled to the deceased person's estate. In this case, Datuk Chai had given evidence himself and had also called Datuk Kenny to corroborate his testimony that the $ ^{1 \mathrm{st}} $ SSA and OA were genuine transactions". [51] With respect, we agreed with the learned HCJ in his findings on the above issue pertaining to the presumption under section 10OA of the MA. [52] The case for the Appellants had been centred on the premise that the financial arrangement with Datuk Chai was actually an illegal money-lending transaction but disguised as though it was a legitimate share sale with a buy back option of the BTP shares for the consideration stated therein. As such, the Appellants had alleged that the so-called $ ^{1 \mathrm{st}} $ SSA and OA documents were in actuality sham documents. We had occasion to allude to the evidence led by the Appellants to suggest that the documents were a sham. For instance, it was alleged by the Appellants that the $ ^{1 \mathrm{st}} $ payment towards the RM6 million to Datuk Chai was in fact interest payment so typically characteristic of an Ah Long transaction. [53] The learned HCJ had also considered the submissions by both learned counsel and ruled that even if the transaction was illegal, the Appellants could not seek any assistance from the court, as they were in pari delicto in the partaking in the illegal transaction. The Appellants had come to court with unclean hands and were therefore not entitled to any benefits that may spring from the fountain of equity. Restitution is one such equitable remedy. The courts will have nothing to do with assisting any party in such an illegal enterprise. Indeed, the learned HCJ had correctly applied, in our considered view, the doctrine born out of the Latin maxim: ex turpi causa non oritur actio, which means essentially that from a dishonourable cause an action does not arise, or of an illegal cause there can be no lawsuit. Simply put, no action may be founded on illegal or immoral conduct. [54] The learned counsel for the Appellants had also submitted before us that in the event that the Court were to rule that the impugned transaction was illegal, then it must follow that such a transaction was incapable of transferring any good title. It was contended by learned counsel for the Appellants that it was possible for the court to unwind a contract that was void ab initio so as not to allow a party from profiting from it. It was urged upon us that Datuk Chai should not be allowed to keep the BTP shares that he obtained from an illegal contract, to wit, the illegal money-lending transaction that he had entered into with the Appellants. As such, the shares of BTP ought to be returned by the Respondents to the Appellants. He had cited to us a few authorities, such as Amar Singh v Kulubya [1964] AC 142 and Joe v Young [1964] NZLR 24, Mirza v Patel [2016] UKSC 42 including an article written by Nelson Enonchong, 'Illegal Transactions', $ 1^{\mathrm{st}} $ Edition, page 149, among others. Our view is simply this. The principles in the cases cited by learned counsel for the Appellants are sound and they may well have served justice in the cases in which they were decided and applied. But the facts as revealed by the evidence in this case had shown to the learned trial Judge that if any party was acting illegally, then both would be equally at fault for illegality. That made him apply the in pari delicto rule against both parties. Suffice for us to say here that if an agreement is void ab initio for illegality, no restitution can happen. No court will lend its hands to unwind a void agreement that was illegal ab initio by restoring each party to its original position as though the illegal agreement never took place. Restitution, on the other hand, is a remedy that is aimed at restoring an innocent party to the position he was at be if not for the conduct of another. It presupposes innocence on the part of the injured party and that to allow the injury to remain unaddressed, would unjustly enrich the guilty party. As such, when both parties before the court are in pari delicto or where both parties are at equal fault, the court will not involve itself in resolving one side's claim over the other and whoever is in possession of whatever is in dispute continues to do so in the absence of a superior claim. The court will let the estate lie where it falls. We reproduce the finding on this by the learned HCJ, with which we agreed, as appeared in paragraph 60 of his Grounds of Judgment, like so: "Even if it is assumed that the $ 1^{\mathrm{st}} $ SSA and OA are illegal and unenforceable due to ss. 5(1) and 15 MA, it is trite law that due to public policy considerations, the court will not come to the aid of a person whose cause of action is based on an illegal act-please see, eg the Privy Council's judgement delivered by Lord Denning in Palaniappa Chettiar v Arunasalam Chettiar [1962] MLJ 143, at 146, an appeal from Malaysia. In such a case, the court will allow the loss to lie where it falls. On this ground alone, the second Counterclaim falls." [55] Still on the issue of illegality, in respect of the transaction being an alleged illegal money-lending transaction as Datuk Chai was allegedly an ah long, the authenticity of such a defence by the Appellants became highly questionable when it came to pass that via a letter dated 22 May 2013 [see, page 299 Record of Appeal]. It was suggested by the Appellant Dr Mansur's then solicitors, Shafee & Co. in October 2013, that he would drop the issue of illegality if the Respondent would allow the Appellants to repurchase the BTP shares at RM7.5 million after the OA had lapsed in April 2013. The allegation of illegality surrounding the transaction involving the $ ^{1st} $ SSA and the OA only surfaced in the said May 2013 letter alleging interest element in the so-called $ ^{1st} $ SSA documents. This was denied by the Respondents. Before this, all references by the Appellants to the said BTP share transaction had used the word 'sale', not a loan. As the Appellants failed to raise the needed funds to repurchase the shares there was no further attempt by the Appellants to repurchase the said shares. In August 2014, the shares were sold to KL Northgate of which Datuk Chai was a director, and he was involved in the development of the Project. This conduct was inconsistent with an ah long operation. It did not escape the learned HCJ that Datuk Chai was a director in two public listed companies. We agreed with the learned counsel for the Respondents that the learned HCJ was correct in his finding that the $ ^{1st} $ SSA and OA were not a ruse for an illegal money lending transaction. [56] Having considered the evidence before him, the learned HCJ concluded the way he did. With respect, we were in agreement with learned counsel for the Respondents that the learned HCJ did not misdirect himself on the issue of whether the $ 1^{\mathrm{st}} $ SSA and the OA were sham or that they constituted an illegal transaction, to wit, an illegal money-lending transaction. We agreed that the Appellants had failed to prove on the balance of probabilities, that Datuk Chai was in fact, an illegal moneylender. On the alleged misdirection on the issue of credibility or the lack of it on the part of Dr Mansur. [57] It was also the Appellants' grouse that the learned HCJ was in error when he found Dr Mansur to be not a credible witness or character and that the learned HCJ was wrong to believe Datuk Chia over Dr Mansur. [58] The evidence as presented before the trial court had necessitated the learned HCJ to make a finding as to who to believe between the two main protagonists in this dispute. Who, between Datuk Chai and Dr Mansur was the more credible witness in the judgment of the learned HCJ who had observed the demeanour of both witnesses when they were testifying before him in the course of their examination and cross-examination by adverse learned counsel? At the end of the day, the learned HCJ had made a finding of fact that Dr Mansur was not a credible witness. [59] Now, learned counsel had complained before us that such a finding by the learned HCJ was erroneous. We had perused the evidence in light of the adverse finding made by the learned HCJ against the credibility of Dr Mansur as a witness. At the end of such exercise, we found that the reasons given by the learned HCJ for having so decided in regard to Dr Mansur's lack of credibility as a witness were sound and justified. We found that there existed evidence that had militated against Dr Mansur's credibility in the eyes of the learned HCJ. Those evidence had been identified in his Grounds of Judgment and we would outline some of them, like so: i. The reason why Dr Mansur was in dire financial situation was because the finances of his flagship company BTP left very much to be desired. It was owing its creditor consultants and contractors. Thus, his financial arrangement with Datuk Chai in order to bail out BTP. In his examination-in-chief, Dr Mansur tried to give the impression that the monies from the sale of shares were used exclusively towards payment of those BTP's contractors. But in the cross-examination on this issue, it was admitted by Dr Mansur that actually part of the monies from the share sale arrangement with Datuk Chai were utilized to pay off MBSB's creditors, instead of BTP's creditors. ii. It was Dr Mansur's case that the $ 1^{\mathrm{st}} $ SSA and OA were not binding on him as it was his contention during his examination-in-chief that Datuk Chai had misrepresented to him that he was a money-lender. Yet, during cross-examination, Dr Mansur admitted that he had never, during the material times, asked as to the status of Datuk Chai, namely whether he was a money-lender. He also admitted that Mr Tan and Mr Yang never informed him that Datuk Chai was a money-lender. iii. As regards the true nature of the documents evincing the financial arrangement between Dr Mansur and Datuk Chai, his own witness, solicitor Encik Shaik's evidence during his cross-examination showed that he agreed that the agreements were genuine and that the nature of the transaction as reflected in the said documents was consistent with what was instructed by Dr Mansur himself. iv. Then there was the evidence that showed the unflattering character of Dr Mansur to the fore. It was this. It had related to a lodgement of a private caveat by one Dato' Azman on the BTP Land upon the expiration of the 6 months' deferment period that was stated in the $ 1^{\mathrm{st}} $ SSA and upon the expiry of the OA. When questioned on this during his cross-examination by the adverse party, Dr Mansur admitted to having generated the letter that was purportedly used by Dato' Azman to lodge the said caveat. It was backdated to 9 June 2008 stating that BTP was indebted to Dato' Azman to the tune of RM20 million. Such manner and timing created by Dr Mansur and then later utilised to lodge the private caveat over the BTP Land could hardly be regarded as being a mere coincidence. v. There was also in evidence that Dr Mansur had breached the Court Order dated $ 2^{\mathrm{nd}} $ March 2015 obtained by the Respondents granting them an injunction against Dr Mansur and his wife, Puan Siti that prevented them from holding themselves out as directors of BTP. Yet, despite this embargo, Dr Mansur had informed one Mr Rozario, his own subpoenaed witness, during a PROTEM Committee meeting, that he was the owner of BTP's land. [60] There were other instances in evidence, at the disposal of the learned HCJ, which he could consider and indeed considered, to come to the conclusion that he did, on the lack of credibility on the part of Dr Mansur. But we gather, it would suffice to list the instances that we had alluded to above. With respect, in light of the evidence as enumerated in the above paragraph, we could find no cogent reason to depart from such findings of the learned HCJ on the lack of credibility on the part of Dr Mansur. The fact that he had the audio-visual advantage of having observed first-hand the demeanour of this witness when such witness was testifying before him is yet another factor which had naturally placed the learned HCJ in a vantage position, a position not available to us. Unless there has been established before an appeal court that despite such an advantage, a trial court had come to a gross misfinding of fact, so clear against the weight of evidence, then the rule of thumb is that the decision of a HCJ is deserving of a healthy dose of deference by the appeal court. In this case, no such gross misfinding of fact had been committed by the learned HCJ. It was our view that the learned HCJ did not lose the audio-visual advantage he enjoyed when he assessed the demeanour of the witnesses before him. To be fair to the learned HCJ, he had observed that positive side of Dr Mansur in terms of his qualifications and past experience in the public, as well as in the private sectors. But his act of backdating the letter purportedly to Datuk Azman, in the circumstances of this case, so that a private caveat could be, and indeed was lodged against the BTP Land after the lapse of the OA period, had in the words of the learned HCJ shown 'a lack of probity and this had cast a severe doubt on Dr Mansur's credibility' as appeared in paragraph 41 of his Grounds of Judgment. That, by the way, was only one of the reasons why the learned HCJ had ruled the way he did on Dr Mansur's credibility. [61] In the circumstances, therefore, we were not convinced by learned counsel for the Appellants' submissions that the learned HCJ had erred or misdirected himself in coming to his conclusion that Dr Mansur was not a credible witness. His finding on Dr Mansur's credibility or the lack of it was supported by evidence as adduced before him. We found that the complaint by the Appellants in this regard to be unsustainable. [62] Before we depart from this issue of credibility of the relevant witness, it is worth recalling that in fact it was submitted before us by learned counsel for the Appellants that the issue of credibility was of no consequence in the determination of the issue of whether the $ 1^{\mathrm{st}} $ SSA and the OA documents were sham documents. It was submitted that merely by looking at the documents, it was clear that they were sham documents and that the transaction was in fact a money-lending transaction involving Datuk Chai who was in reality, it was alleged, an Ah Long, to wit, an unlicensed money-lender. With respect, we could not agree, as it is clear, as could be gleaned from the persuasive authorities of the Snook case [supra] and in particular, the Hitch case [supra] that in determining the nature of documents, as to whether they were sham documents, the court undertaking that exercise would be at liberty to look beyond the four corners of those documents before arriving at the inevitable conclusion as to the true nature of those documents under scrutiny. We were satisfied that the learned HCJ in this case had rightly approached this issue in a manner that was, in substance, entirely consistent with the dictates as enunciated in the Hitch [supra] decision. We were also in agreement with the learned HCJ that those documents were not sham documents in light of the evidence led by the Respondents, and indeed as admitted to by the Appellants' own solicitor Encik Shaik, who had prepared those documents with the Respondents' solicitors Datuk Kenny Ng on the adverse side. Encik Shaik agreed when cross-examined, that the documents were not sham documents. Those $ 1^{\mathrm{st}} $ SSA and OA documents were indeed followed through to completion by the parties. They were far from being sets of documents created merely to disguise an otherwise a clandestine and illegal transaction, as alleged by the Appellants. The learned HCJ, as the trier of facts, had found that the $ 1^{\mathrm{st}} $ SSA and the OA were not sham documents based on the evidence before him, including the admission by Encik Shaik that they were genuine, and therefore not sham documents and we must add that the fact that Dr Mansur, as a witness, did not cast himself as a witness who had impressed the learned HCJ as a credible and truthful witness, surely had not helped his cause. On the issue of misdirection on the part of the learned HCJ in invoking the adverse inference under section 114 illustration (g) of the Evidence Act 1950. [63] It was complained before us that the learned HCJ was wrong to have invoked the adverse inference against them for non-calling of one Puan Hadijah to the witness stand, in the circumstances of this case. On the issue of adverse inference that was raised against the Appellants by the learned HCJ, like all cases, one would have to look at the circumstances obtaining before the learned HCJ before an invocation of such an adverse presumption was correctly triggered. The principle as contained under section 114 illustration (g) of the Evidence Act 1950 is trite. In the case of Takako Sako (f) v Ng Pek Yuen (f) & Anor [2009] 6 MLJ 751 the Federal Court had occasion to state the following: [4] In our judgement, two consequences inevitably followed when the first respondent who was fully conversant with the facts studiously refrained from giving evidence. In the first place, the evidence given by the appellant ought to have been presumed to be true. ... [5] The second consequence is that the court ought to have drawn an adverse inference against the first respondent...” In the Takako Sako case [supra] adverse inference was applicable, according to the apex Court. [64] Reverting to the complaint by the Appellants on the invocation of adverse inference against them by the HCJ, we had occasion to look at the relevant evidence. Indeed, he had ruled that an adverse inference should be drawn against Dr Mansur for his failure to call Puan Hadijah to give evidence at trial. The fact that Datuk Chai went to the offices of BTP on 24 April 2013 and met with Puan Hadijah for the purpose of securing documents to allow for the change of management of BTP was not in dispute. Both sides had lodged police reports on the incident. Why did the Appellants not call Puan Hadijah to testify on the issue in which she had knowledge about? The exact words employed under section 114 illustration (g) of the Evidence Act 1950 are as follows: "The court may presume- ...

(2) no evidence or explanation had been given as to why Puan Hadijah could not be called by Dr Mansur to testify in this case. As such, this court is constrained to find as a fact that Dr Mansur had suppressed the material evidence of Puan Hadijah." [68] In the final analysis, we were in agreement with the learned HCJ that adverse inference under section 114 illustration (g) of the Evidence Act 1950 ought to be invoked against the Appellants. The criteria adverted to by the apex Court in the Takako Sako case [supra] were clearly fulfilled. We were unanimous that the learned HCJ was well justified in invoking the adverse inference against the Appellants in the circumstances of this case. The issue of non-granting of declarations that were sought by the Appellants. [69] Lastly, it was impressed upon us that the learned HCJ ought to have exercised his discretion by granting the declarations that were sought by the Appellants. It was submitted to us by learned counsel that such refusal amounted to a misdirection on the part of the learned HCJ. Granting of a declaration is essentially an exercise of discretion by the High Court. On the issue of the exercise of discretion by the learned HCJ, in that he had refused to exercise it in the circumstances as described by his Lordship, we were unanimous in our view that the learned HCJ was entirely correct in so refusing in light of the stark reality facing the court. We agreed that to accede to the prayer of the Appellant would bring untold harm and injury to innocent third parties involved in the development of the Project. As such, it was correct on the part of the learned HCJ not to exercise his discretion to grant the declarations as BTP should be allowed to rehabilitate the Project and the interest of the purchasers of the Project should be paramount in this case. This had no bearing on the issues at hand. Moreover, Dr Mansur was not entitled to any relief because he was privy to the statutory breaches such as the Companies Act 1965 and the Housing Development (Control and Licensing) Act 1966, especially his breach of the injunction. The Appellants came to court with less than clean hands and on the balance we agreed with the learned HCJ that he ought not exercise his discretion to grant the declarations that were prayed for by the Appellants. [70] The learned counsel for the Appellants had, in the course of his able submissions before us, urged us to allow the Appellants' appeal. That would mean that we would have to disturb the decision of the learned HCJ, being the trial Judge in the court below. In this regard, we would respectfully refer to a few cases that are germane when an appeal court has to consider whether to exercise its appellate powers in favour of allowing an appeal. We had emphasized the words 'trial Judge' in the sentence preceding the last, and it is for a reason that is so obvious, in the context of an appellate exercise. Decisions made by trial courts, ipso facto, deserve deference from the appeal court justices and for good reasons. One of those reasons is that the trial Judge is in the unique position in that he or she has the distinct advantage of having heard and seen the witnesses when they testify before the trial court. This gives the trial court the audio-visual advantage of observing the demeanour of the witnesses during the court proceedings. This arms the trial Judge with the capacity to make the necessary findings of fact especially as to the veracity of the witnesses, and hence which witnesses to prefer over the other[s]. So to set aside a decision of the trial Judge, it will not suffice that the appeal justices are of the view that a different decision ought to have been arrived at. Indeed, a higher threshold of consideration must be achieved to show that the trial Judge's decision ought indeed to be set aside. For that circumstance to happen, it must be shown to the satisfaction of the appeal court that the trial Judge was 'plainly wrong' in his decision. The well entrenched principle on appellate intervention of a trial court's decision was lately reiterated by the apex Court in the case of Dream Property Sdn Bhd v Atlas Housing Sdn Bhd [2015] 2 MLJ 441. In citing Gan Yook Chin v Lee Ing Chin [2005] 2 MLJ 1, the apex Court also adverted to the case of UEM Group Bhd v Genisys Integrated Engineers Pte Ltd [2010] 9 CLJ 785, where it was stated that "a plainly wrong decision happens when the trial court is guilty of no or insufficient judicial appreciation of the evidence." The English House of Lords' decision in the case of Watt v Thomas [1947] AC 484 was cited, inter alia, in support thereof. [71] Applying the principles to the case immediately before us, we unanimously found no appealable error of a nature which would otherwise warrant an intervention by us. The learned HCJ had judicially appreciated the evidence adduced before him. It would be grossly unfair to suggest that the learned HCJ did not undertake that exercise. Indeed he had weighed the evidence in the balance before he came to his conclusions that he did, bearing in mind as he did, the demeanour of the witnesses when they testified before him. [See generally also the case of China Airlines Ltd v Maltran Air Corp. Sdn. Bhd & Another Appeal [1996] 3 CLJ 163]. He had also analysed the law as applicable in this case. [72] All said, it was for the Appellants to convince us that the learned HCJ had committed error or errors of an appealable character, such that we would be justified in invoking our appellate powers in their favour. That said, we were of the considered view that the right party had judgement entered in its favour in the High Court in this case, and this had its implications. [See, the English House of Lords' decision in the case of Onnasis & Anor v Vergottis] [1968] 2 Lloyds Rep 403 [the Onnasis case]. On the balance, we were not convinced that the learned HCJ was plainly wrong when he decided the way he did, in the circumstances and in light of the available evidence as adduced before him. In fact, as relatively recently as in 2014, the English Supreme Court in Henderson v Foxworth Investments Ltd and Another [2014] 1 WLR 2600 [the Henderson's case] considered and explained the 'plainly wrong' test as follows: "62. Given that the Extra Division correctly identified that an appellate court can interfere where it is satisfied that that criterion was met in the present case, there may be some value in considering the meaning of that phrase. There is a risk that it may be misunderstood. The adverb "plainly" does not refer to the degree of confidence felt by the appellate court that it would not have reached the same conclusion as the trial judge. It does not matter, with whatever degree of certainty that the appellate court considered that it would have reached a different conclusion. What matters is whether the decision under appeal is one that no reasonable judge could have reached." [Bold provided by us for emphasis]. [73] Applying the principles on the proper invocation of our appellate powers, we were of the considered view that the right party had succeeded in the trial proceedings in the High Court, where the learned HCJ was not plainly wrong in his decision. We had the benefit of perusing the exhaustive manner in the treatment and appreciation, by the learned HCJ, of the evidence that had been adduced before him throughout the entire course of the trial. He had subjected those evidence to a fair and no less meticulous judicial appreciation of the entire evidence, both the oral testimonies of the witnesses as well as the relevant documentary evidence. Having done that, we could not say that he was plainly wrong in his conclusions, in fact as well as in law. We were of the unanimous view that the learned HCJ had sufficiently appreciated the evidence in a judicial and reasonable manner. [74] Ultimately, having asked ourselves the question as postulated by the Supreme Court of England in the Henderson's case [supra] we were of the view that the learned HCJ's decision would be the same as which any reasonable judge could have reached in the given and like circumstances. In the words of Lord Pearce in the Onnasis case [supra]: 'But the fact that the right party seems to have succeeded in the court below will naturally make a Court of Appeal extremely reluctant to interfere, and it would only do so in the rarest cases.' We were unanimous in our view that this appeal before us did not fall into that category of cases, described by Lord Pearce as one of the 'rarest cases.' Indeed, this was not a fit and proper case for us to invoke our appellate powers in favour of the Appellants. Conclusion [75] In the upshot, we had found that there were no misdirections committed by the learned HCJ, contrary to what was urged upon us by the learned counsel for the Appellants. Neither did we find that the learned HCJ had been plainly wrong in his decision. We had therefore unanimously dismissed the appeal with costs. We affirmed the learned HCJ's decision. We granted costs of RM30,000.00 in total to the Respondents, subject to the payment of the allocator fee. Deposit to be refunded to the Appellants. Dated: 6 May 2019 ABANG ISKANDAR BIN ABANG HASHIM Judge Court of Appeal, Malaysia Parties appearing: For the Appellant: Mr. Malik Imtiaz Sarwar (together with Mr. Ravi Nekoo Miss Chan Wei June, Mr. Ganesh Magenthiran, and Miss Priscilla Chin); Messrs Hakem Arabi & Associates. For the $ 1^{\mathrm{st}} $ $ 4^{\mathrm{th}} $ and $ 5^{\mathrm{th}} $ Respondents: Miss Fiona Bodipalar (together with Miss Thiva Kumaran); Messrs. Bodipalar Ponnudurai De Silva. For the 2 $ ^{nd} $ and 3 $ ^{rd} $ Respondents: Mr. Cyrus Das, Mr. David Mathews, Miss Malarvily Perumal; Messrs Mathews Hun Lachimanan. Cases referred to:

1. Amar Singh v Kulubya [1964] AC 142

2. Autoclenz Ltd v Belcher [2011] UKSC 41

3. China Airlines Ltd v Maltran Air Corp. Sdn. Bhd & Another Appeal [1996] 3 CLJ 163

4. Donavan Crawford v Financial Institute Services Ltd [2005] UKPC 40

5. Dream Property Sdn Bhd v Atlas Housing Sdn Bhd [2015] 2 MLJ 441.

6. Gan Yook Chin v Lee Ing Chin [2005] 2 MLJ 1

7. Henderson v Foxworth Investments Ltd and Another [2014] 1 WLR 2600

8. Herrington v British Railways Board [1972] AC 877

9. Hitch and others v Stone (Inspector of Taxes) (2001) STC 214

10. Joe v Young [1964] NZLR 24

11. Lori Malaysia Bhd v Arab Malaysian Finance Bhd [1999] 2 CLJ 997

12. Merong Mahawangsa Sdn Bhd & Anor v Dato' Shazryl Eskay bin Abdullah [2015] 5 MLJ 619 FC

13. Mirza v Patel [2016] UKSC 42

14. Munusamy v PP [1987] 1 MLJ 492

15. Onnasis & anor v Vergottis [1968] 2 Lloyds Rep 403

16. Snook v London and West Riding Investments Ltd (1967) 2QB 786

17. Sri Kelangkota-Rakan Engineering JV Sdn Bhd v Arab Malaysian Prima Realty Sdn Bhd [2001] 1 MLJ 324

18. Takako Sako (f) v Ng Pek Yuen (f) & Anor [2009] 6 MLJ 751

19. UEM Group Bhd v Genisys Integrated Engineers Pte Ltd [2010] 9 CLJ 785

20. Watt v Thomas [1947] AC 484 Note: This copy of the Court's Grounds of Judgment is subject to formal revision.