EXPO ELECTRONICS SDN BHD v Suruhanjaya Syarikat Malaysia (SSM) (WA-24NCC-131-03/2018)

Akta Syarikat 2016 dan/atau Seksyen 308 (5) Akta Syarikat 1965 Dan Di dalam Seksyen 77 Akta Tafsiran 1948 dan 1967 Dan Di dalam perkara Aturan 88 Kaedah 2, Aturan 92 Kaedah 4 Kaedah-kaedah Mahkamah 2012 dan dalam bidangkuasa sedia ada Mahkamah Mulia ini. ANTARA EXPO ELECTRONICS SDN BHD (No. Syarikat : 109668-P) (Di dalam Likuidasi) … PLAINTIF DAN SURUHANJAYA SYARIKAT MALAYSIA … DEFENDAN DAN Page 2 of 29

DATO SRl’ YAP SENG YEW (No. K/P: 590805-I 0-5567)

DATIN SRl’ GAN LI Ll (No. K/P: 611024-10-5994) … PENCELAH-PENCELAH YANG DICADANGKAN JUDGMENT (Enclosure 16) [1] This was essentially an application by the Proposed Interveners via Notice of Application dated 27.5.2022 (Enclosure 16) to intervene in the proceedings and to set aside this Court’s Order dated 28.6.2018 under, inter alia, Order 15 Rule 6 and/or Order 42 Rule 3 and/or Order 92 Rule 4 of the Rules of Court (“ROC”), the inherent jurisdiction of the Court (“this Application”). [2] On 28.6.2018, this Court through His Lordship Mohamed Zaini bin Mazlan (as he then was) had made the following Orders in respect of the Originating Summons (“the Originating Summons” or “Enclosure 1”): “1. bahawa nama syarikat Cekap Asia Sdn. Bhd. (No. Syarikat 558394-A) dimasukkan semula ke dalam daftar syarikat Defendan menurut peruntukan Seksyen 555 Akta Syarikat 2016 (Akta 777); dan

Kos tindakan sebanyak RM2,000.00 dibayar oleh Plaintif kepada Defendan dalan tempoh tiga puluh (30) hari dari tarikh perintah.” (“Order dated 28.6.2018”) [3] The Proposed Interveners sought to intervene and set aside the Order dated 28.6.2018. [4] Having heard arguments from all the parties I dismissed this Application and set out below the reasons for my decision. Page 3 of 29 A] SALIENT BACKGROUND FACTS [5] The Plaintiff, through its liquidators, had applied to reinstate the company, Cekap Asia Sdn. Bhd. (“Cekap Asia”) via Enclosure 1 as an “aggrieved party” under Section 555(1) of the Companies Act 2016 (“CA 2016”). [6] The Plaintiff’s grounds for reinstating the Cekap Asia (Enclosure 1) were, inter alia, as follows: i) The former directors of Cekap Asia had committed fraud on Cekap Asia and misappropriated its funds; ii) Thus, Cekap Asia has a cause of action for fraud, breach of directors’ duties and “unjust enrichment” against the former directors of Cekap Asia. iii) If Cekap Asia is not reinstated, it will not have any remedy against its said former directors in respect of their aforementioned wrongdoings. [7] Cekap Asia was incorporated on 8.9.2001 and the Proposed Interveners were its directors, both of whom are husband and wife. [8] The Plaintiff claimed that it had dealings with the Cekap Asia and its former directors, the Proposed Interveners, in respect of the sale of the Plaintiff’s Merces Holdings Berhad (“Merces”) shares, which was not completed and this had caused losses to the Plaintiff. [9] The Plaintiff alleged that: i) In or around 2004 the Plaintiff sold its shares in Merces to Cekap Asia and the Proposed Interveners (“Share Sale Agreement”) upon the following terms: a) The Plaintiff’s shares in Merces was sold for the total purchase price of RM23,000,000.00. b) The Plaintiff was to transfer 1,800,000 of its shares in Merces to the 1st Proposed Intervener for the consideration of RM5,250,000.00; Page 4 of 29 c) The Plaintiff was to transfer 1,460,000 of its shares in Merces to the 2nd Proposed Intervener for the consideration of RM4,750,000.00; and d) The Plaintiff was to transfer the balance 11,749,000 of its shares in Merces to Cekap Asia for the consideration of RM13,000,000.00 (“Cekap Asia Transaction”); ii) There was no formal agreement signed between the Plaintiff and the Proposed Interveners in respect of the Sale of Shares Agreement at the time. Nevertheless, parties agreed to implement the following safeguards in the event the 1st Proposed Intervener was unable to pay the RM13,000,000.00 in respect of the Cekap Asia Transaction: a) The Proposed Interveners would resign as Cekap Asia’s directors; b) The Proposed Interveners would transfer 100% of their shares in Cekap Asia to the Plaintiff; and c) Allow the Plaintiff to appoint a new board of directors for Cekap Asia. (“Security Agreement”) iii) Following the Share Sale Agreement, the Plaintiff had transferred: a) 1,800,000 of its Merces shares to the 1st Proposed Intervener and received RM5,250,000.00; b) 1,460,000 of its Merces shares to the 2nd Proposed Intervener and received RM4,740,000.00; c) 11,749,000 of its Merces shares to the Cekap Asia in or about November 2004 but did not receive any consideration for the said transfer (i.e. the RM13,000,000.00). Page 5 of 29 iv) The Proposed Interveners then used their powers as directors of Cekap Asia to transfer 11,749,000 of the Merces shares owned by Cekap Asia to themselves. v) The Plaintiff later discovered that Cekap Asia had been deregistered on or about 27.8.2010. [10] In support of Enclosure 1 the Plaintiff contended that Cekap Asia ought to be reinstated into the Register to enable the Plaintiff: i) to take over Cekap Asia based on the Security Agreement; and ii) to initiate legal action against the Proposed Interveners by using Cekap Asia as the plaintiff (in the intended legal action) in order to reacquire all the shares in Merces which were “surreptitiously” transferred by the Proposed Interveners from Cekap Asia to themselves. [11] The reliefs that were sought by the Plaintiff in Enclosure 1 were substantially as follows: “(1) bahawa Cekap Asia Sdn Bhd (No. Syarikat 558394-A) [Cekap Asia] dikembalikan kepada daftar syarikat;

bahawa 100% pegangan saham di dalam Cekap Asia dipindah milik dan didaftarkan kepada Expo Electronics Sdn Bhd [No. Syarikat: 109668-P];

bahawa individu-individu yang berikut dilantik sebagai pengarah-pengarah di dalam Cekap Asia: -

Abu Bakar Bin Ahmad (No. K/P: 631130-05-5191);

Syed Nagiff Bin Syed Mokhtar (No. K/P: 651218-10-6609);

bahawa Expo Electronics Sdn Bhd [No. Syarikat: 109668-P] dibenarkan untuk melantik Setiausaha Syarikat ahli lembaga pengarah baru di dalam Cekap Asia seperti yang berikut:-

Wong Youn Kim (F) (MAICSA 7018778) (No. K/P: 700823-10- 5530).

bahawa tiada perintah kos;” (own emphasis added) Page 6 of 29 [12] It is evident from the Order dated 28.6.2018 that only prayer 1 of Enclosure 1 was essentially allowed and the other reliefs prayed by the Plaintiff were not granted. [13] The following are the chronological order of events that transpired after the Order dated 28.6.2018 was granted (paragraph 9 of the Defendant’s (“SSM”) Affidavit In Reply (Enclosure 20)): NO DATE CHRONOLOGY OF EVENTS

1.

19.04.2019 Court Order pursuant to Section 555 Companies Act 2016 (CA 2016) dated 28.06.2018 was lodged. Defendant has updated the status of Cekap Asia Sdn Bhd (558394-A) from 'dissolved' to 'existing'. A copy of the Court Order dated 28.06.2018 is marked as Exhibit AA-2.

2.

16.07.2019 Form Section 58 CA 2016 - Notification of Change in the Register of Directors, Managers and Secretaries was lodged by Cekap Asia Sdn Bhd (558394-A) in connection to:

Resignation of company secretary Tan Mee Teck (No. K/P: 540712-10-6020) on 15.07.2019;

(ii) Appointment of new company secretary Wong Youn Kim (No. K/P: 700823-10-5530) on 15.07.2019; The resolution on the resignation and appointment of the company secretary dated 15.07.2019 was attached and it was signed by the existing director at the material time namely Dato' Sri Yap Seng Yew dan Datin Sri Gan Li Li. A copy of Form 58 CA 2016 on the resignation and appointment of the company secretary and the resolution is marked as Exhibit AA-3.

3.

17.07.2019 Form Section 58 CA 2016 - Notification of Change in the Register of Directors, Managers and Secretaries was lodged by Cekap Asia Sdn Bhd (558394-A) in connection to:

Appointment of new directors - Abu Bakar bin Ahmad (No. K/P: 631130-05-5191) and Syed Page 7 of 29 Nagiff bin Syed Mokhtar (No. K/P: 651218-10- 6609) on 15.07.2019; and

(ii) Resignation of directors - Dato' Sri Yap Seng Yew (No. K/P: 590805-10-5567) and Datin Sri Gan Li Li (No. K/P: 611024-10-5994) on 15.07.2019. Letter of resignation of Dato' Sri Yap Seng Yew and Datin Sri Gan Li Li dated 15.07.2019 were attached. However, the resolution for appointment of new directors was not attached. A copy of Form 58 CA 2016 on the resignation and appointment of directors and the letter of resignation are marked as Exhibit AA-4.

4.

06.09.2020 Form Section 51 CA 2016 - Register of Member was lodged as follows:

1 unit of share owned by Haslina binti Mohammad Fesal Arbee (No. K/P: 630106-085206) and 1 unit of share owned by Suzlita binti Nasron (No. K/P: 760614-10-5002) were transferred to Abu Bakar bin Ahmad (No. K/P: 631130-05-5191) (1 unit) and Syed Nagiff bin Syed Mokhtar (No. K/P: 651218- 10-6609) (1 unit); A copy of Form 51 CA 2016 dated 06.09.2020 are marked as Exhibit AA-5.

5.

29.09.2020 Form Section 51 AS 2016 - Register of Member was lodged as follows:

1 unit of share owned by Abu Bakar bin Ahmad (No. K/P: 631130-05-5191) were transferred to

(ii) 1 unit of share owned by Syed Nagiff bin Syed Mokhtar (No. K/P: 651218-10-6609) were transferred to Expo Electronics Sdn Bhd (No. Syarikat: 109668-P). A copy of Form 51 CA 2016 dated 29.09.2020 are marked as Exhibit AA-6. (own emphasis added) Page 8 of 29 [14] The above chronology as provided by the Defendant in Enclosure 20 is not in dispute. [15] It would appear from the above chronology that after Cekap Asia was reinstated the Plaintiff, inter alia, used the documents it obtained from the Security Agreement to replace the Proposed Interveners as directors of Cekap Asia with its own directors. Between 2019 and 2020 the Plaintiff essentially took over control of Cekap Asia. [16] Thereafter, in February 2021, Cekap Asia initiated Shah Alam High Court Suit No. BA-22NCC-18-02/2021 (“Suit 18”) against the Proposed Interveners herein (as the 1st and 2nd defendants respectively) and Hong Leong Investment Bank Berhad (as the 3rd defendant). B] THE RELIEFS SOUGHT AND THE PROPOSED INTERVENERS GROUNDS IN SUPPORT OF THIS APPLICATION [17] In this Application the Proposed Interveners substantially sought the following reliefs: “1. Yap Seng Yew dan Gan Li Li, the proposed intervenors be given leave to intervene in this Originating Summons.

Pursuant to Order (1) above, that: a) The Proposed Intervenors be joined as the 2nd and 3rd Defendants in the Originating Summons herein. b) The Title of the Originating Summons herein be amended to reflect that the Proposed Intervenors be joined as the 2nd and 3rd Defendants in the Originating Summons herein.

That the Order of this Court handed down on 28.6.2018 be set aside.

That this Originating Summons be struck off and /or dismissed.

The Proposed Intervenors is given liberty to apply for consequential Orders.” (own emphasis added) Page 9 of 29 [18] The Proposed Interveners grounds in support of this Application can be summarised as follows: i) The Proposed Intervenors were deliberately omitted from this Originating Summons (Enclosure 1) by the Plaintiff even though they were parties with vested interests, being the former directors of Cekap Asia. ii) The Proposed Interveners were therefore deprived of the right to be heard and that is a serious breach of natural justice. iii) The Plaintiff did not give full and frank disclosure and had misled the Court by concealing the decision of the High Court in Shah Alam High Court Suit No. 22-350-2010 (“Suit 350”). Suit 350 is between the Plaintiff herein and the Proposed Interveners (as the first and second defendants respectively) and one Tan Kak Teck. In Suit 350 the Plaintiff’s claim against, inter alia, the Proposed Interveners was for the sum of RM13,000,000.00 pertaining to the Cekap Asia Transaction. iv) The Plaintiff had committed fraud on the Court. v) The Court did not allowed prayers 2 to 4 of Enclosure 1, namely, for the change of the directors and shareholders of Cekap Asia but this was done anyway by the Plaintiff as stated in the chronology in paragraph 13 above. [19] Therefore, the Proposed Interveners contended that the Order dated 28.6.2018 was obtained through: i) Breach of natural justice. ii) Concealment of material information. iii) Dishonesty. iv) Misrepresentation. v) Fraud on the court. (paragraph 4 of the Proposed Interveners Affidavit In Support (Enclosure 17)) Page 10 of 29 [20] The Proposed Interveners claimed that they were only aware of the Originating Summons (Enclosure 1) a few days before the hearing of the application to strike out Suit 18. Main Issues [21] I would summarise the Proposed Interveners grounds in support of this Application to essentially two main issues as follows: i) Whether the Proposed Interveners were deliberately excluded from the Originating Summons thereby depriving them the right to be heard in breach of the principles of natural justice; and ii) Whether the Plaintiff had concealed the High Court’s decision in Suit 350 and committed fraud on the Court. C] THIS APPLICATION [22] There are two parts of this Application: i) The Proposed Interveners’ application to intervene in these proceedings; and ii) The Proposed Interveners’ application to set aside the Order dated 28.6.2018. [23] I must first highlight some complications with this Application: i) The main action (the Originating Summons in Enclosure 1) has ended when the Order dated 28.6.2018 was granted. Therefore, can the Proposed Interveners intervene in the proceedings at this stage? (see Hong Leong Bank Bhd (formerly known as Hong Leong Finance Bhd) v. Staghorn Sdn Bhd and other appeals [2008] 2 MLJ 622); ii) The Proposed Interveners did not separate their application to intervene with their application to set aside the Order dated 28.6.2018 which means if the Court finds that the Proposed Interveners are not entitled to intervene the matter ends there. Page 11 of 29 However, if it is shown that the Proposed Interveners are entitled to intervene but have failed to satisfy the requirements for setting aside a Court Order then this Application would still be dismissed. [24] It is noted that in some cases the application to intervene is made separately from any other applications or reliefs the proposed intervener intends to make or seek in the event he is allowed to intervene in the proceedings. That is not the case here. The issues of whether the Proposed Interveners have the right to intervene and whether there are grounds to set aside the Order dated 28.6.2018 are both dealt with in this Application. [25] Hence, I will deal with the application to intervene first. D] APPLICATION TO INTERVENE [26] The intervention part of this Application is made pursuant to Order 15 Rule 6 ROC. [27] The Plaintiff contended that the Court is functus officio after the Order dated 28.6.2018 was given and therefore the Court has no jurisdiction to hear this Application. It was held in Staghorn (supra) that a party could not intervene in proceedings under Order 15 Rule 6 ROC where the proceedings had come to an end. [28] In response to this contention and in support of the Proposed Interveners’ application to intervene in these proceedings learned counsel for the Proposed Interveners relied heavily on the Federal Court case of Dr Lourdes Dava Raj a/l Curuz Dural Raj v. Dr Milton Lum Siew Wah & Anor [2020] 5 MLJ 185. In Dr Lourdes (supra), a complaint was made by Dr Milton (the first respondent) against the Appellant (Dr Lourdes) to the Malaysian Medical Council (“MMC”). The MMC, by majority decision, decided that Dr Lourdes had no case to answer (“MMC’s First Decision”). Dr Milton then filed judicial review proceedings to quash the MMC’s First Decision and to declare that Dr Lourdes was guilty of the charges and direct MMC to impose the appropriate sentence after hearing Dr Lourdes’s mitigation. Dr Lourdes was not made a party to the judicial review application before the High Court which reliefs prayed for directly affected him. Dr Lourdes was also not served Page 12 of 29 with the judicial review cause papers. The judicial review proceedings were dismissed by the High Court but the decision was reversed by the Court of Appeal (“the Court of Appeal’s JR Decision”). Pursuant to the Court of Appeal’s direction, MMC convened a hearing to hear Dr Lourdes’ mitigation and after hearing him (Dr Lourdes attended the hearing under protest) punished him with a reprimand (“MMC’s Second Decision”). Dr Lourdes applied to the High Court to set aside MMC’s Second Decision and declare that he was not bound by the Court of Appeal’s JR Decision as he was never notified of the court proceedings. The High Court dismissed the application holding that it was not the proper forum to challenge the Court of Appeal’s JR Decision and that until the Court of Appeal’s JR Decision was set aside, MMC was bound by it. Dr Lourdes then applied for leave to intervene (“Intervention Application”) in the Court of Appeal proceedings in which Court of Appeal’s JR Decision was made, in order to set aside and reinstate the MMC’s First Decision acquitting him. The Court of Appeal dismissed the intervention application (“the Court of Appeal’s Intervention Decision”). Dr Lourdes then filed an application for leave to appeal to the Federal Court against the Court of Appeal’s Intervention Decision. The leave application was allowed and later the appeal proper. [29] In Dr Lourdes (supra) the questions of law on which leave to appeal against the Court of Appeal’s Intervention Decision was given were: “(a) whether an order made in absentia in a judicial review application against a party, who, though directly affected by the application was not served with the relevant cause papers as required by O 53 r 4(2) of the Rules of Court 2012 (‘the ROC’), ought to be set aside as of right for breach of the right to be heard; and

whether, on the ground that proceedings had come to an end, such a party would, nevertheless, not be allowed to intervene in the proceedings under O 15 r 6 of the ROC to set aside the order.” (own emphasis added) [30] Based on the facts and the decision of the Federal Court in the Dr Lourdes (supra) it would appear that the Federal Court had distinguished Staghorn (supra) and this can be seen from the following passages: Page 13 of 29 “[43] Therefore, in Staghorn, the issues of an affected party not being given notice, and not being accorded the opportunity to be heard in his own defence did not arise in the same manner as in the present appeal. In Staghorn, this court found that Staghorn Sdn Bhd was not an interested party by reason of it having no interest in the land. Here Dr Lourdes was a party most directly involved as the entire proceedings emanated from an allegation of professional misconduct on his part. He was central to the entire case and his exclusion from participation in one of the most important aspects of adjudication resulted in the reversal of a finding of innocence, without his having been heard in his own defence at all. A clearer case of a breach of one of the most fundamental rules of natural justice is rarely seen, and that rule is the right to be heard (see B Surinder Singh Kanda v The Government of the Federation of Malaya [1962] 1 MLJ 169 (PC) 2 April 1962 per Denning LJ). This resulted in a serious miscarriage of justice. [44] We have found above that Dr Lourdes is an affected party. We are therefore of the view that Staghorn is inapplicable to the factual matrix of the present case as the facts, law and considerations differ were entirely different and distinguishable there. Staghorn also was decided on the considerable length of time it took for Staghorn Sdn Bhd to apply to intervene. That is not the case here, as Dr Lourdes had no notice whatsoever of the judicial review filed by Dr Milton, until MMC took steps to carry out the order of the Court of Appeal and convened to hear Dr Lourdes’ plea in mitigation. There was no delay on Dr Lourdes’ part.” (own emphasis added) [31] Therefore, the principle laid down in Staghorn (supra) is still applicable and in order for the Proposed Interveners to come within the exception in Dr Lourdes (supra), they must show: i) that they are an affected party in that the Order dated 28.6.2018 directly affected them; and ii) that they have the right to be heard at the Originating Summons but was deprived of that right in breach of the rules of natural justice. [32] It is not in dispute that the Proposed Interveners were not made a party to the Originating Summons and based on the above two questions whether they ought to have been made a party. Page 14 of 29 [33] Firstly, there is no provision in CA 2016 or Section 555 CA 2016 that specifically provides that the directors of a company which company had been struck off from the Register under Section 550 CA 2016 is required to be made a party in an application to reinstate the said company. Therefore, there is no compulsion under CA 2016 for the Plaintiff to make the Proposed Interveners parties to the Originating Summons. [34] Secondly, the Originating Summons concerns Cekap Asia and not the Proposed Interveners. The Proposed Interveners were directors of Cekap Asia at the material time but it was their own action or inaction that had caused or allowed Cekap Asia to be struck off. [35] Thirdly, the Order dated 28.6.2018 to reinstate Cekap Asia affects Cekap Asia as a company/entity and not the Proposed Interveners specifically. [36] In this regard, I must emphasise that except for the reinstatement, the other reliefs prayed for in the Originating Summons were not allowed in particular regarding the change of shareholders and the appointment of directors and company secretary. [37] Therefore, the Proposed Interveners have not fulfilled the requirements which would allow them to come within the exceptions in Dr Lourdes (supra) to intervene in proceedings which have ended. [38] The Proposed Interveners were not deprived of the right to be heard as it was not mandatory for them to be made a party under Section 555 CA 2016. In any event, the Order dated 28.6.2018 did not affect the Proposed Interveners. The Proposed Interveners position can be easily distinguished from the facts of Dr Lourdes (supra). The following passage from Dr Lourdes is very instructive on this point and bears repeating: “[43] ….. In Staghorn, this court found that Staghorn Sdn Bhd was not an interested party by reason of it having no interest in the land. Here Dr Lourdes was a party most directly involved as the entire proceedings emanated from an allegation of professional misconduct on his part. He was central to the entire case and his exclusion from participation in one of the most important aspects of adjudication resulted in the reversal of a finding of innocence, without his having been heard in his own defence at all. A clearer Page 15 of 29 case of a breach of one of the most fundamental rules of natural justice is rarely seen, and that rule is the right to be heard (see B Surinder . Singh Kanda v The Government of the Federation of Malaya [1962] 1 MLJ 169 (PC) 2 April 1962 per Denning LJ). This resulted in a serious miscarriage of justice.” (own emphasis added) [39] It is clear that the Proposed Interveners are not central to the Originating Summons and in particular the Order dated 28.6.2018. It must be remembered that in Dr Lourdes (supra), Dr Lourdes’s right to intervene only became an issue because of the Court of Appeal’s JR Decision reversing the High Court’s decision to dismiss the judicial review proceedings. There was no point or reason for Dr Lourdes to intervene in the judicial review proceedings at the High Court stage as the decision was in his favour, i.e. the judicial review proceedings were dismissed. [40] Here the Order dated 28.6.2018 only directly affects Cekap Asia, the other reliefs in the Originating Summons were disallowed. Even if the other reliefs in the Originating Summons could be said to affect the Proposed Interveners, it is of no consequence as those reliefs were not allowed. This is similar to the situation in the case of Dr Lourdes (supra), in which it only became necessary for Dr Lourdes to intervene in the proceedings at the Court of Appeal due to the Court of Appeal’s JR Decision as it (and not the High Court’s decision) affected Dr Lourdes. [41] Further, apart from allowing Cekap Asia to be struck off the Register, the Proposed Interveners’ lack of interest in Cekap Asia can also be seen from the fact that the Proposed Interveners had given the Plaintiff undated resignation letters (“Resignation Letters”) as directors of the Cekap Asia pursuant to the Security Agreement. It is not in dispute that the Resignation Letters were signed and given by the Proposed Interveners to the Plaintiff several years prior to Cekap Asia being struck off. [42] There was no correspondence or other evidence to show that the Proposed Interveners had retracted the Resignation Letters or requested for them to be returned. [43] The Proposed Interveners main complaint on this point is that Cekap Asia was reinstated so that the Plaintiff (through Cekap Asia) could then initiate its legal action in Suit 18 against the Page 16 of 29 Proposed Interveners. Therefore, it seems clear to me that the Proposed Interveners’ grievance is not that Cekap Asia was reinstated but the subsequent conduct of Cekap Asia in initiating Suit 18. [44] It must be noted that the reinstatement of Cekap Asia and Cekap Asia’s initiation of Suit 18 are two separate and distinct matters. [45] Hence, the reinstatement of Cekap Asia was not really an issue for the Proposed Interveners. The reinstatement of Cekap Asia and the Order dated 28.6.2018 did not affect the Proposed Interveners. [46] Having considered all the above matters, I concluded that there was no breach of natural justice. The Proposed Interveners have no right to intervene in the Originating Summons which proceedings have ended. Though this Application can be dismissed on this ground alone, however, for purpose of completeness I also considered the second part of this Application on the Proposed Interveners’ application to set aside the Order dated 28.6.2018. E] APPLICATION TO SET ASIDE THE ORDER DATED 28.6.2018 [47] I have already dealt with the issue of breach of natural justice and whether the Proposed Interveners have the right to be heard at the hearing of the Originating Summons. As the Proposed Interveners have no right to intervene in these proceedings it follows that they have no right to set aside the Order dated 28.6.2018. [48] Nevertheless, assuming that the Proposed Interveners have the right to intervene in the Originating Summons, the second issue is whether they have valid grounds to set aside the Order dated 28.6.2018. Fresh Suit [49] I will begin by reiterating the grounds relied on by the Proposed Interveners to set aside the Order dated 28.6.2018 as stated in paragraph 19 above: Page 17 of 29 i) Breach of natural justice. ii) Concealment of material information. iii) Dishonesty. iv) Misrepresentation. v) Fraud on the court. [50] Learned counsel for the Proposed Interveners referred to the Court of Appeal case of Lee Chai Sen v. Magnum Consortium Sdn Bhd [2015] MLJU 1871 to contend that there is no necessity for a fresh suit to be initiated to set aside the Order dated 28.6.2018. However, this rule only applies where the final judgment was obtained in breach of the rules of natural justice. This can be seen from the following passage from Lee Chai Sen (supra): “[27] lt is thus settled that, on the authorities of Annie Quah Lay Nah v Syed Jafer Properties Sdn Bhd & Ors and on Badiaddin Mohd Mahidin & Anor v Arab Malaysian Finance Bhd (supra), wherein the Federal Court affirmed the rule laid down in the judgment of Lord Diplock in Isaacs v Robertson, one exception where a final judgment of the High Court may be set aside ex debito justitiae is where the final judgment can be proved to be null and void because it has been obtained in breach of the rules of natural justice. In such circumstances the person affected by such judgment is entitled ex debito justitiae to have it set aside and the court may exercise its inherent power to strike out the order without the need to file an appeal or a fresh suit.” (own emphasis added) [51] In the present case I have found that there was no breach of natural justice and in any event the Proposed Interveners grounds to set aside the Order dated 28.6.2018 include concealment of material information, dishonesty and fraud. These are quasi criminal allegations, in particular fraud. Thus, the proper mode for applying to set aside a judgment or order obtained by fraud would be by way of a fresh suit or action. The Federal Court in Badiaddin Mohd Mahidin & Anor v. Arab-Malaysia Finance Bhd [1998] 2 CLJ 75 referred to the following passage in case of Hock Hua Bank Bhd v. Sahari Murid [1980] 1 LNS 92 and held as follows: Page 18 of 29 “Reverting to the point relied on by the Court of Appeal, that of the perfected order not being capable of being amended or altered except for certain exceptions as stated in Hock Hua Bank supra, a passage therefrom as quoted by the Court of Appeal is set out as follows: Clearly the court has no power under any application in the same action to alter, vary or set aside a judgement regularly obtained after it is drawn up receipt under the slip rule in O. 28 r. 11 of the Rules of Supreme Court 1957 (O. 20 r. 11 of the Rules of High Court 1980) so far as necessary to correct errors in expressing the intention of the court: Re. St Nazarie Co., Kelsey v. Doune; Hession v. Jones, unless it is a judgement by default or made in the absence of a party at the trial or hearing. But if a judgement or order has been obtained by fraud or where further evidence which could not possibly have been adduced at the original hearing is forthcoming, a fresh action will lie to impeach the original judgement: Hip Foong Hong c. Neotia & Co., & Jonesco v. Beard. The hearing of the action will in a proper case be expedited: Smith v. Peizer.” (own emphasis added) [52] In Chee Pok Choy & Ors v. Scotch Leasing Sdn Bhd [2001] 2 CLJ 321, a case which involved “deliberate fraud practised upon the court” similar to the allegation in this Application, the order sought to be set aside was done via a fresh suit. The Court of Appeal in Chee Pok Choy (supra) held at pages 336 and 342 as follows: “The principle then to be culled from the authorities is that a judgment may be impeached for deliberate fraud practised upon the court, and it is insufficient to show that a litigant merely convinced the court through misleading or erroneous evidence. Whether the test has been met in any given case must, I think, depend on the facts and circumstances of the particular case. But there is some guidance in the cases as to how fraud may be established. There is a most useful passage in Satish Chandra v. Satish Kantha Roy AIR [1923] PC 73, 76: Charges of fraud and collusion like those contained in the plaint in this case must, no doubt, be proved by those who make them – proved by established facts or inferences legitimately drawn from those facts taken together as a whole. Suspicions and surmises and conjecture are not permissible substitutes for those facts or those inferences, but that by no means requires that every puzzling artifice or contrivance resorted to by Page 19 of 29 one accused of fraud must necessarily be completely unravelled and cleared up and made plain before a verdict can be properly found against him. If this were not so, many a clever and dexterous knave would escape.” ……….. “The learned judge had ample jurisdiction to act upon the evidence and to set aside the order for sale on the ground that it had been obtained by fraud. I have already adverted to the relevant authorities on the point earlier in this judgment. I pause now to mention one other on the subject that I consider helpful. It is Cheah Wong Nyan & Anor. v. Palaniappa & Ors [1935] MLJ 31. In that case, Whitley J, entertained an action to set aside a judgment fraudulently obtained in an earlier suit. He said (at p. 32): The Court undoubtedly has jurisdiction to set aside a judgment obtained by fraud in a subsequent action brought for that purpose, the proper remedy being an original action and not a rehearing. Cole v. Langford [1898] 2 QB 36 and Priestman v. Thomas [1884] 9 PD 210. In the latter case a compromise was effected in an action in the Probate Division under which a certain will was admitted to probate. Afterwards it was discovered that the will was a forgery and an action was brought against the parties who had propounded the will claiming that the compromise might be set aside on the ground of fraud. The jury having found that the compromise was procured by fraud, judgment was given setting aside the compromise. One of the earliest pronouncements of this principle was made by Lord Coke in the Duchess of Kingston’s Case, [1776] 2 Sm. LC 12th Edition at page 762 where he observed that acts of the highest judicial authority though not to be impeached from within yet are impeachable from without for although it is not permitted to show that the court was mistaken it may be shown that they were misled. ‘Fraud is an intrinsic collateral act which vitiates the most solemn proceedings of courts of justice. It avoids all judicial acts, ecclesiastical or temporal.’ Accordingly, as stated in Spencer Bower on Actionable Misrepresentation 2nd Edition p. 358, when both parties collude and conspired to deceive the court judgments have at the suit of a stranger interested been set aside on proof of the requisite facts. It would thus appear clear that the Plaintiffs who are admittedly interested strangers are entitled to have this judgment set aside if they can satisfy the Court that it was obtained by fraud and collusion. (own emphasis added) Page 20 of 29 [53] The rationale behind this rule is simply that allegations such as fraud cannot be determined by way of affidavit evidence alone especially when dealing with an application to set aside a judgment or order, a matter of such a serious nature (Badiaddin (supra)). Fresh evidence is required to be produced (see Seruan Gemilang Makmur Sdn Bhd v. Pegawai Kewangan Negeri Pahang [2016] 3 MLJ 1 - a case also involving concealment or suppression of matters and fraud on the Court). [54] I must stress that similar allegations of concealment of material information and fraud practised upon the Court in the present case were raised in Chee Pok Choy (supra) and Seruan Gemilang (supra) and this had necessitated a trial in both these cases to determine whether the High Court order ought to be set aside. [55] As this Application was also premised on, inter alia, concealment and fraud as well as breach of natural justice the proper mode to set aside the Order dated 28.6.2018 would be by commencing a fresh suit. [56] Hence, this is another ground for dismissing this Application. The alleged “Material Information” and whether it would affect the Order dated 28.6.2018 [57] The next issue that I have also taken into consideration is whether the alleged “material information” that is whether the High Court’s decision in Suit 350 would have had a material effect on this Court’s decision in granting the Order dated 28.6.2018. [58] In this regard, it was held in Seruan Gemilang (supra) as follows: “[47] Applying the principle as laid down in Ladd v Marshall [ 1954] 3 All ER 745, the respondents (citing para 561 of Halsburys Laws of England (4 th Ed) Vol 26) submitted that: an action will lie to rescind a judgment on the ground of the discovery of new evidence which would have had a material effect upon the decision of the court. It must be present:

that the evidence could not have been obtained with reasonable diligence for use at trial;

that the further evidence is such that, if given would have an important influence on the result of the trial, although it need not be decisive; and

that the evidence is such as is presumably to be believed.” (own emphasis added) [59] First and foremost, what transpired before Justice Zaini at the hearing of the Originating Summons cannot be determined by affidavit evidence alone and this Application ought to have been made via a fresh suit (Seruan Gemilang (supra); Chee Pok Choy (supra)). In the absence of “fresh evidence” there is no material for me to examine to determine whether there are grounds to set aside the Order dated 28.6.2018. [60] Secondly, even if the “material information” is confined only to the High Court’s decision in Suit 350, the question is whether it would have had a material effect on Justice Zaini’s decision. [61] The short answer to this question is it would not. My reasons are as follow: i) The reinstatement of Cekap Asia was allowed (essentially prayer 1 of the Originating Summons) as the Court was satisfied that the Plaintiff was an “aggrieved party” under Section 555(1) CA 2016 which provides: “Any person who is aggrieved by the decision of the Registrar to strike off the company may, within seven years after the name of the company has been struck off, apply to the Court to reinstate the name of the company into the register.” (own emphasis added) ii) The Plaintiff is said to be “aggrieved” by the decision of the Defendant (the “Registrar” under Section 555 CA 2016) to strike off Cekap Asia. Page 22 of 29 iii) The Defendant had no objection to the Originating Summons. The Defendant is a neutral party in the dispute between the Plaintiff and the Proposed Interveners. iv) Suit 350 is not a suit by Cekap Asia. v) The High Court’s decision in Suit 350 involved the right of the Plaintiff to initiate Suit 350 against the Proposed Interveners and not Cekap Asia’s right to initiate a similar suit (i.e. Suit 18). In, inter alia, paragraph 12 of the High Court’s Grounds of Judgment in Suit 350 (Expo Electronics Sdn Bhd v. Sri Yap Seng Yew & Ors [2015] MLJU 2326) Justice Suraya Othman (as she then was) held as follows: “Thus, the plaintiff has failed to establish their nexus or privity or locus standi to bring this suit. Written or documentary evidence on the sale of shares for RM 23 million.” (own emphasis added) vi) Just because the Plaintiff’s claim against the Proposed Interveners in Suit 350 was not allowed, it does not necessarily mean that Cekap Asia has no valid claim against the Proposed Interveners or that the Plaintiff is not aggrieved by the Defendant’s decision to strike off Cekap Asia. vii) To further reinforce the point that the High Court’s decision in Suit 350 would not have a material effect on Justice Zaini’s decision is the fact that the Proposed Interveners (as the 1st and 2nd defendants in Suit 18) had attempted to strike out Suit 18 but had failed to do so. The learned Judicial Commissioner, Justice Rozi Bainon, in dismissing the Proposed Interveners’ application to strike out Cekap Asia’s claim on 21.3.2022 held at paragraphs 40 and 44 of her Grounds of Judgment as follows: “[40] For finality of the litigation, this Court must hear the evidence by all the witnesses to be called. By just relying on the grounds of judgment in Suit 350, there is no finality of litigation between the parties.” ………… Page 23 of 29 “[44] In view of the foregoing, it is my judgment that having evaluated Enclosure 12 and its supporting documents, I find that the Plaintiff has succeed to establish that there is cause of action against the D1 & D2. As such, I dismiss Enclosure 12, with costs.” (own emphasis added) viii) It must be borne in mind that the Proposed Interveners application to strike out Suit 18 was on the grounds of res judicata and issue estoppel in that the same issues and matters raised in Suit 18 had been raised and decided in Suit

Arising from Justice Rozi’s decision to dismiss the striking out application, Suit 18 would proceed to trial. Thus, Cekap Asia’s claim cannot be said to be obviously unsustainable. [62] Therefore, and in any event, based on the above the High Court’s decision in Suit 350 would not have any material effect on Justice Zaini’s decision to grant the Order dated 28.6.2018 even if it was brought to His Lordship’s attention at the hearing of the Originating Summons. F] DELAY, LACHES AND AFTERTHOUGHT [63] Learned counsel for the Plaintiff argued this Application was filed with inordinate and excessive delay, that is 1 year and 3 months after Cekap Asia commenced Suit 18 in February 2021. [64] The Proposed Interveners averred that they were not aware of the Originating Summons (Enclosure 1) until a few days before the hearing of the application to strike out Suit 18 when the Proposed Interveners’ solicitors were served with a Notice of Intention to Use Affidavit dated 10.2.2022 (paragraph 7 of the Proposed Interveners’ Affidavit In Support (Enclosure 17)). [65] It is rather hard to fathom the Proposed Interveners’ averment that they only found out about the Originating Summons on or about February 2022. [66] The following chronology of event will show why the Proposed Interveners’ above averment cannot be accepted: Page 24 of 29 i) Cekap Asia was struck off the Register sometime in May 2011. ii) When Cekap Asia was struck off the Register in May 2011 the Proposed Interveners were still directors of Cekap Asia. iii) The Originating Summons (Enclosure 1) was filed on 8.3.2018. iv) Cekap Asia was reinstated vide Order dated 28.6.2018. v) The Proposed Interveners were removed as directors of Cekap Asia on 15.7.2019. The Proposed Interveners aver they were not aware of their removal as directors of Cekap Asia. vi) Suit 18 was filed in February 2021. vii) Hong Leong Investment Bank Berhad (the 3rd defendant in Suit 18) in its Amended Defence dated 26.4.2021 (“Hong Leong’s Amended Defence”) in Suit 18 pleaded the matters stated in paragraphs (i), (iii) and (iv) above. viii) This Application was filed on 27.5.2022. [67] Based on the above chronology, the Proposed Interveners would and should have known of the reinstatement of Cekap Asia when Suit 18 was filed and served on them on or about February 2021. This is because the Proposed Interveners were directors of Cekap Asia and as they themselves aver, they did not know they were removed as directors of Cekap Asia. Hence, it is only logical and reasonable for the Proposed Interveners to inquire or check how Cekap Asia was able to file Suit 18 without their approval or authorisation as directors of Cekap Asia. This is bearing in mind that Suit 18 is an action by Cekap Asia against, inter alia, the Proposed Interveners themselves. [68] Given that the Proposed Interveners believed they were still the directors of Cekap Asia at the material time, surely upon being served with the Suit 18 Writ, it would naturally have prompted them investigate how Cekap Asia initiated the action. Page 25 of 29 [69] To put it simply, if the directors of a company are sued by the company, they would immediately react to find out how the company was able to commence the said action against them. [70] At the very latest, the Proposed Interveners should have known about the Originating Summons and the Order dated 28.6.2018 when Hong Leong’s Amended Defence was served on them, on or about 26.4.2021. This Application was only filed about 1 year later. [71] Hence, the Proposed Interveners are guilty of laches and their conduct must be treated as a waiver of their rights or that it is tantamount to an acquiescence of the Order dated 28.6.2018. [72] The principle of law on delay and laches can be found in the classic case of Alfred Templeton & Ors v. Low Yat Holdings Sdn Bhd & Anor [1989] 2 MLJ 202 where it was held: “Laches is an equitable defence implying lapse of time and delay in prosecuting a claim. A court of equity refuses its aid to a stale demand where the plaintiff has slept upon his rights and acquiesced for a great length of time. He is then said to be barred by laches. In determining whether there has been such delay as to amount to laches the court considers whether there has been acquiescence on the plaintiff’s part and any change of position that has occurred on the part of the defendant. The doctrine of laches rests on the consideration that it is unjust to give a plaintiff a remedy where he has by his conduct done that which might fairly be regarded as equivalent to a waiver of it or where by his conduct and neglect he has, though not waiving the remedy, put the other party in a position in which it would not be reasonable to place him if the remedy were afterwards to be asserted: 14 Halsbury’s Laws of England (3rd Ed) paras 1181, 1182. Laches has been succinctly described as ‘inaction with one’s eyes open’.” (own emphasis added) [73] The fact of the matter is that the Proposed Interveners showed no interest in Cekap Asia after the Share Sale Agreement and was not even aware of Cekap Asia being struck off from the Register. [74] The Proposed Interveners claim did not know they were removed as directors of Cekap Asia, however, the filing of Suit 18 did not immediately cause them to find out what had happened to Cekap Asia until about more than a year later when this Application was filed. Page 26 of 29 [75] Therefore, it is reasonable to conclude that the Proposed Interveners were not interested or concerned with Cekap Asia and the only reason they filed this Application was to stop Suit 18 from proceeding. This would explain why this Application was filed after the High Court in Suit 18 dismissed the Proposed Interveners striking out application on 21.3.2022. [76] Having failed to strike out Suit 18, the Proposed Interveners then filed this Application on 27.5.2022. [77] The filing of this Application was thus an afterthought and designed to derail Suit 18 which was already proceeding to trial. [78] In the circumstances this Application is devoid of merit. G] CONCLUSION [79] Lastly, I would be remiss if I do not address learned counsel for the Proposed Interveners’ argument that in granting the Order dated 28.6.2018, Justice Zaini did not allow prayers 2 to 4 of Enclosure 1 for the change of the directors and shareholders of Cekap Asia but the Plaintiff was still able do so after the Order dated 28.6.2018 was entered. [80] In no way can the Order dated 28.6.2018 (for which prayers 2 to 4 were now allowed) be construed as restraining the Plaintiff from changing or effecting the change of directors or shareholders of Cekap Asia in the usual manner as was done in this case, which is allowed under CA 2016. [81] It seems to be me the Proposed Interveners are suggesting the Plaintiff’s act of changing the directors and shareholders of Cekap Asia was, in some way or extent, designed to circumvent the Order dated 28.6.2018. [82] I do not find this to be an issue as the Order dated 28.6.2018 merely allows Cekap Asia to be reinstated with costs to be paid to the Defendant. That is all. The Order dated 28.6.2018 clearly did not prohibit the Plaintiff from changing the directors or shareholders of Cekap Asia. Page 27 of 29 [83] If the Plaintiff’s act of changing the directors and shareholders of Cekap Asia was an issue then what the Proposed Interveners should have done is challenge that act and not the Order dated 28.6.2018 which only reinstates Cekap Asia. [84] This again clearly shows that it is not Cekap Asia (as a company) that the Proposed Interveners are concerned about but the Plaintiff. [85] I must further add that in reinstating Cekap Asia the Plaintiff and/or its nominees were responsible for bearing the costs and continued management of Cekap Asia as well as fulfil the requirements or conditions placed by the Defendant for allowing Cekap Asia to be reinstated. The Proposed Interveners were not concerned with these matters thereby further demonstrating their disinterest in Cekap Asia or its reinstatement. [86] For the reasons stated above, I dismissed this Application with costs of RM15,000/- in favour of the Plaintiff and RM1,000/- in favour of the Defendant. Dated this 23rd day of November, 2023 -SGD- (WAN MUHAMMAD AMIN BIN WAN YAHYA) Judge High Court of Malaya, Kuala Lumpur (Commercial Division (NCC 3)) Page 28 of 29 COUNSEL FOR THE PLAINTIFF Dinesh Praveen Nair (Low Ming Yung, PDK together with him) Messrs Dinesh Praveen Nair C3-3-13, Solaris Dutamas Jalan Dutamas 1 50480 Kuala Lumpur Tel: 03-6211 4817 Email: nair@dineshnair.net COUNSEL FOR THE DEFENDANT Nor Syairah Sulaiman Suruhanjaya Syarikat Malaysia Seksyen Litigasi Bahagian Pendakwaan & Litigasi Tingkat 28 Menara SSM 2 Sentral No. 7, Jalan Stesen Sentral 5 Kuala Lumpur Sentral Tel: 03-2299 5437 COUNSEL FOR THE PROPOSED INTERVENERS Terence Chan (KY Lui and Yeap Xi Jin together with him) Messrs Lim Kian Leong & Co Bilik 10-8, Tingkat 10, Wisma UOA II No. 21, Jalan Pinang 50450 Kuala Lumpur Tel: 03-2161 4199 Email: xijin@limkianleongandco.com LEGISLATION / RULES CITED Companies Act 2016 ▪ Section 550 ▪ Section 555(1) Page 29 of 29 Rules of Court 2012 ▪ Order 15 Rule 6 ▪ Order 42 Rule 3 ▪ Order 92 Rule 4

Alfred Templeton & Ors v. Low Yat Holdings Sdn Bhd & Anor [1989] 2 MLJ 202 2. Badiaddin Mohd Mahidin & Anor v. Arab-Malaysia Finance Bhd [1998] 2 CLJ 75 3. Chee Pok Choy & Ors v. Scotch Leasing Sdn Bhd [2001] 2 CLJ 321 4. Dr Lourdes Dava Raj a/l Curuz Dural Raj v. Dr Milton Lum Siew Wah & Anor [2020] 5 MLJ 185 5. Expo Electronics Sdn Bhd v. Sri Yap Seng Yew & Ors [2015] MLJU 2326 6. Hock Hua Bank Bhd v. Sahari Murid [1980] 1 LNS 92 7. Hong Leong Bank Bhd (formerly known as Hong Leong Finance Bhd) v. Staghorn Sdn Bhd and other appeals [2008] 2 MLJ 622 8. Lee Chai Sen v. Magnum Consortium Sdn Bhd [2015] MLJU 1871 9. Seruan Gemilang Makmur Sdn Bhd v. Pegawai Kewangan Negeri