Hsbc Bank Malaysia Berhad v 1. Jejak Maju Resources Sdn Bhd (22-758-2009)

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TENGKU SHAIFFULIAZAN BIN .... DEFENDANTS

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LIEW TENG SHUEN GROUNDS OF JUDGMENT (After full trial) 2 [1] On the surface, this case is fairly complex with the involvement with many parties. To fully understand the nature of this case and the underlying transaction arising from the factual background and chronology of events surrounding the case must be set out first. They are as follows: a) The Plaintiff is a banker running its business under the name of HSBC Bank Malaysia Berhad. b) Jejak Maju Resources Sdn. Bhd (JM), a RM2.00 company (the first defendant) is a company incorporated in Malaysia under the Companies Act 1953. Plustrans Resources Sdn Bhd (the third defendant, “Plustrans”) and Microvest Engineering Sdn Bhd (the fifth defendant, “Microvest”) are companies incorporated in Malaysia having their registered offices at 5A- 1, 1st Floor, Jalan Memanda 7, Ampang, 03-32, 3rd Floor, PKNS Complex, Shah Alam and No.117, Block A Damansara Intan No.1, Jalan SS 20/27, Petaling Jaya respectively. c) The second defendant (Vijayalatha a/p Velupillai) was the director of the first defendant (JM), while the fourth defendant (Tengku Shaiffuliazan bin Tengku Zainal Abidin) was the director of the third defendant (Plustrans) and the sixth defendant (Liew Teng Shuen) is the director of the fifth defendant (Microvest). 3 d) The second defendant (Vijaya) is also a lawyer running her own legal practice under the name of Messrs. Vellupillai & Associates. e) A Brazilian company by the name of Target Trading (Target), a valued customer to HSBC Bank Brasil S.A Banco Multiplo (HSBC Brazil) had intended to purchase “high speed diesel” from Petronas Dagangan Berhad. However, Brazil HSBC was informed that this can only be carried out through a local supply agent. f) HSBC Brazil then contacted the Plaintiff to finance the purchase of the diesel by JM, the local supply agent. Thereafter, JM was granted a banking facility by the Plaintiff on the basis of a standby letter of credit provided to the Plaintiff by HSBC Brazil. g) Subsequently, a Letter of Offer (LO) dated 29.4.2008 was issued by the Plaintiff to JM agreeing to provide banking facilities up to USD 5.4 million (the funds) to finance the purchase of the diesel. An instruction was received from HSBC Brazil, made on behalf of Target instructing the Plaintiff to transfer the sum of USD 4.55 million to a Petronas account with Malayan Banking Bhd (MBB). On the same day, the Plaintiff had also received an insistent request from JM to transfer the same amount into the MBB account. Later, the Plaintiff found out that the account number belongs to 4 Plustrans, who, Vijaya claimed was a Petronas dealer. Upon request by Vijaya, the Plaintiff had also on 2.5.2008 disbursed a sum of USD 0.75 million to the Vijaya‟s legal firm purportedly for shipping expenses. JM had defaulted payment of the banking facility granted earlier. h) The Plaintiff, subsequently discovered inter alia the following: - there was actually no transaction between the JM and Petronas. - documents relating to the diesel‟s sale and purchase transactions were found to be forged documents. - Plustrans had paid a sum of USD 4 million to Microvest. - Plustrans had also paid RM1 million each to the fourth defendant and a person by the name of Mohd. Fuad. - a sum of USD 3 million was paid by Microvest to the sixth defendant (Liew). - the entire transaction in connection with the disbursement of USD 5.4 million by the plaintiff to the JM and thereafter to the rest of the defendants was a fraudulent transaction. i) On 18.6.2008, Vijaya had lodged a police report against, inter alia Microvest and Liew, accusing that they were conspiring with Plustrans to defraud her in the sale and purchase dealings for the diesel. 5 j) On 26.6.2008, the Plaintiff lodged a police report alleging that they have been defrauded by a syndicate consisting of the above named defendants for the sum of USD 5.4 million. k) Following a police investigation, it was found that there are reasonable grounds to suspect an offence under subsection 4(1) of the Anti-Money Laundering and Anti –Terrorism Act (AMLATFA) was committed, and the authority in exercising their powers under sections 44(1) and 50(1) of the AMLATFA had seized and frozen all of the defendants‟ accounts. The amount seized is approximately USD 3.327 million (the monies). Thereafter, the fourth defendant (Tengku) and Mohd Fuad were charged for offence under section 420 of the Penal Code, which was to be read together with section 34 of the Penal Code. The fourth defendant and Mohd Fuad were also charged for five other offences each under subsection 4(1)(a) of the AMLATFA. Meanwhile Liew was also charged at the Malacca Sessions Court for an offence under subsection 4(1)(a) of the AMLATFA. [2] It is to be noted that the Plaintiff had obtained a Mareva Injunction to restrain all the Defendants from dealing with the funds. [3] In this present action which was filed on 21.5.2009 by the Plaintiff, the Plaintiff is claiming damages for the sum of USD 5.4 million from all of the Defendants for conspiracy to defraud. To put it simply, what the Plaintiff is claiming is basically damages against all the Defendants 6 for defrauding it in granting banking facilities for the underlying transaction of the sale and purchase of diesel. [4] At the trial, the Plaintiff produced twelve (12) witnesses, while Microvest and Liew had called eight (8) witnesses to refute the Plaintiff‟s claim and to prove their counter claim for inter alia damages for loss of reputation. [5] Now, coming back to the Plaintiff‟s claim, the link between the Plaintiff and the Defendants with regard to this fraud varies but can be categorized as the fraudsters and the co-conspirators of the alleged fraud who have received the illegitimate fruits of the fraud. The nexuses are as follows: 1st Nexus: The Main Fraudster [6] The main fraudsters are JM, Vijaya and Plustrans. These are the parties involved in the fraud to unlawfully deceive the Plaintiff into granting banking facilities to supposedly finance the sale and purchase of the supply of diesel with Petronas (“Underlying Transaction”). [7] Basically, the alleged fraud is that JM and Vijaya have fraudulently misrepresented the existence of the Underlying Transaction (which remains undisputed by the parties) of a supposed deal to supply diesel to Target from Petronas. This facade of Underlying Transaction remains undisputed and no defendants have submitted 7 that this underlying transaction have ever been performed at any material time. Target is represented by one Antonio Gantus Filho (“Antonio”) as its agent. At the earliest juncture, this Court would already take judicial notice that this Antonio is a felon who has already been tried and convicted in Brazil for the crime of Financial Fraud. (See Sentence by the Brazilian Court at Tab 41 of the PCBD). [8] It is verily important that this Court understands the case of Microvest and Liew, where both the Defendants in this case are disputing the existence of such fraudulent misrepresentation of a later occurrence involving Plustrans mainly on the representations made on Plustrans‟ account number by Vijaya and not the Underlying Transaction itself. It is undisputed that the Underlying Transaction has never been performed at all material times. It is undisputed that the facilities granted by the Plaintiff was never utilised to finance this Underlying Transaction. It was submitted by both of the Parties that the facilities granted was not utilised for the purposes of the Underlying Transaction. [9] It is utterly important to note that the Plaintiff has already obtained Judgments in Default against JM and Vijaya. [10] Even though this Court had earlier narrated the detailed background of the case, but to have a better understanding of the whole transaction, the pertinent facts relevant to the transaction is revisited here. Target, a valued customer of HSBC Brazil intended to perform 8 the Underlying Transaction. Target then informed HSBC Brazil that it was Petronas‟s requirement that the Underlying Transaction must be conducted vide a local party. This is evident in HSBC Brazil‟s representative‟s email to the Plaintiff dated 1.4.2008. (See tab 7 of Plaintiff‟s Core Bundle of Documents “PCBD”). JM was then appointed to play the role of this local party involved to set the alleged Underlying Transaction in motion. (See HSBC Brazil‟s email at tab 8 of the PCBD). The Plaintiff then issued the LO agreeing to provide banking facilities up to USD5.4 million to finance the Underlying Transaction. HSBC Brazil then issued a Standby Letter of Credit (“SBLC”) to secure the facility by the Plaintiff to JM. (See DCBD tab 10). [11] The salient terms of the LO are as follows:

It is a condition precedent that USD5.4 million is to be ultimately paid to a Petronas account in Maybank. (see tab 9, page 27 of PCBD)

(ii) The conditions precedent are for the sole benefit of the Bank, who may waive their compliance without prejudice to its rights herein or in any Security Document. (see tab 9, page 30 of PCBD)

(iii) The Plaintiff may in its absolute discretion vary or add to the terms of the LO. (see tab 9, page 31 of PCBD) [12] It is also Target‟s instruction that the facilities should be disbursed on 30.4.2008. 9 2nd Nexus: Co-conspirators allegedly receiving monies from the fraud [13] The Plaintiff has netted the 4th to the 6th Defendants on the allegation that they have thus far received the proceeds from the fraud. It is the Plaintiff‟s case that these defendants, namely Tengku, Microvest and Liew are co-conspirators who have been complicit in the “Layering” of the proceeds from the fraudulent Underlying Transaction. [14] HSBC Brazil vide its instruction dated 30.4.2008, only a day after the LO was issued, instructed on behalf of Target that the Plaintiff should disburse the monies into Petronas‟s account in Maybank. However, the account number was not provided or stipulated within this instruction. It merely reads: “ACCORDING TO THE ARRANGEMENTS…WE RECEIVED TARGET‟S AUHTORIZATION FOR THE CREDIT OF USD 4,550,000.00 TO PETRONAS‟S ACCOUNT IN MAYBANK…” [15] Vijaya then at about 4.15 pm, 15 minutes before close of business issued an instruction on behalf of JM to the Plaintiff to credit the USD4.55 million to an unnamed account number. It is peculiar that despite the obvious and staunch stipulation of the monies to be credited into Petronas‟s account, Vijaya never see it appropriate to inform that the account number was not Petronas‟s. In fact, Vijaya 10 remained completely silent in her instruction as to the identity of the holder of that account number (which is Plustrans‟s account). [16] It is the Plaintiff‟s case that the Plaintiff‟s Commercial Banking Manager, Chandra Segaran a/l Singaravely (“Chandra”) had been cornered and threatened by Vijaya and the agents of Target to oblige to Vijaya‟s instruction to credit the monies into Plustrans‟s account namely Plustrans‟s Foreign Currency Account (“FCA”) in Maybank. Furthermore, Chandra was also allegedly informed that Plustrans was a dealer with Petronas itself. This Court will delve into the details later in this Judgment. [17] From this point onwards, it is not a disputed fact that the Underlying Transaction have never taken place and indeed the facilities credited into Plustrans were never utilised to purchase anything from Petronas. [18] Bearing in mind that the facilities were never used to set the Underlying Transaction in motion, the Plaintiff sought out to trace the movement of monies from Plustrans‟s FCA subsequent to the crediting of the facilities. It was found that Plustrans‟s FCA was totally empty and had a nil balance before the facilities were credited into the account on 30.4.2008. The account was also very recently opened on 20.4.2008, just 10 days before the facilities were credited into it. It is safe to infer that the monies in Plustrans‟s FCA is undoubtedly only the monies credited from the facilities granted in view of LO granted. 11 [19] Just 5 days after the crediting of the monies, Plustrans transferred almost all of the monies from the facilities granted (USD4 million) to Microvest‟s FCA (which was also recently opened on 12.3.2008). Microvest‟s FCA also had a nil balance as at 30.4.2008. In fact Microvest‟s account was also empty until Plustrans transferred the monies from the facilities granted on 5.5.2008. (See tab 6, page 22 of PCBD). [20] By 20.5.2008, Microvest have transferred almost all of the monies transferred by Plustrans (which was the monies from the facilities granted as it could not be any other money since Plustrans‟s FCA was empty before the facilities were credited to Plustrans) (approximately RM9.7 million) as just 2 days after that, Microvest transferred RM 9.7 million to Liew‟s account. [21] It is clear that the state of accounts above was not disputed. It is not disputed that the monies in the account was purely the monies which were granted from the LO in view of the Underlying Transaction. There is no case or question of mixed fund in the present case. The monies which were transferred in and out of the FCAs of both Plustrans and Microvest is without a doubt the facilities granted under the LO. The flow is simple. Plustrans‟s FCA was empty until the facilities were credited into the account (Hence all the monies in Plustrans‟s FCA is monies from the facilities). Microvest‟s FCA was empty until Plustrans transferred the monies granted under the LO from their FCA to Microvest‟s FCA. (Hence, all the monies in 12 Microvest‟s FCA is monies from the facilities). There is no suspicion or speculation here. These are hard facts from the admission and evidence brought before this Court. [22] Albeit there are numerous other movement in the funds involving the monies from the facilities, the above movements in funds were the main basis where the Plaintiff implicates Microvest and Liew in the present case. Thus, the Court would not delve further into these other movements. [23] In the simplest manner possible, the most pivotal issue to be determined in the present case with respect to Microvest and Liew is whether Microvest and Liew can be implicated to be co-conspirators to the fraudulent act of JM, Vijaya and Plustrans. [24] This pivotal issue shall be dealt with by this Court in five prongs:

Whether there was a fraudulent misrepresentation stemming from the Underlying Transaction?

(ii) Whether there was a legitimate diesel supply transaction to justify the transfer of USD4 million (from the facilities granted under the LO) from Plustrans‟s FCA to Microvest?

(iii) Whether there was legitimate reason for Microvest to transfer of USD3 million (from the facilities granted under the LO) from Microvest‟s FCA to Liew? 13

(iv) Whether Microvest can be implicated as co-conspirators to the fraudulent act?

Whether Liew can be implicated as co-conspirators to the fraudulent act? Issue (i): Whether there was a fraudulent misrepresentation stemming from the Underlying Transaction? [25] It is only appropriate for this Court to highlight that in the course of this trial, the Parties have taken two tangents of arguments, i.e first, misrepresentation of Plustrans‟s FCA and second, misrepresentation of the Underlying Transaction. 1st Tangent: Misrepresentation of Plustrans‟s FCA [26] The first tangent is the alleged misrepresentation of Vijaya in her instruction dated 30.4.2008 in which she instructed the facilities under the LO for the Underlying Transaction to be credited into Plustrans‟s account rather than a Petronas account in Maybank. Now, a large majority of the Microvest‟s and Liew‟s (“Defendants”) defence hinges on the argument that there was never a misrepresentation of the Plustrans account and that it was merely the Plaintiff‟s own mistake and/or negligence in misappropriating the facilities into Plustrans‟s account without due diligence. 14 2nd Tangent: Misrepresentation of the Underlying Transaction [27] The second tangent is the alleged misrepresentation on the Underlying Transaction as whole. And this Court is more inclined to agree on this second tangent. The misrepresentation does not just begun upon the misrepresentation of the identity of Plustrans‟s account. If so the Defendants vehemently argue on the first tangent, they are not holistically addressing the fraudulent misrepresentation. The representation or misrepresentation of Plustrans‟s account does not negate the misrepresentation by JM and Vijaya on the Underlying Transaction. The Plaintiff granted the banking facilities upon representation of this Underlying Transaction of a diesel supply deal with Petronas which indisputably was never set in motion. The Underlying Transaction never took place. [28] With this regard, even the Defendants‟ submissions seem to admit the fact that there was a misrepresentation on the Underlying Transaction. The Defendants‟ submissions read: “Although the facility was later not used by Jejak Maju to finance the said purchase of diesel from Petronas, it does not mean that the money was unlawful in its own nature” (See Defendants‟ Submissions para 5.72) [29] The moment the facility was not utilised for the Underlying Transaction, there arise a misrepresentation of the existence of such 15 Underlying Transaction and this is the core basis of the fraudulent misrepresentation. If the Defendants are even willing to admit to this, then there is very little for the Defendants to ever argue that there was no misrepresentation merely on the tangent of the misrepresentation of Plustrans FCA. [30] Hence, from the outset, the whole length of discourse over the representation or misrepresentation of the Plustrans FCA is innately futile to defeat the implication of fraudulent misrepresentation of the Underlying Transaction. Nevertheless, for the sake of completeness this Court shall still delve with the submissions of the Defendants regarding the misrepresentation of Plustrans‟s FCA. [31] It is reiterated that the Defendants‟ contention on the Underlying Transaction is very minimal and ultimately does not lay a dent to the fact that the Underlying Transaction is indeed a sham. [32] JM has held out vide the LO that the payment shall ultimately be made to Petronas following the supposed Underlying Transaction. This was entirely not the case. The payment never reached Petronas and there was never a deal to purchase Diesel from Petronas. The fraud does not just end there. [33] PWS6, Ahmad Nabil Bin Azizan (“Nabil”) is Petronas Dagangan Berhad‟s (“PDB”) General Counsel. He had further testified that JM:

Had never at any point in time made any dealings with PDB 16

(ii) Is not an entity registered with PDB or Petco

(iii) Notice of Readiness dated 30.5.2008 (“Notice of Readiness”) and the confirmation of cargo are forged documents. (see page 188 of Bundle C; Questions 4 to 11 of PWS6)

(iv) JM‟s letter dated 9.6.2008 regarding the dealing with PDB was a false statement. PDB had never have any dealings whatsoever with JM [34] Nabil have written to the Plaintiff confirming that the Notice of Readiness and the allegation of dealings in JM‟s letter was false and are forged documents in his letter dated 17.9.2008 (see page 218 of Bundle C). [35] JM held out to represent a forged document supposedly proving that there was progress to the Underlying Transaction which was entirely untrue. The Notice of Readiness does name the consignee as Target in Brazil and the consignor being PDB with PDB‟s letterhead. This is entirely forged and was misrepresented to be true by JM. PDB is not even a company which deals with international trade or sales which adds to JM‟s misrepresentation. [36] JM further misrepresented the falseness of the dealings with PDB in its letter dated 9.6.2008 in that PDB in reality has never ever has any dealings with JM. In fact, JM was never at any point in time a registered entity with PDB. 17 [37] Furthermore, JM has falsely held out to be a business part with PDB in its Corporate Profile. This representation is entirely untrue and blatantly false. The Corporate Profile reads: “Some of our well known business partners includes PETRONAS…” PARTIAL LIST OF JMRSB ONGOING PROJECTS 1) Supply of 240,000 tonnes FOB Petronas High Speed Diesel to M&G Technologies Sdn Bhd 2) Supply of 240,000 tonnes on FOB of Petronas D2 to Ceria Bersama International Sdn Bhd 3) Supply of 60,000 tonnes on FOB of Petronas D2 to PT Alam Pasifik Sdn Bhd” [38] All of which were false misrepresentations. PDB has never done any dealings with JM as was held out by JM in its Corporate Profile above. And the Defendants have done nothing at all to dispute this fact. Non-reliance on forged documents is irrelevant [39] The Defendants‟ general contention on the forged documents was that it is not relied upon by the Plaintiff in granting the facility to JM. However, it must be noted that the Defendants are clearly missing the point of these forged documents. 18 [40] The forged documents are not relevant to prove reliance in the Plaintiff‟s case. These documents are only relevant to prove that whatever representations (on the Underlying Transaction) made by JM and Vijaya in obtaining the facility were false misrepresentations. [41] This line of contention does nothing to defeat the Plaintiff‟s case. The forged documents serve clear evidence of a false statement which was represented to be true. They are not evidences to prove reliance. They are evidences to prove that the facts relied upon were false and were represented to be true by JM and Vijaya. [42] This contention of the Defendants does not hold water to negate the false misrepresentation made by JM and Vijaya regarding the Underlying Transaction. Forged documents do not necessarily need to implicate the Defendants [43] Now, it must be understood, from the pivotal issue elaborated earlier, that the implication against the Defendants is dependent upon on the legitimacy of business that Microvest and Liew allegedly have in justifying the movement of the monies from the facility into their account. At no point in time was it material that the Plaintiff needs to use the forged documents as proof to implicate the Defendants. The forged documents have steadfastly proven that the facts represented by JM and Vijaya were false and untrue. That is the extent necessary for the Plaintiff to use the forged documents as evidence. The Defendants have never disputed that these forged 19 documents to be true. The Defendants never attempted to dispute the fraudulent misrepresentation on the Underlying Transaction which is proven to be untrue vide the forged documents. [44] It is very shocking that the Defendants candidly admit that there were forged documents involved and attempts to dispute the existence of a fraudulent misrepresentation. The mere definition of forged document is a false representation of false facts to be true. The documents are forged to falsely represent a false fact to be true. [45] At this juncture, it is obvious and undisputed that there was indeed a false misrepresentation of fact (the Underlying Transaction) by JM and Vijaya to which the Plaintiff had relied upon in granting the facility to JM. It is therefore this Court‟s view that even from this initial tangent, there is an overwhelming and irrefutable proof that indeed there was a fraudulent misrepresentation by JM and Vijaya. [46] This Court is guided by the case of the classic case of Derry v Peek

14 App. Cas. 337 and also Halsbury‟s Law of Malaysia, Vol 5 [2000]. Generally, the elements to prove a case of fraudulent misrepresentation are:

The existence of a false statement of fact and the Defendant is well aware of its falseness It is vividly clear that there was a false statement of fact (Underlying Transaction of the diesel supply deal with Petronas) which is a total sham. This falseness is very well 20 within the awareness and knowledge of JM and Vijaya who had produced false forged documents asserting its business relations with PDB.

(ii) The representation was made with the intention that it will be acted upon by the Plaintiff Indeed it is irrefutable that JM and Vijaya have misrepresented the false Underlying Transaction with the intention it would persuade the Plaintiff to grant JM the banking facility

(iii) The Plaintiff in fact acted on the false statement Without a single iota of doubt, the LO was granted by the Plaintiff in view of this Underlying Transaction of diesel supply deal with Petronas.

(iv) The Plaintiff suffered damages resulting from the said reliance It is undisputed that the banking facility granted under the LO was never paid for and was never refunded by any party and the Plaintiff indeed suffered damages from their reliance on JM and Vijaya‟s false misrepresentations. [47] Clearly, all the elements requisite have been proven. The Judgment in Default against Vijaya and JM is an “incontestable proof of fraud” 21 [48] The Federal Court recently has decided that a plaintiff need not prove an allegation of fraud against defendants who the plaintiff already has a JID against in a separate trial involving other defendants who opted to enter defence. Jeffry Tan FCJ decided in the case of Kamarulzaman Omar & Ors v Yakub Husin & Ors [2014] 1 CLJ at paragraph 11 of his judgment that the Appellant in that case (involving the 5th and 6th Respondents) need not prove the fraud of the 1st to 4th Respondents who the Plaintiff was already granted JID against: “Given that alleged fraud passed wholly unanswered by the first to fourth respondents, the trial court at 43AR was wholly warranted to hold that with default judgment against the first to fourth respondents, fraud by them needed not to be proved by the appellants…With respect the judgment was the judicial decree that fraud by the first to fourth respondents had been made out…When judgment was entered against the first to fourth respondents, all allegations of fraud which gave rise to the cause of action merged in the judgment…Until set aside, the default judgment was the incontestable proof of fraud by the first to fourth respondents”(emphasis added) [49] Thus, by law, actually the Defendants in the present case are in no position to dispute the existence of fraud by JM and Vijaya. This Court is bound to follow this precedent from the Federal Court and from this juncture alone, there is no room at all for the Defendants to dispute the existence of fraud by JM and Vijaya. [50] Nevertheless, as discussed earlier, notwithstanding the absence of the Defendants‟ standing to dispute the fraud by JM and Vijaya, it is 22 blatantly clear that indeed there was a fraudulent misrepresentation of the Underlying Transaction. [51] The Defendants apparently have no reply to this contention in their submissions. Misrepresentation of the Plustrans‟s FCA [52] This Court reiterates that the whole discourse on the representation of the Plustrans‟s FCA is futile and does not at all put a dent to the finding of fraudulent misrepresentation against JM and Vijaya. This tranche of argument is totally irrelevant in supporting or disputing the fraudulent misrepresentation of the Underlying Transaction. The crediting of Plustrans FCA is merely the vessel in which JM and Vijaya have channelled the proceeds of the fraud into. [53] Thus, this Court does not intend to delve too deeply on this contention. It is verily more relevant for the Defendants to prove their legitimate reasons to participate in the proceeds of the fraud which was credited into Plustrans‟s FCA. Negligence is not a defence to the fraud [54] In attempting to negate the fraud by JM and Vijaya, the Defendants contends that instead of an act motivated by the misrepresentation, the bank‟s act in crediting the facility into Plustrans‟s FCA resulted from the bank‟s own negligence. 23 [55] It is the Defendants‟ line of argument that there was never a misrepresentation of Plustrans‟s FCA and that it was known to Chandra that the account was Plustrans‟s FCA before the Plaintiff decided to oblige to Vijaya‟s instruction. [56] Nevertheless, even assuming the act was negligent (which this Court disagrees) the Court is not about to become the instrument of fraud. It is incomprehensible that the Defendants ought to urge the Court to legitimise the fraudulent misrepresentation of the Underlying Transaction merely on the basis that the Plaintiff was negligent in crediting the facilities in Plustrans‟s account (which in the first place, is illegitimately conceived). Notwithstanding any sort of negligence or contributory negligence, it is beyond the Court‟s primary duty to uphold justice that the Court would afford legitimacy of a fraudulent act, merely because of the fallible ground that the Plaintiff was in a sense, negligible in believing the fraudulent misrepresentation of Vijaya and JM. This is grossly inappropriate. Such contention is inconceivable to any farthest stretch of the legal imagination. The Court will never be a bridge or instrument to enable the operation of any fraud or deceit. And this is exactly what the Defendants sought to urge the Court to become. The facilities were from the beginning were ill-conceived from the granting of the LO itself. Anything else which entailed the ill-conceived facility is the ensuing mechanics of the fraud. However negligent the Plaintiff might be at the time the monies were credited into Plustrans‟s FCA, the whole ordeal with regards to the Underlying Transaction was an 24 illegitimate sham. It would be ridiculous to suggest that a Court of law should allow and legitimise the workings of a fraud merely because the victim of such fraud was negligent in his conduct. The negligence does not change the fact that the Plaintiff was a victim of a fraud. Thus, the Court shall staunchly remain to treat the fraudster as a fraudster, and the victim as a victim. [57] The Plaintiff has referred this Court to valuable guidance to the decision in the case of Bumiputra Commerce Bank Bhd v Siti Fatimah Mohd Zain [2011] 2 CLJ 545. The Court has correctly decided that: “With the evidence that was presented and even allowing for all the possible inferences to be made in her favour, it was my assessment that, at the very least, she knew of the mistake by the bank in making available the overdraft facility. Of course at the worst, she was complicit to the illicit plan to defraud the bank. In either case, she was certainly not acting in good faith. In fact, the evidence, as I have alluded to thus far, shows that, if not dishonesty, there was certainly an element of bad faith on her part. Her claims of fault on the part of the bank must be seen in this light. In any event, a consideration of fault or even negligence or carelessness on the part of the plaintiff bank, as the law suggests, is irrelevant. It was beyond doubt that the defendant had been enriched at the expense of the plaintiff bank. In the circumstances, it would be unconscionable and inequitable and therefore unjust to deny restitution to the plaintiff bank.” 25 [58] As succinctly put by the Court in the above case, it would be unconscionable and inequitable as well as unjust to allow the enrichment of the Defendants from this fraud merely because the Plaintiff was negligent (which this Court also disagrees). [59] The Common Law jurisdiction also shares the same sentiment in the English Court of Appeal‟s decision in the case of Standard Chartered Bank v Pakistan National Shipping Corporation and Others (No 4) [2001] QB 167: “But also, and importantly, it has always been the law that a defendant who has been found liable in deceit cannot establish a defence based upon the contributory negligence of the plaintiff” [60] Thus, it is this Court‟s considered view that, from the outset, the Defendants‟ defence of negligence shall fail. Was Chandra negligent in his conduct? [61] For the sake of completeness, this Court shall briefly allude to the submissions and evidences put forth regarding this contention. [62] The Defendants‟ contention is that Chandra knew of the identity of the holder of the account which Vijaya instructed the Plaintiff to credit the facility into (which was Plustrans‟s FCA). And upon that knowledge, the Defendants alleged that it was the Plaintiff‟s own 26 negligence that led to the Plaintiff‟s act of crediting the facility in Plustrans‟s FCA. [63] In contrast, the Plaintiff‟s contention regarding Chandra‟s conduct was that there were numerous factors and considerations that had led to the crediting of the facility even with knowledge that the account was Plustrans‟s and not Petronas‟s. [64] This Court is minded here at this juncture that the misrepresentation regarding Plustrans is not so much on the identity of the holder of the account number furnished by Vijaya in her instruction but rather the misrepresentation of the utility of Plustrans as the recipient of the facility rather than Petronas. Chandra has testified in his Witness Statement that he indeed, immediately called Maybank to ascertain the identity of the holder of the account number. Chandra was informed by Maybank that the holder of the account was Plustrans. Out of Chandran‟s own diligence, he conducted a SSM Search on the same day and found that Plustrans indeed was a company which dealt with the distribution of Petroleum Product. Now, the misrepresentation here was that when queried by Chandra, Vijaya have assured that Plustrans is a dealer with Petronas and that ultimately and eventually that the sums from the facility will duly be transferred to Petronas. It is also part of Chandra‟s testimony that shortly after the telephone conversation with Vijaya, Antonio had telephoned him and pressured him into disbursing the facility on the same day. Both Vijaya and Antonio have threatened that in case the 27 facility was not disbursed on that day, the deal would be adversely affected and the Bank will be held responsible. [65] Basically, Chandra‟s decision to credit the facility within the strict timeline set by Target was a well calculated decision given the following circumstances:

Vijaya had deceived Chandra that Plustrans was a dealer with Petronas and assured that the facility would ultimately be paid and transferred to Petronas;

(ii) Chandra received confirmation from Maybank that Plustrans were dealers in Petroleum;

(iii) Chandra conducted a SSM search which reveals that Plustrans is indeed involved in the distribution of petroleum products;

(iv) Antonio as agent and representative of Target had instructed the Plaintiff to always follow the instructions by JM; and

Both Vijaya and Antonio have pressured and threatened the Chandra to comply with their instructions. Whether there was a real and legitimate threat or pressure against Chandra? [66] The Defendants‟ contention regarding this issue was that the Plaintiff‟s position is secure enough from the LO that the Plaintiff was never put to any risk liability should the dealing fall through. The Defendants submit that Viijaya and Target would never be in the 28 position to sue the Plaintiff as their instructions (to credit the facility into the Plustrans FCA rather than a Petronas account) have contradicted the conditions precedent within the LO and thus, would already warrant the Plaintiff the right to recall the facilities under the LO which reads: “The Facilities are subject always to the Bank‟s customary overriding right of suspension, withdrawal and repayment on demand. Other terms herein also apply which may allow the Bank to cease providing the Facilities to you.” [67] However, the Defendants should not selectively apply the LO without the full effect of all other terms within the LO. Equally so, the LO stipulates that the Plaintiff has the absolute discretion to waive the compliance with any of the conditions precedent. Thus, it is the Plaintiff‟s case that merely accommodating to the mandate of their own customer who is a party to the LO, even contradicting the conditions precedent will not amount to a breach of the LO. Therefore, Vijaya‟s and Antonio‟s instructions do not tantamount to a breach of the LO. The LO reads: “The conditions precedent are for the sole benefit of the Bank, who may waive their compliance without prejudice to its rights herein or in any Security Document. [68] Therefore, there would be a legitimate pressure or threat faced by Chandra when he was persistently urged by Vijaya and Antonio to credit the facility into Plustrans‟s FCA. The instruction and the waiver 29 of the condition precedent is well within the boundaries of the LO and the Plaintiff bank would definitely run the risk of responsibility and liability if it fails to perform within the lines of the LO to set the Underlying Transaction in motion. Chandra was in a bind to oblige and Chandra was given numerous representations and assurances by Vijaya that the facility would ultimately be paid to Petronas. Whether Chandra was justified to abide by Antonio‟s instruction? [69] The Defendants also contend that there was no legal reason for Chandra to have followed the instruction of Antonio or Vijaya as another condition precedent within the LO was that the payment of the facility must be instructed by JM and HSBC Brazil. [70] Firstly, again, the Plaintiff has the absolute discretion to waive any of the conditions precedent. The Plaintiff may opt to waive that condition without any questions asked. [71] Secondly, from the line of correspondences regarding the Underlying Transaction, it is apparent that Target is the core key to the deal and that even HSBC Brazil was working upon the instruction of Target. Target is so essential to the deal that they have furnished the security for HSBC Brazil to issue the SBLC for the facility to be granted. 30 [72] In fact the SWIFT message by HSBC Brazil dated 29.4.2008 even admitted that they were working under the instruction and authorisation of Target. The message reads: “…WE ARE HEREBY INFORMING THAT WE RECEIVED TARGET‟S AUTHORIZATION FOR THE CREDIT OF USD 4,550,000.00…” [73] From the conduct of the parties in the Underlying Transaction, it is verily apparent that Target was considered to be the authority in the dealing. In fact Target was so authoritative that HSBC Brazil took instructions and authorisations from Target. [74] Thus, on the two foregoing grounds, this Court is of the view that it is justifiable that Chandra would consider Antonio‟s persistent instruction leading up to the crediting of the facility into Plustrans. [75] This Court finds guidance in the Federal Court‟s decision in Abdul Rahim Abdul Hamid & Ors v Perdana Merchant Bankers Bhd & Ors [2006] 3 CLJ 1 referred to by the Plaintiff which held: “Further, a bank is supposed to treat the customer‟s mandate at its face value, save in extreme cases. A bank is not obliged to question any transaction which is in accordance with the customer‟s mandate, unless there are grounds for believing that these was a misuse of authority for the purpose of committing a fraud.” [76] Chandra had no reason to suspect fraud and had acted in good faith in ensuring that the deal did not fall through. He was instructed by a 31 relevant party, in fact an authoritative party in the dealings and was even assured that the facility would ultimately be paid to Petronas as per the LO by a party of the LO. [77] For the same reason this Court is inclined to agree with the Plaintiff that it would be inappropriate for this Court to approach this issue with the benefit of hindsight. The Plaintiff referred to Justice Megarry‟s observation in Duchess of Argyll v Beuselinck [1072] 2 Lloyd‟s Rep 172: “In this world there are few things that could not have been better done with hindsight. The advantages of hindsight include the benefit of having a sufficient indication of which of the many factors present are important and which are unimportant. But hindsight is no touchstone of negligence”(emphasis added) [78] Therefore, it is this Court‟s considered view that Chandra had not acted negligently considering the circumstances revolving the issue at the time. It is also this Court‟s considered view that indeed, even in this tangent on misrepresentation regarding Plustrans, there was indeed a fraudulent misrepresentation. Issue (ii): Whether There Was Legitimate Diesel Supply Transaction To Justify The Transfer Of USD4 Million (From The Facilities Granted Under The LO) From Plustrans‟s FCA To Microvest? 32 Issue (iv): Whether Microvest can be implicated to be co-conspirators to the fraudulent act? Issue (ii) and (iv) shall be dealt together. [79] It is reiterated that the Court has already found that there was indeed fraud which led to the granting of facility and crediting of the same facility into Plustrans‟s FCA. [80] Now, without any doubt and in fact it was undisputed that the monies which were transacted to the defendants were isolated transactions involving the monies exclusively from the facility granted under the LO. The monies in Microvest‟s FCA was exclusively the monies from the facility transacted from Plustrans FCA which also only contains only the monies credited from the LO. [81] It is without doubt that Microvest and Liew had participated in the proceeds of the fraud brought forth by Vijaya and JM. If and unless the Defendants could not justify their participation in the monies (ie Microvest‟s legitimate business with Plustrans and Liew‟s legitimate business with Microvest) then the Court rightfully ought to infer that the Defendants indeed were complicit and are co-conspirators to the fraud. The Court may decide based on inferences without having to rely on direct evidences 33 [82] Preliminarily, this Court intends to address the Defendants‟ contention on the lack of direct evidences to implicate the Defendants to the fraud and that the Court ought not to decide on the conspiracy to the fraud based on suspicion or conjectures. The Defendants have submitted numerous authorities to support this contention. (See: i.Diljit Kaur a/p Puran Singh v Majlis Peguam Malaysia [2015] 7 MLJ 695, ii. Satis Chandra Chatterji v Satish Kantha AIR 1923 PC 73,iii.ALN Narayanan Chettyar & Anor v Official Assignee High Court Rangoon AIR 1941 PC 93,iv.Hansraj Gupta & Ors v Dehra Dun Mussoorie Electric Tramway Co Ltd) [83] Now, this Court is minded of the above legal position. Indeed a decision on fraud should not be based on mere suspicion and conjecture. [84] However, what this Court does not agree with is the contention that the mere lack of direct evidence or documents would automatically denote an allegation and/or a finding of fraud merely based on mere suspicion or conjecture. [85] This is not the position of law advocated in the above authorities. In fact, there is no law that stipulates that a finding of fraud without direct evidences is a finding based on mere suspicion or conjecture. This is entirely incorrect. [86] The Plaintiff, instead have given valuable guidance to this Court with regards to the analysis of an allegation of fraud in absence of direct evidences. 34 [87] Firstly on the same authority referred by the Defendants, the Plaintiff has revealed the actual decidendi of the Privy Council in Satis Chandra‟s case. It seems that the Defendants have intentionally omitted the full decision of the Privy Council when alluding to the case. Such reckless elaboration on the decision is utterly misleading. The Privy Council actually held: “Charges of fraud and collusion…must, no doubt, be 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 one accused of fraud must necessarily be completely found against him. If this were not so, many a clever and dexterous knave would escaped”(emphasis added) [88] It is apparent from the above that it is indeed within the Court‟s authority to make a finding of fraud without any direct evidence so long as it is an inference legitimately drawn based on the facts of the case. [89] The Plaintiff‟s contention is further supported by the Court of Appeal‟s decision in MGG Pillai v Tan Sri Dato Vincent Tan Chee Yioun & Other appeals [1995] 2 MLJ 493. Gopal Sri Ram JCA (as he then was) had held: 35 “Conspiracy is a tort that is not always capable of proof by direct evidence. Like so many other facts, an agreement to do an unlawful act by unlawful means may be established by evidence of circumstances from which such an agreement may be inferred. It is axiomatic that there must be proof and not mere conjecture. In the present case there was sufficient evidence which conspiracy could be propery inferred.” (emphasis added) [90] See also the English Court of Appeal decision in the case of Dadourian Group International Inc and other v Simms and other [2009] All ER (D) 175 (Mar): “Mr Cakebread appeared to be equating proper inferences with conjecture and assumption. At times he came close to suggesting that fraud can only be established where there is direct evidence. If that were the case, few allegations of fraud would ever come to trial. Fraudsters rarely sit down and reduce their dishonest agreement to writing. Frauds are commonly proved on the basis of inviting the fact-finder to draw proper inferences from the primary facts. That is exactly what the judge did here.” (emphasis added) [91] It is also proper for the Court to draw inferences from the conduct of the parties. This is echoed in Bullen & Leake‟s Precedents on Pleadings (16th Edition) which the author wrote: “It is not necessary to show that there was anything in the nature of an express agreement, whether formal or informal. The court looks at the overt acts of the conspiracy and infers from those acts that 36 there agreement to further the common object of the combination. It is sufficient that two or more persons combine with the necessary intention or that they deliberately co-operate, albeit tacitly, to achieve the common end. (Emphasis added) [92] No cunning fraudster would ever find it necessary to leave a paper trail of their fraud or conspiracy to defraud. The law in proving fraud does not require such hard documentary evidence. Suffice that it is inferred by compelling circumstances. And the court is drawing such inference from all these circumstances. These are no mere suspicions. They are calculated inferences substantiated by close scrutiny and analysis of the given circumstances of the case. This Court is at liberty and at law to draw such inferences from such circumstances. The Plaintiff has the rights and standing to dispute the transactions between Microvest, Plustrans and Draconis [93] Preliminarily, the Defendants submit that the Plaintiff is not privy to the dealings between Microvest and Plustrans, thus is in no position to dispute the facts of the dealings. This Court totally disagrees with this contention. [94] The Plaintiff here is a victim of fraud. And it is trite law that a victim of fraud has the rights in equity to follow and trace the monies he had lost. The Court draws valuable guidance from Lord Denning‟s 37 insightful decision in Bankers Trust Co v Shapira and Ors [1980] 3 All ER 353: “The Plaintiff, who has been defrauded, has a right in equity to follow the money” [95] Thus, the Plaintiff is in the position to scrutinize the dealings Plustrans had with Microvest as Microvest has undoubtedly received and participated in the proceeds of JM and Vijaya‟s fraud. Elements to prove the tort of conspiracy [96] The elements to prove conspiracy are namely:

an agreement between two or more persons;

(ii) an agreement to injure the Plaintiff

(iii) acts done in execution of the agreement resulted in damage to the Plaintiff (See Yap JH v Tan Sri Loh Boon Siew & Ors [1991] 3 CLJ 2960) [97] Evident from the earlier discussion above, there is no necessity for the Plaintiff to prove that there was ever a written agreement between Microvest and the other fraudsters to be complicit in the fraud. [98] This agreement can be inferred by the Court from the circumstances surrounding the case. The circumstances are compelling that indeed Microvest has concerted in the fraud in that they are recipients and participants of the proceeds from JM and Vijaya‟s fraud. There are a 38 multitude of facts and circumstances which the Court has considered in reaching to such calculated inference. Namely, the circumstances are that:

The movement of funds are isolated transactions which clearly involves exclusively the proceeds from the illegitimate procurement of the facility under the LO.

Microvest‟s and Plustrans‟s FCA would have a nil balance if not for the crediting of the facility granted under the LO

The only monies in Microvest‟s and Plustrans‟s FCA were the proceeds from JM and Vijaya‟s fraud.

Microvest‟s and Plustrans‟s FCA have a nil balance immediately before the proceeds of the fraud was transacted into their accounts.

It is too much of a coincidence that both Microvest and Plustrans have only set up their FCAs very shortly before the facility was granted. Plustrans set up their FCA just 10 days before the crediting of the facility. Microvest set up their FCA on 12.3.2008 which is only slightly more than a month before the crediting of the facility.

A large majority of the proceeds (USD4 million out of USD4.55 million credited) from the fraud credited to Plustrans on 30.4.2008 was transferred to Microvest‟s empty FCA account only 5 days after the crediting of the facility which is on 5.5.2008.

Ultimately, the Defendants have completely failed to prove any legitimate business and in fact have misled this Court with 39 incoherent documents, testimonies. Thus, the Defendants does not have any justification to legitimise their participation and receipt of the proceeds of the fraud. [99] All these aggressive and extremely quick movements of the proceeds from the fraud are very telling of a “layering” exercise to dissipate and distribute the proceeds to multiple layers of recipients in an effort to render the proceeds untraceable as it would be mixed with other funds in other accounts. [100] Now, against these compelling facts above, Microvest‟s main contention against the implication of conspiracy (in their participation of the proceeds of the fraud) is that Microvest had legitimate business with Plustrans which justifies the receipt of the USD4 million by Microvest. [101] Now, this alleged legitimate business is that Plustrans has contracted with Microvest for the supply of diesel worth a whopping USD 7.25 million (RM23,000,000.00). If this shall be the case, then allegedly Microvest merely coincidentally was paid for their business by Plustrans using the proceeds of the fraud. Microvest also sought to prove the availability of diesel vide the alleged diesel supply between Draconis, an agent company based in the Bahamas, and Microvest. Draconis was submitted to be an agent who gets supply of diesel from undisclosed owners. 40 Total lack of documentary evidence to prove Microvest‟s alleged business with Plustrans and Draconis [102] However, this particular legitimate business cannot, in the view of this Court be farther from the truth. In the effort to prove this supposed legitimate business, for an utterly massive amount of RM 23,000,000.00 all that Microvest has produced were two invoices and delivery orders. (See tabs 34 and 35 of the PCBD) [103] And in its fallible attempt to prove the legitimacy of Microvest‟s business with Draconis, the Defendants merely produced two invoices in which these two invoices does not even have any corresponding documents to prove any order or communication of such order for diesel supply from Microvest to Draconis. [104] Apart from these invoices and delivery orders there was nothing else to prove any sort of confirmation of delivery, proof of logistics, acknowledgment of receipt or even any agreement of any sort to prove the diesel supply deal worth a whopping RM23,000,000.00. [105] Albeit that the Defendants submit that the reason for the total absence of all other supporting documents was that the deal was done vide an Off-Port Limits arrangement (“OPL”), this Court finds it far too remarkable to believe that a deal of that magnitude can be proven merely on these 2 invoices and Delivery Orders which proves virtually nothing. 41 There was a total absence of evidence of logistics of the said diesel supply from Microvest to Plustrans and from Draconis to Microvest [106] Even within the submission of the Defendants they have admitted that even an OPL setting would require a vessel or marine logistics to carry the consignment to the designated location in the international waters. The Defendants could not even produce any evidence of these logistics. The Defendants could not even provide the Court with the name of the vessel, the crew, or even the captain of the vessel involved in transporting these alleged massive consignments of diesel. [107] It is utterly unbelievable that despite the massive alleged monies transacted for the supply of diesel, that the Defendant was unable to provide other details besides the two invoices. If indeed there was this sale and delivery, there must have been a vessel involved. It was said that it was delivered in the international waters. It is beyond logic and common sense that this assertion can hold water if the Defendants cannot even provide details and evidence to the vessel, and/or crew which were involved in the alleged delivery and logistics. Liew in his evidence on Microvest‟s alleged dealing with Plustrans is blatantly candid in his admission that there are no logistical evidence of delivery between Plustrans and Microvest and Microvest and Draconis. (See page 482 of the Notes of Evidence Volume 2): 42 “BJD: Neither is there any logistical evidence of delivery, both ways right? You mean shipping document? Yes. DW: Nope. And we are talking about a RM 23 million transaction right? That is true” [108] It is even more perplexing that the Defendants contradict themselves regarding the authenticity of the business dealings. In one breath, the Defendants submit that the location of OPL transaction should remain a secret. But in another breath, Liew himself admitted that a genuine businessman would be transparent on the place of delivery. (See page 484 of the Notes of Evidence Volume 2): “BJD: I put it to you that any genuine businessman would be transparent on the place of the delivery of their transaction. Do you not agree? DW1: I agree.” [109] Upon this admission, even Liew himself could not be seen as a genuine businessman as he is verily not transparent on the place of delivery. More so considering the Defendants cannot even confirm and furnish the Court details on the name of the vessel involved, the captain, the crew, the terms of shipment, date of shipment and many other relevant shipping documents. These were all admitted to be non-existent by Liew himself. 43 [110] It was the Defendants‟ submission and in a surprising reference to Wikipedia (which is not even close to a verified and credible authority on marine trade) that the transfer of oil is conducted vide a Ship to Ship transfer (“STS”). Therein which, it goes without a doubt that the OPL transaction would involve not just one but a minimum number of two vessels. The Defendants were unable to even confirm, prove and furnish the Court with any name of the vessels involved in the transaction. There were no credible authorities forwarded by the Defendants that these OPL transactions should be carried out in secrecy. In fact, as will be discussed below, even Liew has contradicted himself on this assertion of secrecy. Contradiction on the secrecy of the OPL transaction Location [111] It is Liew‟s testimony that the reason the Defendants are unable to furnish the Court on the location of the OPL transactions involving Plustrans and Draconis, is that the location should remain a secret owing to the fact that they were OPL transactions. [112] Nevertheless, Liew‟s own documentary evidence directly contradicts this assertion of secrecy. In a different OPL transaction at page 90 of Bundle B, Liew found no restraints whatsoever to disclose to the Court a plethora of information inclusive of the name of the vessel (Tuah Sari), the location of the terminal “Eastern OPL Singapore” (see page 97 of Bundle B), the appointed oil tester, SGS Testing & Control Services Singapore Pte Ltd (“SGS”) and even the date of arrival of the vessel being 12.11.2006. 44 [113] It is blatantly apparent here that these details on the OPL transaction is not even close to being a secret. The Court is minded that these information above, were either concealed or failed to be furnished by the Defendants with regard to Microvest‟s deal with Plustrans and Draconis. It is far too unbelievable that Microvest won‟t insist on separate acknowledgment of receipt for each delivery of diesel [114] It is a given that for any delivery of whatever consignment, especially transportation by sea, that the seller would require any form of proof acknowledged by the buyer that they have duly received the consignment delivered. Any reasonable and prudent businessman would insist on such acknowledgment. This acknowledgment is proof that the goods were delivered and therefore, forms the sole basis that the buyer now is required by law to pay the seller. [115] Now, apart from the two invoices and delivery orders, it is the testimony of Liew that the delivery of the diesel took about 6 weeks and spans between 15 to 18 deliveries. [116] Firstly, it is amazingly shocking that for a diesel supply deal involving RM23,000,000.00 that Liew could not even exactly recall the total numbers of delivery made to Plustrans. 45 [117] Secondly, it is utterly peculiar that the Defendants did not insist on any sort of acknowledgment of delivery or receipt from Plustrans for each and every single delivery made. [118] Any prudent businessman would not have conducted his business in such manner. Any prudent businessman would not risk losing proof of delivery so as to protect his rights to claim for monies due from the deliveries. [119] It is even more remarkable that Liew as a businessman asserts that it is “quite alright” to chase for payments without evidence of delivery. This ridiculous admission by Liew seriously gnaws on the veracity and credibility of his testimony. During the cross-examination, Liew stated: I would have expected you to obtain from Plustrans an acknowledgment of the alleged delivery of the 15 to 18 batches of diesel on each delivery? I trusted them And what happens if they don‟t sign the delivery order on the 5th of May and 27th of May 2008? What would you do? I would chase for payment/ Without any evidence? That is quite alright with me” Failure of the Defendants to produce the alleged notebook which Liew allegedly records all deliveries made 46 [120] Along the line of Liew‟s testimony, Liew stated that he had unilaterally recorded all the deliveries made to Plustrans or Microvest. He had strongly admitted that the written notebook was in his possession during cross-examination. (See page 488 of the Notes of Evidence Volume 2) [121] Despite this assertion, this alleged written notebook in his possession was never produced in Court. This Court immensely questions the credibility of Liew‟s testimony at this juncture. The rhetoric is overwhelming and simple. If indeed Liew had in his possession this written notebook, tabulating all the deliveries made to Plustrans by Microvest, why has he never produced it into court? Clearly here that Liew was utterly hesitant to substantiate his assertion. In fact he was unable to substantiate his assertion. This is by no means a mere suspicion. It is a fair and obvious inference on Liew‟s failure and/or reluctance to produce the written notebook into Court. Microvest‟s ridiculous business setting with Draconis in not identifying the actual owners of the diesel [122] Liew in his testimony during cross-examination has stated that Draconis is a mere agent in which they are not the owners of the diesel. It is his evidence that Draconis as an agent is merely a third party to the deal between Microvest and these „undisclosed owners‟. 47 [123] It is incredulous, that any businessman would pay a third party agent for the supply of diesel in which that agent does not disclose his sources or the actual owners who supply the diesel. [124] If this is the business setting, how could Microvest as a prudent purchaser verify if Draconis indeed has the capability to supply such diesel consignments? What businessman would put their business through such unnecessary risk of dealing with a supplier who cannot verify and prove their capability to supply? Especially for a supply deal which runs into multi-million USD amount. [125] This again, adds to the propriety of this Court‟s inference that there was no legitimate business to justify the Defendants‟ participation in the proceeds from the fraud. The payment term of Cash on Delivery (“COD”) is horrendously improbable [126] It is the evidence and submission of the Defendants that the payment term for the shipment of the whopping RM23,000,000.00 worth of diesel is on COD. This Court is immensely moved to question and infer the total unreasonableness of this contention. Owing to the alleged transaction vide an OPL setting, it is also the evidence of the Defendants that even the supply deal with Draconis is conducted on COD term. 48 [127] It is intensely shocking how a business would be conducted so lackadaisically and so loosely in the face of a massive amount of money involved. We have earlier discussed that Microvest never insisted the issuance of any acknowledgment of receipt from Plustrans. Now, adding to the bafflement, Microvest would even run a high risk of being an unsecured creditor without a single form of guarantee of payment by its buyers. This does not at all denote a genuine and sensible business. [128] Notwithstanding the assertion that Liew was convinced and trusted Plustrans‟s capability to pay based on an alleged USD20 million that Plustrans received from Global Benchmark or that Plustrans had a Maybank facility of USD10 million, any reasonable businessman would understand that mere proof of monies held does not necessarily dictate that these monies were definitely going to be used to pay any particular debts (especially considering that these debts with Plustrans are without proof of receipt and delivery). Evidently enough, Plustrans did default on a large portion of the payment and was admitted by Liew that Plustrans had a cash flow problem. Logic and common sense would have it that even at the face of these incoming monies, the least the Defendants could have insisted is a form of guarantee for the payment and not merely conduct the business on an enormously risky COD term. Proof of Availability of Global Benchmark‟s monies is incoherent with the Defendants‟ testimony 49

Furthermore, it adds to the inference that the Defendants‟ story is an utter façade of a tall fabricated tale when the supposed proof availability of monies to Plustrans vide Global Benchmark‟s payment is dated at least 6 years after the LO was granted. The Defendants‟ proof of Global Benchmark‟s monies is at Page 122 of Bundle B. This is a fax copy of the alleged telegraphic transfer of USD20 million from Global Benchmark to Plustrans.

(ii) However, as correctly pointed out by the Plaintiff, it is verily peculiar that the date of the faxing is recorded at the top left of the document as: “03/ 10 2015 17: 41 FAX”

(iii) This case has not even passed the month of July of 2015. This seriously goes against the credibility the assertion of Liew‟s reliance on the Global Benchmark‟s monies in putting total trust into Plustrans. As it stands, there is no documentary proof that this telegraphic transfer was made aware to the Defendants before engaging into business with Plustrans in

This odd discrepancy also invites the Court‟s scrutiny on the authenticity of this facsimile. Total absence evidence of reasonably prompt and timely demands upon Plustrans‟s default in May 2008 50 [129] At this juncture, it is important to note that it is admitted that allegedly Plustrans has defaulted approximately a remainder sum of USD 3.25 million from the alleged diesel supply deal with Microvest around May 2008. It is the testimony of Liew that immediately upon this default, Microvest had chased for the remainder payment in four separate demands dated 10.6.2008, 17.6.2008, 20.6.2008 and 6.4.2011. [130] The first three demands in 2008, in this Court‟s view are thoroughly unsubstantiated. Although the Defendants have tendered the alleged demands in pages 4 to 6 of Common Bundle of Documents Volume 7, these documents by no means have any proof of posting or faxing or receipt by Plustrans. These were merely demands on paper signed by Liew himself. [131] It is odd that the Defendants were able to provide the facsimile transmission verification report for their demand vide their solicitors in the year 2011 (see page 15 of Common Bundle of Documents Volume 7) but not a single proof of posting or successful faxing of the first three alleged demands in the year 2008. [132] Firstly, the Court is moved to infer the dishonesty and falseness of the Defendants‟ assertion on the immediate three demands in 2008 due to the fact that in contrast to the availability of the 2011 demand proof of delivery, (knowing that they should produce proof of delivery) the Defendants were unable to furnish proof of delivery for the three demands in 2008. 51 [133] Secondly, it still stands now that the Defendants have no proof to substantiate their assertion on timely demands against Plustrans. Thus, it is very peculiar and unreasonable, that the Defendants would only lackadaisically see it fit to instruct their solicitors to demand for the payment of USD3.25 million 3 years after the default. It is does not make sense that the Defendants only see it fit to issue such demand only after this action has commenced 3 years after the default. Any trader who was persuaded to give their total trust would have pursued the remainder payment promptly and aggressively. It is wholly preposterous that the oil testing for the USD7.25 million deal is conducted based on „smell and touch‟ [134] Liew during cross-examination has candidly admitted that he is able to „see and touch‟ the quality, viscosity and content of the diesel in order to ascertain the quality and quantity of the diesel to be of proper make (see page 492 of the Notes of Evidence Volume 2). Even when he buys the massive amount of diesel from Draconis, Liew is able to determine the quality and quantity of thousands of tonnes of Diesel by „seeing and touching‟. “BJD: Now, ordinarily when a diesel of large commercial value is delivered you would appoint an oil tester to determine the quality and quantity, right? Only at the request of the client No, when you are purchasing it? 52 When I purchase, usually I don‟t You don‟t? You don‟t as well? I don‟t. Because I am able to see and touch it myself. There are other ways to see the quality if the oil besides using a SGS.” [135] To begin to deal with the total ludicrousness of this supposed „expertise‟ to see and touch diesel, this Court reiterates that this supply deal involves diesel in thousands of tonnes worth USD 7.25 million. [136] Liew is not giving evidence as an expert. He is not even an authority in quantification and quality assessment and analysis of diesel. There were no other authorities afforded by the Defendants to prove that it is possible that a human being or even a group of human beings are able to qualify and quantify thousands of tonnes of diesel by merely seeing and touching the consignments. [137] It is a given that in dealings of diesel and/or its products traders would require specific qualities and specifications for the diesel. The quality of diesel varies and it varies from its viscosity, content, and compound. Traders then would even usually stipulate the allowable margin of non-confirmity to consider the delivery is of good quality and proper quantity. Assuming that in one delivery, there would be 800 metric tonnes of diesel to assess, how is it humanly possible that Liew as an individual human being can ascertain the quality, viscosity, content and compound of all the 800 metric tonnes of 53 diesel of that single delivery? This rhetoric is verily compelling and it is utterly telling that Liew‟s assertion on his skills and expertise to assess diesel quantity and quality by see and touch, is a total façade. [138] No prudent and reasonable businessman would risk the non-conformity of diesel supplied either in its quality and/or quantity by merely assessing the diesel vide touching and seeing. This assertion goes beyond logic and common sense. Total absence of Written Agreements in Microvest‟s deal with Plustrans and Draconis [139] The Defendants submits that owing to the fact that the delivery was conducted through an OPL transaction, it is justifiable that the Defendants do not have any written agreement with Plustrans and Draconis. It is Liew‟s testimony that every arrangement is discussed via telephone. [140] At a multitude of levels, the Court finds this assertion to be totally unbelievable.

The diesel involved is worth a whopping USD 7.25 million and spans over an alleged 15 to 18 deliveries. It is far too remarkable that any of the Parties see it fit to put the terms of the supply in writing considering the voluminous number of delivery and amount of money involved. 54

(ii) Against the Defendants‟ own contention that the supply is conducted on international waters via STS, it would make more sense that the Parties would draw out a single mutual agreement as to the date, the shipping terms, the vessel and crew involved, the location of the delivery in one singe agreement. Furthermore considering the fact that Draconis is a company based in Bahamas, it would be ridiculous to believe that all these terms would be discussed through the telephone considering the time difference between Malaysia and the Bahamas. It would make more business sense for the Parties to mutually agree to one written agreement clearly stipulating the details and terms of the shipment.

(iii) A written agreement would be more reasonably fitting to provide security and certainty to the Parties to its rights and obligations considering the amount involved is massive (USD 7.25 million) and that the delivery would be made in multiple consignments over a certain period of time. No reasonable businessman would run the risk of not having their rights and obligations properly defined and substantiated especially when they risk to lose millions of dollars. Incoherent date of the Microvest‟s email to prove their business with Plustrans. [141] This is another telling crack to Liew‟s prolific concoction of false facts in his tall fabricated tale. [142] It is already admitted by the Defendants themselves that Plustrans has already made the transfer of USD4 million from Plustrans‟s FCA on 5.5.2008. Now, one of the other evidences the Defendants sought to use to substantiate this facade is a purported email from 55 Plustrans to Maybank dated 3.6.2008 to effect payment for the supply of diesel from Microvest to Plustrans. (See page 191 of Common Bundle of Documents Volume 2) [143] The timeline does not at all fit the story that Liew is telling. There is no reason at all for the Court to believe that this email is evidence of the business Microvest has with Plustrans because the payment referred to in the email would definitely not have referred to the delivery Microvest performed to Plustrans as the monies for that delivery have already been paid 3 weeks ago before that email was allegedly sent. In fact it goes exactly the opposite way. This discrepancy further discredits the testimony of Liew and the Defendants‟ case as a whole. [144] Scrutinising the email from Plustrans‟s Captain Fuad, the date could not have been a typo error. It is not a date that was typed in by the sender. It is the date at the header of the email (in this case Gmail) which is electronically ascribed by the email service provider which is connected to the internet. The date is not dependent on the time and date settings of the computer at all. There is in no way possible that the date was a typo error. It is utterly clear now that this is another rouse concocted by Liew to tailor up his bogus case. The invoices and delivery orders are not conclusive evidence of business relations 56 [145] It is the Defendants‟ submission that the invoices and delivery orders, being signed by Plustrans are conclusive evidences under Section 91 of the Evidence Act 1950. [146] However as stated above, the Court shall never be an instrument of fraud. The Court has discussed at length earlier that there is no proof of a genuine business to justify Microvest‟s participation in the proceeds of the fraud. This Court is in total disbelief all these invoices and delivery orders. Thus, the Court looks to the trite maxim of “Fraud unravels all” and shall look beyond these documents and see the true nature of the fraud. [147] Suffice that this Court draws reliance to the Court of Appeal decision in Seri Kelangkota Rakan Engineering JV Sdn Bhd & Ors v Arab-Malaysian Prima Realty Sdn Bhd [2001] 1 MLJ in which Gopal Sri Ram JCA (as he then was) explained: “Parties to a transaction may disguise its true nature and purport by whatever means available to them. Yet, the court will tear away the disguise and reveal to the world at large the true arrangement arrived at between the parties. It is important for reasons of public policy that the court seised of this power. Were it not so, the law would be lending its aid to enforce pretended and not real obligations.”(Emphasis added) [148] And in the present case, this Court does not intend at all to lend an aid to the façade brought forth by the Defendants in colluding with the fraud. Thus, the invoices and delivery orders are definitely not 57 conclusive evidence of Microvest‟s business with Plustrans and Draconis. Court‟s Finding on Microvest‟s Legitimacy of Business with Plustrans and Draconis [149] This Court before making its finding intends to categorically recap and list down all the factors considered earlier in reaching its conclusion:

Total lack of documentary evidence to prove Microvest‟s alleged business with Plustrans and Draconis

There was total absence of evidence of logistics of the said diesel supply from Microvest to Plustrans and from Draconis to Microvest

Contradiction on the secrecy of the OPL transaction Location.

It is far too unbelievable that Microvest would not insist on separate acknowledgment of receipt for each delivery of diesel

Failure of the Defendants to produce the alleged notebook which Liew allegedly records all deliveries made

Microvest‟s ridiculous business setting with Draconis in not identifying the actual owners of the diesel 58

The payment term of Cash on Delivery (“COD”) is horrendously improbable

Proof of Availability of Global Benchmark‟s monies is incoherent with the Defendants‟ testimony

Total absence evidence of reasonably prompt and timely demands upon Plustrans‟s default in May 2008

It is wholly preposterous that the oil testing for the USD7.25 million deal is conducted based on „smell and touch‟

Total absence of Written Agreements in Microvest‟s deal with

Incoherent date of the Microvest‟s email to prove their business with Plustrans.

The invoices and delivery orders are not conclusive evidence of business relations [150] In view of the numerous consideration above, it is therefore this Court‟s considered view and calculated inference that indeed there was NO legitimate business whatsoever between Plustrans and Microvest and Draconis to justify Microvest‟s participation and receipt into the proceeds of the fraud. Court‟s finding on Microvest‟s involvement in the fraud 59 [151] In view of all the discussion above, it is this Court‟s considered view that indeed Microvest is a conspirator to the fraud and is liable to the tort of conspiracy. [152] There were sound evidences of Microvest misleading the Court with incoherent and incredulous assertions which goes beyond logic and common sense. It is thoroughly clear that all the documents and assertions put forth were a façade to put the concerted effort (to layer the proceeds from the fraud) underneath the cloak of a legitimate business deal (which is entirely untrue). Microvest is in no way near of any justification of receiving the proceeds from the fraud and in fact has instead proven that Microvest has put an attempt to mislead the Court with the notion of a legitimate business with Plustrans and Draconis. [153] Thus, it is this Court‟s considered view and inference that there was indeed an agreement between the fraudsters and Microvest as a conspirator to conduct an exercise of layering to render the proceeds of the fraud untraceable. This is indeed an agreement to injure the Plaintiff and in execution of this agreement, the Plaintiff indeed has suffered damages. All the elements to prove the tort of conspiracy has been proven. [154] Furthermore, upon all of the incoherent, inconsistent and false evidences and assertions of Liew as witness, it is also the finding of this Court that Liew is indeed an untrustworthy witness. Entailing 60 that finding, the entire tale told by Liew regarding Microvest is undoubtedly improbable. [155] This Court is guided by the principle propounded in numerous cases which state that in evaluating evidence, the Court shall have regard to the probability or improbability of the versions presented by the parties, whether the oral evidence of the witnesses are supported by documentary evidence and the conduct and credibility of the parties. (See Dato‟ Seri Anwar Ibrahim v PP & anor Appeal [2015] 2 MLJ 293 at para. 49; Tindok Besar Estate Sdn Bhd v Tinjar Co. [1979] 2 MLJ 229) [156] The Court finds that the version presented by Liew is utterly improbable and the oral testimony of Liew is totally unsupported by any documentary evidence. Issue (iii): Whether There Was Legitimate Reason For Microvest To Transfer Of USD3 Million (From The Facilities Granted Under The LO) From Microvest‟s FCA To Liew? Issue (v): Whether Liew can be implicated to be co-conspirators to the fraudulent act? Issue (iii) and (v) shall be dealt together. [157] It is reiterated here that Microvest has been found earlier to be complicit in the fraud. 61 [158] It is also undisputed that the proceeds of the fraud had first been layered into Microvest‟s account and subsequently was transferred to Liew‟s Personal account. Similarly, the hypothesis is that if and unless Liew could prove a legitimate reason to justify his participation in the proceeds of the fraud, then it is safe for the Court to infer that even Liew has colluded in the exercise of layering the proceeds of the fraud in an attempt to render the proceeds of the fraud untraceable. It is already unsurprising at this point, that this Court is minded that Liew being the false witness that he is, has come up to give three separate, different and contradicting justifications on the alleged legitimate reason that would justify Liew‟s receipt and participation in the proceeds of the fraud. Liew‟s blatant inconsistencies in justifying the receipt of the proceeds from the fraud [159] At this juncture, Liew as expected, had drew three breaths, and with each breath exhaled three different justifications for his participation in the proceeds from the fraud. All three are utterly different from the other. It is already telling here that Liew himself is unsure and in fact misleading the Court with his so-called justifications. These false justifications are namely that:

The receipt of the proceeds of the fraud is to pay a “hutang”(debt)

(ii) The receipt of the proceeds of the fraud is to pay Draconis for an alleged supply of diesel 62

(iii) The receipt of the proceeds of the fraud is to obtain overdraft facility from the bank for Microvest [160] Now, the first two justifications were brought upon by Liew in his statements to Inspector Shakir during the criminal investigation in the criminal trial in the Melaka Sessions Court. Inspector Shakir has testified during cross-examination in the present case that indeed Liew had given two separate and different justifications for his participation in the proceeds of the fraud. (see Notes of Evidence, Tab 37 of the PCBD) [161] It is also important to note that Inspector Shakir has also testified that Liew has never come clean and forwarded any of the invoices or delivery orders to substantiate his justification (see page 557 of the Notes of Evidence Volume 2): “DW5: Yang Arif, as I have stated earlier my line of investigation is we investigated on the company of Plustrans, that means dealing with the complainant with Ms Vijaya that time with Plustrans Court: Your basis of investigation is a transaction between Jejak Maju and Plustrans? Jejak Maju and Plustrans Court: That „s your basis? Yes that is basis. So where did they get the supply for oil, as claim from Plustrans they get from Microvest Court: But you have not actually investigate whether, because the delivery order was not before you? 63 Yes” Court: The invoices not before you? Yes” [162] Based on the foregoing facts, testimonies and evidences, the following is the Court‟s inferences with regards to Liews inconsistent Justifications:

It is already telling that Liew is untrustworthy as he himself was very hesitant in statements to the police to come clean and fully furnish the details of the „hutang‟. This hesitance to describe the hutang in his first statement to the Police is an alarming proof that Liew is merely concocting tales to absolve himself from any criminal or civil liability. The receipt of the proceeds of the fraud is the core basis of the charge. Rhetorically speaking, if indeed the monies were transacted for him to pay a supply of diesel, why would Liew hesitated to inform as such and furnish all the relevant invoices and delivery orders to substantiate his supposed innocence? The Court notes the inconsistency of Liew‟s justification and description over the USD4mil which was paid to him by Microvest. Bearing in mind that it involves a massive sum of monies, it begs the Court‟s scrutiny on the reason behind Liew‟s initial hesitation to describe the purpose of the payment of usd4mil in his initial statement. Liew is well aware that this transaction is the core of the investigation against him. The court could not understand why did Liew did not find it appropriate or hesitated to give a full description rather than just saying it is for “hutang” in the first place? This again, begs the Court to question the credibility, probability and the truthfulness of the Liew‟s assertion. 64

(ii) It is verily evident that Liew is merely concocting his statements as and when it is beneficial to himself as he has failed and/or was reluctant to furnish Inspector Shakir with the relevant invoices and delivery orders to substantiate his statement.

(iii) The justification that Liew received the monies to pay Draconis defies any logic or common sense. If indeed the monies were transacted for the purpose of paying Draconis for their supply of diesel, why would Microvest instead transfer the monies into Liew‟s personal account and not directly to Draconis which would have been more efficient to achieve that purpose. There‟s no conceivable reason to let the monies pass through Liew before payment is made to Draconis.

(iv) It defies the very fabric of banking and commercial principles to assert that it is more advisable to have Liew receive the monies in his personal account as Director in the pursuit of obtaining Overdraft facilities from the Bank. When a Bank is considering the legibility of a corporation for a facility, it goes without saying that the Bank is more concerned on the financial health of the Corporation rather than its director(s). It would make more sense that the Bank would definitely be more persuaded to grant facilities to a corporation when the Corporation itself furnished securities of its own fixed deposit account. The monies of a Director are not by any means the asset of the company. But monies in a Corporation‟s own fixed deposit are definitely its own asset. And a Bank would be more persuaded to grant facilities to a Corporation knowing that the same Corporation is able to furnish valuable securities out of its own assets. 65 Court‟s findings on Liew‟s involvement in the fraud [163] In light of the lengthy discourse earlier and the inferences drawn above, it is this Court considered view that Liew has dreadfully failed to prove any viable justification of his participation in the proceeds of the fraud. [164] Thus, it is also this Court‟s considered view that in absence of such evidence, it is evidently clear that Liew is liable for the tort of conspiracy as his participation in the proceeds of the fraud is indeed another layer in the layering exercise concerted by the Defedants in attempting to render the proceeds untraceable. It is a clear evidence of an agreement between Liew and the other fraudsters and conspirators to defraud the Plaintiff and to attempt to render the proceeds from the fraud untraceable vide this layering exercise. The issue of the applicable of burden of proof is a moot point [165] The Court does not intend to delve deeply into this issue. After discussing all the evidences and submissions of the parties, it is this Court‟s view that the issue of burden of proof is merely a moot point. [166] The evidences and the parties‟ submissions are adequately sufficient for this Court to make its findings above notwithstanding the burden of proof being the civil balance of probabilities or the criminal beyond reasonable doubt. 66 [167] The evidences are immensely overwhelming to show that the Defendants‟ case is verily improbable with acute certainty and without a single iota of doubt. This Court holds no doubt in Plaintiff‟s case and this Court also finds that the Defendants‟ defence wholly improbable. [168] Nevertheless, for the sake of completeness, this Court is of the opinion that the appropriate burden of proof is the civil balance of probabilities. Namely because:

The Plaintiff has correctly pointed out that the case of Asean Securities Paper Mills Sdn Bhd v CGU Insurance Bhd [2007] 2 MLJ 301 is distinguishable to the present case. In that the Federal Court in the Paper Mills Case (in upholding the burden of proof to be on a beyond reasonable doubt basis) had to deal with fraud in the criminal act of arson. It is a hybrid of civil fraud and another serious criminal conduct of arson.

(ii) It is more relevant and appropriate for this Court to seek guidance to the Federal Court decision in the case of Ang Hiok Seng @ Ang Yok Seng v Yim Yut Kiu (Professional representative of the estate of Chan Weng Sun, deceased) [1997] 2 MLJ 45. Azmi FCJ (as he then was) had held on the applicable burden of proof in proving fraud: “But where the allegation of fraud is entirely founded on a civil fraud – not based on a criminal conduct or offence – the civil burden is applicable”. 67

(iii) Indeed the circumstances of the present case is closer and more relevant to the above excerpt of the Federal Court‟s decision as indeed the allegation of fraud is purely founded on a civil fraud. The fraud in the present case can stand alone without any symbiosis of another criminal offence (unlike the Paper Mills case which the fraud is innate with the criminal act of arson)

(iv) Furthermore, a recent decision by Prasad Abraham J (as he then was) in the case of Modern Universal Sdn Bhd v MSIG Insurance (M) Sdn Bhd [2014] 11 MLJ 186 has preferred the stance taken in the Ang Hiok Seng case over the stance of the Paper Mills case.

Additionally, alluding to one of the authorities referred to by the Defendants at page 49 of their submissions, particularly the Supreme Court decision of Chu Choon Moi v Ngan Siew Tin [1986] 1 MLJ 34 at page 38: “Proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. The degree of proof need not reach certainty but it must carry a high degree of probability. What is means is that the evidence adduced is such that the court or a prudent man consideres its existence probable in the circumstances of the case” Looking at the excerpt of the Supreme Court‟s decision above, the standard of proof beyond reasonable is merely a label, or a 68 repackaging of the civil balance of probabilities. Although the court upheld the standard of proof of beyond reasonable doubt, the description of that proof is entirely a description of the standard of the civil balance of probabilities. [169] Nevertheless, this Court is of the view that the Plaintiff has clearly proven his case in either of the standards of proof. The decision in the Melaka Sessions Court is irrelevant to this Court [170] This Court is minded that the Melaka Sessions Court in a separate criminal proceeding have charged and acquitted Liew from a charge under the AMLATFA. However, for the following reasons, this Court is of the view that the decision is irrelevant to be considered by this

Inspector Shakri who had recommended the acquittal of Liew had only considered and investigated the charge on the relationship of Plustrans with Vijaya and JM. The investigation had not considered the relationship between Plustrans and Microvest as well as Liew. Furthermore, Inspector Shakir was not furnished any of the invoices and/or delivery orders for his investigation. The excerpt of Inspector Shakir‟s testimony is reproduced below: “DW5: Yang Arif, as I have stated earlier my line of investigation is we investigated on the company of Plustrans, that means 69 dealing with the complainant with Ms Vijaya that time with Plustrans Court: Your basis of investigation is a transaction between Jejak Maju and Plustrans? Jejak Maju and Plustrans Court: That is your basis? Yes that is basis.

(ii) Furthermore, the learned Melaka Sessions Court Judge in her grounds of judgment has also noted that the prosecution‟s case against Liew was not based on complicity between Microvest and Plustrans and that Inspector Shakir had not investigated the authenticity of the dealings between Plustrans and Microvest. The learned Sessions Court Judge held: “This is simply because it was not the prosecution case that the third accused was complicit in any way with the first and second accused… The investigating Officer („I.O.‟) did not investigate on genuineness of that contract” It is evident that the Melaka Sessions Court had never delved into the dealings between Microvest and Plustrans. The criminal trial had scrutinised the dealings between Plustrans 70 and Vijaya. Thus, it is fitting that this Court would delve into the complicity of the Defendants in the present case. Microvest‟s dealings with other parties are irrelevant to the present case and are unsubstantiated [171] The Court is minded that in attempting to prove the legitimacy of Microvest‟s business with Plustrans and Draconis, the Defendants have also submitted other alleged diesel transactions with other Corporations. Namely those corporations are inter alia Alberta Petrochemical, Regal Petroleum, SGS Testing, Haura Biofuels and Bekal Khidmat Sdn Bhd. [172] At this juncture, it must be reminded that only evidences which may prove the business transaction between Microvest and Plustrans as well as Draconis would be relevant evidences for this Court‟s consideration. [173] All these other transactions with other Corporations hold no probative value to prove the business Microvest allegedly has with Plustrans and Draconis. Thus, it is this Court‟s considered view that these evidences are wholly irrelevant to the present case. On these transactions, this Court must also mention one coincidental fact relating to the companies or corporations purportedly having legitimate diesel dealings or transactions with Microvest namely Bekal Khidmat Sdn Bhd (Bekal Khidmat). With regard to this Bekal Khidmat, both Microvest and Liew sought to produce a letter from 71 Bekal Khidmat‟s Managing Director by the name of Hjh.Badariah binti Isman (Badariah). Badariah in her recommendation letter (IDD 123, Bundle C)) has put some good words in respect of Microvest‟s performance of supply of petroleum products. However, Bekal Khidmat in an action (Civil Suit 22-1792-2009) before this court had been sued for goods sold and delivered. In its statement of defence defending the action, Bekal Khidmat had introduced its entity as an incorporated company under the laws of Malaysia having its registered address at 61A, Jalan Sesama, Taman Perusahaan Batu Caves, 68100, Batu Caves Selangor Darul Ehsan. In its corporate information appearing in the Companies Commission of Malaysia

(CCM)‟s register shows that the business of Bekal Khidmat is the trading of electrical and mechanical production. It is obvious and clear that Bekal Khidmat does not engage itself in diesel related business. Eventhough, this letter was only marked for purposes of identification (ID document) being a Part C document as Badariah was not called as a witness. This court takes judicial notice of its existence. The procurement such a letter from this company by Microvest and Liew is another clear deception on the part of both Microvest and Liew. [174] Furthermore, upon scrutiny of all these irrelevant evidences, it must be noted that even these transactions were not sufficiently substantiated by the Defendants. 72 THIS COURT‟S DECISION [175] In light of all of the above findings, it is this Court‟s decision that the Plaintiff has successfully proven its case while the Defendants have failed to prove any defence against the Plaintiff‟s case. [176] Thereto, this Court also dismisses the Defendants‟ counter-claim. [177] Owing to the fact that all conspirators to the fraud are acting in concert in the scheme and process of siphoning the money from the Plaintiff, then they are therefore to be jointly and equally liable to all of the sums defrauded, this Court orders the Defendants to pay the Plaintiff‟s total amount claimed which is the sum of USD 5,337,847.31 together with continuing interest thereon at the rate of 1.75% per annum above the Bank‟s Funding Cost for USD Currency calculated from 22.5.2009 until the date of full settlement. On the issue of costs [178] Counsels for the Plaintiffs and the Defendants had submitted to this Court on the issue of costs. The present case is indeed verily complex and complicated. The amount of monies involved is also considerably substantial. The present case also involved a considerable number of twenty (20) witnesses, in which the Plaintiff had called twelve (12) witnesses to testify, while the Defendants had called eight (8) witnesses to support their case. There were numerous interlocutory proceedings and applications, namely 73 applications for a Mareva Injunction and a stay of proceedings which even stretches long to the Federal Court. Considering the above intricacies and complexity, this Court is of the view that costs to the amount of RM90,000.00 is indeed fair and just. This Court hereby orders the Defendants to pay the Plaintiff RM90,000.00 in costs. ...................................................... (DATUK AZIMAH BINTI OMAR) Judicial Commissioner High Court Shah Alam Selangor Darul Ehsan Dated the 12th June, 2015 For the Plaintiff - Tetuan Benjamin Dawson, Solicitors Cik Ooi Ai Yen Cik Mah Kar Yee For the Defendants - Tetuan K.F.Ee & Co Encik James Ee Kah Fuk Cik Nur Amalina Haris