JASBIR SINGH A/L HARBHAJAN SINGH v IKMAL BINTI MOHAMAD JAAFAR (disaman sebagai Setiausaha dan Pemegang Jawatan Persatuan Pakar Ortodontik Malaysia) (BA-22NCvC-127-05/2020)

The following is the Court’s decision at the end of a full trial.

In total there were two (2) witnesses called by the Plaintiff. The Defendant chose not to call any witnesses and took the position that there was no case for them to answer.

Having reviewed the pleadings of all parties, the evidence adduced at the trial both oral and documentary, and upon reviewing the submissions of counsel, this Court had on 27.02.2023 decided the case in favour of the Plaintiff. The following are my grounds of judgment.

The Plaintiff was a life member of the Malaysian Association of Orthodontists (“MOA”) at all material times.

On 17.10.2014, MAO organised the 9th Asia Pacific Orthodontic Congress (“9th APOC”) in Kuching, Sarawak. The Organizing Chairperson was Dr. Noraini Binti Haji Alwi (“Dr. Noraini”) while the secretary of the Core Organizing Committee (“COC”) was Col. Dr. Shalene Kereshanan (“Dr. Shalene”).

The committee members of MAO resolved to open a Maybank Account in Kuching, Sarawak. All registration fees and charges were required to be banked into this account.

Sometime in May 2014, the Plaintiff discovered that some participants who had registered by internet were directed to bank in their registration fees into an account at RHB Bank in Kuching, Sarawak (“the RHB Account”). The RHB Account was a private account in the names of 2 individuals, namely Dr. Shalene and Dr. Noraini.

To the best of the Plaintiff’s knowledge, there was no approval given by the members to open the RHB Account and for the deposit of the registration fees to be made into this account.

The prompted the Plaintiff to raise the issue of the wrongful and unauthorised deposit of the registration fees into the RHB Account and expressed his concern whether the opening of the account under the names of Dr. Shalene and Dr. Noraini was in contravention of the Registrar of Societies (“ROS”) regulations and whether this amounted to a criminal breach of trust at the 21st AGM of MAO in Penang on 20.04.2015.

The Plaintiff also lodged a police report on 05.05.2016 detailing his concerns regarding the wrongdoings of Dr. Shalene and Dr. Noraini as well as lodging a complaint with the ROS on 25.05.2016.

ROS Selangor wrote to the Plaintiff on 06.12.2016 and 13.03.2017, thanking him for raising such irregularities, and informed him that MOA had been issued with a warning letter dated 28.11.2016. The letter dated 28.11.2016 stated that investigations revealed that there were wrongdoings by MOA but ROS had made a decision not to take further action and expressed its hope that such wrongdoings would not be repeated in future.

However, the Defendant, as the Secretary of MAO, issued a letter dated 18.09.2017 suspending the Plaintiff as a member of MAO with immediate effect. No reasons were given, nor was the Plaintiff given a show cause letter.

The Plaintiff filed a Civil Suit against the Defendant on 18.04.2018 in Shah Alam High Court (“the Civil Suit”) for a declaration that his suspension was illegal, irrational and tainted by mala fides and an abuse of power; and that he be reinstated as a life member. It was fixed for hearing for three (3) days commencing on 26.09.2019.

On 18.09.2019, the Plaintiff’s solicitors received a letter from the Defendant’s Solicitors that a resolution had been passed at the 25th AGM of MAO on 28.04.2019 to expel the Plaintiff from membership of MAO. A letter from MAO was attached, stating that the Plaintiff had been expelled as a member effective from 17.09.2019.

Due to the expulsion, the Plaintiff had no alternative but to withdraw the Civil Suit on 26.09.2019 with liberty to file afresh as the issue of his suspension had become academic.

The Plaintiff contends that he was entitled to raise the irregularities and / or wrongdoings by Dr. Shalene and Dr. Noraini inter alia for the following reasons: - i) Articles 8.5 of MAO’s Constitution states that any sums in excess of RM 500.00 had to be deposited into a bank account approved by the Executive Committee, and that bank account shall be in the name of MAO; ii) The RHB Account was not in MAO’s name, but a private account in the personal names of Dr. Shalene and Dr. Noraini; iii) No approval had been given by the Executive Committee members of MAO to open the RHB Account; and 7 iv) ROS Selangor had confirmed the wrongdoings by Dr. Shalene and Dr. Noraini when it issued MAO with a warning vide its letter dated 28.11.2016.

According to the Plaintiff, the decision to suspend and expel him from membership of MAO is wrong inter alia for the following reasons: -

MAO failed to comply with the rules of natural justice before suspending and expelling him;

(ii) He was not given any show cause letter prior to his suspension;

(iii) He was not informed of the manner in which his conduct was found to be derogatory to the prestige of MAO or detrimental to the honour and interest of the profession;

(iv) He was not given a right to be heard prior to his suspension;

He was not informed that there was an item on the agenda of the 25th AGM calling for his expulsion;

(vi) He was not given an opportunity to be heard and to explain his version of events to the members of MAO prior to the decision to expel him;

(vii) He was not informed as to how his conduct had brought disrepute to MAO;

(viii) The decisions were arbitrary, without basis and made in bad faith; and

(ix) The decisions were made in breach of the provisions of the Constitution of MAO. [18] Vide the present suit before this Court, the Plaintiff sought for a declaration that his suspension and expulsion is null and void, ultra vires and of no effect. He also seeks a consequential order that he be reinstated as a life member of MAO without any loss of privileges, damages, interest and costs. The Defendant’s case [19] At the forefront, the Defendant’s defence to the Plaintiff’s claim is premised on the following facts:

the Plaintiff was suspended pursuant to Article 7.2 of the MAO’s constitution by all the Exco members save for Dr. Shalene and Dr. Noraini (being the persons alleged by the Plaintiff as wrongdoers) voting in favour of the suspension. In this regard, the Plaintiff was alleged to have conducted himself in a manner which is derogatory to the prestige of the MAO and/or detrimental to the honour and interest of the profession;

The Plaintiff’s suspension was confirmed by the members of the MAO who attended the 24th AGM in Penang on 22.4.2018. Thereafter, the members voted for his expulsion at the 25th AGM held at the Double Tree Hilton, Kuala Lumpur on 28.4.2019; and

The Plaintiff’s expulsion was carried out pursuant to Article 7.4 and 7.6 of the MAO’s constitution i.e. for conducting himself in a manner which brought disrepute to MAO. Summary of the Defendant’s submission [20] At the end of the trial, the Defendant took the position that there was no case to answer as the Plaintiff had failed to provide his case on a balance of probabilities based on the evidence obtained during the course of the Plaintiff’s case. It was the Defendant’s case that the evidence adduced by the Plaintiff did not discharge his burden of proving that his suspension and/or expulsion was wrongful. The Defendant also took the position that no adverse inference should be presumed against it as they had taken the position that the Plaintiff had failed to establish its case. Thus, the Defendant was under no duty to refute claim through oral evidence (see Keruntum Sdn Bhd v The Director of Forests & Ors [2017] 3 MLJ 281). [21] From the evidence adduced by the Plaintiff during the trial, the Defendant summed up as follows:

The Plaintiff’s suspension and expulsion arose from his numerous attacks against Dr. Shalene and Dr. Noraini for opening the 2nd RHB Account for the 9th APOC in Kuching in their own names at the 21st AGM in Penang on 20.04.2015, the 22nd AGM in Langkawi on 24.04.2016 and the 23rd AGM in Kuala Lumpur on 23.04.2017, notwithstanding that: -

the purpose of opening the 2nd RHB Account was to facilitate the PayPal payments received from online bookings;

(ii) that specific purpose was recorded in writing;

(iii) the opening the 2nd RHB Account and its specific purpose were explained to the members of the MAO at the 20th AGM held in Kuala Lumpur on 20.03.2014;

(iv) The 9th APOC accounts were audited without issues; and

(iv) The Plaintiff throughout the entire material time (including the trial) stated that he was not making any insinuations of financial misappropriation of mismanagement against Dr. Shalene or Dr. Noraini.

Despite the Plaintiff stating so, the actions taken by him shows otherwise, namely: -

the reports he made to the Police and to the Registrar of Societies (“ROS”) clearly made allegations of financial misappropriation of mismanagement against Dr. Shalene and Dr. Noraini;

(ii) his statement during his interview by the ROS;

(iii) not producing the minutes of the AGMs or the report by Dr. Noraini on the opening of the 2nd RHB Account (shown to members at the 20th AGM in 2014) to the Police or the ROS; and

The Plaintiff’s repeated attacks against Dr. Shalene and Dr. Noraini continued even after the ROS cleared Dr. Shalene and Dr. Noraini of any wrongdoings. [22] The Plaintiff’s conduct clearly shows bad faith on his part. He continuously attacked Dr. Shalene and Dr. Noraini without basis and made false allegations in his police report and his report to the ROS and in his interview with the ROS. In doing so, the Plaintiff subjected the MAO to police investigations and the investigations by the ROS unnecessarily. [23] With reference to the Defendant’s submission on legal issues, they contend that:

the relationship of the Plaintiff and the MAO rests on a contract enshrined in MAO’s constitution. As the Plaintiff’s suspension and expulsion were carried out pursuant to Rules 7.2, 7.4 and 7.6 of the MAO Constitution, Dr. Jasbir has no recourse against the Defendant (see Lim Yee Cheong v Haji Mokty bin Datuk Mahmood & Ors [1984] 2 MLJ 308, Dato’ Talaat bin HJ Hussain v Chak Kok Yin [2004] 7 MLJ 295 and Tharmalingam v Sambanthan [1961] 1 MLJ 63);

(ii) Since the said Constitution does not provide the need for any inquiry prior to suspension or expulsion, there is no requirement for due inquiry on the complaint against the Plaintiff (reliance placed on the Supreme Court decision of Tanjong Jaga Sdn Bhd v Minister of Labour and Manpower & Anor [1987] 1 MLJ 124).

(iii) the Plaintiff’s argument that there was a breach of natural justice as he was not given the opportunity to tell his side of the story prior to the suspension or expulsion is not sustainable as the requirements of natural justice must depend on the circumstances of each particular case and the subject matter under consideration as decided in Tharmalingam v Sambanthan (supra).

(iv) Furthermore, the rule of natural justice has no application if the failure to hold the inquiry does not alter the substance of the matter (see Merdeka University Berhad v Government of Malaysia [1981] 2 MLJ 356). Even if the inquiry was held, the Plaintiff’s position would remain the same. Having heard the Plaintiff’s side of his story numerous times at the three (3) AGMs held, the MAO’s members decided to uphold the decision to suspend the Plaintiff. The Defendant took the view that the Plaintiff’s conduct in exposing the MAO to police investigations and the ROS investigations without any reasons were deliberated at the 25th AGM where the members in attendance unanimously decided to expel him. At the trial, despite stating that he is not casting aspersions on Dr. Shalene or Dr. Noraini, the Plaintiff admitted making allegations of criminal breach of trust against both of them.

the suspension and expulsion of the Plaintiff by the MAO has no effect on his right to work or livelihood. Hence, there is no necessity for this Court to re-visit the members’ unanimous decision to uphold the Plaintiff’s expulsion.

(vi) In so far as the Defendant is concerned, the Plaintiff’s only ground in this action is that he was not given an opportunity to be heard before his expulsion and suspension leading to a breach of natural justice. For this purpose, the Plaintiff bears the burden of proof to show that the lack of notice or a formal hearing would have made a difference (reliance placed on the House of Lords’ decision in Malloch-v-Aberdeen Corp [1971] 1 WLR 1578). The Plaintiff’s failure to adduce evidence that a platform for him to be heard prior to his expulsion and suspension would have made a difference is fatal i.e. that there was a substantial possibility that a sufficient number of members may vote against his suspension or expulsion, bearing in mind that the decision to expel and suspend the Plaintiff was unanimously upheld by the members of the MAO.

(vi) Converse to the above, there is no doubt that: a. The Plaintiff’s behavior was unreasonable at the AGMs; b. The Plaintiff’s complaints to the police and ROS was unfounded; c. The unreasonable complaints had affected the MOA; and d. The members felt strongly about the Plaintiff’s action.

(vii) The Plaintiff’s complaint that the opening of the 2nd RHB Account was in contravention of Article 8.5 of the MAO Constitution was trivial in nature akin to making a mountain out of molehill. Court’s Analysis & Findings [24] For purposes of brevity, I do not propose to set out the Plaintiff’s submissions. To my mind, it would be sufficient for me to just state my findings and rationale for my decision as set out below. [25] Firstly, I shall deal with the Defendant’s ‘election of no case to answer’. In Syarikat Kemajuan Timbermine Sdn Bhd v Kerajaan Negeri Kelantan Darul Naim (supra), the Federal Court explained that despite a defendant not calling any witness and that even if the plaintiff’s evidence is unopposed (and therefore presumed to be true), this does not automatically equate to that evidence satisfying the burden of proving their case. [26] In Formis Resources Bhd & Ors v Risk Management and Safety System Pty Ltd & Ors and Others Appeals (supra), the Court of Appeal referring to the Syarikat Kemajuan Timbermine Sdn Bhd’s case (supra) on the issue an election of no case to answer, stated as follows: “… even if the plaintiff’s evidence is unopposed (and therefore presumed to be true) this does not automatically equate to that evidence satisfying the burden of proving the existence of the settlement agreement borne by the plaintiff, or mean that the burden of proving on the balance of probabilities no longer applies, or that a case to answer is automatically made out. The evidence adduced by the plaintiff must still be sufficient to prove the existence of the settlement agreement. This means that the trial court is obliged to evaluate the evidence of the plaintiff. That evaluation is aided by considering inter alia whether the plaintiff’s evidence is challenged successfully in cross examination. Where the answer is in the affirmative, the assumption can no longer hold. Similarly, where the evidence led by the plaintiff contains inadmissible evidence such as hearsay, opinion, speculation or conjecture with the witness having no personal knowledge of the matters satisfied, then the assumption is also not available. Unrebutted evidence is not necessarily credible or good evidence as it may be inherently or so unsatisfactory that it cannot be relied upon.” [27] The consequences of electing not to give evidence via a submission of no case to answer, was also clearly explained by the Federal Court in Takako Sakao (f) v Ng Pek Yuen (f) & Anor [2009] 6 MLJ 751 at pages 759-761. There, Gopal Sri Ram FCJ held as follows: - “[4] In our judgment, two consequences inevitably followed when the first respondent who was fully conversant with the facts studiously refrained from giving evidence. In the first place, the evidence given by the appellant ought to have been presumed to be true. As Elphinstone CJ said in Wasakah Singh v Bachan Singh [1931]1MC125 at p 128 : If the party on whom the burden of proof lies gives or calls evidence which, if it is believed, is sufficient to prove his case, then the judge is bound to call upon the other party, and has no power to hold that the first party has failed to prove his case merely because the judge does not believe his evidence. At this stage, the truth or falsity of the evidence is immaterial. For the purpose of testing whether there is a case to answer, all the evidence given must be presumed to be true. Now, what the trial judge did in the present case is precisely what he ought not to have one. He expressed dissatisfaction with the appellant’s evidence without asking himself that most vital question: does the first defendant / respondent have a case to answer? This failure on the part of the trial judge is a serious non-direction amounting to a misdirection which occasioned a miscarriage of justice. The trial judge was at that stage not concerned with his belief of the appellant’s evidence. She had given her explanation as to the discrepancies in the figures. And her evidence does not appear to be either inherently incredible or inherently improbable. In these circumstances it was the duty of the judge to have accepted her evidence as true in the absence of any evidence from the first respondent going the other way. He however failed to direct himself in this fashion thereby occasioning a serious miscarriage of justice. [5] The second consequence is that the court ought to have drawn an adverse inference against the first respondent on the amount of the appellant’s contribution to the purchase price as well as the existence and the terms of the mutual understanding or agreement that she had with the first respondent. Where, as here, the first respondent being a party to the action provides no reasons as to why she did not care to give evidence the court will normally draw an adverse inference. See Guthrie Sdn Bhd v Trans – Malaysian Leasing Corp Bhd [1991]1MLJ33. See also Jaafar bin Shaari & Anor v Tan Lip Eng & Anor [1997]3MLJ693 where Peh Swee Chin FCJ said : ‘The Respondents had chosen to close the case at the end of the appellant’s case. Although they were entitled to do so, they would be in peril of not having the evidence of their most important witness and of having an adverse inference drawn against them for failing to call such evidence should the circumstances demand it”. [28] Based on the decision in Takako Sakao (supra), generally a defendant who elects to submit a no case to answer, faces two (2) prospects:

the presumption that the evidence given by the other party against him to be true; and

(ii) the presumption of adverse inference being drawn against him. [29] Whilst an election of a submission of no case to answer may give rise to the presumption of adverse inference being drawn against the Defendant, in so far as the facts of this case is concerned I opine that such a presumption is not applicable to the Defendant herein. Contrary to the facts in Takako Sakao (supra), where the respondent there did not attend court, gave evidence or took any part in the case, the Defendant before me had actively participated by way of cross examination of the Plaintiff’s witness. Legally, they are entitled to take the position that the Plaintiff had failed to establish its case and take the election of a ‘no case to answer’. Having taken such a position, I agree with the Defendant’s submission that they had no duty to refute the Plaintiff’s claim through oral evidence as held in Keruntum Sdn Bhd v The Director of Forests & Ors (supra). Has the Plaintiff discharge his burden of proof? [30] With reference to the Defendant’s contention that the Plaintiff had failed to prove his case on a balance of probabilities and that the evidence adduced by the Plaintiff did not discharge his burden of proving that his suspension and/or expulsion was wrongful, I am constraint to state that I do not agree with such contention. [31] In light of the fact that the Defendant has made an election of a ‘no case to answer’, this Court is entitled to presume that the evidence given by the Plaintiff against the Defendant is true as held by propounded the Federal in Takako Sakao (supra). [32] Be that as it may, in determining whether the Plaintiff has discharged his burden of proof, it is incumbent on this Court to deal with the following legal issues as raised by the Defendant:

the relationship of the Plaintiff and the MAO rests on a contract enshrined in MAO’s constitution. As the Plaintiff’s suspension and expulsion were carried out pursuant to Rules 7.2, 7.4 and

7.6 of the MAO Constitution, Plaintiff has no recourse against the Defendant; Court’s analysis: Whilst this Court does not disagree with the Defendant’s submission that the relationship between the Plaintiff and the members of the MAO is to be looked at based on a contract enshrined in MAO’s constitution, this Court also takes the view the principles of natural justice cannot be dispensed with and ignored. Support for my above view can be found in the Court of Appeal case of Darshan Singh v Farid Kamal Hussain (suing for and on behalf of Board of Members and Kelab Sukan Pulau Pinang [2005] 3 MLJ 502 where it was held that: “(1) The respondent was a social club governed by its Constitution and rules. The rules of natural justice apply to the respondent. Therefore, the members could not be arbitrarily expelled or suspended by the respondent without first being given a hearing because their contract of membership include a duty to act fairly. By receiving them as members and receiving their subscriptions the respondent by implication undertakes to treat them justly and in accordance with the rules.” See also: Lee v Showmen’s Guild of Great Britain [1952] All ER 1175 at p 1181.

(ii) Since the said Constitution does not provide the need for any inquiry prior to suspension or expulsion, there is no requirement for due inquiry on the complaint against the Plaintiff; Court’s analysis: The Defendant’s above contention is premised on the Supreme Court decision in the case of Tanjong Jaga (supra) which adopted the test propounded in Malloch (supra). Having reviewed the decision in Tanjong Jaga (supra), this Court takes the view that the facts therein can be clearly distinguished from the facts of the present case. The issue in Tanjong Jaga (supra) relates to the power of the Registrar of Trade Union under the Industrial Relations Regulations to determine as to whether the employees of the company comes within the ambit of union representation. It was a case where there were no parties opposing one another, in which the court was called upon to determine the decision-making process of the Registrar i.e. whether it was to be based on a subjective or objective test. It was held that the Registrar’s decision-making process cannot be subjected to an objective test. In so far as the present case is concerned, there are two (2) opposing parties. Both seeking this Court to determine whether the Plaintiff’s conduct is derogatory to the prestige of the MAO and whether the Plaintiff has brought disrepute to the MAO. This requires evidence of the allegations to be put forward to the Plaintiff who then must be allowed to rebut the allegations either through explanation or documentary proof. To my mind, it was not permissible for the Exco of the MAO and its members at the AGM to make a decision on the allegations against the Plaintiff without hearing his explanation to such allegations. In this regard, I am much persuaded by the High Court decision in Florence Bailes v Dr Ng Jit Leong [1985] 1 MLJ 374, where Ajaib Singh J (as his Lordship then was) stated as follows: “The principles of natural justice must be observed in exercising a power of expulsion or suspension unless it plainly appears on a true construction of the rules that the poser was intended to be absolute and unfettered either by express exclusion of the principles of natural justice or by necessary implication. The very minimum requirements of natural justice are that the committee of a club deciding the expulsion or suspension of a member for misconduct must be totally unbiased, that the member must be informed of his alleged wrong and that he must be given an opportunity to be heard in defence. The court will imply a duty on the part of a club committee to observe the principles of natural justice in any proceeding which it may initiate to suspend or expel a member under the rules of the club. It is a fair and reasonable expectation of any member that he would not be subjected to disciplinary proceedings and punished without the principles of natural justice being applied in the proceedings. A member has a special relationship of a contractual nature with all other club members and he cannot be deprived of his rights and privileges in the club without due and proper inquiry. If there is an absolute and unfettered power vested in the committee rendering the principles of natural justice inapplicable by express exclusion thereof in the rules then the court will not invoke the principles of natural justice. It would however be a rather extreme case if any social club were to incorporate such absolute powers in their rules excluding the principles of natural justice in dealing with the expulsion or suspension of a member. In such a situation the courts may well consider further whether the enacting of such arbitrary and absolute powers in club rules does not conflict with public policy rendering the rules invalid. The tendency on the part of the courts these days is to expand the scope of natural justice rather that constrict it.” (our emphasis).

(iii) the Plaintiff’s argument that there was a breach of natural justice as he was not given the opportunity to tell his side of the story prior to the suspension or expulsion is not sustainable as the requirements of natural justice must depend on the circumstances of each particular case and the subject matter under consideration as decided in Tharmalingam v Sambanthan (supra); Court’s analysis: This Court does not disagree with the Defendant’s above submission. Nonetheless, it takes the view that the facts of the present case show that requirements of natural justice cannot be disregarded.

(iv) The rule of natural justice has no application if the failure to hold the inquiry does not alter the substance of the matter Court’s analysis: a. This Court cannot agree with the Defendant’s above proposition that even if an inquiry was held, the Plaintiff’s position would remain the same. In this regard, I am not prepared to assume in all probability that in the event the Plaintiff was allowed to put forward his explanation in defence to the charges brought against him, the Exco and the 25th AGM in deciding on the suspension and expulsion would arrive at the same decisions. To my mind, without knowing the charges preferred against him, the Plaintiff from the word ‘GO” was rendered defenceless. b. In the case of the Plaintiff’s suspension, Dr. Nik had put up a resolution to suspend the Plaintiff citing six (6) reasons including allegations beyond the police report and ROS report lodged by the Plaintiff. Notwithstanding so, the Plaintiff was not given any no opportunity to answer these reasons cited by Dr. Nik. See: Minutes of the 11th Executive Committee Meeting @ Pg.556-557 of C4/ Enclosure 48 Note: The minutes of the Exco meeting dated 10.9.2017 where the decision to suspend the Plaintiff was finalized was not produced at the trial or in the Bundle of Documents filed before this Court. c. In respect of the report to ROS, in reasons (2) and (3), Dr. Nik had alleged that ROS had cleared that Association of any wrongdoings. Whilst Dr Nik may have been correct factually, what he did know was that the ROS had written a letter dated 28.11.2016 to the Plaintiff stating that the ROS had found the MAO had committed a wrongdoing (see Enclosure 24 B1/154). Furthermore, the Plaintiff did not have the benefit of having letters directly sent by the ROS to the MAO which purportedly cleared the latter of the alleged wrongdoings. d. In above circumstances, this Court cannot agree with the Defendant’s conclusion that the failure to give natural justice to the Plaintiff would not change the impugned decisions to suspend and expel him from the Association.

At the trial, despite stating that he is not casting aspersions on Dr. Shalene or Dr. Noraini, the Plaintiff admitted making allegations of criminal breach of trust against both of them. Court’s analysis: This Court takes the view that the Plaintiff’s allegation cannot be said to be unfounded as the ROS had already informed the Plaintiff of the outcome of their investigation into the Plaintiff’s complaint.

(vi) the suspension and expulsion of the Plaintiff by the MAO has no effect on his right to work or livelihood. It is not necessary for this Court to re-visit the members’ unanimous decision to uphold the Plaintiff’s expulsion; Court’s analysis: Premised on the Plaintiff’s unchallenged testimony that he had suffered loss of reputation and standing in the MAO and in the eyes of the public, this Court disagree with the Defendant’s contention that there is no necessity for this Court to intervene as the Plaintiff’s right to livelihood is not affected. Given the fact that the Plaintiff was a founding life member of the MAO, this Court finds it necessary to determine as to whether the suspension and expulsion of the Plaintiff was done according to due legal process which includes the principles of natural justice.

(vii) The Plaintiff’s failure to adduce evidence that a platform for him to be heard prior to his expulsion and suspension would have made a difference is fatal i.e. that there was a substantial possibility that a sufficient number of members may vote against his suspension or expulsion, bearing in mind that the decision to expel and suspend the Plaintiff was unanimously upheld by the members of the MAO; Court’s Analysis: The Defendant’s above submission completely disregards their election of a ‘no case to answer’ which entitles this Court to presume that the evidence given by the Plaintiff against the Defendant is true. Conversely, this Court finds that there is sufficient evidence in support of the Plaintiff’s case and that the Plaintiff had succeeded in discharging his burden of proof as required under Section 101 of the Evidence Act 1948. Given the fact that the Defendant had failed to rebut the evidence adduced by the Plaintiff, it cannot be said that the Plaintiff had failed to adduce evidence that a platform for him to be heard prior to his expulsion and suspension would have made a difference is fatal i.e. that there was a substantial possibility that a sufficient number of members may vote against his suspension or expulsion

(viii) Converse to the above, there is no doubt that: a. The Plaintiff’s behavior was unreasonable at the AGMs; b. The Plaintiff’s complaints to the police and ROS was unfounded; c. The unreasonable complaints had affected the MOA; and d. The members felt strongly about the Plaintiff’s action. Court’s analysis: i. Whilst the Plaintiff’s conduct at the AGM may have been annoying, this is not an excuse to disregard the rules of natural justice. ii. On whether the Plaintiff’s complaint to the police and ROS was unfounded, this Court is of the view that it is not. In this regard, the Plaintiff had given evidence that he had sought legal advice on the acts of the Defendant opening a 2nd RHB account contrary to Article 8.5 of the MAO Constitution. iii. The chronology of events shows that; the Plaintiff’s police report was lodged on 03.05.2016. This was followed up with his complaint to the ROS which was made on 25.05.2016. Both of these were done after the 22nd AGM on 24.04.2016. iv. At this juncture, it wold be timely to view the contents of the report as re-produced below: “Ahli-ahli Persatuan Pakar Orthodontik Malaysia telah meluluskan untuk membuka akaun bagi bank bagi menerima bayaran fi kehadiran peserta persidangan, iaitu akaun bank Maybank no.5611908893239 atas nama APOC account, IBS Al-Idrus Commercial Centre, Kuching Sarawak. Namun saya mendapati peserta-peserta yang mendaftar melalui internet diarahkan untuk membayar fi kehadiran persidangan ini ke dalam satu akaun bank persendirian yang dibuka di bawah dua individu, iaitu:

Presiden Persatuan, Col. Dr Shalene Kershanan, dan 2. Naib Presiden Persatuan Dr Noraini binti Hj.Alwi dengan nombor akaun:- No.2112-1200-0268-63 di RHB Bank Bhd 388, Ground Floor, Section 11, Jalan Kulas, 93400 Kuching, Sarawak, Malaysia. Setakat pengetahuan saya akaun ini dibuka tanpa kelulusan daripada ahli-ahli Persatuan Pakar Orthodontik Malaysia. Disebabkan ini, saya percaya kedua individu

Presiden Persatuan, Col. Dr Shalene Kershanan, dan 2. Naib Presiden Persatuan Dr Noraini binti Hj. Alwi telah melanggar peraturan Registrar of Societies (Societies Act) dan juga melakukan kesalahan pecah amanah oleh pekerja di bawah seksyen 408 Kanun Keseksaan.” (See: Police report dated 03.05.2016 @ Pg.146 of B1 / Enclosure 29 and See: Complaint to ROS on 25.05.2016 @ Pg.151-152 of B1 / Enclosure 29) v. In so far as the opening of the 2nd RHB Account was against the regulations of the ROS, the Plaintiff’s report had led to the ROS conducting investigation into his complaint. Needless to say, the ROS agreed that there was a breach of the regulations. This resulted in ROS issuing the letter dated 28.11.2016 to the MAO stating: “terdapat kesalahan yang dilakukan oleh persatuan. Walau bagaimanapun, jabatan ini telah mengambil keputusan untuk tidak meneruskan tindakan lanjut dan berharap kesalahan serupa tidak lagi berulang di masa akan datang”. (See: ROS letter to the MAO dated 28.11.2016 @ Pg.154 of BI / Enclosure 29) v. The Plaintiff’s use of the word “percaya” in his police report was in line with what the ROS informed him i.e. that the opening of the 2nd RHB Account was against the regulations of the ROS and Societies Act, and was also a criminal breach of trust. In fact, during the 21st AGM, the Plaintiff informed the House that the had been advised by the ROS to lodge a police report as what had been done was wrong, and was a criminal breach of trust. (See: Transcript of 21st AGM @ Pg.63-64 of B3 / Enclosure 29) vi. In this regard, the Plaintiff testified that he was advised that such actions of the Defendants tantamount to a criminal breach of trust. My reading of the provisions of Section 408 of the Penal Code finds that the Plaintiff was not wrong to have formed such a belief. In fact, my reading of Section 405 of the Penal Code which provides the definition for the offence of criminal breach of trust, shows that the Plaintiff’s belief that an offence has been committed is correct. Section 405 Penal Code Whoever, being in any manner entrusted with property, or with any dominion over property either solely or jointly with any other person dishonestly misappropriates, or converts to his own use, that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits “criminal breach of trust”. In the present case, it is clear that Dr. Noraini and Dr. Shalene were signatories to MAO’s bank account. As signatories, both of them were trustees who are obligated to comply with the direction of law (in this case the MAO Constitution) to which that trust is to be discharged. Under Article 8.5 of the MAO Constitution, all monies paid for purposes of the Association, is to be deposited in a bank account in the name of the Association approved by the Exco (in this case the MAO’s Maybank account). Contrary to the above provision, Dr. Noraini and Dr. Shalene had without the approval of the EXCO, opened a private bank account in their personal names at RHB Bank, Kuching for purposes of receiving the registration fees of participants intending to register for the 9th APOC. It was due to this contravention that the Plaintiff lodged his report with the police and the ROS. On whether there was dishonesty on the part of Dr. Noraini and Dr. Shalene in the opening of the RHB bank account, that is a matter for the authorities to investigate. Having seen the demeanour of the Plaintiff whilst giving evidence at the trial, it is my observation that the Plaintiff was very worried about the contravention of Article 8.5 which to his mind had serious implications. vii. Ipso facto, the Defendant’s contention that the Plaintiff should not have lodged a police report, and that he had made false allegations in his police report and report to the ROS, is to be without basis. viii. As the Defendants had elected a ‘no case to answer’, the issue of how the unreasonable complaints had affected the MAO and how strong the members felt against the Plaintiff’s action need not be considered by this Court.

(viii) The Plaintiff’s complaint that the opening of the 2nd RHB Account was in contravention of Article 8.5 of the MAO Constitution was trivial in nature akin to making a mountain out of molehill. Court’s analysis: Under Section 408 of the Penal Code, “whoever, commits criminal breach of trust in respect of that property, shall be punished with imprisonment for a term which shall not be less than one year and not more than fourteen (14) years and with whipping, and shall also be liable to fine”. Taking cognisance of the seriousness of the punishment prescribed in respect of Section 408 of the Penal Code, it would not be correct to say that the contravention of Article 8.5 of the MAO Constitution was a technical breach. I opine so as the Constitution is the governing power of all actions by the MAO Exco and its members. If such provisions can be overlooked in the name of convenience, there is no guarantee to ensure that they will no incidents of non-compliance thereof. Hence, this non-compliance must be explained and cannot be simply disregarded and swept under the carpet. Conclusion [33] Looking back at the facts of the case and the submission of learned counsel by both parties, this Court takes the view that there was indeed a breach of natural justice in both the suspension and expulsion of the Plaintiff wherein the Plaintiff was totally deprived of the right to heard contrary to the ‘audi alterem partem’ principle. [34] This Court is firmly of the view that the Plaintiff ought to have been given the right to be heard during both the suspension and expulsion process as held and explained by Tengku Maimun CJ in the Federal Court decision in Dr Lourdes Dava Raj a/l Curuz Durai Raj v Dr Milton Lum Siew Wah & Anor [2020] 5 MLJ 185: “[38]… The second respondent’s counsel submitted that there was no prejudice to Dr Lourdes not being given notice of the judicial review proceedings and/nor the opportunity to be heard at the same, on the basis that Dr Lourdes was heard before the Preliminary Inquiry Committee and the MMC, and the record of proceedings before the MMC was before the High Court and the Court of Appeal in the judicial review proceedings. We reject this contention as the principles of natural justice are not satisfied by reason of Dr Lourdes having the opportunity to defend himself in the domestic inquiry proceedings. The right to be heard on the particular facts of the instant appeal, extended to all stages of the proceedings which affected him, and this includes the judicial proceedings. The Court of Appeal, with respect, erred in not considering the miscarriage of justice suffered by Dr Lourdes when it imposed a finding of guilt upon him and restricted his right to be heard in his defence to only putting in a plea of mitigation before the MMC.” Cost [35] Having heard brief submission from counsel on the issue of costs, considering the length of the trial, the complexity of issues and the getting up done towards the submissions both written and oral, I find a sum of RM 15,000-00 (subject to allocator) is reasonable towards the cost of the trial. I order so accordingly. Dated: 19th May 2023, ….………………………. MOHD FIRUZ JAFFRIL JUDGE HIGH COURT OF MALAYA AT SHAH ALAM Solicitors for the Plaintiff : Messrs Sekar Gill & C. Suren, No. 507 & 507-A, Jalan Melaka Raya 12, 75000 Melaka [JS/JSH/253/17/L (A)] Solicitors for the Defendants : Messrs Izral Partnership 2nd Floor, Wisma Hamzah-KH No 1, Leboh Ampang 51000 Kuala Lumpur [Ref: IZP.1885.18.MI)