Keng Heng Goldtech Sdn Bhd v 1. ) Niks Kb Jewel (JA-22NCvC-34-03/2024)

NIKS KB JEWEL [No. Pendaftaran Perkongsian : 201603008321 (UA0012251-D)]

KEHL EMPIRE SDN. BHD. [No. Pendaftaran Perkongsian : 202201023615 (1469312-H)]

KEDAI EMAS HARGA LELONG SA SDN. BHD. [No. Pendaftaran Perkongsian : 202101003005 (1403303-U)]

KEDAI EMAS HARGA LELONG PP SDN. BHD. [No. Pendaftaran Perkongsian : 202101007347 (1407646-A)] 25/10/2025 16:57:13

EMAS HARGA KASIH SAYANG SDN. BHD. (dahulunya dikenali sebagai EMAS KASIH SAYANG SDN. BHD.) [No. Pendaftaran Perkongsian : 202301037678 (1531601-H)]

AURA IMPIAN GLOBAL ENTERPRISE [No. Pendaftaran Perkongsian : 201703129105 (AS0382342-P)]

DARUL AMAN GOLD SDN. BHD. [No. Pendaftaran Syarikat : 201601031963 (1202904-W)]

FLAG GOLD ENTERPRISE [No. Pendaftaran Perkongsian : 201903218738 (AS0405113-U)]

KOPERASI KEDAI EMAS HARGA LELONG BERHAD [No. Pendaftaran Koperasi : 202361501039]

NIK MOHD SUWARDY BIN NIK MAT [No. K/P : 750519-03-5035]

NIK MAT BIN NIK MUSTAFFA [No. K/P : 500325-03-5027]

SITI FATIMAH BINTI MAT [No. K/P : 551122-03-5190]

NIK NORMANIZA BINTI NIK MAT [No. K/P : 810508-03-5736]

NIK NORZIHAN BINTI NIK MAT [No. K/P : 860806-29-5160]

NIK AIZUDDIN BIN NIK MAT [No. K/P : 880614-03-5979]

NIK AIZUWAN BINTI NIK MAT [No. K/P : 920227-03-5999]

NIK MOHD ASRYZAN BINTI NIK MAT [No. K/P : 950413-03-5201]

HASMAWI BIN ALIM [No. K/P : 830923-02-5939]

MOHD SHAHIMI BIN ISHAK [No. K/P : 860705-02-5321]

ROHAZLIZA BINTI DEMANAH [No. K/P : 861030-02-5650]

HASMIRUL IRWAN BIN ALIM [No. K/P : 940116-02-5833]

HAASRIZAL BIN ALIM …DEFENDAN-DEFENDAN [No. K/P : 882226-02-5557]

On 22 August 2025, the officer of the CIMB Islamic Bank Berhad, Cawangan Kubang Kerian, Kota Bahru, Kelantan, was subpoenaed to produce the 15th Defendant's statement of account together with the letter dated 24 July 2025, certifying the 15th Defendant's bank account.

The Court was informed that the substantive issue was settled and the only issue left for determination is as to the costs. The Counsel for the Plaintiff prayed for the costs to be fixed at RM 50,000.00 based on the following grounds:

parties had to appear before the court on multiple dates to resolve the issue;

the matter had been unnecessarily prolonged for eight months, since it started;

the 15th Defendant was incautious in submitting erroneous documents to the Plaintiff; and

the 15th Defendant was compelled to pay in total a sum of RM50,000.00 for repeated contempt.

The Counsel for Plaintiff referred to the case of Tan See Meng & Ors v Able Oils & Fats Sdn Bhd (formerly known as Able Export Sdn Bhd) and other appeals [2024] 4 MLJ 1 to support her contention that the cost amount could be similar to the contempt amount.

In response, the Counsel for the 15th Defendant submitted that, in complying with the contempt order which compelled him to pay RM30,000.00 and subsequently RM20,000.00, the 15th Defendant is now facing financial hardship. Nevertheless, he offered a sum of RM20,000.00 to be paid within 3 months. Counsel for the 15th Defendant further informed the Court that the 15th Defendant is appealing against the contempt and sentencing order to the Court of Appeal.

Having heard both parties and considered all the relevant documents and authorities, this court is mindful that the discretionary power to award costs must be exercised judicially. The principle was explained by the Court of Appeal in the case of Shahrul Iman Bin Abdullah v Pacific & Orient Insurance Co Bhd And Another Appeal [2020] MLJU 1877 in which the Court of Appeal referred to the principle explained in the case of Chia Tien Foh & Ors v Lo Man Heng & Ors [2015] 1 LNS 1219, as below – “[80] In Chia Tien Foh & Ors v Lo Man Heng & Ors [2015] 1 LNS 1219, Vernon Ong Lam Kiat JCA (as his Lordship then was) stated that: “[40] The power of the court to award costs is provided under Item 15 of the Schedule in the Court of Judicature Act

It is a discretionary power which must be exercised judicially, ie, in accordance with established principles and in relation to the facts of the case, which includes any matter relating to litigation, the parties’ conduct in it and the circumstances leading to the litigation, but nothing else. If there are no grounds for departing from the normal rule or the judge acts on extraneous grounds he has in effect not exercised his discretion at all (see Scherer & Anor v Counting Instruments Ltd & Anor [1986] 2 All ER 529 (CA)). [41] As a general rule, costs follow the event and the successful party is entitled to be paid his costs unless there are special grounds to order otherwise, and those grounds, it is well settled, must be grounds connected with the cause of action (per Parker LJ in Ottway v Jones [1955] 2 All ER 585 at page 591).”

In addition to that, the Court's discretion must also be in accordance with the settled principles of law. In this regard, this Court is guided by the principle laid down in the case of M Cheng Construction Sdn Bhd v Hasman Jalil & anor [2003] 6 CLJ 251, that an order for costs must be supported by reasons.

In light of the foregoing justification, this court finds that the costs should be compensatory in nature rather than punitive. This principle was established in the case of Re Elgindata Ltd (No 2) [1993] 1 All ER 232, (which was quoted in a handful of judgments in Malaysia such as : EPR Holdings Sdn Bhd v Marina Bt Bujang And Anor [2007] MLJU 232; Genisys Intergrated Engineers Pte Ltd v UEM Genisys Sdn Bhd & Ors (Part 2) [2008] MLJU 656) as follows: “The principles on which costs were to be awarded were (i) that costs were in the discretion of the court, (ii) that costs should follow the event except when it appeared to the court that in the circumstances of the case some other order should be made, (iii) that the general rule did not cease to apply simply because the successful party raised issues or made allegations that failed, but that he could be deprived of his costs in whole or in part where he had caused a significant increase in the length of the proceedings, and (iv) that where the successful party raised issues or made allegations improperly or unreasonably the court could not only deprive him of his costs but could also order him to pay the whole or part of the unsuccessful party's costs. The fourth principle implied, moreover, that a successful party who neither improperly nor unreasonably raised issues or made allegations which failed ought not to be ordered to pay any part of the unsuccessful party's costs.”

As for the reliance placed by the Plaintiff on Tan See Meng & Ors v Able Oils & Fats Sdn Bhd (formerly known as Able Export Sdn Bhd) and other appeals, this Court is of the view that the principle enunciated therein does not alter the settled position that costs under Order 59 of the Rules of Court 2012 are discretionary in nature. While the amount of costs awarded in that case was similar to the contempt fine, such parity was fact-specific and cannot be treated as a rigid rule.

Based on that basis, the court considers that while the Plaintiff prayed for RM50,000.00, such amount must be reasonable and proportionate to the work done, the length of proceedings, and the conduct of the parties. On the other hand, this court also weighs that the Defendant’s financial hardship does not absolve him of his obligation to bear the costs caused by his non-compliance and repeated delay.

In balancing these considerations, this Court finds it just to fix costs in the sum of RM30,000.00 pursuant to Order 59 of the Rules of Court 2012, subject to allocator, to be paid by the 15th Defendant to the Plaintiff. Bertarikh : 4 September 2025 (Noradura Binti Hamzah) Pesuruhjaya Kehakiman Mahkamah Tinggi Malaya Johor Bahru Johor Darul Ta’zim Peguamcara : Nik Aizuddin Bin Nik Mat P. G. Cyril Tetuan Najib Hisham Isa SB-06-01 Paragon @ Pan / Gaea Persiaran Bestari Cyber 11 63000 Cyberjaya Selangor Darul Ehsan Peguamcara : Keng Heng Goldtech Sdn. Bhd. Preetha Pillai, Siew Ka Yan & Muhammad Akhmal Amaluddin Bin Mat Aris Tetuan Skrine No. 50 Jalan Dungun Tingkat 8 Wisma UOA Damansara Bukit Damansara 50490 Kuala Lumpur