Lee Yen Hock v Avenue Golden Sdn Bhd & 3 Lagi (26NCC-10-01/2012)

AVENUE GOLDEN SDN. BHD. (No. Syarikat: 877096-D)

CHOO AH FOOK (No. KP: 570510-05-5103) 35 t/a KEMPAS SAMUDERA ENTERPRISE (No. Pendaftaran Perniagaan: JM0496251-K)

TREBLE MEDIUM SDN BHD (No. Syarikat: 896709-W)

CHOO SEIK YEN … RESPONDEN- 40 (No. K/P: 790913-05-5284) RESPONDEN 2 5 GROUNDS OF DECISION Introduction [1] Encl.161 is an application filed by the Petitioner pursuant to O.45 r.6(3) and O.92 r.4 of the Rules of Court 2012 (‘ROC 2012’), for the 10 following prayers: “1. Suatu Perintah Mahkamah bahawa Responden Kedua hingga Keempat perlu mematuhi dan melakukan perbuatan di dalam doa

Penghakiman Terpinda Kedua bertarikh 22.7.2014 iaitu Responden Kedua, Responden Ketiga dan/atau pengarahnya dan 15 Responden Keempat hendaklah membayar kepada akaun bank Responden Pertama RM2,598,339.00 bersama dengan faedah terakru di atasnya pada kadar 5% setahun dari 22.7.2013 sehingga realisasi penuh di dalam tempoh sepuluh (10) hari daripada tarikh penyampaian Perintah Termeterai permohonan ini diserahkan ke 20 atas peguamcara Responden Kedua dan Ketiga iaitu Tetuan Arnold Andrew & Co dan Peguamcara Responden Keempat iaitu Tetuan Mohanadass Partnership;

Bahawa penyampaian kediri Perintah Termeterai permohonan ini ke 25 atas Responden Kedua, Responden Ketiga dan pengarah-pengarahnya dan Responden Keempat dikecualikan dan penyampaian ke atas peguamcara Responden Kedua dan Ketiga (iaitu Tetuan Arnold Andrew & Co) dan Peguamcara Responden Keempat (iaitu Tetuan Mohanadass Partnership) adalah disifatkan 30 sebagai penyampaian betul dan baik ke atas Responden Kedua, Responden Ketiga dan pengarah-pengarahnya dan Responden

Mana-mana perintah selanjutnya atau perintah lain yang mungkin 35 dibuat seperti yang diperlukan mengikut keadaan kes sebagaimana Mahkamah Yang Mulia ini mendapati patut dan wajar;

Perintah Termeterai permohonan ini diendorskan dengan satu Notis Penal menurut Aturan 45 Kaedah 7 Kaedah-Kaedah Mahkamah 40 2012;

Tiada Perintah dibuat mengenai kos”. 45 3 [1.1] Essentially the Petitioner’s application is for an order (i) to affix 5 time for compliance of prayer 1 of the Second Amended Judgment dated 22/7/2014 (‘Second Amended Judgment’) , which is to pay into the 1st Respondent’s bank account the sums ordered by the Court and (ii) for dispensation of personal service of the Order obtained from the Petitioner’s application on the 2nd and 3rd and 4th 10 Respondents. [2] The 2nd and 3rd Respondents and the 4th Respondent opposed the Petitioner’s application. Having considered the Written Submissions and having heard Counsel for the Petitioner, 2nd and 3rd Respondents 15 and the 4th Respondent (Mr. Vernon Samuel, Messrs. Shui-Tai, Mr. Andrew Davis, Messrs. Andrew Arnold Andrew & Co. and Mr. K. Gobinath, Messrs. Mohanadass Partnership respectively), I allowed O.I.T of prayers 1, 4 and 5 and disallowed prayer 2. Counsel for the Petitioner sought clarification of the Order which was fixed by the Court 20 on 14/3/2017. Both the 4th and 2nd and 3rd Respondents have since appealed against the Order of Court dated 10/2/2017 which reads as follows: “MAKA ADALAH DIPERINTAHKAN bahawa:- i) Responden Kedua hingga Keempat perlu mematuhi dan melakukan 25 perbuatan di dalam doa (1) Penghakiman Terpinda Kedua bertarikh 22.7.2014 iaitu Responden Kedua, Responden Ketiga dan/atau pengarahnya dan Responden Keempat hendaklah membayar kepada akaun bank Responden Pertama RM2,598,339.00 bersama dengan faedah terakru di atasnya pada kadar 5% setahun dari 30 22.7.2013 sehingga realisasi penuh di dalam tempoh sepuluh (10) hari daripada tarikh penyampaian Perintah Termeterai permohonan ini diserahkan; ii) Perintah Termeterai ini diendorskan dengan satu Notis Penal 35

The Joint Independent Auditors are to close all known Bank Accounts of the Respondents namely:- 30

2.1. Alliance Bank Berhad Account No. 510 3200 100 20925;

2.2. Hong Leong Bank Berhad Account No. 274 000 14369;

2.3. Affin Account No. 100 7300 74455;

2.4. Public Bank Berhad Account No. 403 5212 400;

2.5. Alliance Bank Berhad Account No. 103 700 2136 5955; and 35

6. Ambank Account No. 155 201 200 6188, and transfer all the funds (having first paid all bank charges) therein these accounts to the 1st Respondent’s Public Bank Berhad Account No. 315 845 6700. 40 5

The cash in hand of RM206,325.72 now being held by the Joint Independent Auditors from the various accounts of the 2nd, 3rd and 4th Respondents shall be deposited into the 1st Respondent’s Public Bank Berhad Account No. 315 845 6700 and the Joint Independent Auditors shall transfer all monies now in the 1st Respondent’s 10 Ambank Account No. 155 201 200 6188 into the 1st Respondent’s Public Bank Berhad Account No. 315 845 6700.

The Petitioner and the 2nd Respondent shall be the joint signatories of all the 1st Respondent’s bank accounts (namely Public Bank 15 Berhad Account No. 315 845 6700) in place of the Joint Independent Auditors (who shall cease to be joint signatories) AND if the 2nd Respondent shall fail and or refuse to comply to be a joint signatory within 3 weeks from the date of this Order, the Petitioner shall be the sole signatory of ALL the accounts of the 1st Respondent.

That the 2nd, 3rd and 4th Respondents do pay cost in the sum of RM15,000-00 to the Petitioner and RM8,000-00 to the Joint Independent Auditors within 1 month from the date of this Order”. 25 [4.1] I further ordered that a penal notice be endorsed together with the Judgment. [4.2] The Judgment was ordered after a full trial pursuant to the Petitioner’s Amended Petition dated 19/1/2012 against the 2nd to 4th Respondents for oppressive acts and misconduct against the Company 30 and the Petitioner. The learned Judge found the 2nd Respondent to be dishonest, not truthful and a liar; there was misconduct, oppression, misappropriation of funds by the 2nd, 3rd and 4th Respondents and she also held that these Respondents benefited and profited from their misconduct and oppression and that they have used the Company’s 35 resources for their own interests. [5] The Judgment was amended pursuant to the High Court Order dated 12/1/2015 (‘the Amended Judgment’) (exh.LYH -7, Affidavit in Support of the Petitioner) as follows: 40 “1. The 2nd, 3rd and 4th Respondents do pay into to the 1st Respondent’s bank account the sum of RM2,598,339-00 together with 6 interest accruing thereon at the rate of 5% per annum from 27/2/2013 until 5 full realisation.

The Joint Independent Auditors are to close all known Bank Accounts of the Respondents namely:- 10

2.1. Alliance Bank Berhad Account No. 510 3200 100 20925;

2.2. Hong Leong Bank Berhad Account No. 274 000 14369;

2.3. Affin Account No. 100 7300 74455;

2.4. Public Bank Berhad Account No. 403 5212 400;

2.5. Alliance Bank Berhad Account No. 103 700 2136 5955; and 15

2.6. Ambank Account No. 155 201 200 6188, and transfer all the funds (having first paid all bank charges) therein these accounts to the 1st Respondent’s Public Bank Berhad Account No. 315 845 6700.

The cash in hand of RM206,325.72 now being held by the Joint Independent Auditors from the various accounts of the 2nd, 3rd and 4th Respondents shall be deposited into the 1st Respondent’s Public Bank Berhad Account No. 315 845 6700 and the Joint Independent Auditors 25 shall transfer all monies now in the 1st Respondent’s Ambank Account No. 155 201 200 6188 into the 1st Respondent’s Public Bank Berhad Account No. 315 845 6700.

The Petitioner and the 2nd Respondent shall be the joint signatories 30 of all the 1st Respondent’s bank accounts (namely Public Bank Berhad Account No. 315 845 6700) in place of the Joint Independent Auditors (who shall cease to be joint signatories) AND if the 2nd Respondent shall fail and or refuse to comply to be a joint signatory within 3 weeks from the date of this Order Judgment, the Petitioner shall be the sole signatory of ALL the 35 accounts of the 1st Respondent.

That the 2nd, 3rd and 4th Respondents do pay cost in the sum of RM15,000-00 to the Petitioner and RM8,000-00 to the Joint Independent Auditors within 1 month from the date of this Order Judgment.” 40 [6]

of the Amended Judgment and became a joint signatory of the Company’s bank accounts. [8] The 2nd Respondent, directors of the 3rd Respondent and the 4th 10 Respondent had failed to comply with the remaining prayers of the Amended Judgment in particular the Prayer (1) of the Amended Judgment. [9] The Petitioner’s former solicitors on 12/3/2015 and 23/10/2015 15 (exh.LYH-9, Affidavit in Support of the Petitioner) again demanded that the 2nd to the 4th Respondents to comply with Prayer (1) of the Amended Judgment and pay into the Company’s bank account the sum of RM2,598,339.00 together with the accrued interest which they had against failed to do so. 20 [10] The Second Amended Judgment arose from a Joint Independent Auditors’ application dated 21/10/2015 wherein I had on 8/3/2016 granted an amendment to the Amended Judgment (exh.LYH-12, Affidavit in Support of the Petitioner). 25 [11] Vide letter dated 6/4/2016 (exh.LYH-13, Affidavit in Support of the Petitioner), Messrs. Shui-Tai, the Petitioner’s new solicitors served the Second Amended Judgment on the solicitors for the 2nd to 4th Respondents and inquired whether their respective clients required 30 the Petitioner’s solicitors to serve the Second Amended Judgment on their clients personally. 8 [12] Vide the same letter the Petitioner’s solicitors demanded that the 5 2nd to 4th Respondents pay into the Company’s bank account the sum of RM2,598,339.00 together with the accrued interest at the rate of 5% as at 22/7/2013 until full realisation within 7 days thereof, failing which, the Petitioner will commence execution and/or committal proceedings against them. 10 [13] Messrs. Arnold Andrew & Co, solicitors for the 2nd and 3rd Respondents responded that their clients did not require personal service of the Second Amended Judgment on them whilst Messrs. Mohanadass Partnership, solicitors for the 4th Respondent required the 15 Petitioner’s solicitors to serve the Second Amended Judgment personally on their client. Contentions of Parties [14] The Petitioner submitted - 20

The 2nd to 4th Respondents have failed to comply with prayer 1 of the Second Amended Judgment which requires the 2nd to the 4th Respondents to pay into the 1st Respondent’s bank account the sum of RM2,598,339.00 together with the accrued interest.

(ii) The Petitioner intends to commence committal proceedings 25 against the 2nd Respondent, the directors of the 3rd respondent and the 4th Respondent.

(iii) However prayer 1 of the Second Amended Judgment does not state the specific time in which the 2nd to the 4th Respondents are required to pay the said sum into the 1st Respondent’s bank account.

(iv) Encl.161 was filed to remedy the same pursuant to O.46 r.6 ROC 2012. 9 [14.1] The Petitioner also cited O.45 r.5 ROC 2012, Grenek Sdn Bhd 5 v Lew Wa Chow [1991] 1 MLJ 125 and Supreme Court Practice 1993 para 45/6 p.749 and para 45/6/1 p.750 to support its contention that the Court has the jurisdiction to grant the order to fix a time for the 2nd to 4th Respondents to comply with prayer 1 of the Second Amendment Judgment. 10 [15] The 2nd to 4th Respondents opposed the Petitioner’s application in encl.161 basically on the following grounds:

That enclosure 161 is redundant because the Second Amended Judgment is a monetary judgment and cannot be enforced in a 15 committal proceedings;

The Petitioner has not shown that the 2nd to the 4th Respondent has means to pay the judgment sum;

The 1st Respondent can commence bankruptcy proceedings against the 2nd to the 4th Respondents instead of committal 20 proceedings;

Enclosure 161 seeks to alter and amend the Second Amended

Dispensation of service should not be allowed. [15.1] It is to be noted that Counsel for the 2nd and 3rd Respondents 25 had informed the Court during the hearing on 8/11/2016 that they are adopting the Submissions of Counsel for the 4th Respondent. Findings Encl. 161 is redundant because the Second Amended Judgment is 30 a monetary judgment and cannot be enforced in a committal proceeding 10 [16] The crux of the 2nd to 4th Respondents’ argument in opposing the 5 Petitioner’s application is that encl.161 is redundant because the Second Amended Judgment is a monetary judgment and cannot be enforced in a committal proceedings. In this regard, I agreed with the Petitioner’s submission that this argument is premature. Encl.161 is not an application for committal but an application made under O.45 r.6 10 ROC 2012. Therefore the issue to be determined at this stage is whether this Court has the jurisdiction to grant a further order specifying the time for the 2nd to 4th respondents to comply with prayer 1 of the Second Amended Judgment. The issue of whether prayer 1 of the Second Amended Judgment is a monetary order and whether 15 committal proceedings can be instituted to enforce prayer 1 are arguments to be raised at the substantive committal proceedings. This point was taken up in the case of First Consolidated Sdn Bhd v Padu Ehsan Sdn Bhd (Majlis Perbandaran Melaka Bandaraya Bersejarah, garnishee) [2003] 4 MLJ 759 highlighted by learned 20 Counsel for the Petitioner. [17] The case of First Consolidated Sdn Bhd v Padu Ehsan Sdn Bhd (supra) involved an order from the High Court that the money garnished by the judgment creditor (‘JC’) be paid to the JC 25 (garnishor’s) solicitors on the undertaking by the JC’s solicitors to refund the same in the event the garnishee’s appeal is allowed. No date was specified in the order for this purpose. The garnishee paid to the JC’s solicitors as stakeholders on the undertaking of the JC’s solicitors to refund the same. The garnishee’s appeal was allowed by 30 the Court of Appeal (‘CA order’). On a query from Counsel for the garnishee on the refund of the money held by the JC’s solicitors, the Court of Appeal stated the CA order read with the order for stay for 11 execution made it mandatory for the JC’s solicitors to refund the money 5 to the garnishee because the garnishee’s appeal had been allowed. The JC’s solicitors refused to refund the same despite a claim for it by the garnishee’s solicitors and despite service of the CA order. Hence the application by the garnishee for, amongst others, (i) an order to specify the time for the JC’s solicitors to comply with the High Court 10 order for stay of execution and the CA order, (ii) an order for compliance within 7 days from service of the order for stay for execution, the CA order and the order herein and (iii) a notice in compliance with O.45 r.7 and Form 87 be indorsed on the order and the order for stay for execution. 15 [17.1] In my judgment the following dicta of Low Hop Bing J (as he then was) at p.763 F-G and p.764 G lends support to the Petitioner’s submission that the issue raised by the 2nd to 4th Respondents is indeed premature: “Lest the respective counsel for the parties herein missed the wood for the 20 trees, I must immediately emphasize that the application before me is not an application for leave to commence committal proceedings for contempt of court or for substantive committal proceedings. The application herein is for an order to specify the time for compliance with, and if necessary subsequent execution of, court orders. In the 25 circumstances, I do not see the necessity or advisability of going into the authorities which concern the obtaining of leave to commence committal proceedings for contempt of court or substantive committal proceedings. The issue of compliance or non-compliance by the JC's solicitor with the orders and the consequences flowing therefrom would only arise after the 30 time for compliance has been specified in the orders, the indorsement of the penal notice has been entered as an integral part of the orders, the prior compliance by the garnishee with the rules governing personal service and indeed all the relevant and requisite rules pertaining to the execution of the orders”. 35 [18] Assuming I err on my finding that the 2nd to 4th Respondents’ point is premature, I shall now deal with the following arguments. 12 [18.1] Firstly, I am of the view that the Petitioner’s application is 5 necessary to ensure compliance of prayer 1 of the Second Amended Judgment for the following reasons:

O.45 r.5 ROC 2012 provides that a judgment may be enforced with leave of the Court provided that the judgment to do an act specifies the time to carry out the act. In Grenek Sdn Bhd v Lew Wa 10 Chow [1991] 1 MLJ 125 as per the Headnotes - “By a notice of motion, the plaintiff applies for an order of committal against the defendant for contempt of court for having failed to obey the order of the court whereby the defendant was required to disclose the whereabouts and full identity of each of his accounts whether within or 15 without the jurisdiction”. Mohamed Dzaiddin J (as he then was) in dismissing the plaintiff’s motion for committal, amongst others, at p.126 I left column to A-B right column held - 20 “… I find that the second part of the said order is defective for non-compliance with O 45 r 5(1) in the sense that the act which was required to be done did not specify the time within which it should be complied with. Further, there was no subsequent order made to include the time or to extend it to enable the defendant to comply with 25 the term of the part of the order”. (Emphasis added)

In this instant case, to reiterate, prayer 1 of the Second Amended Judgment requires the 2nd to 4th Respondents to pay into the 1st 30 Respondent’s bank account the sum of RM2,598,339.00 together with the accrued interest but it did not state the specific time to do the same. Here I find the Court is empowered to grant a further or a supplemental order specifying the time for the 2nd to 4th Respondents to comply with prayer 1 of the Second Amended Judgment. Thus it is clear that 35 encl.161 does not seek to alter or amend the Second Amended Judgment as the 2nd to 4th Respondents contend as the order which the 13 Court will make when allowing the Petitioner’s application is a separate 5 order. (bb) This is apparent from O.45 r.6 ROC 2012 which reads - “(1) Notwithstanding that a judgment or order requiring a person to do an act specifies a time within which the act is to be done, the Court shall, without prejudice to Order 3, rule 5, have power to 10 make an order requiring the act to be done within another time, being such time after service of that order, or such other time as may be specified therein.

Where, notwithstanding Order 42, rule 6(1), or by reason of Order 15 42, rule 6(2), a judgment or order requiring a person to do an act does not specify a time within which the act is to be done the Court shall have power subsequently to make an order requiring the act to be done within such time after service of that order, or such other time, as may be specified therein.

An application for an order under this rule shall be made by notice of application and such notice of application shall, notwithstanding anything in Order 62, rule 10, be served on the person required to do the act in question. 25 (Emphasis added) (bbb) On the effect of O.45 r.6 above, para 45/6/1 p.750 of The Supreme Court Practice 1993 Volume 1 Part 1, amongst others, states - “… The rule in fact logically follows through the scheme under which 30 judgments for the payment of money to a person or for giving possession of land or for delivery of goods are expressed in the form of requiring the defendant to do an act, and while such judgments will not as a general rule in the first instance specify the time within which the required act is to be done; this rule provides that the Court may specify such a time 35 subsequently by a supplemental order made upon a summons issued for this purpose. This rule only applies to a judgment or order which requires an act to be done. 40 … Para (1) of the rule states the present practice under which a judgment or order which specifies the time within which an act is required to be done may, by supplemental order of the Court made subsequently, fix another time for the required act to be done. 45 Para (2) of the rule empower the Court to make an order specifying the time within which the required act is to be done in two cases namely, (1) where the judgment or order does not itself specify such a 14 time as required by O.42 r.2(1) whether by omission or inadvertence 5 or otherwise; and (2) where the judgment or order is to pay money to some other person … and the time within which such act is to be done is not as it generally would not be, specified by the judgment or order”. (Emphasis added) 10 Similarly the Malaysian Rules of Court 2012, An Annotation, Volume 1 at para 45/6/2 p.843 and para 45/6/4 at p.844, amongst others, state - “The Court has the power to make the order requiring the act to be done within a specified time under r.6(2). Ideally, this should be done at trial, but 15 a subsequent order may be made for this purpose (r 6(2)). … As r.6 only contemplates supplemental (not replacement) orders …”. (Emphasis added).

Further in First Consolidated Sdn Bhd (supra) at p.764 H-I to p.765 A-B, in allowing the garnishee’s application, Low Hop Bing J stated as follows: “From the express provisions contained in O 45 r 6, it is clear to me that under O 45 r 6(l), the court has the power e.g. to extend time for 25 doing an act required by a judgment or order, including an order containing a positive act: DVA & Co [1900] 1 Ch 484; Re Launder [1908] 98 LT 554. In addition, under O 45 r 6(2), the court has the power to specify the time for an act to be done by a supplemental order in two 30 circumstances:

where a judgment requiring an act to be done has omitted to specify the time for doing the act; and

(ii) where pursuant to O 42 r 6(2), the judgment or order does not require a time for doing the act to be specified e.g. for payment of money to 35 a person. … The order for stay of execution did not specify the time for the JC's solicitors to comply therewith. In the circumstances, in exercise of the 40 powers conferred upon the court under O 45 r 6(2), it is appropriate for the time to be specified, for the JC's solicitors to comply therewith”. (Emphasis added) 15

In QU v QV [2008] 2 SLR (R) 702, in an appeal against the 5 decision of the High Court affirming a committal order made by the District Court considered the issue whether a person could be committed for contempt of court for not obeying an order of court which did not specify a time for compliance with its terms. The Singapore Court of Appeal allowed the appeal and ordered the 10 committal order to be set aside on the ground that it was predicated upon the breach of a court order which did not specify a time for compliance, i.e. an ancillary order of the District Court granting the respondent sole custody, care and control of the child of the marriage and which ordered the appellant to surrender the child’s passport and 15 birth certificate to the respondent. In arriving at its decision, the Singapore Court of Appeal at 707[13] stated that “O.42 r.6 of the Rules of Court (Cap 322, R5 2006 Rev Ed) (equivalent to O.42 r.6 ROC 2012) corresponds with O.42 r.2 of the former Rules of the Supreme Court 1965 (SI 1965 No 1776)(UK)”, the scope of which was described 20 in a passage from Nigel Lowe & Brenda Sufrin, The Law of Contempt at pp.604-605. In essence the said passage states the following: “a. That the courts are empowered to make a further order requiring the act to be done within a stated time where the original order does not specify a time limit and this includes orders or judgments requiring 25 persons to pay money to some other person; b. The subsequent order specifying the time limit can be enforced by committal proceedings”. 30 Thus even on the persuasive authority of QU v QV (supra), this Court has the power to grant the order specifying a limit to comply with prayer 1 since it is an order to 2nd to 4th Respondents to carry out an act to bank in monies in a 3rd party’s account (1st Respondent); and in the event the 2nd to 4th Respondents fail to comply with the subsequent 35 16 order, the Petitioner is allowed to enforce the subsequent order 5 specifying the time limit by committal proceedings. [18.2] Secondly, this brings me to the 2nd to 4th Respondents’ argument that monetary judgment should not be allowed to proceed with committal proceedings by placing reliance on Hong Leong Bank Bhd v. Phung Tze Thiam [2008] 4 CLJ 742 where Gopal Sri Ram 10 JCA (as he then was) (delivering judgment of the Court of Appeal) relied on Re Oddy, Major v. Harness [1906] 1 Ch 93 at 746[4] to 747[5] as follows: “[4] The second point we make has to do with the choice of the enforcement remedy. Can the appellant enforce the order of this court 15 directing the refund by way of committal proceedings? In answering this question, we must bear in mind that it is only an order that requires a party to do or refrain from doing an act that may be enforced by committal for contempt. That much is clear from the terms of RHC O. 45 r. 5 which provides as follows:

Where:

a person required by a judgment or order to do an act within a time specified in the judgment or order refuses or neglects to do it within that time or, as the case may be, within that time as extended or abridged under Order 3, rule 5; or 25

a person disobeys a judgment or order requiring him to abstain from doing an act, then, subject to the provisions of these rules, the judgment or order may be enforced by one or more of the following means, that is to say -

with the leave of the Court, an order of committal;

(ii) where that person is a body corporate, with the leave of the Court, an order of committal against any director or other officer of the body;

(iii) subject to the provisions of the Debtors Act, 1957, an order of committal against that person or, where that person is a body 35 corporate, against any such officer. [5] Now, in Re Oddy, Major v. Harness [1906] 1 Ch 93 it was held by the English Court of Appeal that "an order to recover money is not an order on the defendants to do anything, and therefore that such order 17 could not be enforced either by a supplementary order for the 5 payment of the money within a fixed time or by attachment", per Luxmoore J in Iberian Trust, Ltd v. Founders Trust and Investment Co, Ltd [1932] 2 KB 87. The order of 25 April 2007 in essence required the respondent to re-pay a part of the sum that had been paid to him by the appellant. In point of form, it may appear to be an order 10 requiring the respondent to do an act, namely to refund the money. But a court is concerned with substance and not form. And the substance of the order under consideration here is that it is a money judgment and not a judgment requiring the performance of an act. We must therefore answer the question we posed in para 4 of this 15 judgment in the negative. That is to say, the order of this court dated 25 April 2007 cannot be enforced by means of committal proceedings. But that is not to say that the appellant bank is not without remedy. It may enforce the said order in the usual way in which money judgments are enforced”. 20 (Emphasis is that of the 4th Respondent) With respect I am unable to accept the submission of the 2nd to 4th Respondents for the following reasons:

I find the case of Tang Hak Ju v. Pengarah Tanah dan Galian Pulau Pinang & Ors [2016] MLJU 696 highlighted by the Petitioner is 25 relevant and is of assistance. The brief facts are the plaintiff applied to set aside the ex-parte order obtained by the defendants granting leave to them to commence committal proceedings against the plaintiff for alleged contempt of Court. The plaintiff was ordered by the Court of Appeal to re-pay/refund to the defendants the sums which was 30 previously paid to the plaintiff within 30 days. The repayment ordered was served on the plaintiff which the plaintiff had failed to comply. By reason of the plaintiff’s failure or neglect to pay, the defendants pursuant to the amended re-payment order therefore filed their ex parte application for leave to commence committal proceedings against the 35 plaintiff for contempt of court. Leave was obtained by the defendants. The plaintiff then filed the application to set aside the ex parte leave order. 18 (aa) One of the grounds relied on by the plaintiff to set aside the ex- 5 parte order of the defendants was the amended re-payment order which is a monetary judgment was not capable of being enforced by committal proceedings was the principal bone of contention just like in the present case (see para 46 of Tang Hak Ju’s case) (aaa) The amended re-payment order in question appears at para 47 10 of the Judgment and which, amongst others, stated - “… ADALAH SELANJUTNYA DIPERINTAHKAN bahawa Responden hendaklah dalam tempoh 30 hari dari tarikh Perintah ini mengembalikan jumlah wang yang telah dibayar oleh Perayu-Perayu kepadanya terhadap jumlah penghakiman yang dibenarkan oleh Mahkamah Tinggi melainkan 15 jumlah gantirugi yang dikekalkan melalui Perintah ini”. Lim Chong Fong JC (as he then was) found that argument of the monetary judgment was devoid of merit as reflected at paras 51 to 52 of his Lordship’s Judgment - 20 “[51] From a careful reading of the later case of Hong Kwi Seong v. Ganad Media Sdn Bhd & Another Appeal (supra) , it was clear to me that the Court of Appeal has departed from its earlier case of Hong Leong Bank Bhd v. Phung Tze Thiam (supra) . Although not expressly stated in the judgment, it is implicit that the Court of Appeal was of 25 the opinion that it was not bound by its earlier decision because that decision was per incuriam following the principle set out in Young v. Bristol Aeroplane Co Ltd [1944] KB 718 (adopted and applied also by the Court of Appeal in Harapan Permai Sdn Bhd v. Sabah Forest Industries Sdn Bhd [2011] 1 CLJ 285). This rationale for the departure 30 is self evident in paragraphs [14] to [16] of Hong Kwi Seong v. Ganad Media Sdn Bhd & Another Appeal (supra). [52] In the circumstances, I considered that I was instead bound by the Court of Appeal decision in Hong Kwi Seong v. Ganad Media Sdn Bhd & Another Appeal (supra). That being the case, it is plain that 35 committal proceedings are available to enforce a commanded act within the prescribed time notwithstanding that the substance of it is a monetary judgment. Consequently, I held that the Plaintiff’s argument here was devoid of merit”. (Emphasis added) 40 The learned JC at para 48 considered the contention of the plaintiff who relied on exactly the same cases of Hong Leong Bank 19 Bhd v. Phung Tze Thiam and Re Oddy (supra) and the passages at 5 paras 4 and 5 of Hong Leong Bank Bhd’s case (reproduced at para 18.2 above). Then at para 50 of his Judgment, the learned JC dwelled on a later Court of Appeal case of Hong Kwi Seong v Ganad Media Sdn Bhd & Another Appeal [2012] 8 CLJ 667 where Low Hop Bing JCA considered Hong Leong Bank Bhd v. Phung Tze Thiam, Re 10 Oddy and Iberian Trust Ltd (supra) at 672-676 as follows: [10] Next, in Hong Leong Bank, supra, the Court of Appeal dealt with the second and final ground, touching on the choice of the enforcement remedy. The passages at pp. 746 and 747 (with emphasis added) merit reproduction as follows: 15 … [11] As alluded to above, the Court of Appeal relied on the above two English authorities and held that the bank cannot enforce the money 20 judgment of the Court of Appeal directing the refund by way of committal proceedings, as the money judgment is not a judgment requiring the performance of an act. [12] We shall now proceed to embark on an analysis of the aforesaid two 25 English authorities, as follows:

In Re Oddy supra,

On the plaintiff's application, Buckley J made, inter alia, an order 30 that Major, the plaintiff, should recover from Harness, the defendant the sum of £1248 lls, being the loss occasioned to the trust estate after deducting certain items already paid by Harness. The defendant's motion to discharge the order was dismissed by Buckley J.

The defendant's appeal was allowed by the Court of Appeal which held that judgment for recovery by the plaintiff from the defendant of a sum of money, instead of judgment in the usual form for payment of the money to the plaintiff by the defendant, could not 40 be supplemented by a four-day order against the defendant in default of payment within the stipulated time, or by attachment. An order for the plaintiff to recover money is not an order on the defendants to do anything. Vaughan Williams LJ said at p. 98 that "there is a manifest difference between an order for payment and 45 an order that the plaintiff do recover.

In Iberian Trust, Ltd supra, the order was that the plaintiffs do have a return of the shares within fourteen days. Luxmoore J felt that the form 20 of the order was a little unfortunate as it did not define the precise 5 steps which had to be taken to transfer the shares in question from the defendant to the plaintiff. The terms of the order were too vague and did not specify that the defendant was to return the shares. In the circumstances, the defendant did not transfer the shares to the plaintiff. In dismissing the plaintiff's application for leave to issue writs 10 of attachment against the directors of the defendant company, His Lordship referred to In Re Oddy supra, and said at p. 95 that the order did not direct the defendant to do anything; the order was that the plaintiff was to recover something from the defendant. 15 [13] We respectfully note that the two English authorities referred to in Hong Leong Bank supra, concern the construction of the crucial terms of the order. These terms ordered the plaintiff to recover the money, as in In Re Oddy supra; or the plaintiff to have a return of the shares, as in Iberian Trust Ltd supra. These orders did not require the defendant to do or refrain 20 from doing an act, and hence, obviously, those orders could not be enforced against the defendant by way of committal for contempt. [14] On the other hand, in Hong Leong Bank supra, the terms of the order did direct Phung to refund the sum paid to him, less the sum of RM130,000 25 paid to EPF, and so are vastly different from the terms of the orders prevailing in the aforesaid two English authorities. With the utmost respect, we are unable to agree with the decision of the Court of Appeal in Hong Leong Bank supra, that a money judgment directing Phung to repay the money could not be enforced by committal proceedings. While it is true that 30 a money judgment could be enforced pursuant to the Debtors' Act 1957, the Act does not, either expressly or by necessary implication, exclude committal proceedings in the event of a defendant's refusal or neglect to do the act within the time specified in the money judgment. Hence, we respectfully hold that the decision of the Court of Appeal in Hong Leong 35 Bank supra, does not assist the appellant in the instant appeal. [15] The specific terms of the judgment or order are of overriding importance, as they are to be construed by the court in order to determine the legal effect as to whether the defendant is required to do an act within a 40 time specified therein and whether the defendant has refused or neglected to do so within the prescribed time in the context of O. 45 r. 1(a). The court will then decide whether or not to grant leave to the plaintiff to pursue an order of committal under O. 45 r. 1(a)(i). 45 [16] Reverting to the instant appeal, the terms of the order in Bahasa Malaysia at p. 372 of the appeal record are translated by me (with emphasis added) as follows:

The defendant do pay to the second plaintiff (the respondent 50 herein) RM245,938.27 together with interest in the sum of RM52,796.23 ie, at 4% per annum with effect from 18 August 1994 until 31 December 1999 amounting to RM298,737.50; and 21

The defendant do pay to the second plaintiff RM120,001.50 5 together with interest in the sum of RM25,762.51, both amounting to RM145,764.01.

Both the payments in (a) and (b) amounting to RM444,501.51 to be made in five instalments ie, RM88,900.30 on the following 10 dates viz 1 January 2008, 1 February 2008, 1 March 2008, 1 April 2008 and 1 May 2008 respectively. [17] The above order contains an indorsement (as translated) to the following effect: 15 If you, Hong Kwi Seong, the defendant named herein neglect to obey this order by the time therein limited to make payment amounting to RM444,501.51 in five instalments viz RM88,900 per instalment on the following dates viz 1 January 2008, 1 February 20 2008, 1 March 2008, 1 April 2008 and 1 May 2008, you Hong Kwi Seong will be liable to process of execution for the purpose of compelling you to obey the same. [18] It is plain to us that the terms of the order in the instant appeal are 25 readily distinguishable from those in In Re Oddy supra; and Iberian Trust Ltd supra. [19] In the instant appeal, the terms of the order clearly directed the appellant to pay the judgment sum in five instalments on or before the 30 respective dates. In other words, the appellant was directed to do an act within a specified date. Despite that, the appellant had refused or neglected to do. The terms of the order in the instant appeal are peremptory in the sense that the appellant was commanded to make payment. These terms come within the scope of O. 45 r. 5(1)(a)(i), supra. We are therefore unable 35 to sustain the submission presented for the defendant. We answer the above question in the affirmative”. [18.2.1] I share the same view as expressed by the learned JC in paras 51 and 52 of his Judgment (quoted at para (aaa) p.18 above) 40 and am inclined to follow the later decision of the Court of Appeal in Hong Kwi Seong v Ganad Media Sdn Bhd (supra). In the light of the later decision, the 2nd to 4th Respondents’ argument cannot stand and prayer 1 of the Second Amended Judgment can be enforced in committal proceedings given my finding that the Court has the power to 45 grant the order to specify a timeline for prayer 1 to be complied with. 22 Other matters 5 2nd to 4th Respondents are unable to pay the judgment sum [19] This issue raised by the 2nd to 4th Respondents that the Petitioner has not shown that the 2nd to 4th Respondents are unable to pay the judgment sum is irrelevant to the Petitioner’s application. The cause of action in the Amended Petition was to recover monies that 10 were wrongly misappropriated by the 2nd to 4th Respondents; hence the Order of the Court for the sum of RM2,598,339.00 to be paid back into the 1st Respondent’s account. [19.1] In support thereof the 2nd to 4th Respondents cited the case of Lee Lay Ling v Goh Kim Nam (Cheah Pei Ching, co-respondent) 15 [2014] 8 MLJ 805 at 827 [50] and [51]. In my judgment Lee Lay Ling’s case is not applicable as this case concerned an application for committal by the petitioner/wife against the respondent/husband predicated on the latter’s failure to make various payments ordered by the court in the course of matrimonial proceedings. However in the 20 present matter, the Petitioner’s application is for recovery of monies that were wrongly misappropriated by the 2nd to 4th Respondents to be paid back into the 1st Respondent’s bank account and, amongst others, for an order to fix time for compliance of prayer 1 of the Second Amended Judgment. 25 Petitioner can commence bankruptcy proceedings instead of committal proceedings [20] The Petitioner is not a judgment creditor. Pursuant to prayer 1 of the Second Amended Judgment, the 2nd to 4th Respondents are 30 required to do a specific act i.e. to pay the sum of RM2,598,339.00, monies which have been misappropriated together with interest into the 1st Respondent’s account. It is to be noted that it is not a judgment 23 requiring the 2nd to 4th Respondents to pay monies to the Petitioner but 5 rather the 1st Respondent. Hence the reason for the penal notice being endorsed to the Second Amended Judgment to ensure compliance by the 2nd to 4th Respondents. The end result of any bankruptcy proceedings will not cause the Petitioner to receive the sum of RM2,598,339.00, monies which have been misappropriated together 10 with interest as prayer 1 of the Second Amended Judgment expressly states that the sum of RM2,598,339.00 together with interest is to be paid into the 1st Respondent’s bank account. As correctly submitted by the Petitioner, the Petitioner has no locus standi to commence bankruptcy proceedings since no monies can be paid to the Petitioner 15 directly. For the reasons which I have alluded to earlier the only manner for the Petitioner to enforce the Second Amended Judgment is by way of committal proceedings to ensure that the 2nd to 4th Respondents pay back the specified sum into the bank account of the 1st Respondent. 20 [20.1] The issue of the 1st Respondent commencing bankruptcy proceedings is a non starter as it is not a pleaded issue. Petitioner is speculating that the 2nd to 4th Respondents will not comply with the Second Amended Judgment 25 [21] I find there is no merit whatsoever for the 2nd to 4th Respondents to argue that the Petitioner is speculating that the 2nd to 4th Respondents will not comply with the Second Amended Judgment. Based on the salient facts narrated above, it is without doubt there is proof that were several demands made by the Petitioner for the 2nd to 30 4th Respondents to comply with prayer 1 of the Second Amended Judgment which they refused to comply. 24 5 Conclusion [22] For the given reasons I had allowed the Petitioner’s application in encl.161 as per the terms alluded to in para 2 above. Dated: 30/11/2017 10 SGD. (LAU BEE LAN) Judge 15 Counsel for the Petitioner: Encik Vernon Jude Samuel 20 Messrs Shui-Tai Advocates & Solicitors Entrance 2, Suite 1308, 13th Floor Block A, Damansara Intan No. 1, Jalan SS20/27 25 47400 Petaling Jaya Selangor Darul Ehsan Counsel for the 2nd and 3rd Respondents: 30 Encik Arnold Andrew Messrs Arnold Andrew & Co Advocates & Solicitors Level 9-12, Menara Sentral Vista 35 No. 150, Jalan Sultan Abdul Samad 50470 Brickfields Kuala Lumpur 40 25 5 Counsel for the 4th Respondent: Encik Adam Lee Messrs Mohanadass Partnership Advocates & Solicitors 10 B-21-8, The Vertical, Avenue 3 Bangsar South City No.8, Jalan Kerinchi 59200 Kuala Lumpur 15