Lembaga Kumpulan Wang Simpanan Pekerja v Persatuan Bolasepak Kedah Darul Aman (KA-22NCvC-3-01/2021)

1.

MUKHRIZ BIN MAHATHIR

ABDUL RAHMAN BIN ABDULLAH

ANAS HAFIZ BIN MUSTAFFA

KHAMAL IDRIS BIN ALI

MOHD YUSURI BIN YUSOF

MOHD ASMIRUL ANUAR BIN ARIS (NO. K/P: 770303-02-6023) 31/12/2025 11:27:08

SHAHRUL BIN SAMSUDIN

MOHD RUZAINI BIN MOHD RADZI (NO. K/P: 891027-02-5745) --- DEFENDANTS GROUNDS OF JUDGMENT (After trial)

This case centres on the Plaintiff's claim to hold D1 and its office bearers, D2 to D9, jointly and severally liable for unremitted employee retirement fund contributions in violation of statutory obligations. In evaluating this claim, the Court must remain mindful that the EPF Act 1991 is a piece of social security legislation designed to protect the welfare of employees. It is settled law that such statutes must be interpreted liberally and purposively to ensure that the statutory protection intended by Parliament is not undermined by technicalities or administrative oversights.

The case was initiated by the Employees Provident Fund (EPF), a corporation established under Section 3 of the Employees Provident Fund Act 1991 (“EPF Act 1991”).

The D1 association is registered under the Sports Development Act 1997 (“the SDA 1997”).

The Plaintiff claimed that D1 was, at all material times, classified as an ‘employer’ under Section 2 of the EPF Act 1991. Consequently, D1 was legally responsible under Sections 43 and 45 of the EPF Act 1991 and Regulation 3(1) of the EPF Regulations 2001 to remit monthly contributions for its employees to the Plaintiff, with payments required to reach the Plaintiff no later than the fifteenth (15th) day after the end of the relevant month.

The Plaintiff claimed that D1 failed, refused, and/or was negligent in submitting these mandatory EPF contributions for the period spanning December 2019 until July 2020.

Due to this failure, the Plaintiff asserted that the total principal amounts of outstanding contributions were RM1,519,801.00. This total comprised monthly arrears, including specific amounts such as RM158,019.00 for December 2019 and RM212,790.00 for February 2020.

Furthermore, the Plaintiff sought additional statutory liabilities such as dividends (calculated at 5.00% per annum for 2019) under Section 45(3) of the EPF Act 1991, and late payment charges (estimated at 6.00% per annum for the period 01.01.2019 to 31.12.2019) under Section 49(1) of the EPF Act 1991, accruing until the date of full settlement.

The case against the individual defendants (D2 to D9) was based on Section 46 of the EPF Act 1991, which imposes joint and several liability on office bearers of an association for unpaid contributions and related charges.

The Defendants were identified as office bearers during the material time. The liability amount varied based on their specific tenure: a) D3, D5, D6, D8, and D9 were claimed against for the full outstanding amount of RM1,519,801.00 (December 2019 to July 2020). D9 resigned in August 2020, while D3, D5, D6, and D8 remained office bearers as of the filing date; and b) D2, D4, and D7 were claimed against for a lower amount of RM1,343,156.00 (December 2019 until June 2020), as they had resigned earlier (D7 resigned on 18.05.2020, and D2 and D4 resigned on 28.05.2020).

Despite the Plaintiff issuing a notice of demand dated 30.12.2020 to all Defendants, they collectively failed, refused, and/or were negligent in paying the total amount due.

Before the trial commenced, the Plaintiff had already received RM1,016,120.00 from D3, D5, D6, D8, and D9, leading to the discontinuation of the action against them as per the Court Order dated 30.04.2024 (Encl.82); thus, the trial proceeds solely between the Plaintiff and D1, D2, D4, and D7.

Following the payment and settlement reached with D3, D5, D6, D8, and D9, the remaining balance of contributions (“the Revised Claim”) sought against D1, D2, D4 and D7 is as follows: a) the outstanding EPF contributions of the employees of RM 503,681.00; b) dividends calculated on the outstanding contributions of RM 503,681.00 at the following rates: i.

5.00% pe annum from 01.01.2019 to 31.12.2019; ii.

4.90% per annum from 01.01.2020 to 31.12.2021; iii.

5.65% per annum from 01.01.2020 to 31.12.2021 iv.

4.75% per annum from 01.01.2021 to 31.12.2021 v.

5.40% per annum from 01.01.2022 to 31.12.2023 vi.

6.30% per annum from 01.01.2024 to 31.12.2024 vii. Such further dividends as shall be declared by the Plaintiff for each subsequent year until full settlement. c) Late payment charges calculated on the outstanding contributions of RM 503,681.00 at the following rates: i.

6.00% per annum from 01.01.2019 to 31.12.2019; ii.

5.90% per annum from 01.01.2020 to 31.12.2020; iii.

6.65% per annum from 01.01.2021 to 31.12.2021; iv.

5.75% per annum from 01.01.2022 to 31.12.2022; v.

6.40% per annum from 01.01.2023 to 31.12.2023; and vi.

7.30% per annum from 01.01.2024 to 31.12.2024. The Plaintiff’s Claim 13. The Plaintiff's claim centres on the failure of the Defendants, particularly D1, to remit outstanding EPF contributions for the period of December 2019 to July 2020.

Relying on the judgment of Lembaga Kumpulan Wang Simpanan Pekerja v Len Omnibus Company Bhd and Others [2010] MLJU 1750, the Plaintiff asserts that D1, as an employer under Section 2 of the EPF Act 1991, is statutorily obligated to make monthly contributions on behalf of its employees.

Furthermore, the Plaintiff argues that D2, D4, and D7, as office bearers of D1, are jointly and severally liable with D1 for the outstanding contributions, dividends, and late payment charges, referencing Section 46(1) of the EPF Act 1991 (See Lembaga Kumpulan Wang Simpanan Pekerja v Suasa Kristal (M) Bhd & Ors [2009] 8 CLJ 236).

The Plaintiff emphasises that a certificate issued under Section 64 of the EPF Act 1991 (“the Certificate”) and the Plaintiff’s assessment forms (“Form E”) constitute prima facie evidence of the Defendants' indebtedness. The Plaintiff cited the case of Lembaga Kumpulan Wang Simpanan Pekerja Iwn NCH Corp (M) Sdn Bhd & 7 lagi [2017] 1 LNS 2160 and a few others to support its contention. D1’s Case 17. It is a matter of record that D1 filed no written submissions after the conclusion of the trial. Therefore, this court's decision rests solely upon the pleadings and oral submissions presented by D1’s learned counsel, noting further that D1 did not produce any witnesses at trial.

During oral submission, D1's learned counsel advanced a three-pronged argument. First, they contended that the Plaintiff had not discharged its burden of proof, specifically failing to demonstrate that Persatuan Bola Sepak Kedah and D1 are the same entity.

D1 further argued that the Plaintiff's Revised Claim of RM 503,681.00 was insufficiently supported by evidence, and that the testimony offered was unreliable hearsay.

Third, D1 contended that the Akuan Penerimaan Salinan Taksiran Tunggakan dated 04.10.2020 (see B1, p.98) (Encl. 73) (“the Letter of Acknowledgement of Receipt of Assessment Copy of Arrears”) did not operate as recognition that D1 and Persatuan Bola Sepak Kedah were the same entity.

Although the acknowledgement was signed by a staff member of Persatuan Bola Sepak Kedah Darul Aman, D1 argued that this did not amount to an admission of identity, as the document was addressed to Persatuan Bola Sepak Kedah and not to Persatuan Bola Sepak Kedah Darul Aman. D2, D2 and D7s’ Case 22.

In the same vein as D1, the counsels for D2, D4 and D7 relied on the principle established in Datuk Bandar Kuala Lumpur v Zain Azahari Zainal Abidin [1997] 2 CLJ 248, which states that evidence intended to prove a material fact must come from a witness with personal knowledge. Evidence that relies solely on information from a third party is deemed pure hearsay and is inadmissible as evidence. The issues to be determined by the Court 24. The issues agreed between the Plaintiff and D1 before the trial are as follows (Encl.72): a) Whether D1 is an employer as defined under Section 2 of the EPF Act 1991 and is responsible for paying the outstanding Revised Claim, along with dividends and interest; b) Whether D1, as the employer, is liable to pay the EPF contribution arrears as stipulated under Section 45 of the EPF Act 1991; c) Whether D1, being Persatuan Bola Sepak Kedah Darul Aman and Persatuan Bola Sepak Kedah, are the same entity; and d) Whether D1 is registered with the Sports Commissioner of the Ministry of Youth and Sports Malaysia.

Meanwhile, these are the issues agreed between the Plaintiff and D2, D4, and D7 (Encl. 71): a) Whether D2, D4, and D7, as office bearers in the D1 Association, are liable jointly and severally with D1 to pay the Revised Claim for the period December 2019 until June 2020, along with dividends and interest, as stipulated under Section 46 of the EPF Act 1991; b) Whether the type and amount of the Plaintiff's Revised Claim are precise, accurate, and detailed; c) Whether the Plaintiff's claim is wrong and defective due to the Plaintiff’s failure to claim against other office bearers holding the status of Executive Committee Member; d) Whether the Plaintiff's claim is wrong and defective for uniting the action against all Defendants despite the difference in the amount claimed against D2, D4, and D7 compared to the other Defendants; and e) Whether the Plaintiff’s action of combining all Defendants in one action is defective and constitutes an abuse of the court process. Decisions, Findings and Evaluations of the Court 26. Having appraised the evidence and all witnesses put forward by all the parties, and having considered the submissions by the learned counsels for both parties, I find that the Plaintiff had succeeded in proving on a balance of probabilities that in all the facts and circumstances of the case, D1, as the statutory employer, breached its mandatory obligation to remit employee contributions.

Furthermore, the Plaintiff succeeded in establishing the joint and several liability of the office bearers, D2, D4 and D7 for the Revised Claim and associated statutory charges, pursuant to Section 46 of the EPF Act 1991.

I therefore find substantial grounds for the claim against D1, D2, D4, and D7 as the Plaintiff has succeeded in proving the requisite breach of statutory duties under the EPF Act 1991.

Consequently, the claim against D1, D2, D4 and D7 is allowed, requiring them to pay the Revised Claim of the outstanding balance of EPF contributions amounting to RM503,681.00, along with dividends and late payment charges. Herein are my reasons.

The first issue concerns whether D1 is an employer within the meaning of Section 2 of the EPF Act 1991.

The evidence shows that an employer registration (Penyata Seorang Majikan) was created on 20.04.1985 under Employer Registration No. 5563216, in the name Persatuan Bola Sepak Kedah (See B1, p.10; Encl.73).

The records also show that on 31.07.1998, an association was registered with the Sports Commissioner under the name Persatuan Bola Sepak Kedah Darul Aman (See B1, p.9) (Encl.73).

It is not disputed that D1 is an association registered under the Sports Development Act 1997. The issue is whether the body registered in 1985 for EPF purposes and the body registered in 1998 under the new name refer to the same legal association, notwithstanding the change in nomenclature.

Throughout the period relevant to this claim, Employer Registration No. 5563216 continued to be used in the Plaintiff’s statutory assessments (Form E) referring to the employer as Persatuan Bola Sepak Kedah Darul Aman (See B1, pp. 63–96) (Encl.73).

SP1 and SP2 both testified that Employer Registration No. 5563216 remained active and in use all these years for D1’s contribution compliance, and that D1 had never made any objection or request to amend the employer details to the Plaintiff.

The evidence demonstrates that D1 continued to operate and deal with the Plaintiff under Employer Registration No. 5563216, and that at no time during the material period did it assert that the registration was incorrect or belonged to a different body.

Further, the Acknowledgement of Receipt of Assessment of Arrears dated 04.10.2020 was signed by a staff member of Persatuan Bola Sepak Kedah Darul Aman (“Exhibit P1”). The simple logic is this: if D1 genuinely regarded the name Persatuan Bola Sepak Kedah as referring to a different and unrelated entity, it would not reasonably have accepted, acknowledged or acted upon correspondence issued to that name. The conduct is consistent with recognition of continuity of identity.

If D1 had maintained a genuine position that it was a different legal entity from the employer registered in 1985, such an objection would reasonably have been raised at the time of receiving Form E, Form F, or Exhibit P1, rather than only during the trial. The timing and manner of the objection, therefore, undermine its credibility.

On the totality of the evidence and the conduct of the parties, I find that the Plaintiff rightly proceeded against D1 as the employer under Section 2 of the EPF Act 1991, and that Employer Registration No. 5563216 pertains to the same association now known as Persatuan Bola Sepak Kedah Darul Aman.

Furthermore, the First Defendant is estopped by conduct from denying its identity as the registered employer. By consistently utilizing Employer Registration No. 5563216 for its statutory dealings and failing to object to the name 'Persatuan Bola Sepak Kedah' in various Form E assessments over several years, D1 has represented itself as that very entity. It cannot now, at the trial stage, seek to resile from that position to the detriment of the employees' fund.

As such, the question of D1’s obligation to remit EPF contributions under Sections 43 and 45 of the EPF Act 1991 turns on the established documentary record showing D1’s use of employer account 5563216 and the unchallenged assessment notices. It is not contested that the statutory obligation to remit applies where an employer account has been recorded and assessments issued.

Accordingly, having regard to the evidence in the Common Bundle and the Form E assessments, I hold that D1 is the employer for the Plaintiff’s claim and is liable for the outstanding contributions for the period in question. Prima Facie Evidence of Quantum 43. The Plaintiff relies on Section 64 of the EPF Act 1991, which provides that the Certificate issued by an authorised officer of the Board shall be the prima facie evidence of the amount due and payable (in this case, the Revised Claim), as follows: “64. Certificate of an authorised officer of the Board to be evidence In any legal proceedings, a certificate in relation to a claim on contributions payable and duly certified by an authorised officer of the Board shall be prima facie evidence of such certificate having been made and of the truth of the contents thereof. [Emphasis added]

The Plaintiff had physically tendered and marked these documents, through its witness, who is the EPF Head of Enforcement, SP1, during trial: a) Surat Akuan Penerimaan Salinan Taksiran Tunggakan (See B1, p.98) (Encl.73) marked as Exhibit P1; and b) Perakuan Tuntutan Caruman yang Kena Dibayar (See B1, p.99) (Encl.73) marked as Exhibit P2 (“Exhibit 2”).

It is worth noting that both Exhibit P1 and Exhibit P2 were admitted into evidence without any objection from D1, D2, D4 or D7 at the trial.

During cross-examination, counsel for D1 objected to portions of the evidence of SP2, the EPF Inspecting Officer responsible for preparing Form E, on the ground that SP2 was not personally involved in the employer registration in 1985 and 1998.

It was argued that, lacking firsthand knowledge of the historical registration process and the subsequent adjustment of the quantum, SP2’s testimony on both the identity of the employer and the computation of the revised outstanding sum amounted to hearsay.

Similarly, D2, D4 and D7 contended that SP2 had no personal knowledge of the internal process by which the outstanding sum was reduced from RM1.5 million to RM503,681.00. Therefore, his testimony on the quantum was unreliable.

I find these objections to be without merit. The Plaintiff’s case does not rest on SP2’s personal knowledge of the historical registration process nor on the subjective recollection of any officer. Instead, it rests on the statutory evidentiary effect of the documents tendered, namely Form E and Exhibit P2.

SP2, being an Inspecting Officer appointed under Section 37A of the EPF Act 1991, explained that his statutory function includes conducting inspections, examinations and assessments of contribution compliance.

In performing these duties, SP2 testified during trial that assessments are carried out by retrieving salary and payroll records and processing them through the Enforcement Management System (EMS), which automatically calculates contributions due. Form E, issued for the relevant period (See B2, pp. 4 to 37), reflects these statutory assessments.

In addition, Form F, issued pursuant to Rule 28 of the EPF Rules 1991, is a notice of demand served upon an employer to notify the contribution arrears assessed in Form E.

SP1 confirmed that upon issuance of Form F, the employer is afforded 14 days to dispute the assessment. It is not disputed that D1 did not submit any objection within this statutory period.

The Certificate issued under Section 64 of the EPF Act 1991, read together with the Form E assessments, is therefore prima facie proof of the debt. Once tendered, the burden shifts to the Defendants to demonstrate a manifest error in the evaluation.

Yeoh Wee Siam J in Lembaga Kumpulan Simpanan Pekerja v HOL Chainstore (M) Sdn Bhd & Ors [2014] 7 MLJ 622, affirmed that a Section 64 certificate carries statutory evidentiary weight as proof of indebtedness: “The Court fully agrees with the written Submissions of Counsel for the Plaintiff. A few salient points need to be highlighted:

under s 64 of the EPF Act 1991 the Certificate of Indebtedness dated 11.11.2011 (exhibit NSI-7 of Plaintiff's Affidavit In Support) shall be "prima facie" evidence "of the debt outstanding by the 1st Defendant Company ("the Company") and its Directors.

In the same vein, in Lembaga Kumpulan Wang Simpanan Pekerja v Azimuddin bin Ab Ghani & Ors [2011] MLJU 234, Lee Swee Seng JC (as he then was) held that the certificate and Form E are conclusive unless the employer proves error. (See also Lembaga Kumpulan Wang Simpanan Pekerja v NCH (Malaysia)

I further find support in Lembaga Kumpulan Simpanan Pekerja v Goon Institution Sdn Bhd & Ors [2011] 2 ILJ 526, where Lee Swee Seng JC (as he then was) held that once the EPF produces the Form E assessments and Section 64 certificates, the amount claimed stands as proved unless the employer produces contrary records. In the absence of such evidence, the EPF’s figures are accepted as final: “[40] The relevant defendants have not raised any evidence to rebut the plaintiff’s prima facie evidence of the amount outstanding. The plaintiff had exhibited four certificates to cover the amount outstanding for the periods stated in prayers 1-4. There was also exhibited various Form E, which contains the particulars of the employees’ names, their EPF numbers, and the period for which arrears of EPF contributions were due and payable by the employer. In the absence of any credible and cogent figures to the contrary the prima facie evidence of the plaintiff stands unrebutted.” [Emphasis added]

In the present case, the Defendants did not produce any contrary evidence, salary records, alternative calculations, or expert analysis to rebut the assessment. The hearsay objection does not displace the statutory effect of Section 64 of the EPF Act 1991.

Accordingly, I accept the Plaintiff’s evidence as to the outstanding amount of RM503,681.00, together with dividends under Section 45(3) and late payment charges under Section 49 of the EPF Act 1991, accruing until full settlement.

The next issue concerns whether D2, D4 and D7, as office bearers of D1 during the period of default, are jointly and severally liable for the outstanding contributions pursuant to Section 46(1) of the EPF Act 1991.

Section 46(1) of the EPF Act 1991 provides that where the employer is an association, every office bearer of that association at the time of the default is jointly and severally liable with the association for the outstanding contributions, dividends and late payment charges.

It is not disputed that D2, D4 and D7 held office in D1 during the relevant period. The Plaintiff tendered D1’s own organisational records, showing their positions (Cabutan Minit Kongres Tahunan Kali Ke-43 Defendan Pertama bagi Agenda 14) (See B1, pp.11 to 18) (Encl. 73). The dates of their resignation or cessation of role correspond with the differing periods, and sums claimed against them.

D2, D4, and D7 argue that they should not be personally liable because they served voluntarily, received no salary or allowance, and allegedly did not exercise financial authority or supervisory control over the management of contributions.

This Court could not accept this argument. Section 46 of the EPF Act 1991 does not make liability contingent upon: a) whether the office bearer was remunerated; b) whether the office bearer personally handled payroll; or c) whether the office bearer was involved in daily financial decisions.

The wording of the statute is clear, strict, and unqualified: liability attaches by virtue of holding office during the period of default. This interpretation has been consistently affirmed in Lembaga Kumpulan Wang Simpanan Pekerja v Suasa Kristal (M) Bhd & Ors [2009] 8 CLJ 236, where Balia Yusof JC (as he then was) at p.242 ruled that Section 46 of the EPF Act 1991 imposes automatic joint and several liability once default is established: “Section 46 of the Act does not make any distinction between nominee, active or non-active director, and neither is the word director defined under the Act. In law, there is no difference in the liabilities of these directors.” [Emphasis added] (See also Lembaga Kumpulan Wang Simpanan Pekerja v

The rationale behind the strict application of Section 46 is that office bearers are the alter ego of the association. They are the directing mind and will of the entity. Parliament, in its wisdom, has seen fit to ensure that those who take up the mantle of leadership also shoulder the responsibility of ensuring statutory compliance. To allow an office bearer to escape liability by claiming a 'voluntary' or 'non-active' status would be to stultify the very protections the Act seeks to provide.

The Apex Court in Lembaga Kumpulan Wang Simpanan Pekerja v Edwin Cassian a/l Nagappan @ Marie [2021] 5 MLJ 253 could not be clearer, when Nallini Pathmanathan FCJ conclusively addresses the interpretation and enforcement of Section 46 of the EPF Act 1991, particularly regarding the joint and several liability of office bearers (directors): [36] The instant appeal concerns a consent judgment entered into between the parties. Of primary importance is section 46 of the EPF Act which imposes joint and several liability on the directors of a company for unpaid contributions. These provisions must be given full effect, as they comprise statutory law. It is not open to the Courts to stultify, vary or whittle down the clear provisions promulgated by Parliament in relation to liability for EPF contributions, by construing judgments in manner which is not consonant with the EPF Act. In short, the EPF Act prevails over the terms of the judgment.” [Emphasis added] (See also Lembaga Kumpulan Wang Simpanan Pekerja v Mohd Abdul Karim bin Abdullah & Ors [2024] 7 MLJ 566)

Therefore, the law is trite that the Plaintiff can rely on Section 46 of the EPF Act 1991 to hold D2, D4, and D7 individually liable, irrespective of any ambiguity in initial claims or orders, thereby upholding the primary objective of the EPF Act.

The Defendants further contend that they cannot be sued because some other committee members were not named. Again, this argument is untenable. The Plaintiff is entitled to proceed against any or all office bearers who held office at the relevant time. The statutory liability under Section 46 is individual and concurrent, not collective or all-or-nothing.

No evidence was produced to show that any other person assumed responsibility for preventing the default, nor that D2, D4 or D7 took steps to ensure compliance with contribution requirements. The Defendants, therefore, failed to rebut the statutory presumption of liability.

The learned counsel for D2, D4 and D7 heavily relied on Persatuan Bola Sepak Kelantan (supra) to argue that voluntary office bearers without financial control cannot be held personally liable. I find that this reliance is misplaced.

The Kelantan (supra) case was decided under Section 69 of the EPF Act 1991, which concerns criminal liability, requiring proof of consent, connivance or neglect. The issue in that case was therefore a fault.

In contrast, the present action is brought under Section 46, which is a civil recovery provision imposing strict liability by virtue of position. Unlike Section 69, which requires proof of 'fault' (consent, connivance, or neglect), Section 46 creates a statutory debt that attaches automatically once the default is established, irrespective of the office bearer's personal involvement or remuneration.

Further, in Kelantan (supra), the office bearers produced evidence showing they had no control over finances, no access to the association’s accounts, and they attempted to prevent the non-payment.

In the present case, no such evidence was produced by D2, D4 or D7. Their bare denial of involvement is insufficient to displace the statutory operation of Section 46.

Accordingly, Kelantan (supra) is distinguishable. It does not assist the Defendants, particularly D2, D4, and D7, as the case concerns an interlocutory application and the court is not required to make findings on contested factual matters. The Plaintiff needs only demonstrate a prima facie case, which burden has been met.

I therefore hold that D2, D4 and D7 are jointly and severally liable with D1 for all outstanding EPF contributions, dividends under Section 45(3) and late payment charges under Section 49, for the periods during which each of them held office.

D2, D4 and D7 further alleged that the Plaintiff’s action was flawed due to selective targeting. They argued that other Executive Committee members of D1 who held office during the material period were not joined as defendants, thereby suggesting the Plaintiff singled them out unfairly.

They relied on Section 69 of the EPF Act 1991, which concerns criminal offences committed with the consent, connivance, or neglect of an officer. They submitted that the Plaintiff was required to prove that they had actual knowledge, control, or participated in the failure to remit contributions.

They also pointed to the existence of other office bearers, including the treasurer and other paid administrative officers, who are not sued.

They further submitted that liability should attach only where a defendant had direct involvement in financial administration, suggesting that since no evidence was led to show that D2, D4, and D7 handled accounts or authorised payments, there was insufficient basis to impose personal liability.

D2, D4, and D7 used the political link between the change in leadership and the timing of the lawsuit to reinforce their legal argument that the Plaintiff engaged in selective enforcement by choosing to sue specific unpaid, volunteer office bearers over others.

The Plaintiff, in response, asserted that D2, D4 and D7s’ reliance on Section 69 of the EPF Act 1991 was misplaced. The Plaintiff submitted that the present claim is not a criminal prosecution, but a claim for recovery of contributions under the civil recovery framework of the EPF Act. In such cases, Section 46(1) applies, not Section 69.

Under Section 46(1) of the EPF Act 1991, where an employer fails to pay contributions, “every director or person responsible for the management of the affairs of the body” at the time of default is jointly and severally liable with the employer.

The provision does not require proof of knowledge, consent, negligence, or involvement in financial administration. Liability arises from holding office during the period of default.

The Plaintiff further stressed that office bearers are not passive figureheads. By law and organisational governance, they bear collective supervisory and oversight responsibility over the employer entity.

The Plaintiff also highlighted that non-joinder of other potential office bearers is not a defence. The right to sue some or all potential joint tortfeasors lies entirely with the Plaintiff. The Defendants did not apply for third-party proceedings under Order 16 of the Rules of Court 2012 to join any additional parties whom they allege to share responsibility.

The court notes that Section 46 of the EPF Act 1991 has been consistently interpreted as imposing strict and joint liability. Directors are the alter ego of the entity. Hence, it is considered inappropriate for an office bearer to attempt to escape culpability by pleading that they are a sleeping partner or director, or a silent director or a non-active director (See Lembaga Kumpulan Wang Simpanan Pekerja v Adorna Rmit Sdn Bhd & Ors [2003] 4 MLJ 729 at p. 734).

I agree with the Plaintiff that Section 69 is wholly inapplicable— Section 69 concerns criminal liability, where the prosecution must show consent or connivance. The present claim is civil in nature, arising from unpaid compulsory contributions. As such, Section 46 applies squarely, and the Defendants’ attempt to import the mental element requirement under Section 69 cannot succeed.

On the facts, it is undisputed that D2, D4 and D7 were office bearers of D1 during the period of default. This is evident from the corporate and association records tendered. They therefore fall within the statutory category of persons jointly liable for the contributions assessed.

Accordingly, I reject the argument of selective targeting. The Plaintiff was entitled to proceed against any or all office bearers. The Defendants’ remedy, if they believed others should contribute, lay in seeking indemnity or contribution from those persons and not in resisting liability in this action.

I therefore hold that D2, D4 and D7 are jointly and severally liable for the outstanding contributions, dividends and late payment charges pursuant to Section 46(1) of the EPF Act 1991.

For the foregoing reasons, the Plaintiff has successfully proved its case on a balance of probabilities against the remaining Defendants. The Plaintiff’s claim is allowed, and it is hereby ordered that: a) D1, D2, D4, and D7 are jointly and severally liable to the Plaintiff for the sum of RM503,681.00, representing the outstanding balance of EPF contributions; b) D1, D2, D4, and D7 shall pay statutory charges on the outstanding balance, namely dividends calculated at a rate of 5.00% per annum from 01 January 2019 until 31 December 2019, and continuing at the rate of any subsequent dividends declared yearly thereafter until full settlement; c) D1, D2, D4, and D7 shall pay Late Payment Charges calculated at a rate of 6.00% per annum from 01 January 2019 until 31 December 2019, and continuing at the rate of any subsequent charges declared yearly thereafter until full settlement; and d) D1, D2, D4, and D7 shall pay the Plaintiff the costs of this action. Dated: 31st December, 2025 -------------------------------------------------------------------- YA DR. Hj JOHN LEE KIEN HOW @ MOHD JOHAN LEE JUDGE HIGH COURT OF MALAYA ALOR SETAR Solicitors for the Plaintiff : Abd Shukor Ahmad, Aaron Aiman Thangarajoo & Michelle Liew Jet Nee Messrs. Shukor Baljit & Partners Solicitors for The First Defendants : Ahmad Taufiq B Baharum Messrs. Abdul Halim Said & Co. Solicitors for the Second, Fourth & Seventh Defendant : Mior Nor Haidir Bin Suhaimi Messrs. Haidir & Co. Table of Authorities Cases Lembaga Kumpulan Simpanan Pekerja v HOL Chainstore (M) Sdn Bhd & Ors [2014] 7 MLJ 622 Lembaga Kumpulan Wang Simpanan Pekerja lwn NCH Corp (M) Sdn Bhd & 7 lagi [2017] 1 LNS 2160 Lembaga Kumpulan Wang Simpanan Pekerja v Edwin Cassian a/l Nagappan @ Marie [2021] 5 MLJ 253 Lembaga Kumpulan Wang Simpanan Pekerja v Goon Institution Sdn Bhd & Ors [2011] 2 ILJ 526 Lembaga Kumpulan Wang Simpanan Pekerja v Len Omnibus Company Bhd and Others [2010] MLJU 1750 Lembaga Kumpulan Wang Simpanan Pekerja v Mohd Abdul Karim bin Abdullah & Ors [2024] 7 MLJ 566 Lembaga Kumpulan Wang Simpanan Pekerja v Richmatt Holding (M) Sdn Bhd & Ors [2011] 2 MLJ 84 Lembaga Kumpulan Wang Simpanan v Suasa Kristal (M) Bhd & Ors [2009] 8 CLJ 236