Ling Sie Kiiong v Naushad Bin Abdul Rahiman (WA-28PW-268-05/2024)

These Grounds concern 3 Notices of Appeal to the Court of Appeal against my decision on 30.1.2026. These Notices of Appeal are filed by the directors of the Respondent (“the Company”): a. Encl 48 dated 21.2.2026 filed by Naushad bin Abdul Rahiman (NRIC No: 660501016451) (“Naushad”) against my finding of contempt against him and sentencing him by imposing a fine of RM100,000,00 to be paid within 30 days being on or before 3:30m on 2.3.2026, and in default S/N xO6ssecxGkyGhAs4pvUvbg thereof, he is to be committed to prison for a period of 7 days, and with costs of RM10,000.00 subject to allocatur; b. Encl 57 dated 26.2.2026 filed by Sujad Sha bin Abdul Rahiman (NRIC No: 690303015973) (“Sujad”) against my finding of contempt against him and sentencing him by imposing a fine of RM200,000,00 to be paid within 30 days being on or before 3:30m on 2.3.2026, and in default thereof, he is to be committed to prison for a period of 7 days, and with costs of RM10,000.00 subject to allocatur; c. Encl 58 dated 26.2.2026 filed by Arshad bin Abdul Rahiman (NRIC No: 671021016325) (“Arashad”) against my finding of contempt against him and sentencing him by imposing a fine of RM200,000,00 to be paid within 30 days being on or before 3:30m on 2.3.2026, and in default thereof, he is to be committed to prison for a period of 7 days, and with costs of RM10,000.00 subject to allocatur.

All references to sections in these grounds are with reference to sections in the Companies Act 2016 (“CA 2016”).

The Company was wound up by the Petitioner on 10.8.2018. However, the directors did not file the Statement of Affairs as required under CA 2016. The Applicant, being the Liquidator of the Company) applied for and obtained orders for inspection S/N xO6ssecxGkyGhAs4pvUvbg and to procure documents from the Directors (collectively, “Naushad, Arashad and Sujad”), and the auditors. The proceedings against the auditors were dropped as they had ceased to audit the Company since 2015.

4.

By a letter dated 24.1.2024 issued to the Directors, they were informed that they would be questioned on the withdrawals made from the CIMB Bank account in the 6 months prior to the presentation of the winding up petition.

Counsel for the Applicant submitted that the reasoning behind the request was that several withdrawals were made after this date in a possible violation of s. 528 prohibiting preferences, which are deemed fraudulent and void. The request was also to investigate the actions of the Directors with respect to such withdrawals and dispositions.

On the date for the attendance and hearing on 14.2.2022, only Naushad appeared in Court. He informed the Court that the other directors, Arashad and Sujad, were his brothers and S/N xO6ssecxGkyGhAs4pvUvbg would not be appearing, see the Notes of Proceedings (Exhibit “LSK-5” of Encl 2) at page 31: “SR: Encik Nausad, Encik Naushad adalah salah seorang pengarah untuk tawakal? NAR: Ya Adakah pengarah-pengarah lain akan hadir hari ini? NAR: Seorang luar negeri, seorang adik saya jaga anak dia operation, so saya wakil kedua-dua orang, adik dua orang.”

Being dissatisfied with the response, the Applicant, being the Liquidator of the Company, filed a motion for committal against all 3 Directors, Naushad, Arashad and Sujad.

In my judgment, it was clear that Arashad and Sujad deliberately defied the Court Orders and refused to attend Court as ordered. They are in contempt.

In relation to Naushad, he did appear in Court on the appointed date. However, he did not produce any documents of any substance nor show any substantive proof of the statements he made. The documents he produced were personal calculations made with no proof of payments made out of the Company’s S/N xO6ssecxGkyGhAs4pvUvbg accounts. These documents (as an example) appear at Encl 2, Exhibits “LSK-7”. This was in defiance of the Court Orders.

As submitted by Counsel for the Liquidator, Naushad’s response in his affidavit that the Applicant’s lawyer was satisfied with these documents and the reasons for the payments. This was heavily denied.

The Examination proceeded and the following extracts are from the Notes of Evidence on the inspection date, see Encl 2, Exhibit LSK-5.

First, it seems clear enough that Naushad simply avoided the question of who were in possession of the Company’s documents. “SR: Ok, then pelikuidasi, liquidator telah cuba, menulis beberapa surat untuk statement of financial affairs, untuk dokumen-dokumen syarikat, untuk statement of account daripada director-director, tapi tiada apa-apa dokumen diberi sehingga hari ini. Dengan siapakah dokumen-dokumen ini? NAR: Dokumen, sememangnya akaun itu tak aktif sebenarnya, memang Tawakal Resources ini memang tak pakai selama ini. Tiba-tiba ada satu masa itu 2017 kita cuba satu niaga jual petrol, petrol station. So kita gunakan itu akaun untuk cubaan jual minyak, itu pun third party punya, dua pam minyak, selama lebih kurang 12 bulan. Itu saja saya gunakan itu akaun. Ini akaun yang mana Encik S/N xO6ssecxGkyGhAs4pvUvbg NAR: Tawakal Resources Akaun Bank mana NAR: Cimb bank …

Counsel, after establishing that an account (“the CIMB Account”) was operated by the Company, sought to determine that monies were withdrawn from the CIMB Account. En Naushad then tried to explain that the account was used for trading in petrol. The explanations were vague and unhelpful. SR: Ok, dari sini Encik Nausad, ada beberapa wang dikeluarkan daripada akaun sejak Januari NAR: Ya, kita gunakan this account for beli petrol, jual, jual dan beli petrol bagi pada yang saya ada dua pam minyak jalankan, ini saya ada dokumen so masuk dia orang punya akaun untuk beli petrol. Ini saya punya dokumen, dua company. YA: Zam apa dokumen tersebut bagi kepada kaunsel. NAR: Satu nama DD Batcha satu nama Sobirin petrol JB: Mahkamah arahkan serah kepada peguam, satu set ini ya SR: Didi Batcha ini apa business dia? NAR: Dia ada tulis pam station minyak, station minyak S/N xO6ssecxGkyGhAs4pvUvbg SR: Sorry, station minyak NAR: Petronas SR: Lagi satu Sobirin petrol and mart NAR: Sama, station minyak … “SR: Ok, so yang April tu yang Encik Naushad kata bayar kepada Yahya awal tetapi kepada staff? Bukan NAR: Dia dia ambil itu duit lepas itu dia transfer dia transfer kepada top up minyak beli Ada apa-apa bukti tak dia bayar dulu NAR: Sekarang bukti kena mintak, saya kena mintak dengan dia You takda sekarang la NAR: Takda sekarang”

In the end, Naushad stated that he could not prove that withdrawals were actually made to pay for petrol as claimed. “SR: Ok, ada apa-apa bukti tak tawakal, Encik Naushad ada bayar dua puluh enam ribu ini kepada petrol, petrol station NAR: sekarang saya tak boleh dapat tengok nak perlu masa kerana dua puluh enam ribu itu, perlu masa sikit pasal S/N xO6ssecxGkyGhAs4pvUvbg banyakkan dia cash, top up dengan cash. Kadang-kadang lori dating dia orang akan telefon dan duit tak cukup saya kena bagi dulu lepas itu saya kena ambil balik So, jadi Encik Naushad ini, you, Tawakal tiada apa-apa dokumen untuk membuktikan ada apa-apa dealings ataupun perniagaan dengan dengan Yahya Awal ya dengan Petronas NAR: Itu sahaja, dua business yang jalankan selama 12 bulan Yahya awal kita jalankan lima bulan dekat pelangi pelangi inta dua belas bulan.”

Naushad was uncooperative and provided no real documentary proof of any dealings with the monies, as required by the widely drafted Court Order of 28.8.2020.

After the inspection date, despite letters issued to the Directors for the production of documents as stated in the Court Orders and a final letter dated 12.4.2023 requesting for the documents and threatening committal, Naushad’s reply was that he had given all explanations and he did not have any other documents, see Encl 12, Exhibit “LSK-8”.

As far as Arashad and Sujad are concerned, I find that they were in breach of the Court Orders in failing to even attend Court. It is clear to me that they are in contempt of the Court Orders. S/N xO6ssecxGkyGhAs4pvUvbg

Naushad paid only lip service to the Court Orders. Although he did attend Court, in the end, he did defy the Court Orders by not providing any sufficient documents required by the Court Orders.

I therefore find Naushad, Arashad and Sujad in contempt of the Court Orders.

The Liquidator submits that the lack of cooperation by the Directors has caused the recoveries of the Liquidator to be hindered largely due to lack of documents and information regarding the moneys that were withdrawn from the Company’s accounts. Further action could not be taken without such evidence. The failure to comply with the Court Orders had serious consequences for the Liquidator, in being unable to carry out his duties.

In HSBC Bank Malaysia Bhd v. Tirathrai Sdn Bhd [2009] 1 CLJ 286, where a custodial sentence was ordered, the Court held: “On Sentence [87] The court will always look upon very seriously against any act that defies its order. This is because obedience to the order of the court is the very foundation of our judicial and legal system. If any member of the public is 'at liberty' to disobey a court's order, then the judicial and legal system will collapse; and so will law and order.” S/N xO6ssecxGkyGhAs4pvUvbg

The directors’ defiance of the Court Orders should not excused. If any member of the public is 'at liberty' to disobey an order of court, then the judicial system will be severely threatened and may well collapse.

The following cases were also cited.

In Puteh Aman Power Sdn Bhd v. Bittersweet Estates (Sabah) Sdn Bhd (No 3) [2012] 8 CLJ 729 where the directors refused to disclose the accounts of the company. The Court fined the directors RM100,000.00.

In Tan Bee Geok v Thai Kim Sim & anor; Lim Woon Fui (party cited) (2025) 6 CLJ 989 the Court sentenced the contemnor with a fine of RM60,000.00 for non-disclosure of bank accounts, EPF particulars, and his shareholding and property details. The fine and costs were to be paid within 14 days, failing which, the contemnor would be imprisoned until the contempt was purged.

In Datuk Wira Khiu Fu Siang & anor v. Foo Hiap Siong [2024] CLJU 998, the contemnor failed to remove a Facebook posting as ordered and only did so when the application for committal was served. The Court sentenced the contemnor to 3 days imprisonment and a fine of RM100,000.00 to be paid in 14 days and in default, to 3 months imprisonment.

The submissions of Counsel for the Applicant, were that for: S/N xO6ssecxGkyGhAs4pvUvbg a. Naushad, a fine of RM100,000.00 be imposed and costs of RM30,000-00 to be paid to applicant all within 14 days, and failing which, a custodial sentence would be imposed. b. Arashad and Sujad, a fine of RM200,000.00 each be imposed as they did not even bother to attend Court and only attended after a date for decision had been fixed. Counsel asked for costs of RM30,000.00. Again, Counsel asked that the fines and costs be paid within 14 days, failing which, a custodial sentence be imposed.

As stated above, my findings are that all Directors are in contempt of the Court Orders.

First, I find Arashad and Sujad have deliberately defied and disobeyed the Court Orders. I hold that they should be fined RM200,000.00 each and in default, imprisonment of 7 days should be imposed.

Secondly, Naushad although attended Court, paid mere lip service to complying with the Orders. His attempts to comply were hollow and in reality, were in defiance. I agree with Counsel for the Liquidator that a fine of RM100,000.00 should be imposed against Naushad and in default, imprisonment of 7 days be imposed. S/N xO6ssecxGkyGhAs4pvUvbg

The said fines against the Directors shall be paid within 1 month, being on or before the date set as identified in para 1 above.

Costs of RM10,000.00 are awarded against each of Naushad, Arashad and Sujad, subject to allocatur. Dated the 27th day of March 2026 ........................tt............................ YA TUAN SAHERAN SUHENDRAN JUDICIAL COMMISSIONER OF THE HIGH COURT (COMMERCIAL 11) (INSOLVENCY 2) OF KUALA LUMPUR IN THE TERRITORY, MALAYSIA Counsel for the Applicant: Solicitors: R. Santhi Messrs. Susielan & Assoc. (Kuala Lumpur) Counsel for the Company (Naushad): Solicitors: Ang Wei Jun Messrs. Ang Chambers (Skudai) S/N xO6ssecxGkyGhAs4pvUvbg Case References: • Datuk Wira Khiu Fu Siang & anor v. Foo Hiap Siong [2024] CLJU 998 • In HSBC Bank Malaysia Bhd v. Tirathrai Sdn Bhd [2009] 1 CLJ 286 • Puteh Aman Power Sdn Bhd v. Bittersweet Estates (Sabah) Sdn Bhd (No 3) [2012] 8 CLJ 729 • Tan Bee Geok v Thai Kim Sim & anor; Lim Woon Fui (party cited) (2025) 6 CLJ 989 Legislation References: • Companies Act 2016 (“CA 2016”) Decision Date: 30th January 2026 Counsel for the Company (Arashad and Sujad): Solicitors: M.Robert & R.Pavanjothi Messrs. R Muthu & Co. (Johor Bharu) S/N xO6ssecxGkyGhAs4pvUvbg