Marina Bay Sands Pte Ltd v Tan See Meng (WA-29NCC-457-04/2022)

A sum of S$157,302.00.

(ii) Interest on the said sum at the rate of 12% per annum from 07.11.2019 to the date of repayment.

(iii) Costs of S$3,982.55. [3] On 08.03.2022, the JC registered the Singapore Judgment as a judgment in the High Court of Malaya at Kuala Lumpur (“Malaysian Judgment”) pursuant to Section 4 of the Reciprocal Enforcement of Judgments Act 1958 (“REJA”) in respect of the following sums payable under the Singapore Judgment:

A sum of RM489,397.98 (which is equivalent to S$157,302.00 as at 19.08.2021 at the exchange rate of S$1.00 = RM3.1112).

(ii) Interest at the rate of 12% per annum on the said sum of RM489,397.98 calculated from 07.11.2019 to 08.03.2022.

(iii) A sum of RM12,390.51 (which is equivalent to S$3,982.55 as at 19.08.2021 at the exchange rate of S$1.00 = RM3.1112), as costs. [4] As at 12.04.2022, the JD owed a total of RM647,176.12 to the JC. As a result, on 13.04.2022, the JC filed a request to issue a Bankruptcy Notice. A Bankruptcy Notice was thereafter issued on the same day. [5] The Bankruptcy Notice was then personally served on the JD on 08.05.2022. On 25.05.2022, the JD filed an application to set aside the Bankruptcy Notice. The SAR dismissed the JD’s application to set aside the Bankruptcy Notice on 22.07.2022. THE APPLICABLE LAW [6] A Bankruptcy Notice may be set aside on the following grounds:

Where the JD has a counter-claim, set-off or cross-demand that equals or exceeds the amount demanded and which could not be set up in the action in which the judgment or order was obtained. See Section 3(1)(i) of the Insolvency Act 1967 (“IA”).

(ii) Where the judgment debt has been settled. [7] It is trite law that the Insolvency Court cannot go behind the judgment or order that the Bankruptcy Notice is based on. See Sovereign General Insurance Sdn Bhd v Koh Tian Bee [1988] 1 MLJ 304 at 305 where the Supreme Court held as follows: “In the exercise of his jurisdiction in bankruptcy proceedings, the learned judge cannot go behind the judgment. Thus, on application to set aside a bankruptcy notice, it was laid down as early as 1893 that the court could not go behind the judgment. GROUNDS TO SET ASIDE THE BANKRUPTCY NOTICE [8] The main grounds relied on the by the JD to set aside the Bankruptcy Notice are as follows:

Enforcement through bankruptcy proceedings should not be continued and/or allowed by the Court as the JC’s claim is based on gambling activities.

(ii) The Singaporean Judgment has not satisfied the requirements of REJA. [9] I reproduce verbatim (in Bahasa Melayu) the JD’s submission on this issue:

Penghutang Penghakiman mencabar keesahan Tuntutan Pemiutang Penghakiman memandangkan tuntutan yang dikemukakan olehnya adalah berdasarkan kepada suatu tuntutan berdasarkan kepada aktiviti perjudian yang mana ianya tidak didaftarkan di dalam Malaysia dan selanjutnya adalah bertentangan dengan peruntukan Seksyen 26 dan Seksyen 31 Akta Kontrak 1950.

(ii) Kewujudan unsur perjudian sedemikian merupakan suatu fakta bahawa tiadanya suatu balasan yang sah disisi undang-undang di Malaysia untuk dikuatkuasakan di negara ini.

(iii) Di dalam tindakan ini, pada dasarnya Pemiutang Penghakiman cuba untuk mendapatkan wang daripada Penghutang Penghakiman berdasarkan kepada suatu perkara yang bersandarkan kepada unsur-unsur perjudian di Republik Singapura walau bagaimanapun ianya tidak dibenarkan oleh undang-undang di Malaysia. [10] (i) The JD attempted to distinguish the law stated in Sovereign General Insurance (supra) by submitting that a judge cannot go behind the judgment only in cases where the judgment is being challenged on the grounds of irregularity. The JD has clearly misread the decision in Sovereign General Insurance, which unequivocally states that the judge cannot go behind the judgment. The learned judge in that case went on to add: “Even if there has been irregularity in the service of notice of sale, it is not open to the respondent to challenge the execution proceedings”.

(iii) The above paragraph does not place an exception to the general rule that a judge is not allowed to go behind the judgment. It only provides an example of how the general rule applies, i.e., where irregularity is pleaded. [11] In any event, the Malaysian Courts have consistently held that the registration of a foreign judgment obtained in relation to a lawful gaming transaction is not against Malaysia public policy. See The Aspinall Curzon Ltd v Khoo Teng Hock [1991] MLJ 484 at 486, Marina Bay Sands Pte Ltd v Ng Kong Seng Seong at 195 and Marina Bay Sands Pte Ltd v Wong Kah Hin [2017] MLJU 491 at paragraph 28. [12] Even in the JD’s own submissions, it is clearly shown that the registration of the foreign judgment must first be set aside before the court can consider the application to set aside the Bankruptcy Notice. In paragraph 2.5 of the skeletal submissions the JD quoted Section 5 of REJA, which states: “Cases in which registered judgment must or may, be set aside” Section 5,

On an application in that behalf duly made by any party against whom a registered judgment may be enforced, the registration of the judgment –

Shall be set aside if the registering court is satisfied

……

(ii) ……” [13] Thus the above provision clearly envisages that any party seeking to challenge the execution of a registered foreign judgment must first apply to set aside the said registration. In the present case no such application has been made. Thus, the registered judgment of the Singapore Court still remains valid and enforceable. [14] For the above reasons, I dismiss the JD’s appeal with costs of RM2,000.00. Dated 21th June 2023 …………t.t……………….. Ahmad Murad Bin Abdul Aziz Judge High Court of Malaya Kuala Lumpur COUNSEL FOR THE JUDGMENT DEBTOR: AWANG ARMADAJAYA BIN AWANG MAHMUD WITH HASSHAHARI BIN JOHARI MAWI SOLICITORS FOR THE JUDGMENT DEBTOR: TETUAN HASSHAHARI & PARTNERS COUNSEL FOR THE JUDGMENT CREDITOR: WONG JIA JING SOLICITORS FOR THE JUDGMENT CREDITOR: TETUAN SHEARN DELAMORE & CO Cases Referred to: ➢ Sovereign General Insurance Sdn Bhd v Koh Tian Bee [1988] 1 MLJ 304 ➢ The Aspinall Curzon Ltd v Khoo Teng Hock [1991] MLJ 484 at 486 ➢ Marina Bay Sands Pte Ltd v Ng Kong Seng Seong at 195 ➢ Marina Bay Sands Pte Ltd v Wong Kah Hin [2017] MLJU 491 Legislation Referred to: ➢ Section 4 of the Reciprocal Enforcement of Judgments Act 1958 ➢ Section 3(1)(i) of the Insolvency Act 1967 Decision Date : 05.01.2023