NATION PARK SDN BHD (Dalam Penggulungan) v OOI KIM GEIK (BA-22NCvC-124-03/2022)

OOI KIM GEIK … DEFENDANTS [IDENTITY CARD NO. : 651028-02-5744] [AS THE EXECUTRIX OF THE ESTATE OF NG KIN YONG (“DECEASED”)]

OOI KIM GEIK [IDENTITY CARD NO. : 651028-02-5744] GROUNDS OF JUDGMENT A.

The plaintiff’s claim against the first defendant is based on fraud and breach of fiduciary duty by the defendants. 04/09/2025 08:34:20

On 12 June 2025, this Court dismissed the plaintiff’s claim against the first and second defendant with costs. B.

Nation Park Sdn Bhd, the plaintiff, is a company founded by Ng Kin Yong on 4 June 1993, specialising in nursery planting, landscaping, turfing, and maintenance.

In 1994, Ng Kin Yong included his brother Ng King Chong and his sister Ng Kim Pin as shareholders of Nation Park, with the shareholding structure as follows – Shareholder Unit Share Percentage Ng Kin Yong 313,875 77.5% Ng Kim Pin 30,375 7.5% Ng King Chong 60,750 15%

It is a fact that Ng Kin Yong, as the managing director, was in control of Nation Park in terms of overall management and decision-making, including finance.

Nation Park’s operations are managed by the following individuals, along with their respective roles: i. Ng King Chong was a shareholder, director and project manager of Nation Park. ii. Ng Kim Pin was a shareholder and the administration manager of Nation Park. iii. Ng Kin Siong, who is another brother of Ng Kin Yong, was also a project manager of Nation Park.

The defendant, Ooi Kim Geik is the wife of Ng Kin Yong. During Ng Kin Yong's lifetime, Ooi Kim Geik was not involved in managing or operating Nation Park.

On 29 March 2016, Ng Kin Yong died, leaving a Will that appointed his wife as the sole executrix of his estate. Ooi Kim Geik is the executrix and sole beneficiary of Ng Kin Yong’s estate.

Ooi Kim Geik took over all of his husband’s shares in Nation Park and became the majority shareholder of Nation Park. She was formally appointed as the director of Nation Park on 28 March 2016 and registered as Nation Park’s shareholder on 19 September 2016.

After Ng Kin Yong passed away, there were no changes in the shareholding structure and management of Nation Park, except that Ooi Kim Geik was appointed as the director and majority shareholder of Nation Park.

Earlier, around July 2016, Ng King Chong and Ng Kim Pin reviewed Nation Park’s books and records in preparation for its audit for the year ending 2015. The plaintiff's pleaded case alleges that Ng King Chong and Ng Kim Pin found records showing Ng Kin Yong withdrawing the plaintiff's funds for himself as a director’s loan and advances, recorded as Ng Kin Yong – Loan and Ng Kin Yong – Director’s A/C or Director’s Loans. According to the plaintiff, these monies have yet to be repaid. Records show that Ng Kin Yong owes an outstanding Director’s Loan of RM5,617,386.25 to Nation Park, which includes a sum of RM5,000,000.00 withdrawn by Ng Kin Yong between April and December 2015 through 10 cheques of RM500,000 each.

In summary, the plaintiff's case is that the amount of RM5,617,386.25 owed by Ng Kin Chong as his outstanding Director’s Loan, with the particulars as follows – Particulars Amount (RM) + Amount owed by NKY to Nation Park as at 31.12.2014 RM398,045.00 + Amount taken by NKY in 2015 RM5,000,000.00 + Reclassification of the balance loan taken by Ng Kin Yong in 2013, but wrongfully recorded under Ng King Chong RM30,000.00 + Reclassification of monies taken by NKY to open his personal fixed deposit account with Hong Leong Bank RM200,000.00 - Amount offset (10,658.75) Outstanding Director’s Loans owed by Ng Kin Yong to Nation Park

On 16 August 2016, Ng Kin Chong, while acting as a director of the plaintiff, demanded that the defendant, as the executrix and sole beneficiary of Ng Kin Yong's estate, repay the directors’ loan owed by Ng Kin Yong to the plaintiff. However, the defendant refused to do so.

On 14 December 2016, the plaintiff was wound up on the petition filed by the defendant. The order was overturned by the Court of Appeal on 25 May 2018, and the case was sent back to the High Court for a rehearing. Subsequently, on 13 March 2020, the Shah Alam High Court, under Winding Up Petition No: BA-28NCC-540-12/2016, ordered the winding-up of Nation Park.

It was also pleaded by the plaintiff that at the instruction of the Official Receiver (OR), Ng Kim Pin NKP in her capacity as a contributory of Nation Park applied to the OR for sanction to commence legal proceedings against the defendant in the name and on behalf of Nation Park. On 22.3.2022, the OR granted a liquidator’s sanction to Ng Kim Pin to initiate the present suit against the defendant and to appoint Messrs. Harold & Lam Partnership to represent Nation Park in the present suit.

The plaintiff’s claims against the Defendant in this suit are two fold, namely – i) Nation Park is claiming from the defendant for the recovery of the outstanding Director’s Loans owed by the estate of the late Ng Kin Yong to Nation Park in the sum of RM5,617,386.25; and ii) Further claims from the defendant a debt owed by the estate of the late Ng Kim Yong to Nation Park arising from wrongful records of loan and advance owed by Ng Kin Yong to Nation Park amounting to RM1,724,725.00.

The trial lasted for eight days, scheduled on 1-2 August 2024, 12- 13 August 2024, 7, 11, and 18 October 2024, and 4 November 2024.

The plaintiff called five witnesses to testify during the trial, who are –

PW-1 : Nazeema Khairunnisa Abdul Malik – Manager of CIMB

(ii) PW-2 : Tuang See Moy (the auditor)

(iii) PW-3 : Ng Kim Pin (Finance Manager and Director of Nation Park)

(iv) PW-4 : Hew Lee Kium (Finance clerk of Nation Park)

PW-5 : Ng King Chong (Director of Nation Park)

19.

Based on Enclosure 43 of the Agreed Issues To Be Tried, both parties listed 10 issues as follows –

Whether as at November 2016, Ng Kin Yong owes Nation Park Sdn Bhd (in liquidation) an outstanding sum of RM7,324,111.25 (or such other amount to be determined by this Honourable Court), being the director’s loans and/or advances which remain unpaid to date (“Director’s Loans”)?

(ii) Whether Ng Kin Yong, as the director of Nation Park had breached his fiduciary duties, statutory duties under sections 213, 214, 218, 219 and/or 224 of the Companies Act 2016, and/or committed fraud against Nation Park?

(iii) Whether the second defendant, as a director of Nation Park, had breached her fiduciary and/or statutory duties under sections 213 and/or 218 of the Companies Act 2016?

(iv) Whether the first and second defendant is liable to pay the outstanding Director’s Loans amounting to RM7,324,111.25 (or such other amount to be determined by this Honourable Court), to Nation Park?

Whether the plaintiff is entitled to claim general damages against:

the first defendant as the Executrix of the Estate of Ng Kin Yong; and/or

The second defendant?

(vi) Whether Ooi Kim Geik, in her capacity as the executrix of the estate of Ng Kin Yong or in her capacity as a director of Nation Park, can be held liable at all for any breaches of statutory duties, fraud or other wrongdoings allegedly committed by Ng Kin Yong?

(vii) Whether the plaintiff is statute barred pursuant to the Limitation Act 1953 from claiming for any reliefs based on causes of actions that arise from the Director’s Loans allegedly taken by Ng Kin Yong from the plaintiff from 31.1.2009 –

29.2.2015 or such other dates as found suitable?

(viii) Whether the plaintiff is statute barred pursuant to the Limitation Act 1953 from claiming for any reliefs based on causes of actions that arise from Ng Kin Yong’s alleged fraudulent conduct in misappropriating/misusing the plaintiff’s project collections from 26.1.2005 – 4.5.2013?

(ix) Whether the Plaintiff is statute barred pursuant to the Civil Law Act 1956 from pursuing any or some of the claims against the 1st Defendant?

Whether the doctrine of latches is applicable as against the Plaintiff to bar the Plaintiff from claiming for any reliefs on the grounds of the Plaintiff’s unreasonable delay in instituting this proceeding where such delay is prejudicial to the Defendants?

Having considered the evidence during trial and the agreed issues, this Court will analyse the issues, which are based on the same material evidence, concurrently to avoid repetition.

Under sections 101 and 103 of the Evidence Act 1950, the burden of proof is on the plaintiff to prove on a balance of probabilities.

Sections 101 and 103 of the Evidence Act state:

Burden of Proof

Whoever desires any court to give judgment as to any legal right or liability, dependent on the existence of facts which he asserts, must prove that those facts exist.

When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.

Burden of proof as to particular fact The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.

With regards to the burden of proof, in U Television Sdn Bhd & Anor v Comintel Sdn Bhd [2017] 5 MLJ 292, the Federal Court held – [35] On the meaning and application of the term ‘burden of proof’ s 101 of the Evidence Act 1950 (‘the Act’) states that it is the burden to establish a case which rests throughout on the party who assert the affirmative of the issue. The ‘burden of proof’ in s 102 of the Act is the burden to adduce evidence, to make out or rebut the claim. The ‘burden of proof’ in s 102 of the Act shifts from one side to the other according to the weight of the evidence.

Having considered ten issues to be decided, this Court will discuss the issues as follows - Issue 1: Whether as at November 2016, Ng Kin Yong owes Nation Park Sdn Bhd (in liquidation) an outstanding sum of RM7,324,111.25 (or such other amount to be determined by this Honourable Court), being the director’s loans and/or advances which remain unpaid to date (“Director’s Loans”)?

The crux of the plaintiff’s claim are to recover the outstanding Director’s Loans owed by the estate of the late Ng Kin Yong to Nation Park in the sum of RM5,617,386.25 and a debt owed by the estate of the late Ng Kim Yong to Nation Park arising from wrongful records of loan and advance owed by Ng Kin Yong to Nation Park amounting to

The plaintiff called five witnesses to establish that the late Ng Kin Yong owed Nation Park the claims. This Court refers to the evidence of the plaintiff’s witnesses in assessing the first issue. Evidence of PW1 - Nazeema Khairunnisa Abdul Malik, Manager of

PW-1 was called to confirm that Ng Kin Yong took RM5,000,000. In her testimony, PW-1 stated that in 2015, the late Ng Kin Yong withdrew RM5,000,000 from Nation Park, and all ten of CIMB’s cheques for Nation Park, each amounting to RM500,000, were made payable to Ng Kin Yong and deposited into his account. PW-1 also confirmed that RM5,000,000.00 had been paid out from Nation Park’s account with

This Court was also referred to the ten copies of the cheques, in which three out of the ten cheques were identified by PW-1 as having been transacted over the counter by Ng Kin Yong, and the remaining seven cheques had been deposited into Ng Kin Yong’s account.

The relevant part of PW-1’s evidence is as follows – Q: Alright, Question, can this cheque, this transaction, RM500,000 be paid to anyone else apart from the payee name in the cheque?

However, the defendant has challenged PW-1’s testimony and argued that there is insufficient evidence to demonstrate that the ten CIMB cheques were paid to Ng Kin Yong or used by him for personal reasons. The defendant referred to the evidence given by PW-1 during cross-examination, where she admitted that there were no documents before this Court indicating whose account the cheques were deposited into.

The defendant asserts that the bank accounts belonging to Ng Kin Yong are as specified in his last will and testament, which are CIMB Bank Account No. 80027777731 and CIMB Bank Account No.

According to the cheque images, only five cheques are alleged to have been paid into the following bank accounts of Ng Kin Yong. It was further submitted by the defendant that, without any evidence to show that all 10 CIMB cheques were paid to Ng Kin Yong, there is no conclusive evidence supporting the conclusion that Ng Kin Yong received the RM5 million from Nation Park.

PW2 is a Chartered Accountant and licensed auditor of S.M. Tuang & Co, who served as the auditor for Nation Park from 1994 to 2014. This Court finds that the purpose of calling PW-2 is to establish that the sum of RM398,045.00 is a Director’s Loan owed to the Nation Park as of 31.12.2014.

PW2 provided evidence regarding the Annual Reports of Nation Park for the financial years 2005–2014, which he prepared. Ng Kin Yong, together with Ng King Chong, signed the reports. According to PW2, he prepared the reports based on the documents supplied to him. PW2 also refers to the Balance Sheet of Nation Park as at 31 December 2014 and confirmed that the item ‘Directors’ account’ in the Balance Sheet is a current asset of the company.

PW2 also confirmed that Nation Park’s practice is to operate using cash for convenience purposes rather than by cheque.

Besides that, PW2 also referred to the petty cash account and confirmed that there are records showing Ng Kin Yong paid back to the company the sum of RM2,589,506.37, which was used for the benefit of the company.

Further to that, the learned counsel for the plaintiff in the Plaintiff’s Written Submission submitted as follows –

It bears emphasis that NKY was the director primarily responsible for the financial management of Nation Park and that he had signed the Statutory Declaration in all the Annual Reports of Nation Park until 2014. He was also the sole signatory of Nation Park’s cheques, and was the principal decision maker of the company. He had approved the audited reports of Nation Park until 2014, audited by PW-2. For these reasons, it is not opened to the Defendant to dispute the audited reports.

However, PW2 has also agreed with the question posed by the learned counsel for the defendant as follows– ADS: What I wanted to show you, and I think the Court is that this company has a tendency, the directors and the company have tendency of either taking money out of the company and putting money back into the company.

PW2, an experienced chartered accountant with 40 years' expertise, supported the defence of the defendant by stating that, apart from the accounts, the plaintiff has relied on the ledger and balance sheet, but these do not carry any weight. PW3 also confirmed that the accounts of Nation Park are adjusted and unreliable. PW3 provided the following evidence – ADS: Ok. Audited accounts are the official accounts of the company. TUANG: Yes. ADS: You agree with me? TUANG: Yes ADS: Your ledgers, you agree with me in accounting standards are not accepted as final accounts. Isn’t that right? Until audited. TUANG: Yes ADS: Under the laws, our Malaysian laws and accounting standards. TUANG Yes ADS: You agree with me that ledgers, balance sheets and ledgers are not to be considered as official documents that are accepted by law. Isn’t that right? It is the audited accounts – ADS: That carries weight. Is that correct? … ADS: That is why I say the ledgers don’t carry any weight, correct? ADS: Yes. And the balance sheets are the same, they don’t carry any weight, isn’t that right? Because they are documents prepared by internally and not audited, right? ADS: Yes. Because at the end of the day, these are, audited accounts are the ones submitted to the authorities. TUANG: Yes … ADS: Ledgers and balance sheet are not submitted to authorities, correct?

Having considered the evidence presented by PW1 and PW2, this Court is of the opinion that the withdrawal of RM5,000,000 in cash by Ng Kin Yong does not deviate from the existing and undisputed practice of Nation Park. Furthermore, documents such as ledger and balance sheet used to prove the loan owed by Ng Kin Yong to Nation Park do not carry any weight, as PW2, a chartered accountant and auditor, has confirmed that those documents, which were prepared internally and not audited, hold no evidential value.

PW3 is a shareholder and director of Nation Park. PW3, Ng Kong Chong, Ng Kin Siong, and the late Ng Kin Yong are siblings, and Ng Kin Yong is the second-oldest brother.

In her Witness Statement, among others, PW3 give evidence as follows –

She is the Administrator Manager of Nation Park.

(ii) As the founder, the largest shareholder of Nation Park and the sole signatory of Nation Park’s cheques, Ng Kin Yong had always treated Nation Park as his own. Ng Kin Yong was the decision-maker in all matters regarding the company, and he approved all the company’s monetary transactions. There were many incidents where Ng Kin Yong approved payments by Nation Park to himself as ‘Director Loan’, issuing and signing Nation Park’s cheques as the sole signatory for such payments to himself.

(iii) After the demise of NKY, sometime in July 2016 PW3 and PW5 went through Nation Park’s books and records to prepare for Nation Park’s audit for the year ending 2015. They found out that there were monies withdrawn by Ng Kin Yong from Nation Park for himself as director’s loans or advances which have yet to be paid back by Ng Kin Yong. These withdrawals were recorded as ‘Ng Kin Yong – Loan’, ‘Ng Kin Yong – Director’s A/C’, and similar descriptions in Nation Park’s ledgers.

(iv) The Nation Park’s account was managed by Hew Lee Kium, who was the accounts executive reporting directly to Ng Kin Yong.

The defendant to have Nation Park’s financial reports audited and had sacked the auditor, Messrs. S.M. Tuang & Co by letter dated 9.12.2016. PW5 called a meeting to discuss Nation Park’s 2015 financial report and the company’s future directions. Amongst the issues discussed during the meeting was the Director’s Loans taken by Ng Kin Yong, amounting to over RM5 million owed to Nation Park. During the meeting, the defendant requested vouchers for payments to directors and asked Nation Park to obtain information on the payee account details from the bank.

(vi) On 16.8.2016, PW5, as the director of Nation Park, by way of an email, requested the defendant, who was the sole executrix of Ng Kin Yong’s Estate, to return the outstanding Director’s Loan to Nation Park.

(vii) Numerous letters issued by PW3 and PW4 to the defendant demanded that the defendant repay Nation Park the Director’s Loan amounting to RM5,000,000 withdrawn by Ng Kin Yong.

The essence of the PW3 evidence is that she only became aware of the Directors’ Loan of RM5,000,000 owed by the late Ng Kin Yong sometime in July 2016. After sanction was given by the OA, the plaintiff then commenced this suit against the defendant.

It is also important to note that during cross-examination, the answer given by PW3, in my view, regarding the Nation Park’s ledgers and balance sheet, as well as the Director’s Loan and Ng Kin Yong’s debt to Nation Park, contradicts her own evidence as stated in her Witness Statement. This is evident from the Notes of Evidence, which were referred to in the defendant’s Written Submission, as follows -

The has PW3 knowledge as to the issuance of cheques by Ng Kin Yong in 2015 which shown in her testimony NKP: … Then, I remember very well that at the end of the year, I think it’s 29th or 30/12/2015, before the close of the accounting year, he came up to the office. You know, he was undergo treatment for his cancer. Actually, my husband was the one who drive him everywhere to so many hospitals in KL even to Singapore. My husband drove him there to see many cancer doctors. So, on this day 29th or 30th of December, he came to the office, he actually sat at my desk and told me that he wanted to issue some cheques. So he told me what cheques to be issued. He issued cheques to himself, you know, to his wife, to Ng Kin Siong, to Lim Peng Seng, to Tropical Horticulture and there is also one petty cash advance for me. You know, there are quite a few cheques that he instruct us, us means myself and Ms Hew lah. So he told me that he wanted to issue these cheques. Then I asked Ms Hew to issue there and then right there. So, immediately, Ms Hew will issue the cheques and the cheques will be brought to him to sign. Then, Mr Ng Kin Yong did not sign on the payment voucher. He just signed the cheques and then we have to prepare the payment voucher because he looked very tired. I also dare not ask questions. So he just signed the cheques and then he go off. He was still able to walk up here. So, that is what happened lah on 29th, 30th December. He came up to the office to sign some cheques.

(ii) PW3 has full access to all books and accounts of Nation Park. These facts are gathered from the evidence by PW4 and were undisputed by the plaintiff. The relevant part of the testimony is as follows – ADS: Ok, I’ll break it down slowly. When the income in Nation Park was high, it was the general practice in the company to take monies from Nation Park’s bank accounts and then park it under the directors’ accounts as loans, loans to directors. HEW: About this, I have no idea. Normally, about this matter, Elaine, she will decide on this. ADS: But she is aware that there was this practice? HEW: I have heard Elaine told me before this. ADS: So, the person doing the parking is Elaine, is that right? Loan parking of monies from Nation Park into directors’ loans, Elaine is doing it. HEW: Yes. *Elaine is the PW3 During cross-examination, she also admitted that she has access to all of the companies’ account records - ADS: You would have access to the statements, the bank statements of the company. Isn't that right? All along. NKP: Bank statement would be sent to the company, to the office. ADS: Yes, so you were sitting in the office, isn't it? ADS: And you would have access to all these bank statements. Isn't that right? NKP: I don't look at bank statements. ADS: Don't look at bank statements. And all these bank statements that were sent at the relevant time would have shown money coming out of account. Isn't that right? All this RM500,000 cheques? NKP: Should have.

(iii) PW3 admission is based on the fact that the accounts of Nation Park are adjusted. Nation Park maintains two sets of accounts, which are contained in the Excel Sheet, balance sheets, and general ledgers, all of which have been adjusted. The relevant part of her evidence is shown below – ADS: …From her evidence, it is clear that the company had a practice of maintaining an Excel sheet to show actual income coming in and actual expenses going out, isn’t that right? NKP: The Excel Sheet that I know is a work sheet that we will do profit and loss analysis at the end of the year. At the end of the financial year. So that we can see whether the profit is high or low and how do we want to adjust the profit. That is the Excel Sheet that we work on. ADS: And that Excel Sheet, you use like you said is to adjust the profit, correct? And you do that so that when you’re doing your audit, you will adjust the profit to make it lower, so that you don’t pay too much tax, isn’t that right? ADS: Yes. And the adjustment is done, the documents that you give to your auditor would be normally your balance sheet and general ledger, would that be right? ADS: So, when the balance sheet and general ledger is adjusted downwards to show a lesser profit, the auditor now takes these documents and prepares the audited report, correct? ADS: In other words, because the balance sheets and general ledgers do not actually reflect a quite true figure, isn’t that right, because of that? They don’t reflect actual correct, accurate figures isn’t that right? NKP: With the adjustment. ADS: With the adjustment. It’s adjusted downwards, correct?

(iv) PW3 agreed on the practice of parking the company's money into Directors’ Accounts. Below is the evidence presented by PW3 during examination-in-chief. HT: Please explain why you understand, what you understand to be Mr Ng Kin Yong’s practice? NKP: I know of his practice of taking money out from the company bank account for many years. Actually from very early of the company year he already been doing that, take money out from the office. From the company’s bank account. But I also know that sometimes he also do some repayment. Then he told me that I don’t have to be bothered about all these company money. He will take care of it. So, I cannot ask any questions and I also did not look at the accounts for so many years. He instruct Ms Hew directly what payments to be made to him. I didn’t even know. So, it was only after he passed away then because he was not around, he was supposed to be the person who instruct Ms Hew how much profit to declare for the year. So he is not around, I have to look into the accounts. I have to look at all the books then only I found out he took that much of money and he did not pay back.

The main reason that the payment from clients was parked under the director’s account was to reduce amount owing by the director. The relevant parts of PW3’s evidence – ADS: So, that is why, in fact, this whole case, when you say there were times also where monies were coming in from the clients, and they were parked under as repayment for director’s account also. Isn’t that right? NKP: That’s what we did. ADS: That’s what you did. ADS: Because this is to reduce the director’s account. Correct? NKP: Correct. ADS: Yes. So, payments from clients were being parked under director’s accounts to reduce…what was owing from director to the company, correct? NKP: Correct. ADS: …And this was common practice in the company, right? NKP: Yes. But it’s wrong. … ADS: But you knew about it, right? NKP: I knew. … ADS: All these years, you knew about it, From 2005...2004, all that you knew? NKP: I knew he has this practice. I do not know the details until after my late brother passed away, then I looked at the files. Then I know the details.

(vi) The PW3’s attitude towards the withdrawal of Nation Parks’ funds by Ng Kin Yong was that she never bothered to ask, despite the fact that she is the director, shareholder, and manager for administration and finance of Nation Park. This can be inferred from the evidence below - ADS: You would have access to the statements, the bank statements of the company. Isn't that right? All along. NKP: Bank statement would be sent to the company, to the office. ADS: Yes, so you were sitting in the office, isn't it? NKP:Yes. ADS: And you would have access to all these bank statements. Isn't that right? NKP: I don't look at bank statements. ADS: Don't look at bank statements. And all these bank statements that were sent at the relevant time would have shown money coming out of account. Isn't that right? All this RM500,000 cheques? NKP: Should have. … ADS: Let's hear this again. As a director and shareholder of Nation Park you had complete access to the financial records and accounts of Nation Park. Isn't that right? NKC: I have the rights to access. … ADS: Okay. And then at Question and Answer 16, you take the position that you were, there No.3 you say here, "Each time when it is needed for me to sign the annual report Ms Hew arranged our driver to send the signing page only to me, to Labu Nursery. I would sign and ask the driver to send the signed copy back to the office." So, can I ask you this? You never asked to look at the accounts over the years, correct? NKC: Correct. ADS: You never asked? NKC: Never asked.

This Court find that PW3 is trying to evade her role in the administration of the finance and account records of Nation Park.

It is the considered view of this Court that PW3, as the officer of Nation Park responsible for finance and administration, as well as the director and shareholder of the company, cannot deny the fact that she was aware of the practices undertaken by Nation Park regarding financial management and the withdrawal of money from the company, which would be parked in the Director’s account.

Besides that, based on the evidence of PW2 and PW3, this Court accepted the evidence of PW1 and holds that even if the RM5,000,000 was received by Ng Kin Yong, the plaintiff failed to prove that the money was for Ng Kin Yong’s personal benefit and not for the benefit of the Company, as it is part of the company's practice to use cash.

This Court considers the evidence of PW3 that Ng Kin Yong had treated Nation Park as his own company, and because of that, all the other shareholders and directors never questioned him or raised objections regarding the financial arrangements made by Ng Kin Yong. It is the considered opinion of this Court that, based on the evidence of PW1, PW2, and PW3, the plaintiff failed to establish that as at November 2016, Ng Kin Yong owed Nation Park Sdn Bhd (in liquidation) an outstanding sum of RM7,324,111.25 (or a different amount to be determined by this Honourable Court), being the director’s loans and/or advances.

PW4 was a former accounts clerk at Nation Park from 1998 until March 2020. She explained to this Court that Nation Park used the accounting system known as MYOB and that she was reported to PW3 as the Manager at Nation Park.

In her testimony, PW4 stated that she prepared the payment vouchers following Ng Kin Yong's instructions. She also informed this Court that she attended a meeting with PW3, PW5, the defendant, and her lawyer. She was asked by PW3 to explain the company’s account, and PW4 mentioned that Nation Park’s profit for the year 2015 was high.

In her evidence during cross-examination, PW4 received instructions from PW3, including to make adjustments to the balance sheet and Excel spreadsheet to reduce profit by parking the money in the director’s account.

Furthermore, there is no reason for this Court to reject the testimony given by PW4, as she is an independent witness and not a member of the late Ng Kin Yong.

The evidence before this Court shows that PW3 has held the position of administration manager since she became the director of Nation Park. Having considered the evidence presented by PW 3 and PW 4, this Court finds that PW 3 plays a significant role in the finance and account records of Nation Park. It is unreasonable to conclude that PW 3 was unaware of the withdrawal of RM5,000,000 or other amounts by Ng Kin Yong as detailed in paragraph 12 above.

PW5 was a former director, shareholder, and Project Manager of Nation Park. His evidence in the Witness Statement mirrors PW4's, except that in 2013, Ng Kin Yong took money from Nation Park and deposited it under his own name without his knowledge. According to him, he only discovered this after Ng Kin Yong's death.

PW5 admitted signing the annual report with Ng Kin Yong but has no personal knowledge of the financial statements.

This Court finds that there was no evidence to show that during the lifetime of Ng Kin Yong, PW5 had raised his concerns or objections regarding the way Ng Kin Yong operated the financial affairs of Nation Park.

There was no evidence from the plaintiff to show that the money withdrawn by Ng Kin Yong was for any purpose other than the company’s or that it was intended to reduce profit.

Based on the evidence given by the plaintiff’s witnesses, on the balance of probabilities, this Court find that the plaintiff failed to prove its claim against Ng Kin Yong.

In considering the first issue, the learned counsel for the plaintiff has raised an issue relating to documents and asked whether the Bundle of Documents in Part C is admissible in Court. The plaintiff also relied on the documents in Bundle of Documents Part C. Admissibility of Part C documents in Court

Enclosure 49 comprises 36 documents in the Common Bundle of Documents Part C. The plaintiff submitted that all 36 documents in Bundle C are admissible and should be considered evidence. The plaintiff relied on sections 65 and 66 of the Evidence Act 1950 regarding the legal effect of a Notice to Produce Document pursuant to section 66 of the Evidence Act, and section 90A of the Evidence Act on the legal effect of a Certificate 90A.

The following documents relied on by the Plaintiff for its claim of RM7,342,111.25 remained as Part C documents until the end of the trial [see Bundle C]: 105.1 Financial Accounts for 2017; 105.2 Balance Sheet as of December 2017; 105.3 General Ledger of Director’s Account; 105.4 Payment Vouchers; 105.5 General Journal; and 105.6 Document at pp. 71 – 72, Bundle R.

Section 65 of the Evidence Act 1950 reads –

(1) Secondary evidence may be given of the existence, condition or contents of a document admissible in evidence in the following cases:

when the original is shown or appears to be in the possession or power –

of the person against whom the document is sought to be proved;

(ii) of any person out of reach of or not subject to the process of the court; or

(iii) of any person legally bound to produce it, and when after the notice mentioned in section 66 such person does not produce it; … c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot for any other reason not arising from his own default or neglect produce it in reasonable time; …

(a) In the cases referred to in paragraphs (1)(a), (c) and (d) any secondary evidence of the contents of the document is admissible

Section 66 of the Evidence Act provides –

Rules as to notice to produce Secondary evidence of the contents of the documents referred to in paragraph 65(1)(a) shall not be given unless the party proposing to give such secondary evidence has previously given to the party in whose possession or power the document is, or to his advocate, such notice to produce it as is prescribed by law; and if no notice is prescribed by law, then such notice as the court considers reasonable under the circumstances of the case: Provided that such notice shall not be required in order to render secondary evidence admissible in any of the following cases or in any other case in which the court thinks fit to dispense with it:

when the document to be proved is itself a notice;

when from the nature of the case the adverse party must know that he will be required to produce it;

when it appears or is proved that the adverse party has obtained possession of the original by fraud or force;

when the adverse party or his agent has the original in court;

when the adverse party or his agent has admitted the loss of the document; or

when the person in possession of the document is out of reach of or not subject to the process of the court.

The plaintiff had served a Notice to Produce Documents dated 30.7.2024 on the defendant’s solicitors (Exhibit P4) listing 17 documents in Bundle C to be produced by the defendant.

The defendant submitted that the Notice to Produce cannot be used to produce the secondary evidence before this Court because there is no evidence that the documents in the Notice to Produce are in the possession of DW1.

In her evidence, DW1 testified that the documents listed were not in her possession and that the original copies of the documents requested by the plaintiff were possibly in the custody of the Official Receiver, as she sent all important documents to the officer and disposed of the rest on the Official Receiver’s instructions. Based on this, the defendant submits as follows:

The Plaintiff ought to have requested the Official Receiver to produce the said documents in court, as the plaintiff’s documents had been given to the Official Receiver.

(ii) The unimportant documents have been disposed of.

(iii) There is no evidence to support that important documents such as financial records are destroyed or lost.

The plaintiff contended that, based on DW1’s testimony, the defendant had already disposed of the documents listed in the Notice to Produce, and the requirement of section 65(1) (c) that the documents had been destroyed or lost is satisfied. The plaintiff is relying on the case of Sinarlim Sdn Bhd v Medallion Builders Sdn Bhd (previously known as RC-Soils (M) Sdn Bhd and other suits [2015] 4 MLJcon 247. Whether the balance of documents in Bundle C can be admitted as evidence

In respect of the balance documents in Bundle C, the plaintiff filed in Court a Certificate signed by Ng Kim Ping dated 30.7.2024 pursuant to Section 90A of the Evidence Act. In her testimony, PW-3 confirms that she was responsible for managing the operation of the computer that produced these documents. To the best of her knowledge, the documents were produced by the said computer in the course of its ordinary use.

The defendant refers to PW4’s testimony, in which PW4 confirmed that the documents, including General Ledgers, Balance Sheets, and Accounts of Nation Park, had been adjusted by her. Therefore, according to the defendant, these documents cannot be admitted as evidence, as their integrity is suspect.

In Approfit Sdn Bhd v Kent Sing Construction Sdn Bhd & Ors [2001] MLJU 619, it was held –

On perusal of the said document I am of the view that it may have been printed using a computer. But I do not think it is in the same category as a computer generated document as ordinarily understood. ID-15 is nothing but an invoice that can also be printed by other means. It differs from the document discussed in Gnanasegaran's case in that there it was a statement of accounts. Obviously the contents were generated from the data stored in the computer and that the print was produced in the ordinary use of the said computer. That in my view is the intention of section 90A of the Act. Otherwise it could mean that any document would be admitted regardless of it authenticity or contents if it could be shown that it was printed by a computer. In other words, a document printed by a computer vide a word-processing software would be included. With respect, I do not think section 90A should be extended that far.

Hence in the case of ID-15 there is no indication of who issued it due to the absence of any signature therein. And although it was asserted that the document was prepared by PW.5 she was never asked to explain for the absence of her signature in the said document. Thus I refuse to admit ID-15 as an exhibit in this case.

What transpired is that the documents referred to in Approfit Sdn Bhd v Kent Sing Construction Sdn Bhd & Ors (supra) did not contain the signature of the witness, and the Court held that there was no explanation by the witness as to why the signature was absent. In our present case, the document that is sought to be admitted has been acknowledged by PW-3 to contain alterations.

This Court accepts the submission from the learned counsel for the defendant and declines to admit the documents as an exhibit, as the authenticity of the documents is in question. Issue: Whether Ng Kin Yong, as the director of Nation Park had breached his fiduciary duties, statutory duties under sections 213, 214, 218, 219 and/or 224 of the Companies Act 2016, and/or committed fraud against Nation Park? Issue: Whether Ooi Kim Geik, in her capacity as the executrix of the estate of Ng Kin Yong or in her capacity as a director of Nation Park, can be held liable at all for any breaches of statutory duties, fraud or other wrongdoings allegedly committed by Ng Kin Yong?

It is also evident from PW5’s and PW4’s testimonies that the plaintiff will not pursue legal action against Ng Kin Yong if he is still alive, even though PW4 and PW5 hold Ng Kin Yong responsible through his estate for misappropriating the company's funds and refusing to repay them. ADS: If your brother was still alive, if you brother was still alive, would you sue him for all this money, this RM5 million and all that? NKC: No. ADS: Why is your brother is alive then he didn't do anything wrong? NKC: I do not know whether he did anything wrong or not but I believe if he take out the money, he will put back. ADS: But you are giving evidence here to say that your brother did anything wrong, right? You are saying that your brother stole money from the company, isn't it RM5 million? NKC: I didn’t say he stole. JUDGE So, you don’t agree to that suggestion? NKC: I don’t agree ADS: So, you are saying your brother did not steal money from the company’s accounts? NKC: I do not know. ADS: Answer my question. If he was still alive correct, and you discovered he had taken out so-called RM5 million from the company, right, you will have no objections, isn’t it? NKC No objection.

74.

Having considered the totality of evidence from PW4 and PW5, this Court agree with the learned counsel for the defendant that in determining whether there was a breach of fiduciary duty, the test to be applied is “whether an honest and intelligent man in the position of a director of the company concerned could, in the whole of the existing circumstances, have reasonably believed that the transaction was for the benefit of the company”.

Based on the position taken by PW4, this Court can conclude that Ng Kin Yong’s conduct benefits the company and negates the claim of breach of fiduciary duties by the defendant.

This Court is relying on the analysis for the first issue and answered the above in the negative. The plaintiff did not succeed in proving that the defendant committed fraud.

The learned counsel for the defendant has referred to the case of Lin Kai Wing & Anor v. Lin Kai Lam & Ors [2016] 10 CLJ 77 [51] In so doing, the learned judge, with respect, fell into error in that he failed to comprehend that the burden of proof at all times remained on the respondents to establish fraud. Simply pointing to withdrawals and testifying orally that they had no knowledge of the accounts is insufficient to establish fraud. That is particularly so when the surrounding contemporaneous evidence shows that disclosure could have been sought and obtained at any point of time. This is borne out by the fact that every single withdrawal was particularised and set out, which detracts from a scheme to defraud.

The plaintiff in the present case is suing the estate of the late Ng Kin Yong. The Federal Court in Yong Nyee Fan & Sons Sdn Bhd v. Kim Guan & Co Sdn Bhd [1979] 1 MLJ 182 applied the principles in Re Garnett (1886) 31 Ch D 1 as follows in respect of bringing a charge against a deceased person and states – …The law is that when an attempt is made to charge a dead person in a matter, in which if he were alive he might have answered the charge, the evidence ought to be looked at with great care; the evidence ought to be thoroughly sifted, and the mind of any judge who hears it ought to be, first of all, in a state of suspicion; but if in the end the truthfulness of the witnesses is made perfectly clear and apparent, and the tribunal which has to act on their evidence believes them, the suggested doctrine becomes absurd.

Based on the evidence provided by DW1, this Court finds that DW1’s decision not to pay the project incentive claims submitted by PW3, PW5, and Ng King Siong is reasonable and in the best interests of Nation Park. Furthermore, the claim was also intended to be paid to the spouses and children of PW3 and PW5, who were not employees of Nation Park. It is also evident that the claim has been pending since 2008, during Ng Kin Yong’s lifetime, and no explanation has been given for why the project incentive claims were not submitted while Ng Kin Yong was alive.

This Court finds that PW3 and PW5 instituted the present case to retaliate against the defendant.

Guided by the above principle, this Court concludes that Ooi Kim Geik, in her capacity as the executrix of Ng Kin Yong's estate or as a director of Nation Park, cannot be held liable at all for any breaches of statutory duties, fraud, or other wrongdoings allegedly committed by Ng Kin Yong. Issue: whether the plaintiff’s claim is barred by limitation

The defendant’s counsel has raised the issue of limitation and refers to sections 6 and 29 of the Civil Law Act. Section 6(1)(a) read with s. of the Limitation Act 1953 provides that the limitation period for claims for fraud is 6 years from the date the fraud was discovered: 6 Limitation of actions of contract and tort and certain other actions (1) Save as hereinafter provided the following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued, that is to say- (a) actions founded on a contract or on tort; … … 29 Postponement of limitation period in case of fraud or mistake

Where, in the case of any action for which a period of limitation is prescribed by this Act, either-

the action is based upon the fraud of the defendant or his agent or of any person through whom he claims or his agent; or … the period of limitation shall not begin to run until the plaintiff has discovered the fraud or the mistake, as the case may be, or could with reasonable diligence have discovered it…

In applying the provision above, the learned counsel for the defendant refers this Court to the case of Tan Li Mei & Ors v Ksch Property Sdn Bhd [2019] CLJU 1186, where the Court of Appeal held that fraud and breach of fiduciary duty must first be proven before one can avail itself of s. 29 of the Limitation Act 1953 – [64] …the respondent must first prove the fraud and the breach of fiduciary duty before it may avail itself of the terms of section 29 of the Limitation Act 1953. It is not the other way around. In order to overcome the legal restraints of section 6, the respondent would have to convincingly establish its case under section 29. The respondent must prove, on a balance of probabilities, the presence of fraud before it can take advantage of the postponement of the limitation period under section 29. And, where fraud is alleged, it is to be noted that under section 29 postponement or extension of the period of limitation is only available where the action is either based upon fraud or where the right of action has been concealed by fraud.

Therefore, pursuant to the finding made by this Court in the first and second issue, and relying on Tan Li Mei & Ors v Ksch Property Sdn Bhd (supra), this Court holds that the plaintiff failed to establish that the cause of action was accrued in 2016.

This Court also finds that the claim against the defendant is tainted with mala fidei based on the following reasons - a) The Plaintiff’s claim against the 2nd Defendant is an abuse of court process and is mala fide, as NKP and NKC initiated the current lawsuit against her due to a dispute over their project incentive claims. b) Since approximately July 2016, NKP, NKC, and NKS have sent numerous emails to the Defendant, nearly daily, concerning the alleged project incentive claims. c) NKP and NKC did not offer any explanation for why they did not submit the project incentive claims dating back to 2008 while NKY was still alive. d) The admission by PW3 and PW5 that they would not have taken action against Ng Kin Yong had he been alive, despite the fact that the basis of the present claim originated from Ng Kin Yong’s conduct.

This Court has reviewed all cause papers, the evidence presented at trial, and submissions from both parties. Based on the totality of the evidence and materials before this Court, it is the Court's finding that the plaintiff has failed to meet its burden of proof for their claim in the Statement of Claim, as required under sections 101 to 103 of the Evidence Act 1950.

Therefore, the plaintiff’s claim against the first and second defendants is dismissed with costs of RM80,000.00, subject to allocator. Dated : 3 September 2025. Signed HAZIZAH KASSIM Judicial Commissioner High Court of Malaya (NCvC 10) At Shah Alam, Selangor

For the Plaintiff : Harold Tan Kok Leng & Chan Jia Ying Tetuan Harold & Lam Partnership (Wilayah Persekutuan Kuala Lumpur)

For the Defendants : Alex De Silva, Chong Jen Hui, Adrienne Senal & Joshua Lawson Cowie Tetuan Steven Thiru (Wilayah Persekutuan Kuala Lumpur)