Ouji Seiyaku (M) Sdn Bhd v LEONG KAH HOE (WA-22NCC-151-04/2022)

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RIVER POOL RESOURCES (M) SDN

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WARHOL MAC SDN BHD BTC IMPERIUM (M) SDN BHD … Defendants GROUNDS OF JUDGMENT S/N 54O4hHPEzEanajotjPM5tw INTRODUCTION [1] Before the court is a commercial dispute arising out of a distribution arrangement entered into between the Plaintiff, Ouji Seiyaku (M) Sdn Bhd (“Ouji”), and the 5th Defendant, BTC Market Trading Sdn Bhd (“BTC Market Trading”), during the tenure of the 1st Defendant, Leong Kah Hoe (“Tommy”), as Ouji’s Senior Sales Manager and later Head of Sales. [2] Ouji’s case, in essence, is that Tommy engineered the appointment of Market Trading, a company incorporated and controlled by his brother-in-law and sister, as Ouji’s exclusive distributor without disclosing his familial connection to its controllers. It is alleged that Tommy thereby caused a substantial portion of Ouji’s sales revenue to be diverted to BTC Market Trading as a secret profit. [3] Ouji further alleges that Tommy, acting in concert with his relatives and through a network of associated companies, misappropriated Ouji’s goods and promotional samples, established and profited from a competing soap bar business under the ‘Blinic’ brand, and caused inflated invoices to be submitted by a third-party supplier of retail promoters. [4] The claims remaining for determination, following the discontinuance of certain claims and the recording of a consent judgment against one defendant, are those against S/N 54O4hHPEzEanajotjPM5tw Tommy, BTC Market Trading, the 9th Defendant, Liew Kean Peng (“Ben Liew”), the 10th Defendant, Leong Li Teng (“Li Teng”), the 11th Defendant, Warhol Mac Sdn Bhd (“Warhol Mac”), and the 12th Defendant, BTC Imperium (M) Sdn Bhd (“BTC Imperium”). Tommy, BTC Market Trading, Ben Liew, Li Teng, Warhol Mac and BTC Imperium, when referred to collectively will be referred to as “the Defendants”. [5] The causes of action pursued are breach of fiduciary duty, unlawful means conspiracy, dishonest assistance, and knowing receipt, together with a case based on alter ego and shadow directorship advanced in support of lifting the corporate veil of the corporate Defendants. [6] The principal issues before the court are whether Tommy owed and breached fiduciary duties to Ouji in each of the four respects alleged, whether the remaining Defendants are liable as accessories or as the alter egos of the corporate vehicles through which the alleged scheme was carried out, and the quantum of loss, if any, suffered by Ouji. BACKGROUND FACTS [7] Ouji is a wholly owned subsidiary of Whealth Lohmann Centralin (Asia Pacific) Pte. Ltd. and forms part of the Whealthfields Group, a manufacturer of household cleaning and personal care products marketed under the brands “Walch”, “Ka”, and “arFum”. S/N 54O4hHPEzEanajotjPM5tw [8] Tommy was appointed as Ouji’s Senior Sales Manager by letter of appointment dated 10.1.2020, took up his duties on 2.3.2020, and was promoted to Head of Sales on 22.12.2020 with a monthly salary of RM34,000.00. He remained in that position until his resignation on 31.3.2022. Clause 12 of Tommy’s employment agreement dated 10.1.2020 imposed confidentiality obligations extending to financial, commercial, technical, and sales and marketing information and trade secrets, both during and after his employment. [9] On 17.3.2020, Ouji entered into a Product Distribution Service Agreement (“Distribution Agreement”) appointing BTC Market Trading as its exclusive distributor for the Malaysian market. BTC Market Trading was incorporated on the same date, 17.3.2020. Clause 6.1 of the Distribution Agreement provided that 39% of total sales generated would be remitted to BTC Market Trading as the “Distribution Margin”, of which 18.5%, described as “BTC’s Portion”, was retained by BTC Market Trading and comprised the following components: Distributor Margin (8%), Productivity (2%), Prompt Payment (1.5%), Salesman Subsidy (2%), Salesman Incentive (2%), and Placement (3%). The Distribution Agreement was renewed on 1.3.2021. (Note: Under the Product Distribution Service Agreement, the "Distribution Margin" broadly refers to the total 39% margin deducted from net sales to cover BTC Market S/N 54O4hHPEzEanajotjPM5tw Trading’s operations, third-party marketing, and market returns. However, the term is also used specifically to identify the 8% "Distributor Margin" sub-component, which represents the core profit and service fee directly retained by BTC Market Trading.) [10] Between April 2020 and 30.3.2022, the total value of sales generated through BTC Market Trading under the Distribution Agreement was RM53,146,958.00. The total Distribution Margin of 39% paid to BTC Market Trading over that period amounted to RM20,640,820.64, of which BTC’s Portion of 18.5% amounted to RM9,786,414.92. BTC Market Trading’s sales for Ouji amounted to RM16,874,408.48 in 2020 and RM28,678,082.58 in 2021. [11] Ben Liew and Li Teng served as directors and shareholders of BTC Market Trading throughout the material period. Li Teng is Tommy’s sister and Ben Liew is Li Teng’s husband, being accordingly Tommy’s brother-in-law. BTC Market Trading, Warhol Mac, and BTC Imperium share a common business address at 8021, Jalan 4D, Kampung Subang Baru, Shah Alam, Selangor. [12] Ouji operated a Product Requisition Form (“PRF”) system governing the release of goods and promotional samples from its warehouse, which was operated by the 6th Defendant, YFL (Malaysia) Sdn Bhd (“YFL”). Under this system, PRFs were initiated by Ouji’s marketing department, submitted for first-tier approval by Tommy, and S/N 54O4hHPEzEanajotjPM5tw finalised by the approval of Ouji’s director, Liew Choi Peng (“Alicia”). Goods were not released by YFL without a PRF bearing both signatures. [13] Warhol Mac was incorporated with Tommy’s involvement and funded by him. On 5.5.2021, Warhol Mac applied to register the trademark ‘Blinic’, covering a classification including “bar soaps and bath soaps in liquid, solid or gel form”. A ‘Blinic’ Facebook page was created on 29.9.2021. ‘Blinic’ soap bars were thereafter sold through Choochoomart, an e-commerce platform operated by Warhol Mac, and through retail chains including AEON and Hero Supermarket. No financial statements or annual reports were lodged for Warhol Mac with the Companies Commission of Malaysia. A 50% shareholding in Warhol Mac, originally held by BTC Market Trading, was subsequently transferred to BTC Imperium. [14] Tommy recommended the 7th Defendant, River Pool Resources (M) Sdn Bhd (“River Pool”), to Ouji as the entity to manage the deployment of sales promoters at major retail chains, and River Pool was appointed by Ouji on that recommendation. Invoices submitted by River Pool for the months of June to October 2021 recorded numbers of promoters at Watsons and AEON Wellness outlets in excess of the numbers proposed by Ouji for the corresponding months. S/N 54O4hHPEzEanajotjPM5tw [15] Ouji’s financial results showed a net loss of RM4,413,507.00 for the financial year ending December 2020, and an unaudited net loss of RM16,066,659.92, subsequently audited at RM14,697,813.00, for the financial year ending December 2021. Following Tommy’s resignation on 31.3.2022, Ho Ruiz Whye (“Nicole Ho”), a Marketing Executive who had attended weekly meetings at BTC Market Trading’s warehouse, affirmed a Statutory Declaration on 12.4.2022. [16] In her statutory declaration, Nicole Ho revealed several anomalies she discovered while being required to attend weekly Thursday meetings at BTC Market Trading's warehouse, where she observed that Ouji’s key personnel - Tommy, the 2nd Defendant Choo Chin Hua (“Choo”), the 3rd Defendant Leong Kit Ming (“Calvin”) and the 4th Defendant Kok Sheau Ing (“Colleen”) - spent almost all their working hours, only attending Ouji’s actual office on Monday mornings. During this time, she uncovered undisclosed familial and business ties, noting that “BTC” stood for Ben, Tommy, and Choo, and that Tommy's brother-in-law (Ben Liew) and Choo's wife, the 8th Defendant Tan Hong Yee (“Ivy”) held key roles within the distributorship. Additionally, she provided evidence from a colleague demonstrating that River Pool had submitted massively inflated invoices, billing Ouji for hundreds of retail promoters across several months in 2021 when none, or very few, were actually requested. Finally, she reported S/N 54O4hHPEzEanajotjPM5tw learning about an unauthorised warehouse clearance sale in early April 2022, where Ouji's products were being sold to staff and friends at 50% to 80% discounts on a cash-only basis. [17] This action was commenced on 12.4.2022. Mareva and Anton Piller injunctions were granted by this court on 15.4.2022. Ouji subsequently discontinued its claims against YFL on 21.10.2022, against the 3rd Defendant Calvin on 26.6.2023, and against the 2nd Defendant Choo, the 4th Defendant Colleen, and the 8th Defendant, Ivy on 14.7.2023. River Pool entered into a Consent Judgment with Ouji on 22.1.2024 for RM150,000.00 in full and final settlement, without admission of liability. Choo, Colleen, and Calvin were subsequently called as witnesses by Ouji at trial. [18] The trial of this action proceeded over eleven days between 19.1.2024 and 16.12.2025. THE PARTIES’ PLEADED CASES AND RELIEFS SOUGHT [19] By its Statement of Claim dated 12.5.2022, Ouji pleaded that Tommy, as its Senior Sales Manager and later Head of Sales, owed it fiduciary duties which he breached in four respects. S/N 54O4hHPEzEanajotjPM5tw [20] First, Tommy caused Ouji to enter into the Distribution Agreement with BTC Market Trading without disclosing his own interest in BTC and that of Choo’s, as well as his familial connection to its controllers, thereby generating a secret profit in the form of the Distribution Margin. Second, Tommy misappropriated Ouji’s goods and promotional samples. Third, Tommy established and profited from a competing business selling ‘Blinic’ soap bars through Warhol Mac. Fourth, Tommy caused or permitted River Pool to submit inflated invoices to Ouji. [21] Ouji further pleaded that Tommy was the shadow director and/or alter ego and controlling mind of BTC Market Trading, Warhol Mac, and BTC Imperium, and that Ben Liew and Li Teng, together with BTC Market Trading, Warhol Mac, and BTC Imperium, are liable in dishonest assistance and/or knowing receipt in respect of the proceeds of Tommy’s breaches. [22] Ouji additionally pleaded that Tommy, Ben Liew, and Li Teng conspired by unlawful means to cause it loss through the wrongful payment and receipt of BTC’s Portion of the Distribution Margin, the misappropriation of samples, the payment of River Pool’s inflated invoices, and the sale of ‘Blinic’ soap bars. [23] Ouji's Statement of Claim sought: S/N 54O4hHPEzEanajotjPM5tw a) as against the 1st (Tommy), 2nd (Choo), 5th (BTC Market Trading), 8th (Ivy), 9th (Ben Liew), and 10th (Li Teng) Defendants jointly and/or severally, the sum of RM9,786,414.92; b) as against the 1st (Tommy), 2nd (Choo), 3rd (Calvin), 4th (Colleen), 5th (BTC Market Trading), 8th (Ivy), 9th (Ben Liew), 10th (Li Teng), 11th (Warhol Mac), and 12th (BTC Imperium) Defendants jointly and/or severally, the sum of RM3,892,043.50; c) damages to be assessed as against all Defendants; interest; costs; d) and further and/or other relief. [24] Tommy’s pleaded defence, as elaborated in his post-trial submissions, is that the appointment of BTC Market Trading was Ouji’s own independent commercial decision, that the Distribution Margin was expressly negotiated, transparently documented in the Distribution Agreement, and approved by Alicia with full understanding of its structure, and that BTC Market Trading in fact performed genuine and substantial distribution functions for Ouji, evidenced by sales growth from RM16,874,408.48 in 2020 to RM28,678,082.58 in 2021. S/N 54O4hHPEzEanajotjPM5tw [25] Tommy’s case is that his relationship with Ben Liew and Li Teng did not amount to shadow directorship or alter ego status over BTC Market Trading, Warhol Mac, or BTC Imperium, applying the threshold of actual control required by the Federal Court in CIMB Bank Bhd v Maybank Trustees Bhd & Other Appeals [2014] 3 CLJ 1. [26] As to the samples, Tommy’s case is that all releases were made pursuant to Ouji’s own PRF process and were approved by Alicia. As to River Pool, Tommy’s case is that invoices were submitted directly to Ouji’s finance department and that Alicia approved payment. [27] Tommy further argued that Ouji’s claim for RM9,786,414.92, properly characterised, is a claim in restitution barred by the doctrine of total failure of consideration, applying Lim Swee Choo & Anor v Ong Koh Hou [2025] 10 CLJ 341 (Federal Court) and Sunway City Sdn Bhd v Otis Elevator Company (M) Sdn Bhd [2025] CLJU 1701 (Court of Appeal). He further contended that any claim in compensatory damages requires proof of actual loss, causation, and precise quantum, applying Wong Kar Juat & Anor v S7 Auto Parts (M) Sdn Bhd [2015] 9 CLJ 590 (Court of Appeal). [28] BTC Market Trading, Ben Liew, and Li Teng (the 5th, 9th, and 10th Defendants) pleaded that the Distribution Margin was paid pursuant to a valid and binding contract which Ouji is bound to honour, and that Alicia’s approval of the Distribution Agreement and its renewal constitutes an S/N 54O4hHPEzEanajotjPM5tw informed affirmation of its terms which precludes Ouji from now impugning those payments. [29] In the further alternative, they pleaded that Ouji’s pleadings on conspiracy are deficient in material particulars, applying Radiant Splendour Sdn Bhd & Anor v Dr Mohammad Hanis Osman [2025] 8 CLJ 310 (High Court). [30] Ben Liew and Li Teng separately denied that they are the alter ego of BTC Market Trading or that they are personally liable for its obligations. [31] As to the samples, the 5th, 9th, and 10th Defendants (BTC Market Trading, Ben Liew and Li Teng) pleaded that all samples were distributed strictly in accordance with the purposes stated in the relevant sample requisition forms, that undistributed samples were returned to Ouji, and that Ouji’s own witnesses confirmed receipt of samples by their intended recipients. [32] Warhol Mac and BTC Imperium (the 11th and 12th Defendants) pleaded that they are not, and Tommy is not, the alter ego or controlling mind of BTC Market Trading or Warhol Mac, that Warhol Mac purchased goods from BTC Market Trading, that Warhol Mac did not misappropriate goods belonging to Ouji, and that BTC Imperium, as a mere shareholder, does not operate any business dealings and cannot accordingly be held liable for the sum of RM3,892,043.50 claimed. S/N 54O4hHPEzEanajotjPM5tw ISSUES TO BE TRIED [33] The parties filed separate Issues to be Tried against the respective Defendants: a) against Tommy at Enclosure 282; b) against BTC Market Trading, Ben Liew, and Li Teng at Enclosure 197; and c) against Warhol Mac and Imperium at Enclosures 252 and 253. [34] Read together, these documents raised, in substance, the following questions: a) Whether Tommy was the shadow director and/or alter ego and controlling mind of BTC Market Trading, Warhol Mac, and BTC Imperium; b) Whether Alicia approved the Requested Samples before delivery; c) Whether they were declared as zero cost upon importation; d) Whether YFL delivered them in accordance with approved delivery orders; and S/N 54O4hHPEzEanajotjPM5tw e) What became of them thereafter. [35] They further raised the questions whether Tommy breached his fiduciary duties in causing Ouji to enter into the Distribution Agreement, in receiving or causing to be received any secret profit, in misappropriating the Requested Samples, or in profiting from the sale of ‘Blinic’ soap bars. They also raised the question whether Tommy caused or permitted River Pool to submit inflated invoices. [36] The remaining questions were: a) Whether BTC Market Trading unlawfully profited from BTC’s Portion and whether Ouji is entitled to its refund; b) Whether Ben Liew and Li Teng are personally liable as the alter ego of BTC Market Trading; and c) Whether Ben Liew, Li Teng, and BTC Market Trading are liable for conspiracy to injure; and whether BTC Imperium, as a non-trading shareholder, can be held liable for the sum of RM3,892,043.50. [37] Having considered the pleadings, the Issues to be Tried filed by each set of parties, and the evidence adduced at trial, the court distils the actual issues requiring determination as follows: S/N 54O4hHPEzEanajotjPM5tw a) Whether Tommy breached his fiduciary duties to Ouji in procuring the Distribution Agreement and the payment of the Distribution Margin to BTC Market Trading, and whether Tommy, BTC Market Trading, Ben Liew, and Li Teng are liable to account for the sum of RM9,786,414.92. b) Whether Ouji’s goods and samples were misappropriated and, if so, whether Tommy, BTC Market Trading, Ben Liew, Li Teng, Warhol Mac, and BTC Imperium are liable, whether jointly and/or severally, for the sum of RM3,892,043.50. c) Whether Tommy’s establishment and operation of the ‘Blinic’ soap bar business through Warhol Mac constituted a breach of his fiduciary duty not to compete, and whether Tommy and Warhol Mac are liable to account for RM222,137.00 as secret profits. d) Whether Tommy caused or permitted River Pool to submit inflated invoices to Ouji, and whether Tommy is liable for the resulting overpayment of RM275,537.58. e) Whether Tommy was a shadow director and/or the alter ego and controlling mind of BTC Market Trading, Warhol Mac, and BTC Imperium, and whether Ben Liew and Li Teng were the alter egos of S/N 54O4hHPEzEanajotjPM5tw BTC Market Trading, such that their corporate veils ought to be lifted. f) Whether Ben Liew and Li Teng are liable in dishonest assistance and/or knowing receipt. g) Whether Tommy, Ben Liew, and Li Teng are liable in unlawful means conspiracy. THE WITNESSES [38] Five witnesses appeared for Ouji (the Plaintiff) as follows: a) PW1 is Alicia (Liew Choi Peng), the Director of Ouji. Her evidence primarily relates to the appointment of BTC Market Trading as a distributor, the approval of distribution margins, and the misappropriation of samples. She testified that she relied entirely on Tommy's recommendations to appoint BTC and approve payments, unaware of his familial connections, and she verified the cost value of the misappropriated samples using the company's inventory audit reports. Her Witness Statement was marked as WS-PW1. b) PW2 is Colleen (Kok Sheau Ing), the former Marketing Manager of Ouji. Her evidence primarily relates to the administrative process of sample requisitioning within Ouji's marketing department. S/N 54O4hHPEzEanajotjPM5tw She testified that she prepared PRFs based strictly on instructions from Tommy or the sales team, which included the intended purpose and delivery address, and that she was not involved in the actual delivery or confirmation of receipt of the samples. Her Witness Statement was marked as WS-PW2. c) PW3 is Calvin (Leong Kit Ming), the former National Sales Manager (Modern Trade) of Ouji. His evidence primarily relates to his role in managing larger-end retailers and his operational interactions with Tommy and BTC Market Trading. He testified that he reported to Tommy, managed business planning for key accounts like Aeon and Giant, and was not in charge of the logistical arrangements for sample deliveries, which were handled by BTC Market Trading. His Witness Statement was marked as WS-PW3. d) PW4 is Choo (Choo Chin Hua), the former National Sales Manager (General Trade) of Ouji. His evidence primarily relates to the recruitment of general trade customers and the workflow for sample requests in his channel. He testified that he filled out PRFs upon receiving requests from BTC's sales managers, submitted them to Colleen for approval, and arranged with the logistics provider (YFL) to deliver the products to retailers, although he did not S/N 54O4hHPEzEanajotjPM5tw personally verify each delivery. His Witness Statement was marked as WS-PW4. e) PW5 is Nicole Ho (Ho Ruiz Whye), the former Marketing Executive of Ouji. Her evidence primarily relates to her observations at BTC's warehouse and her responsibility in raising sample requisitions for sponsorships and corporate social responsibility (CSR) purposes. She testified that she attended weekly meetings at BTC's premises where she observed Ouji's goods being packaged for delivery via various courier services, and that she prepared the sample breakdown list based on her own records of the PRFs she raised. Her Witness Statement was marked in error as WS-PW4 in the court record. It will be referred to as “Nicole Ho’s Witness Statement”. [39] Tommy (Leong Kah Hoe) appeared as DW8, the sole witness for himself as the 1st Defendant. He is the former Senior Sales Manager/Head of Sales of Ouji. He testified in support of his defence to Ouji's claims of breach of fiduciary duty, making secret profits, and misappropriation of goods. He maintained that the appointment of BTC Market Trading and the payment of the Distribution Margins were legitimate and approved by Ouji, that the samples were used for promotional and CSR purposes rather than sold for profit, and acknowledged that he did not disclose his familial relationships with Ben Liew and Li Teng to Ouji because he S/N 54O4hHPEzEanajotjPM5tw did not consider them material to the business. His Witness Statement was marked as WS-DW8. [40] Seven witnesses appeared for the 5th (BTC Market Trading), 9th (Ben Liew), 10th (Li Teng), 11th (Warhol Mac), and 12th (BTC Imperium) Defendants as follows: a) DW1 is Mong Tak San, a Consultant in YFL. His evidence primarily relates to the warehousing, logistics, and delivery processes of Ouji’s goods and samples from YFL’s warehouse. He testified that YFL handled customs clearance, storage, and transportation for Ouji, and that deliveries to BTC Market Trading or other recipients were made based on email instructions from Choo or Colleen, accompanied by approved product requisition forms and delivery notes. His Witness Statement was marked as WS-DW1. b) DW2 is Loke Chia Khang, the Director of River Pool. His evidence primarily relates to the provision of modern trade brand ambassadors and the distribution of Ouji’s free samples. He testified that River Pool was appointed to provide promoters, and that they collected samples from BTC Market Trading to distribute as free gifts or “Gift-With-Purchase” at various outlets like Aeon and Watsons based on approved requisition forms, without S/N 54O4hHPEzEanajotjPM5tw receiving any direct instructions from Tommy. His Witness Statement was marked as WS-DW2. c) DW3 is Choe Weng Chee, the Trading Manager of Watson’s Personal Care Stores Sdn Bhd (“Watsons”). Her evidence primarily relates to Watsons’s process of receiving free samples and products from its supplier, BTC Market Trading. She testified that Watsons generated Goods Received Notes upon receiving product samples for “Gift-With-Purchase” promotions from BTC Market Trading, and she confirmed not dealing with Tommy for the delivery process or making any payments to him. Her Witness Statement was marked as WS-DW3. d) DW4 is Chiu Fook Kwai, the Director of CFK Marketing Sdn Bhd (“CFK”). His evidence primarily relates to CFK’s role as a sub-distributor of BTC Market Trading and its handling of sample deliveries. He testified that CFK dealt with BTC Market Trading (mainly liaising with Choo) rather than Ouji, and that they received and distributed Ouji goods and free samples for sponsorship purposes without dealing with Tommy or making any personal payments to him. His Witness Statement was marked as WS-DW4. S/N 54O4hHPEzEanajotjPM5tw e) DW5 is Li Teng (Leong Li Teng), a Director of BTC Market Trading. Her evidence primarily relates to her nominal role in the BTC Market Trading and her denial of knowingly assisting in any breaches or conspiracy against Ouji. She testified that she was a “sleeping director” not actively involved in the day-to-day operations, asserted that the Distribution Margin payments from Ouji were legitimate, and vehemently denied any involvement in misappropriating samples or conspiring with Tommy. Her Witness Statement was marked as WS-DW5. f) DW6 is Ben (Liew Kean Peng), a Director of BTC Market Trading, Warhol Mac and BTC Imperium. His evidence primarily relates to the legitimacy of the Distribution Margin paid to BTC Market Trading and the denial of misappropriation or conspiracy. He testified that the 18.5% margin received by BTC Market Trading covered legitimate operational expenses and incentives under the Distribution Agreement, denied misappropriating or selling Ouji samples for profit, and asserted that his roles in Warhol Mac and BTC Imperium were nominal. His Witness Statement was marked as WS-DW6. g) DW7 is Lim Boon Sin (“Jason”), the former Operational Manager of BTC Market Trading. His evidence primarily relates to his involvement in arranging stocks in BTC Market Trading’s warehouse S/N 54O4hHPEzEanajotjPM5tw and delivering the free samples. He testified that he arranged the delivery of samples to respective recipients by issuing Delivery Orders upon receiving Ouji-approved Sample Requisition Forms, though during cross-examination he acknowledged that some delivery orders lacked recipient signatures or Ouji’s approved forms. His Witness Statement was marked as WS-DW7. ANALYSIS AND FINDINGS Tommy’s Fiduciary Duties Ouji’s Case [41] Ouji submitted that Tommy, as Senior Sales Manager and later Head of Sales, owed it fiduciary duties comprising a duty not to make secret profits, a duty not to misappropriate its assets, and a duty to avoid creating business opportunities conflicting or competing with Ouji, arising from his position of trust overseeing Ouji’s Malaysian operations. Ouji relied on Clause 12 of Tommy’s employment agreement dated 10.1.2020 imposing confidentiality obligations, submitting that very senior employees in positions of special trust almost necessarily incur extensive fiduciary duties. S/N 54O4hHPEzEanajotjPM5tw Defendants' Case [42] The Defendants did not seriously contest these duties. Tommy’s case was that the real controversy lay in whether the duties were breached as alleged, whether any breach caused provable loss, and whether the sums claimed were proved with requisite certainty. BTC Market Trading, Ben Liew, Li Teng, Warhol Mac and BTC Imperium likewise confined their submissions to breach, causation, and quantum. Analysis and Findings [43] The court finds that Tommy owed Ouji the fiduciary duties pleaded, a finding not seriously disputed. Under cross-examination, Tommy agreed that he owed “several obligations and duties,” including “avoiding to make any form of secret profit from the company,” not to misappropriate “any of the company’s assets,” and “a duty to avoid creating any business opportunities which would conflict or compete with the employer, Ouji’s interest.” [44] The Court of Appeal in Zaharen bin Hj Zakari v Redmax Sdn Bhd [2016] 5 MLJ 91 affirmed the following pronouncement of the Supreme Court of New South Wales in Digital Plus Pty Limited v Christopher Hamis & Ors [2002] NSWSC 33: S/N 54O4hHPEzEanajotjPM5tw “The employee must act in good faith; he must not make a profit out of his trust; he must not place himself in a position where his duty and interest may conflict; he may not act for his own benefit or the benefit of a third party without the informed consent of his employer.” [45] Applying this and the Court of Appeal’s decision in Soh Chee Gee v Syn Tai Hung Trading Sdn Bhd [2019] 6 CLJ 516, Tommy, overseeing Ouji’s Malaysian operations, falls within the class of senior employees almost necessarily incurring extensive fiduciary duties. [46] The court turns to each of the four heads of breach pleaded by Ouji. The Distribution Agreement and the Distribution Margin (RM9,786,414.92) Ouji's Case [47] Ouji’s case, as elaborated in its submissions, is that Tommy caused BTC Market Trading to be incorporated by his brother-in-law Ben Liew and Choo on 17.3.2020, the very date on which the Distribution Agreement appointing BTC Market Trading as Ouji’s exclusive distributor was executed, and that he did so without disclosing to Ouji that BTC Market Trading was controlled by his own family members. S/N 54O4hHPEzEanajotjPM5tw [48] Ouji relies on the sequence of events preceding the incorporation. Tommy commenced work with Ouji on 2.3.2020, when he travelled to Singapore to meet the founders of Whealthfields Group companies in Singapore. Only fifteen days elapsed between that date and 17.3.2020, the date of both BTC Market Trading’s incorporation and the execution of the Distribution Agreement. [49] Within that narrow window, Tommy’s own evidence was that he approached only two distributors before turning to Ben Liew and Choo: CHC Distributors (M) Sdn Bhd (“CHC Dstributors”) and Yoong Shing Trading of Johor. Tommy was unable to identify, in his witness statement or otherwise, any particulars of these approaches. He identified no dates, no names of representatives, no venues, and no supporting documentation such as calls, messages, or emails, notwithstanding his evidence that he had made “tremendous efforts” to source a distributor. [50] Ouji further relies on the evidence, put to Tommy and accepted by him, that CHC Distributors had reported a profit of RM2.87 million for the financial year ending 2019 and RM6.01 million for the financial year ending 2020, an almost threefold increase. Despite this demonstrated financial strength, Tommy did not pursue CHC Distributors as Ouji’s distributor. S/N 54O4hHPEzEanajotjPM5tw [51] Ouji submits that Tommy instead turned to his own brother-in-law, Ben Liew, and to Choo, with whom he met approximately two to three days before BTC Market Trading’s incorporation, notwithstanding that Ben Liew had no proven track record in the distribution business, a fact Tommy accepted under cross-examination. [52] Ouji relies further on the corporate architecture of BTC Market Trading and its related entities. [53] BTC Market Trading was incorporated with Ben Liew and Li Teng as its sole directors, holding 40% and 30% of its shares respectively, with the remaining 30% held by Ivy, who headed BTC Market Trading’s finance department from

Tommy’s name appears nowhere in BTC Market Trading’s corporate particulars, whether as director or shareholder. [54] Ouji submits, and Tommy did not seriously dispute, that Tommy and Li Teng are siblings, that Li Teng is married to Ben Liew, and that Ivy is married to Choo. None of these relationships was disclosed to Ouji at any material time. [55] Ouji further relies on the evidence, admitted by Tommy, Choo, and Ben Liew, that although Choo held no formal designation in BTC Market Trading’s corporate particulars, he was in fact involved in setting up the company. From this, Ouji invites the inference that Ivy’s shareholding was held as a conduit for Choo’s true interest, consistent with S/N 54O4hHPEzEanajotjPM5tw the broader pattern of concealment which Ouji says characterises this head of claim. [56] Ouji relies on a WhatsApp exchange between Tommy and Li Teng on 19.3.2020 to establish Tommy's direct involvement in the distributorship and the actual meaning behind the “BTC” acronym. In her witness statement, Alicia (PW1) highlighted this exact document, testifying that Tommy informed Li Teng there was a contract “between our company and future company” and that “BTC stood for 'Ben Tommy Choo'“. [57] The exact evidentiary basis for this reliance was explicitly cemented during the cross-examination of Tommy (DW8). When confronted by Ouiji’s counsel with the messages sent at 8:36pm, Tommy confirmed the exact sequence and content of the exchange under oath: “ADS: And then followed by between our company and future company. ADS: So, you are saying between our company and future company, LOL, Li Teng then says BTC lo, right? That she says that at 8:36, correct? ADS: And then immediately after that, what did she say? S/N 54O4hHPEzEanajotjPM5tw LKH: Ben Tommy Choo. ADS: Yes. LKH: She suggested that. ADS: And then after that, the LOL that you say, then you go on to say, ya. Do you see that? LKH: Yes.” [58] Ouji submits that this contemporaneous written admission is irreconcilable with Tommy’s evidence at trial where he claimed that “BTC” instead stood for “Bitcoin”, a cryptocurrency which Tommy testified was “very, very hot” during the pandemic. During his cross-examination, when asked by Ouiji’s counsel “what does BTC stand for?”, Tommy answered: “Bitcoin. Because during that time, bitcoins were very, very hot.” However, this assertion rings entirely hollow, notwithstanding that no evidence of any dealing in cryptocurrency by BTC Market Trading was ever produced. [59] When confronted and asked to “agree that in fact, based on the records in the court before us, there's no disclosure of any Bitcoin, cryptocurrency, for whatever matter, for the sections involving BTC Market Trading”, Tommy was forced to concede, answering “No.” This unsupported narrative was similarly echoed by Ben Liew under cross-examination, S/N 54O4hHPEzEanajotjPM5tw who claimed “it stands for 'Bitcoin' which is a cryptocurrency that’s viral in, during pandemic in 2020,” while simultaneously admitting that BTC Market Trading was not involved in any Bitcoin businesses, passing it off as “Just a random name.” [60] Ouji also relies on a further exchange of 16.3.2020 in which Tommy told Li Teng that “each of us have a different role to play”, a statement Tommy explicitly admitted to during his cross-examination when asked by Ouiji’s counsel, “Where you tell your sister, each of us have a different role to play. Did you not?” and he responded, “Yes”, and on an exchange of 2.12.2021 in which Li Teng urged Tommy not to “release your anger to others like Ben and Choo” and warned that his conduct “will jeopardise your business relationship”. [61] The exact evidentiary basis for this was cemented when Ouiji's counsel confronted Tommy with the 2.12.2021 message in court, asking: “I hope you don't release your anger to others like Ben and Choo, who they innocently don't know what happened. You can scold me... can you agree that the ‘they’ that she's referring to here is Ben and Choo?” to which Tommy confirmed, “Yes”. The counsel then asked, “So the ‘they’ here is Ben and Choo, they are your partner, right?” and Tommy replied, “Yes”. When counsel pointed out the subsequent line “this will jeopardise your business relationship,” Tommy again agreed, “Yes”. S/N 54O4hHPEzEanajotjPM5tw [62] Although this was disputed by Li Teng, who testified during her cross-examination that she was referring to them as “partner for BTC Imperium” rather than BTC Market Trading, and by Tommy who later claimed during re-examination that his sister meant it would “jeopardize the business relationship... between BTC and Ouji”, Ouji submits that this exchange is consistent only with Li Teng’s own understanding that Tommy, Ben, and Choo were joint participants in a shared business. [63] Ouji invokes the principle affirmed by the Federal Court in Tindok Besar Estate Sdn Bhd v Tinjar Co [1979] 2 MLJ 229 that where oral testimony is contradicted by contemporaneous documentary evidence, the latter must prevail. It submits that this principle applies with full force to Tommy’s, Ben Liew’s, and Li Teng’s uniform, yet unsupported, insistence at trial that “BTC” referred to “Bitcoin”. [64] On the legal consequence of these facts, Ouji submits, applying Boardman v Phipps [1967] 2 AC 46 (House of Lords), that the no-conflict and no-profit rules of equity are absolute rules which contractual documentation cannot displace, and that the equitable jurisdiction to impose liability to account extends to benefits gained through a contract tainted by a fiduciary’s breach of duty. S/N 54O4hHPEzEanajotjPM5tw [65] Ouji submits, applying Regal (Hastings) Ltd v Gulliver & Ors [1942] 1 All ER 378 (House of Lords), that the obligation to account arises from the mere fact that a profit was made in breach of fiduciary duty, and that questions of fraud, good faith, motive, or whether the principal itself could have made the profit are irrelevant to that liability. Ouji relies further on this court’s own decision in Golden Plus Holdings Bhd & Ors v China Idea Development Ltd & Ors [2025] MLJU 3413 for the proposition that board approvals procured through material non-disclosure cannot sanitise fraudulent transactions, this court there having held that “board approvals procured through material non-disclosure cannot sanitise fraudulent transactions”, and that a fiduciary’s “failure to disclose his interest…vitiates any such approvals and goes to the root of the validity of the Agreement”. [66] Ouji relies on this court's decision in Golden Plus Holdings, which in turn adopted the well-known dictum of Lord Denning in Lazarus Estates Ltd v Beasley [1956] 1 QB 702 (English Court of Appeal): “No court in this land will allow a person to keep an advantage which he has obtained by fraud. No judgment of a court, no order of a Minister can be allowed to stand if it has been obtained by fraud. Fraud unravels everything… once it is proved, it vitiates judgments, contracts and all transactions whatsoever.” S/N 54O4hHPEzEanajotjPM5tw Tommy's Case and the Case of BTC Market Trading, Ben Liew and Li Teng [67] Tommy’s case, as advanced in his submissions, is that the appointment of BTC Market Trading was Ouji’s own independent and voluntary commercial decision, and that the Distribution Margin was expressly negotiated and documented in Clause 6.1 of the Distribution Agreement, comprising 39% of total sales, of which 18.5% (BTC’s Portion) was retained by BTC Market Trading and broken down into six components: Distributor Margin (8%), Productivity (2%), Prompt Payment (1.5%), Salesman Subsidy (2%), Salesman Incentive (2%), and Placement (3%). [68] Tommy relies on Alicia’s evidence under cross-examination that the Distribution Margin was determined based on the sales or revenue generated by BTC Market Trading for Ouji’s products, that as a director she had “a clear understanding of Distribution Margin payments made to BTC”, and that she agreed she was “bound by” the Distribution Agreement upon signing it. Tommy submits that Ouji’s renewal of the Distribution Agreement on 1.3.2021, without any change to the Distribution Margin structure, constitutes a further affirmation of the arrangement, particularly as Alicia agreed under cross-examination that Ouji was “satisfied with BTC service” at the point of renewal. S/N 54O4hHPEzEanajotjPM5tw [69] Tommy further submits that BTC Market Trading in fact performed genuine and substantial distribution functions for Ouji, evidenced by sales growth from RM16,874,408.48 in 2020 to RM28,678,082.58 in 2021, a near doubling within a single year. [70] BTC Market Trading, Ben Liew, Li Teng, Warhol Mac and BTC Imperium rely on FGV Holdings Bhd v Mohd Isa Abdul Samad & Anor [2024] 6 CLJ 194 (High Court), submitting that the court ought not second-guess a commercial arrangement in the absence of evidence that it was entered into for an improper purpose. They rely on the High Court’s statement in that case: “It is trite law that this court will not generally assess the merits of a commercial business decision unless it is shown that it was undertaken for an improper purpose.” [71] Tommy further submits that Ouji’s own losses arose from causes independent of the Distribution Margin, in particular the poor performance of its marketing department under Colleen, who was subsequently terminated, and from Ouji’s own responsibility, admitted by Alicia, for calculating and managing its operating costs. [72] BTC Market Trading, Ben Liew, and Li Teng similarly submit that the Distribution Margin was validly paid pursuant to a binding contract which Ouji is bound to honour. S/N 54O4hHPEzEanajotjPM5tw [73] They rely on Mulpha Pacific Sdn Bhd v Paramount Corp Bhd [2003] 4 CLJ 294 (Court of Appeal) for the proposition that for the proposition that the court must give effect to the parties' written bargain according to the plain meaning of the words used, however unattractive the result may be. The court held: “…It’s the court’s duty to give effect to the bargain of the parties according to their intention and when that bargain is in writing the intention is to be looked for in the words used unless they are such that one may suspect that they do not convey the intention correctly. If those words are clear, there is very little that the court has to do. The court must give effect to the plain meaning of the words however much it may dislike the result.” [74] They rely further on Polygram Records Sdn Bhd v The Search & Anor [1994] 3 CLJ 806 (High Court) for the proposition that a party is ordinarily bound by the terms of a written contract that it has signed, whether or not it has read them, absent fraud, undue influence, or misrepresentation. The court held: “The general principle of law, of course, is that a party who signs a written contract is bound by the terms of the contract, except in the limited cases where fraud, undue influence, or misrepresentation may be established. This rule is so strict that even if a party to a contract has not read the contents of a contract, he is held to be bound by its terms.” S/N 54O4hHPEzEanajotjPM5tw [75] As to the anomalies identified by Ouji in the utilisation of BTC’s Portion, BTC Market Trading, Ben Liew, and Li Teng submit that the duplication of certain supporting documents for the 2020 Distributor Margin and Salesman Subsidy components arose from mere clerical oversight in compiling voluminous bundles. They further contend that, in the absence of any express contractual restriction on BTC Market Trading’s internal use of its own contractual entitlement, the manner in which that entitlement was deployed is a matter of internal management and business judgment beyond Ouji’s supervisory reach. [76] Tommy further submits that Ouji’s claim for RM9,786,414.92, properly characterised, is a claim in restitution for monies paid under the Distribution Agreement, and that such a claim is barred by the doctrine of total failure of consideration, applying Lim Swee Choo & Anor v Ong Koh Hou and Sunway City Sdn Bhd v Otis Elevator Company (M) Sdn Bhd. [77] Tommy submits that this is so on the footing that BTC Market Trading fully performed its obligations, that Ouji derived a commercial benefit in the form of sales growth, and that Ouji voluntarily renewed the Distribution Agreement after that performance. [78] In the alternative, Tommy submits that if the claim is properly characterised as one for compensatory damages, Ouji has failed to prove actual loss, causation, and precise S/N 54O4hHPEzEanajotjPM5tw quantum with the certainty required by Wong Kar Juat & Anor v S7 Auto Parts (M) Sdn Bhd. He further contends that Ouji’s pleaded case does not identify which specific payment was wrongful, how any such payment was caused by Tommy’s alleged breach, or whether the Distribution Margin paid was commercially excessive by reference to any comparator. Analysis and Findings Pre-arranged Scheme and Undisclosed Conflict of Interest [79] The court accepts Ouji’s case on this issue. [80] The coincidence of the date of BTC Market Trading’s incorporation with the date of commencement of the Distribution Agreement is not, in the court’s assessment, mere happenstance, but is evidence that the distributor was conceived, incorporated, and appointed pursuant to a pre-arranged plan in which Tommy was the central actor. [81] This inference is reinforced, rather than displaced, by Tommy’s own account of the limited efforts he claims to have made to source an independent distributor. The approaches to CHC Distributors and Yoong Shing Trading were unaccompanied by any contemporaneous record. Tommy’s failure to pursue CHC Distributors, notwithstanding its demonstrated and growing profitability, supports the inference that Tommy had, from an early S/N 54O4hHPEzEanajotjPM5tw stage, settled upon his own family members as the intended beneficiaries of Ouji’s distributorship. [82] The fact that Tommy met Ben Liew and Choo only two to three days before BTC Market Trading’s incorporation, within a period of approximately fifteen days from his commencement of employment, further confirms the compressed and pre-ordained character of the arrangement. [83] On the question of what “BTC” stood for, the court prefers the contemporaneous WhatsApp message of 19.3.2020 over the uniform oral denials of Tommy, Ben Liew, and Li Teng at trial, applying the principle in Tindok Besar Estate. [84] The message is unambiguous. Li Teng identified the venture as “our company and future company”, named it “BTC”, and immediately explained the acronym as “Ben Tommy Choo”, to which Tommy responded in the affirmative. [85] The subsequent exchanges of 16.3.2020 and 2.12.2021, in which Tommy is recorded acknowledging distinct “roles” among the participants and being cautioned by his sister against jeopardising “your business relationship” with “Ben and Choo”, are likewise consistent only with a shared commercial venture between the three men. They are inconsistent with the belated explanation that “BTC” referred S/N 54O4hHPEzEanajotjPM5tw to “Bitcoin”, an explanation for which no supporting evidence of any cryptocurrency dealing was ever produced. [86] Tommy never disclosed to Ouji his familial relationship with Ben Liew and Li Teng, nor his own beneficial interest in BTC Market Trading’s appointment as Ouji’s distributor. [87] The corporate architecture put in place, with Ben Liew and Li Teng as the sole directors and majority shareholders of BTC Market Trading, and the remaining shareholding held by Ivy, whom the court accepts on the evidence functioned as a conduit for Choo notwithstanding his absence from BTC Market Trading’s formal corporate particulars, was structured in a manner that concealed, rather than disclosed, the true extent of Tommy’s connection to the distributor he caused Ouji to appoint. [88] This undisclosed conflict of interest lies at the heart of Ouji’s case, and the court finds it established on the evidence. The Distribution Agreement Does Not Cure Tommy’s Breach of Fiduciary Duty [89] The Defendants’ central submission, that the existence of a written contract expressly documenting the margin structure and Alicia’s approval of it precludes any finding of breach, does not withstand scrutiny. S/N 54O4hHPEzEanajotjPM5tw [90] That submission proceeds from a false premise. The existence of a written contract, and its approval by a director, cannot in law cure a breach of fiduciary duty committed at the anterior stage of procuring the very contract that generated the payments in question, where the conflict of interest underlying that procurement was never disclosed to the principal. [91] The authorities relied upon by the Defendants, Mulpha Pacific and Polygram Records, govern the interpretation and binding force of contracts concluded at arm’s length between parties fully informed of their respective positions. Indeed, the very passage of Polygram Records extracted in the Defendants’ own submissions recognises that a signatory is not bound by a written contract where fraud is established. [92] Neither authority assists a party who procured the contract through an undisclosed conflict, and the court accordingly declines to apply them as urged. [93] The renewal of the Distribution Agreement on 1.3.2021 is, for the same reason, incapable of constituting an informed affirmation. Tommy continued to conceal his conflict of interest at the time of renewal, and the information upon which the renewal decision was made, including Alicia’s assessment that Ouji was “satisfied with BTC service”, was itself filtered through Tommy, who was at all material times the officer through whom Ouji’s dealings with BTC Market S/N 54O4hHPEzEanajotjPM5tw Trading were channelled. An affirmation made without knowledge of the very fact that would have altered the principal’s assessment of the transaction is no affirmation at all. Commercial Success Does Not Negate the Breach [94] As to BTC Market Trading, Ben Liew, Li Teng, Warhol Mac and BTC Imperium’s submission that FGV Holdings precludes the court from assessing the merits of a commercial decision absent evidence of improper purpose, the court finds that this submission conflates two distinct questions. [95] The first is whether BTC Market Trading in fact performed distribution functions for Ouji, which is not disputed. The second is whether the Distribution Agreement was procured in the first place through a breach of Tommy’s duty of disclosure, which is the gravamen of Ouji’s case. [96] The fact that BTC Market Trading generated genuine sales growth for Ouji, from RM16,874,408.48 in 2020 to RM28,678,082.58 in 2021, does not answer the latter question. As Ouji correctly submits, a distributor may simultaneously generate genuine sales and misappropriate the Distribution Margin. The two are not mutually exclusive. S/N 54O4hHPEzEanajotjPM5tw Documentary Deficiencies in the Distribution Margin Claims [97] The court further notes, on the question of whether the Distribution Margin was applied to legitimate distribution expenditure, several anomalies in the documentary record. [98] First, duplicate documents were adduced by the BTC Market Trading, Ben Liew and Li Teng to substantiate the 2020 Distributor Margin and Salesman Subsidy components. The said Defendants attribute this discrepancy to clerical oversight. The court, however, considers it, in the context of the other findings made in this section, to be a further indicator of the want of genuine substantiation for BTC’s Portion. [99] Second, the Productivity allocation was applied to items not evidently connected with the distribution of Ouji’s goods, and no evidence was produced to substantiate its utilisation for the year 2021. [100] Third, no documentary substantiation was produced for the Prompt Payment allocation at all. [101] Fourth, Tommy’s own evidence revealed an unexplained overlap between the Salesman Incentive and Productivity components, both of which he described in materially identical terms as incentives tied to sales targets, notwithstanding that the Distribution Agreement itself S/N 54O4hHPEzEanajotjPM5tw contains no definition of either term beyond its assigned percentage. The Unexplained Shortfall in BTC’s Portion [102] Beyond these individual documentary anomalies, the court accepts a further and more fundamental submission going to the utilisation of BTC’s Portion as a whole. BTC Market Trading, Ben Liew, and Li Teng’s own submissions set out a breakdown of the components said to make up BTC’s Portion, comprising the Distributor Margin (RM4,231,963.21), Productivity (RM1,057,990.80), Prompt Payment (RM793,494.10), Salesman Subsidy (RM1,057,990.80), Salesman Incentive (RM1,057,990.80), and Placement (RM1,585,986.20), together totalling RM9,786,414.92. [103] Their own calculation of the expenses actually incurred against these components, however, totals only RM6,464,569.58. This leaves a shortfall of RM3,321,845.34 against the RM9,786,414.92 undisputedly received by BTC Market Trading, for which no explanation whatsoever has been offered. Ben Liew (DW6), when this discrepancy was put to him in cross-examination, could describe the RM6,464,569.58 figure only as “the rough calculation” prepared “to give to the lawyer,” and was unable to identify any further or more complete accounting for the balance. S/N 54O4hHPEzEanajotjPM5tw [104] The court finds that this unexplained shortfall of RM3,321,845.34, standing alone, is compelling evidence of leakage and misapplication of BTC’s Portion, and reinforces rather than stands apart from the documentary anomalies identified above. [105] The point is further reinforced by admissions specific to two of the six components. As to the Salesman Incentive, comprising 2% of the Distribution Margin and amounting to RM1,057,990.80, BTC Market Trading, Ben Liew, and Li Teng’s own Defence admits that only RM416,223.55 was actually incurred, meaning that BTC Market Trading was overpaid by RM641,767.25 on this component alone. As to Placement, comprising 3% of the Distribution Margin and amounting to RM1,586,986.20, their own Defence admits that only RM1,143,639.04 was actually incurred, meaning that BTC Market Trading was overpaid by RM443,347.16 on this component. Neither overpayment is the product of any estimate or reconstruction advanced by Ouji; both are drawn directly from the Defendants’ own pleaded case. [106] The court accordingly finds that the unexplained RM3,321,845.34 shortfall, taken together with the admitted overpayments on the Salesman Incentive and Placement components, independently corroborates the finding that BTC’s Portion was not, in its entirety, genuinely applied to the legitimate costs of distribution, and that a substantial part of it was retained as an undisclosed and unauthorised benefit. S/N 54O4hHPEzEanajotjPM5tw Derivation of BTC’s Portion [107] Before turning to Tommy's alternative arguments on characterisation and quantum, the court sets out how the sum of RM9,786,414.92 is derived, this being necessary to a reasoned assessment of Ouji's claim. [108] As set out at paragraph [10] above, the total value of sales generated through BTC Market Trading between April 2020 and 30.3.2022 was RM53,146,958.00, comprising RM16,874,408.48 in 2020 and RM28,678,082.58 in 2021, with the balance falling within the first quarter of 2022. Clause 6.1 of the Distribution Agreement fixed the aggregate Distribution Margin at 39% of that sum, yielding RM20,640,820.64. Of that aggregate margin, BTC's Portion, comprising the Distributor Margin (8%), Productivity (2%), Prompt Payment (1.5%), Salesman Subsidy (2%), Salesman Incentive (2%), and Placement (3%) components, together 18.5 of the 39 percentage points, amounted to RM9,786,414.92. It is this sum, and not the full 39% margin, which Ouji claims as Tommy's secret profit. [109] The court accepts that the remaining 20.5 percentage points of the 39% Distribution Margin, falling outside BTC's Portion, were applied to matters such as third-party marketing expenditure and market returns which are not impugned in these proceedings. Ouji's claim is accordingly, and correctly, confined to BTC's Portion alone, being the component retained by BTC Market Trading itself rather S/N 54O4hHPEzEanajotjPM5tw than expended on the distribution function for which it was engaged. The precision with which this figure can be derived from Clause 6.1 and the sales figures common ground between the parties is material to the objections addressed below. The Distribution Margin Was a Significant Contributor to Ouji’s Losses [110] The court also notes that RM11,107,153.20, representing 69.13% of Ouji’s total loss of RM16,066,659.92 for the financial year ending 31.12.2021, is directly attributable to BTC Market Trading’s Distribution Margin for that year. This figure undermines the Defendants’ contention that no causal connection exists between the Distribution Margin and Ouji’s losses. [111] The court accepts that Ouji’s revenue grew substantially over the same period, from RM14,410,747 in the first year of operations to RM30,091,859.97 in the second, and that Ouji bore responsibility for managing its own operating costs, as Alicia accepted under cross-examination. [112] That concession does not, however, displace the significance of a single line item, paid to a distributor secretly controlled by Ouji’s own Head of Sales, accounting for more than two-thirds of Ouji’s recorded loss for the year in question. S/N 54O4hHPEzEanajotjPM5tw Ouji’s Claim Is One for an Equitable Account [113] The court rejects Tommy’s submission that Ouji’s claim is barred as a restitutionary claim founded on total failure of consideration. [114] That characterisation mistakes the nature of the relief sought, which is not repayment for a total failure to perform the Distribution Agreement, but an account of profits made by a fiduciary in breach of the no-profit rule. As the authorities in Boardman v Phipps and Regal (Hastings) establish, the liability to account arises from the mere fact that a profit was made in breach of fiduciary duty. Questions of fraud, good faith, or whether the principal could itself have made the profit are irrelevant to that liability. [115] Lim Swee Choo and Sunway City, both concerned with claims for repayment of sums paid under contracts that were fully or substantially performed, have no application to a claim in equitable account founded on an undisclosed conflict of interest at the point the contract was procured. [116] It follows that the requirement, urged upon the court by reference to Wong Kar Juat, that Ouji prove precise compensatory loss and causation with certainty, has no application to a claim framed, as this one properly is, in equitable account. S/N 54O4hHPEzEanajotjPM5tw Tommy’s Specific Objections to Quantum and Causation [117] The court does not, however, accept Tommy's further and more particular objections at paragraph [78] above, namely that no specific wrongful payment has been identified, that no causal link between any such payment and his breach has been shown, and that no comparator has been adduced to demonstrate that the Distribution Margin was commercially excessive. None of those objections survive scrutiny, whether or not the claim is treated as one in equitable account. [118] As to the identification of a specific wrongful payment, the sum claimed is not left at large. It is precisely identified as BTC's Portion, being the 18.5 percentage points of the 39% Distribution Margin described at paragraph [108] above, to the exclusion of the remaining 20.5 percentage points which Ouji does not impugn. That sum is capable of exact arithmetical derivation from Clause 6.1 of the Distribution Agreement applied to sales figures which are common ground between the parties, and Tommy's objection that the wrongful payment is unidentified is accordingly not made out. [119] As to causation, the payment of BTC's Portion to BTC Market Trading was the direct and necessary consequence of Tommy's breach in procuring the Distribution Agreement itself through an undisclosed conflict of interest. But for that breach, BTC Market Trading, a vehicle incorporated by S/N 54O4hHPEzEanajotjPM5tw Tommy's own relatives some fifteen days after he commenced employment with Ouji, would not have been appointed as Ouji's distributor, and no part of BTC's Portion would have been paid to it. That causal chain is established by the findings made at paragraphs [80] to [88] above, and Ouji is not required, in addition, to demonstrate that each individual remittance comprised within BTC's Portion was itself separately irregular. [120] As to the absence of a comparator said to establish that the Distribution Margin was commercially excessive, the court does not accept that such a comparator is a precondition to relief in a claim framed in equitable account. The liability to account rests upon the fact that Tommy procured a profit for connected parties through an undisclosed conflict of interest, not upon proof that the percentage agreed exceeded some objectively ascertainable market rate. In any event, the court observes that Tommy bypassed CHC Distributors, an established distributor which had reported profits of RM2.87 million and RM6.01 million for the financial years ending 2019 and 2020 respectively, in favour of a vehicle incorporated by his own relatives with no comparable track record, a circumstance itself inconsistent with the Distribution Margin having been arrived at through the arm's length commercial negotiation that a comparator analysis presupposes. S/N 54O4hHPEzEanajotjPM5tw [121] In any event, the figures set out at paragraph [110], in particular the RM11,107,153.20 in losses directly attributable to the Distribution Margin, provide ample evidentiary support even were compensatory principles to be applied. Conclusion [122] The court accordingly finds that the Distribution Agreement was procured by Tommy’s undisclosed conflict of interest, that the Distribution Margin retained by BTC Market Trading as BTC’s Portion constitutes a secret profit made in breach of Tommy’s fiduciary duty, and that Tommy, BTC Market Trading, Ben Liew, and Li Teng are jointly and/or severally liable to account to Ouji for RM9,786,414.92. Misappropriation of Goods and Samples (RM3,892,043.50) Ouji’s Case [123] Ouji’s case is that its goods and promotional samples, valued at RM3,892,043.50 at cost, were diverted from their authorised promotional purposes and misappropriated during the currency of the Distribution Agreement, through Tommy’s exploitation of his first-tier approval role in the PRF process to channel goods to BTC Market Trading and, thereafter, to Warhol Mac. S/N 54O4hHPEzEanajotjPM5tw [124] Ouji’s evidence is that the sum of RM3,892,043.50 represents the total cost value of samples requisitioned for promotional or marketing purposes between April 2020 and March 2022, as tabulated from Ouji’s “Internal Worksheet for Product Requisition for the year 2021” prepared by Nicole Ho, cross-referenced against the values recorded in Ouji’s inventory audit reports generated by the SAP Business One system. [125] Ouji further contends that these inventory audit reports, generated by the SAP Business One system contemporaneously with each requisition, approval, and release of samples in the ordinary course of Ouji’s business, are computerised accounting records falling within section 73A and 90A of the Evidence Act 1950, and that no challenge has been made to the integrity or reliability of the SAP Business One system itself, as opposed to bare assertions that the figures it records are wrong. [126] Ouji further relies on the fact that 30 PRFs in its possession show deliveries to BTC Market Trading’s warehouse between August 2021 and November 2021. [127] Ouji also relies on the evidence of Nicole Ho, a Marketing Executive who attended weekly Thursday meetings at BTC Market Trading’s warehouse and who affirmed a Statutory Declaration on 12.4.2022 concerning the housing of Ouji’s S/N 54O4hHPEzEanajotjPM5tw goods at that warehouse and a pattern of movement of goods from there to Warhol Mac. [128] Ouji further relies on Tommy’s admissions that he incorporated Warhol Mac and injected funds into it. It also relies on Ben Liew’s admission that he was involved in the distribution of Ouji’s products, although he claimed complete ignorance regarding the movement of Ouji’s goods from BTC Market Trading to Warhol Mac. Defendants’ Case [129] The Defendants’ case is that all releases of samples were made strictly pursuant to Ouji’s own multi-tier internal requisition process. [130] Under that process, a PRF was first prepared by Ouji’s marketing department on the instruction of Tommy or Ouji’s sales team, submitted for first-tier approval by Tommy, and thereafter submitted to Alicia for final approval, before being transmitted to YFL for release from Ouji’s warehouse. [131] The Defendants’ case is that each PRF was approved by Alicia, that samples were used for promotional purposes and corporate social responsibility initiatives as stated in the requisition forms, and that undistributed samples were returned to Ouji by way of delivery order executed by Ouji’s own driver. S/N 54O4hHPEzEanajotjPM5tw [132] The Defendants rely on the witness statements of DW1 (Mong Tak San, YFL’s consultant), DW2 (Loke Chia Khang, Director of River Pool Resources (M) Sdn Bhd), DW3 (Choe Weng Chee, Trading Manager of Watson’s Personal Care Stores Sdn Bhd), DW4 (Chiu Fook Kwai, Sales Director of CFK Marketing Sdn Bhd), and DW7 (Lim Boon Sin, former Operation Manager of BTC Market Trading), each of whom confirmed receipt of samples consistent with the stated purposes. They submit that Ouji has produced no forensic stock reconciliation establishing opening inventory, approved requisitions, transfers, returns, and closing balances, such that the diversion claim is speculative. [133] BTC Market Trading, Ben Liew, Li Teng, Warhol Mac and BTC Imperium further submit that, because every Product Requisition Form was approved by Alicia before release, Ouji is estopped from now alleging misappropriation, relying on Boustead Trading (1985) Sdn Bhd v Arab-Malaysian Merchant Bank Bhd [1995] 3 MLJ 331 (Federal Court), Aura Indah Jaya Sdn Bhd v OCBC Bank (M) Bhd [2021] 10 MLJ 21 (High Court), and Cheah Theam Kheng v City Centre Sdn Bhd (in liquidation) & Other Appeals [2012] 1 MLJ 761 (Court of Appeal), for the principle that a party who has knowingly authorised and approved a course of conduct cannot subsequently resile from it and allege wrongdoing. S/N 54O4hHPEzEanajotjPM5tw Analysis and findings The PRF Approval Process Does Not Negate the Diversion of Samples [134] The court accepts that PRFs bearing Alicia’s approval were a necessary precondition to the release of samples, and that documentary evidence exists of samples being received by recipients such as Watsons and CFK Marketing consistent with promotional use. [135] That evidence, however, does not answer Ouji’s case, which is that Tommy exploited his first-tier approval role to channel volumes of goods beyond what was authorised for legitimate promotional purposes. Alicia’s second-tier approval was itself given without knowledge of the underlying diversion because it depended entirely on information and recommendations filtered through Tommy, who stood as the sole intermediary between Alicia and his subordinates in the requisition chain. [136] For the same reason, the court does not accept the Defendants’ submission that Alicia’s approval of the Product Requisition Forms estops Ouji from now alleging misappropriation. Boustead Trading, Aura Indah Jaya and Cheah Theam Kheng, like Kelana Megah Development considered elsewhere in these grounds, concern parties who affirmed an arrangement with full and honest knowledge of the material facts. None of those authorities S/N 54O4hHPEzEanajotjPM5tw assists a party whose counterpart’s approval was procured through the concealment of the very facts that would have altered the assessment of the transaction. [137] The principle that fraud unravels all, already applied in these grounds to the Distribution Margin at paragraphs [65] to [66] above, applies with equal force here. An approval procured by deception cannot found an estoppel against the party deceived. Alicia approved the release of samples for sampling and promotional purposes on the representation, filtered through Tommy, that this was their true and only end-use. She did not, and could not, thereby approve their commercial sale on Choochoomart.com and related channels for the secret profits of other entities. Her signature on the requisition forms accordingly answers only the question whether goods were released in accordance with what she was told, and not the question, which is the gravamen of Ouji’s case, whether what she was told was true. [138] Tommy’s admission that he incorporated Warhol Mac and funded it, and Ben Liew’s admission that he was involved in the distribution of Ouji’s products, although he claimed complete ignorance regarding the movement of Ouji’s goods from BTC Market Trading to Warhol Mac, are significant admissions. The Defendants’ submissions do not adequately explain them, and the court finds that they carry substantially greater weight than the Defendants’ reliance on the formal regularity of the PRF documentation. S/N 54O4hHPEzEanajotjPM5tw The Lack of a Forensic Stock Reconciliation Is Not Determinative [139] As to the absence of a forensic stock reconciliation, the court acknowledges this evidential gap but does not accept that it is fatal to Ouji’s case. [140] Where a fiduciary has placed himself in a position that itself obstructs the precise tracing of diverted assets, he cannot take advantage of the evidential difficulty which his own conduct has created. In this respect, the court finds assistance in the Federal Court’s articulation of the concept of conversion in Zung Zang Wood Products Sdn Bhd & Ors v Kwan Chee Hang & Ors [2014] 2 MLJ 799, where it was held that “a conversion is the act of wilfully interfering with movable property without lawful justification whereby any person entitled thereto is deprived of the possession of it”. [141] Applying that principle, the court finds that the diversion of goods to destinations and in volumes beyond what the PRF system was designed to authorise, notwithstanding the formal presence of Alicia’s signature, amounts to a dealing with Ouji’s property inconsistent with Ouji’s ownership rights. [142] The court further finds that Nicole Ho’s evidence of the pattern of movement of goods from BTC Market Trading’s warehouse to Warhol Mac, corroborated by the documentary record of the 30 PRFs directed to that warehouse between August and November 2021 and by S/N 54O4hHPEzEanajotjPM5tw the admissions of the Defendants’ own witnesses, is sufficient to establish misappropriation on the balance of probabilities, notwithstanding the absence of a complete stock audit. [143] The court has weighed the Defendants’ submission that the samples were, in substantial part, genuinely distributed for promotional and corporate social responsibility purposes and received by retailers and institutions such as Watsons and CFK Marketing. It finds, however, that this explains only a portion of the samples requisitioned and does not account for the volumes shown by Nicole Ho’s evidence to have been diverted to BTC Market Trading’s warehouse and thereafter to Warhol Mac. Warhol Mac and BTC Imperium Were Participants in the Misappropriation Scheme [144] As to the inclusion of Warhol Mac and BTC Imperium under this head of liability, the court finds that Warhol Mac functioned as the retail front and destination for the misappropriated goods. [145] The mechanism by which goods were channelled to Warhol Mac is itself illuminating. The documentary trail between BTC Market Trading and Warhol Mac, comprising purchase orders, delivery orders, goods received notes, and invoices, discloses a pattern which the court accepts as a sham S/N 54O4hHPEzEanajotjPM5tw created to lend a veneer of legitimacy to what was, in substance, the diversion of Ouji’s goods. [146] Recurrently, the billing and delivery addresses recorded on these documents for BTC Market Trading and Warhol Mac are identical, both entities sharing the same registered address at Unit 3-3A, Scott Garden, and the same business address at Kampung Subang Baru, Shah Alam. Tommy accepted under cross-examination that, because the address was the same, there was no physical movement of the goods between the two entities at all. [147] In one such transaction, a Goods Received Note dated 15.7.2021 records the transfer of some sixteen categories of Ouji’s goods from BTC Market Trading to Warhol Mac under 30-day payment terms, with the total payable expressly stated as “Ringgit Malaysia: Zero Only” and “0.00”. No consideration passed for this transfer, notwithstanding that it purported to be a sale. In other transactions for which a nominal price was recorded, such as the invoices of 24.1.2022 and 9.3.2022, no corresponding payment appears in Warhol Mac’s AmBank statement, notwithstanding the 60-day payment terms stated on the invoices themselves. Tommy, when taken through Warhol Mac’s bank statement for the relevant periods and asked to identify any corresponding entry, was unable to do so, and offered only the speculative and unsubstantiated suggestion of an unspecified credit facility. S/N 54O4hHPEzEanajotjPM5tw [148] The Defendants submit that these were bona fide transactions, relying on BTC Market Trading’s Statement of Account and bank statements said to record payment for goods purchased from Ouji, and on Tommy’s evidence that Warhol Mac had genuine dealings with BTC Market Trading independent of any diversion of Ouji’s goods. The court has considered this submission but does not accept that it displaces the specific and unrebutted documentary evidence identified above, in particular the explicit zero-value Goods Received Note and the recurring absence of any corresponding payment in Warhol Mac’s own bank records for the specific transactions Ouji has identified. The general existence of a trading relationship between BTC Market Trading and Warhol Mac does not answer the absence of consideration for the specific transfers upon which Ouji relies. [149] The court finds that this documentary trail, comprising invoices, delivery orders, and purchase orders exchanged between two entities sharing a common address, a common company secretary, and common ultimate control, transacting at zero or nominal cost without corresponding payment, was not evidence of an arm’s length commercial relationship, but a mechanism for disguising the diversion of Ouji’s goods to Warhol Mac. S/N 54O4hHPEzEanajotjPM5tw [150] The court further finds that BTC Imperium, as a shareholder of Warhol Mac into which Warhol Mac’s shares were transferred from BTC Market Trading, served as a further layer in the scheme, notwithstanding BTC Imperium’s submission that it conducts no independent business dealings of its own and cannot accordingly be held liable. [151] That submission is addressed further below in relation to the piercing of the corporate veil. The Post-Termination Flash and Cash Sales [152] The court further finds support for its conclusion on this head of claim in the unauthorised cash and warehouse sales which took place at BTC Market Trading’s warehouse in the weeks immediately following Tommy’s termination on 31.3.2022, referred to by Nicole Ho in her Statutory Declaration as a “staff sale” and described in Alicia’s evidence as a “fire sale”, as noted at paragraph [16] above. [153] The court accepts Ouji’s evidence that, between 31.3.2022 and mid-April 2022, Ouji’s goods stored at BTC Market Trading’s warehouse were sold off by way of cash and heavily discounted invoices, several bearing the remark that they were a “IS SPECIAL PRICE AND SET FOR STAFF PURCHASE (WAREHOUSE CLEARANCE)”. The scale of the discounting is illustrated by the sale, on 15.4.2022, the very date on which this court granted the Mareva and Anton Piller injunctions, of 577 units of Walch Antibacterial S/N 54O4hHPEzEanajotjPM5tw Personal Wet Wipes, originally priced at RM15.90 per unit and RM9,174.30 in aggregate, for a total of RM577.00, a reduction to approximately RM1.00 per unit. A further example shows 48 units of Walch multi-purpose disinfectant wipes, originally priced at RM763.20, sold for RM24.00. Tommy, when the arithmetic of the first transaction was put to him in cross-examination, was unable to explain how the unit price had been reduced from RM15.90 to a mere RM1.00. [154] The court finds that this pattern of sudden, heavily discounted, cash-only disposals, commencing immediately upon Tommy’s termination and continuing through the very date of the Mareva and Anton Piller injunctions, is not consistent with ordinary stock clearance but is powerful circumstantial evidence of a deliberate attempt to liquidate and dispose of the misappropriated goods before their true extent could be established, corroborating rather than detracting from the findings of misappropriation already made in these grounds. Conclusion [155] The court accordingly finds that Tommy, BTC Market Trading, Ben Liew, Li Teng, Warhol Mac and BTC Imperium are jointly and/or severally liable to pay Ouji RM3,892,043.50 as the value of the misappropriated goods and samples. S/N 54O4hHPEzEanajotjPM5tw The Blinic Soap Bars (RM222,137.00) Ouji’s Case [156] Ouji’s case is that Tommy, while remaining its Head of Sales, established and operated, through Warhol Mac, a competing business manufacturing, distributing, and selling soap bars under the brand ‘Blinic’, in breach of his fiduciary duty not to compete and his no-profit obligation. [157] Ouji relies on Tommy’s admissions under cross-examination where he unequivocally confirmed his role in establishing the competing business. Tommy admitted that he incorporated Warhol Mac and that ‘Blinic’ was his own idea, agreeing that Warhol Mac was used as a vehicle to promote, sell, and distribute ‘Blinic’ soap bars. When Ouiji's counsel asked, “You created Warhol to sell the bar soaps?” Tommy answered, “Yes”. He further admitted that he injected funds into Warhol Mac for their purchase; when asked, “Were you or were you not one of the people who injected money and funds into Warhol Mac?” Tommy answered, “Yes”. He also conceded that this capital injection drove the business, agreeing when counsel put to him: “So can we agree that at least based on a certain amount of the funds that you had injected, that was how this business of Blinic, purchasing soap bars on behalf of Warhol Mac was... being done?” to which Tommy replied, “Correct”. S/N 54O4hHPEzEanajotjPM5tw [158] Crucially, Ouji relies on Tommy's admission regarding the timeline and nature of the trademark registration to demonstrate his conflict of interest. Tommy admitted that Warhol Mac applied to register the ‘Blinic’ trademark on 5.5.2021. Counsel confronted him with the trademark application, asking, “The applicant here is Warhol Mac, right?” to which Tommy replied “Yes”, and “The date of the application, Tommy, just to be clear, is 5th of May 2021. Ya?” to which Tommy again replied “Yes”. This was exactly four months after his promotion to Head of Sales on 22.12.2020 (an appointment Tommy confirmed by answering “Yes” to the question, “You eventually got promoted to head of sales in December 2020. Correct?”). Finally, Tommy admitted that this trademark was registered in a classification including “bar soaps and bath soaps in liquid, solid or gel form” when counsel read the classification description aloud in court, “It includes bar, bar soaps and bath soaps in liquid, solid or gel form,” and Tommy confirmed, “Yes”. [159] Ouji further relies on Tommy’s admission that Warhol Mac had no prior experience in personal care products. During cross-examination, when asked by Ouiji's counsel, “Up until Blinic was marketed and sold by Warhol Mac, can we agree that Warhol Mac never had a prior experience or track record in selling such products?” Tommy replied, “Yes,” and further confirmed this when pressed, “So they never had any experience to sell such products?”. It also relies on evidence that ‘Blinic’ was listed on Choochoomart under the S/N 54O4hHPEzEanajotjPM5tw same “personal and hygiene” category as ‘Walch’ and priced below ‘Walch’ liquid soap. When confronted with the Choochoomart listings, Tommy agreed that the items were categorised “under the same category, personal and hygiene, personal hygiene products” and that “Top is Blinic” while “Below is Walch”, conceding they were “literally on the same aisle”. [160] Furthermore, Tommy confirmed the pricing disparity, agreeing with counsel that “the pricing for Blinic is 7.50... And just below is Walch for 20 ringgit, 25 cent each”. Ouji also relies on Ben Liew’s agreement that BTC Market Trading’s Journal Voucher dated 30.11.2021 recorded trade spend for ‘Blinic’. During his cross-examination, Ben Liew was referred to BTC's Journal Voucher for “General Trade Spend” and explicitly agreed when counsel put to him, “Part of the trade spend includes the display charges for ‘blinic’ soap bar”. [161] Finally, Ouji relies on Tommy’s admission that he would be content for ‘Blinic’ to be sold on any platform because “the profit comes to (him)”. When questioned about controlling how other suppliers market the product on e-commerce platforms, Tommy stated, “You'll be happy that someone is selling Blinic”. Counsel then followed up, “Of course you'll be happy because the profit comes to you. Correct?”, to which Tommy unequivocally answered, “Yes”. S/N 54O4hHPEzEanajotjPM5tw Tommy’s Case [162] Tommy’s case is that ‘Blinic’ did not compete with Ouji’s products because Ouji sold liquid soap, not soap bars, in Malaysia. This is a proposition he says Alicia confirmed during her cross-examination when defence counsel asked, “Can you show us from the bundle of sales of Walch bar soap in Malaysia?” and Alicia responded, “We don't have a Walch bar soap”. Counsel then suggested, “since you do not have any Walch bar soap in Malaysia, that means you do not have any competitor in terms of bar soap itself. Would you agree?”, to which Alicia conceded, “We do not have competitor”. Although Alicia attempted to qualify her answer by adding, “But we have the same function,” counsel pressed her, stating, “You just let me know if there is, bar soap itself. There is no competitor,” prompting Alicia to ultimately agree by answering, “Yes. Yes”. [163] He relies further on Colleen’s evidence that ‘Walch’ is a liquid wash, not soap-based, and that ‘Blinic’ was benchmarked instead against bar soaps such as Dettol, Protex, and Lifebuoy. This defence was explicitly cemented during Colleen’s cross-examination when defence counsel asked her, “Would you consider Walch body wash a bar soap or soap-based product?”, to which she replied, “It's a liquid wash,” and further clarified that it is “Not soap-based”. Counsel then put the ultimate question to her: “Since it is not a soap-based product as you have just mentioned, would you consider Blinic soap bar as a competing product S/N 54O4hHPEzEanajotjPM5tw of Walch body wash?”. Colleen explicitly rejected the notion of direct competition, testifying under oath, “My answer is no because Blinic soap bar is benchmarking the big players like Dettol, Protex or Lifebuoy, the antibacterial bar soap”. [164] Tommy submits that his proposal for Ouji to enter the soap bar market was rejected around 2020 and that, applying Tengku Abdullah Ibni Sultan Abu Bakar & Ors v Mohd Latiff bin Shah Mohd & Ors and Other Appeals [1997] 2 CLJ 607 (Court of Appeal), a plaintiff who declines an opportunity cannot later complain of its appropriation. [165] Warhol Mac and BTC Imperium similarly deny that ‘Blinic’ constituted a competing business. Analysis and Findings [166] The court rejects this submission. [167] The relevant question is not whether the products are physically identical but whether they are functionally substitutable within the same market, a test reflected in the Malaysian Competition Commission’s Guidelines on Market Definition and applied in Rotta Research Laboratorium SPA & Anor v Ho Tack Sien & Ors (Chai Yuet Ying, third party) [2015] 4 MLJevi 222 (High Court), and consistent with section 2 of the Competition Act 2010, which defines a “market” as extending to goods “substitutable for, or otherwise competitive with” the goods in question. S/N 54O4hHPEzEanajotjPM5tw [168] On that test, ‘Blinic’ and ‘Walch’ served the same cleansing function, shared the “personal and hygiene” category, and were found in the same section, if not the same aisle, of physical retail outlets. Both were sold at major supermarkets such as AEON and Hero Supermarket, indicating that retailers themselves treated them as competing products. [169] The evidence further shows that Warhol Mac established a ‘Blinic’ Facebook page on 29.9.2021 and distributed ‘Blinic’ through Choochoomart and major modern trade retailers. Ben Liew also admitted BTC Market Trading’s own involvement in distributing and selling ‘Blinic’. [170] Alicia’s concession that Ouji had no bar-soap product answers only the question whether an identical product existed within Ouji’s product range. It does not displace the substitutability analysis, since the duty not to compete extends to opportunities identified through the fiduciary’s position, and is not confined to products the principal already sells. [171] Tommy additionally admitted that no financial statements or annual reports were ever lodged for Warhol Mac, contrary to section 259 of the Companies Act 2016. Although he denied that this omission was intended to prevent detection of his involvement, the court finds that inference irresistible when the evidence is viewed as a whole. S/N 54O4hHPEzEanajotjPM5tw [172] A fiduciary who uses knowledge of a market gap, customer contacts, and commercial experience acquired in the course of his employment to establish and profit from a competing enterprise commits a clear breach of his duty not to compete. [173] As the Court of Appeal held in Zaharen bin Hj Zakari v Redmax Sdn Bhd, an employee in a position of trust must act in good faith, must not profit from his position of trust, and may not act for his own benefit without his employer’s informed consent. [174] The strictness of the no-conflict and no-profit rules is illustrated by the High Court’s judgment in Magnifine Sdn Bhd v Yap Mun Him [2005] 6 CLJ 413, which held that those rules “would not have excused or exempted him from his fiduciary duty to act bona fide in the interest of the plaintiff and for proper purposes”, and that liability to account “arises from the mere fact that profits have been made in breach of fiduciary duties”. [175] Similarly, as Harminder Singh Dhaliwal JC (as he then was) held in MPI Polyester Industries Sdn Bhd v Ena Koo Kiang & Ors [2011] 8 CLJ 236 (High Court), such a breach entitles the claimant “to equitable compensation for his loss or to restitution for the fiduciary’s unauthorised gain”. S/N 54O4hHPEzEanajotjPM5tw [176] Tommy’s reliance on Tengku Abdullah does not assist him. That authority requires proof that the fiduciary received profits by reason of his fiduciary position, a requirement amply satisfied by Tommy’s own admissions. Quoting from Hospital Products Limited v. United States Surgical Corporation & Ors. [1986] 156 CLR 41, the Court of Appeal stated: "The rule that a fiduciary is not entitled to make a profit without the informed consent of the person to whom the fiduciary duty is owed is not limited to profits which arise from the use of the fiduciary position or of the opportunity or knowledge gained from it for it is said that the basis of this rule is that the fiduciary may not place himself in a situation where his duty and his interest conflict" [177] That he may have raised the soap bar idea with Alicia and had it rejected did not entitle him to appropriate that opportunity for himself. [178] The evidence establishes, and the Defendants did not effectively rebut, that the secret profits derived by Warhol Mac from ‘Blinic’ sales during December 2021 and January 2022 alone amounted to RM222,137.00. [179] The court accordingly finds that Tommy and Warhol Mac are liable to account to Ouji for RM222,137.00 as secret profits derived from the sale of competing ‘Blinic’ soap bars. S/N 54O4hHPEzEanajotjPM5tw River Pool’s Inflated Invoices (RM275,537.58) Ouji’s Case [180] Ouji’s case is that Tommy, having recommended River Pool to Ouji for the deployment of sales promoters at major retail chains, thereafter occupied a second-tier approval role over River Pool’s invoices, such that a systematic pattern arose in which the numbers of promoters billed by River Pool exceeded the numbers actually proposed by Ouji for each outlet and month. [181] Ouji’s evidence establishes that once its sales personnel had obtained confirmation from retailers such as Watsons and AEON Wellness of the number of promoters required for a given month, that information was relayed to Janet from BTC and formed the basis of River Pool’s monthly engagement. River Pool would then issue its invoice, addressed to Tommy, in respect of the promoters purportedly placed. [182] Ouji’s evidence, which was not disputed as to the underlying figures, establishes the following discrepancies. For June 2021, no promoters were proposed for Watsons or AEON Wellness, yet River Pool invoiced for 260 promoters at Watsons and 20 at AEON Wellness. For July 2021, no promoters were proposed for Watsons or AEON Wellness, yet River Pool invoiced for 216 promoters at Watsons and 25 at AEON Wellness. For August 2021, Ouji proposed 50 S/N 54O4hHPEzEanajotjPM5tw promoters for Watsons but River Pool invoiced for 256, and proposed 30 for AEON Wellness but River Pool invoiced for

For September 2021, no promoters were proposed for Watsons, but River Pool invoiced for 216. For October 2021, no promoters were proposed for Watsons, but River Pool invoiced for 216. [183] It is Ouji’s case that these invoices, before being submitted to Alicia for final payment, first passed through acknowledgement by Colleen, Choo, and/or Calvin, Tommy’s subordinates, and thereafter through Tommy’s own review as the second tier of approval, such that the discrepancies ought, on any reasonable review, to have been detected before payment was made. Tommy’s case [184] Tommy’s case is that River Pool’s invoices were processed through a structured, multi-tier internal approval system within Ouji’s own organisation, and that he had no involvement in the ordering of promoters, this being outside his sales department. [185] Tommy relies on the evidence that invoices were first verified at sales level against supporting documentation, thereafter uploaded into Ouji’s internal accounting system for sequential managerial and director-level approval, and finally submitted to Alicia for her approval before transmission to the finance department for payment. S/N 54O4hHPEzEanajotjPM5tw [186] Tommy submits that Alicia herself admitted that her approval was based on the supporting documentation furnished to her, and that she did not verify River Pool’s invoices against actual attendance at the retail outlets. On this basis, Tommy contends that Ouji, having operated within and derived the benefit of its own approval structure over an extended period without objection, cannot now retrospectively attribute sole responsibility for the discrepancies to him. [187] Tommy further relies on the fact that River Pool’s Consent Judgment dated 22.1.2024 was entered without any admission of liability, and submits that it carries no evidential weight against him. Analysis and Findings [188] The court accepts that River Pool’s Consent Judgment, being a negotiated compromise without any admission of liability, does not of itself constitute proof of wrongdoing as against Tommy or any other Defendant. The court has accordingly placed no reliance upon it as such. [189] The court does not, however, accept that the existence of a structured multi-tier approval system absolves Tommy of responsibility. The court finds, on the whole of the evidence, that Tommy’s own evidence acknowledged his involvement in a second tier of approval over River Pool’s invoices after S/N 54O4hHPEzEanajotjPM5tw their initial submission, and that he reviewed those invoices before they were processed for final payment by Alicia. [190] When asked in cross-examination by Ouji's counsel why he had not raised any queries about the supporting documents, notwithstanding that he had gone through them, Tommy's exact exchange revealed his blind reliance on his conflicted team. After confirming that he was the second layer of approval and answering “Yes” when asked, “is it fair that you yourself also went through the documentation in support of the invoices?”, counsel asked him, “At that time, did you not raise any questions or queries about the supporting documents for those invoices?” to which Tommy replied, “No.” When counsel pressed further, asking “Why not?”, Tommy answered, “Because I trust my lines of subordinates.” Counsel then immediately pointed out the inherent conflict of interest in this arrangement, asking, “Just to be clear, your line of subordinates, Calvin and Choo, are also people that you have business interest with in Warhol and BTC Marketing, Market Trading, correct?”, forcing Tommy to concede, “Warhol, yes.” [191] That answer demonstrates that Tommy’s participation in the approval process, although real, did not amount to the exercise of the independent scrutiny which his position required. Rather, it amounted to unreflective deference to the very subordinates whose acknowledgements he was responsible for reviewing. S/N 54O4hHPEzEanajotjPM5tw [192] Tommy’s submission that Alicia’s approval and the direct submission of invoices to the finance department absolve him is not a complete answer. [193] Tommy’s second-tier approval role placed him in a position to identify and act upon the discrepancies set out at paragraph [182] above, which, on any reasonable review, ought to have been apparent. He failed to do so. [194] Nor can Tommy invoke Ouji’s continued payment under its own approval structure as a shield. For the same reason that the court has declined elsewhere in these grounds to permit a party to rely on an approval procured through, or left unexamined because of, the very default now in issue, a party seeking to rely on the principle that another cannot resile from its own conduct must show that the other party had full knowledge of the relevant facts at the material time, applying the principle affirmed by the Court of Appeal in Kelana Megah Development Sdn Bhd v Kerajaan Negeri Johor & Another Appeal [2016] 8 CLJ 804. [195] Ouji did not possess such knowledge. The discrepancies lay concealed within the very tier of approval that Tommy himself occupied and, on his own account, exercised only nominally. [196] Having weighed Tommy’s submissions on the structure and transparency of Ouji’s internal approval process against Ouji’s evidence of the undisputed discrepancies and S/N 54O4hHPEzEanajotjPM5tw Tommy’s own admissions as to his role and conduct, the court prefers Ouji’s case. [197] The structured process relied upon by Tommy accounts for the existence of a system. It does not answer why that system, at the tier for which Tommy was personally responsible, failed to detect discrepancies of the scale and repetition established above. [198] The court accordingly finds Tommy liable to pay Ouji RM275,537.58, being the total overpayment caused to Ouji by the inflated River Pool invoices. Shadow Directorship, Alter Ego, and the Corporate Veil Ouji’s Case [199] Ouji’s case is that Tommy was, throughout the material period, a shadow director of BTC Market Trading and the alter ego and controlling mind of BTC Market Trading, Warhol Mac, and BTC Imperium, such that their corporate veils ought to be lifted. [200] Ouji points first to the circumstances surrounding BTC Market Trading’s incorporation and to the WhatsApp exchange between Tommy and Li Teng dated 19.3.2020, two days after that incorporation, in which Tommy referred to a contract between “our company” and a “future company”, and Li Teng identified “BTC” as “Ben Tommy S/N 54O4hHPEzEanajotjPM5tw Choo”. During cross-examination, Tommy accepted the accuracy of the WhatsApp exchange, confirming that the messages recorded Li Teng identifying “BTC” as “Ben Tommy Choo” and that he responded affirmatively to her identification. Ouji submits that Tommy’s express acceptance of the exchange constitutes a contemporaneous admission as to the meaning of “BTC”, which is fundamentally inconsistent with his subsequent claim at trial that “BTC” referred instead to “Bitcoin”. [201] Ouji relies further on Tommy’s message to Li Teng of 16.3.2020 that “each of us have a different role to play”, an exchange that Tommy unequivocally admitted to during his cross-examination when Ouji's counsel pointed out the 11:22pm message and asked, “Where you tell your sister, each of us have a different role to play. Did you not?”, to which Tommy replied, “Yes”. Ouji also relies on Li Teng’s acknowledgment on 2.4.2022 at 2.01pm that Tommy had brought “big biz to Ben”, together with her contemporaneous WhatsApp instruction to him, at the time of his termination on 31.3.2022, to “make it messy” in his handover. [202] The exact evidentiary basis for this instruction is found in the WhatsApp logs where, upon Tommy announcing, “Today my last day,” Li Teng replied, “Make it messy la,” and explicitly instructed, “No need handover properly.” This exchange was put directly to Li Teng during her cross-examination, where she confirmed her intentions behind the S/N 54O4hHPEzEanajotjPM5tw message, testifying, “because my brother has been terminated, so there will be an emotion there which angry, so what I mean make it messy, which means no need handover properly, that's what I meant.” Furthermore, during Tommy's cross-examination, he confirmed receiving this exact instruction from Li Teng to “make it messy la” and “no need hand over properly”, admitting that he initially laughed it off by responding, “Hahaha,” before insisting, “Cannot,” because “BTC still need to run”. [203] Ouji further relies on evidence that Tommy negotiated and proposed the distribution terms. During his cross-examination, when Ouji's counsel asked, “Who were you negotiating terms with between the 12th and 16th of March?” Tommy answered, “Ben Liew”. Counsel later put it to him plainly: “Ok. So, you negotiated the terms for the BTC distribution agreement, correct?” to which Tommy unequivocally replied, “Correct”. Ouji also relies on evidence that he conducted weekly operational and sales meetings at BTC Market Trading’s Kampung Subang Baru premises with Ouji’s own employees, including Nicole, in attendance. This was directly admitted by Tommy under oath when counsel asked, “Would you agree, Tommy, that there were sales and promotional meetings held at least once every week at BTC's office address, Kampung Subang Baru?” and Tommy answered, “Yes”. He further confirmed that his team, including Choo, Calvin, and Colleen attended, and when asked, “is it fair to say that you were also part of those S/N 54O4hHPEzEanajotjPM5tw meetings on a weekly basis?”, Tommy again answered, “Yes”. [204] Finally, Ouji relies on evidence that he directed BTC Market Trading’s hiring decisions notwithstanding that he held no formal office within it. Tommy conceded during cross-examination that his name “does not appear anywhere in the corporate particulars of BTC”. However, when confronted with WhatsApp exchanges between himself and his sister (Li Teng, a named BTC director) discussing the hiring of personnel, he was forced to admit his involvement in the hiring process for BTC Market Trading, stating, “For some certain sales team, yes”, and clarifying that he was referring to “BTC teams for exclusive for Ouji Seiyaku”. [205] In this respect, Ouji points to Tommy’s WhatsApp exchange with Li Teng in May 2020 concerning the hiring of BTC Market Trading personnel, in which he asserted his “leadership” in the manner in which the business was to be run. This exchange was scrutinised during Tommy's cross-examination when Ouji's counsel confronted him with his own message dated 1st May 2020 at 10:20pm, putting it to him directly: “You assert, I'm going to suggest here, you assert your leadership in BTC Market Trading in the manner in which the business operations are run. You say here it's leadership. Ya?”. Although Tommy attempted to deflect by answering, “I'm not too sure what I'm referring to here. It's too general,” Ouji maintains this contemporaneous written record speaks for itself. S/N 54O4hHPEzEanajotjPM5tw [206] Ouji also points to Choo’s evidence that he acted upon Tommy’s instructions in matters of budget and retail listings for BTC Market Trading. In his witness statement (WS-PW4), when asked about his own designation within BTC, Choo admitted, “I did not hold any official title in BTC. I only did whatever was instructed to me by Tommy”. When asked to elaborate on what those instructions entailed, Choo explicitly confirmed, “I was verbally instructed by Tommy to recruit more retailers and distributors for BTC”. Crucially, regarding Tommy's overriding control over BTC's operations, Choo testified under oath, “I am not sure what his designation was specifically. He did have a final say in major issues relating to, for example, budget and listing with retailers like Watsons”. [207] As to the corporate vehicles, Ouji relies on the fact that Warhol Mac, incorporated on 25.11.2020, was funded by Tommy’s own director’s advances, including transfers of RM30,000.00 on 15.8.2021 and RM25,000.00 on 26.7.2021, as recorded in its ledger and bank statements. Ouji further relies on the fact that BTC Market Trading’s 50% shareholding in Warhol Mac was transferred to BTC Imperium, itself incorporated on 15.2.2021, on 23.3.2021, an event which Ouji characterises as a strategic manoeuvre to conceal the evident breaches of the Distribution Agreement. S/N 54O4hHPEzEanajotjPM5tw [208] Ouji invokes Gencor ACP Ltd and others v Dalby and others [2000] 2 BCLC 734 (Chancery Division) and Cekap Container v Lim Soon Peng & 2 Ors [2014] 1 LNS 154 (High Court) in support of piercing the corporate veil in these circumstances. Ouji submits that these authorities establish that the separate legal personality of a company will not shield an individual who treats its affairs and assets as his own in furtherance of a scheme to profit at the expense of a fiduciary relationship. Defendants’ Case [209] Tommy’s case, and that of BTC Market Trading, Warhol Mac, and BTC Imperium, is that influence over a distributor’s operations falls short of the actual control required to establish shadow directorship or alter ego status, applying CIMB Bank Bhd v Maybank Trustees Bhd. [210] The Defendants point to the absence of Tommy’s name from BTC Market Trading’s corporate particulars, director lists, and shareholder registers. They also rely on Ben Liew’s evidence that he exercised final sign-off on BTC Market Trading’s payments and trading arrangements and was the authorised signatory with AmBank, as well as the evidence of an independent third party, Chiu Fook Kwai, that his dealings were conducted through Choo and not through Tommy. S/N 54O4hHPEzEanajotjPM5tw [211] The Defendants submit that Tommy’s presence at BTC Market Trading’s premises was open and unconcealed, attended by multiple Ouji personnel as part of a known operational routine, and reflected nothing more than his role as principal liaison between Ouji and its distributor in his capacity as an employee. [212] On this footing, they contend that while Tommy was closely involved in Ouji’s sales and distribution strategy, this does not satisfy the legal threshold for disregarding the separate corporate personalities of BTC Market Trading, Warhol Mac, and BTC Imperium. Analysis and findings [213] The court accepts Ouji’s case. [214] The evidence, taken as a whole, establishes that Tommy exercised the functions of a shadow director of BTC Market Trading. He negotiated and proposed the distribution terms on its behalf, conducted weekly operational and sales meetings at its premises with Ouji’s own staff, directed its hiring decisions, and, as demonstrated by his WhatsApp communications with Li Teng read as a whole rather than in isolation, regarded BTC Market Trading as his own enterprise rather than an independent counterparty. S/N 54O4hHPEzEanajotjPM5tw [215] The suggestion that BTC Market Trading and Warhol Mac’s shared registered address, shared business address, and shared company secretary were mere operational coincidence is not credible in light of Tommy’s own admissions and his direct financial contributions to Warhol Mac. [216] This goes materially beyond the influence of a senior employee over a business partner’s operations and constitutes the controlling or commanding role required by Peninsular Fibre Industries Sdn Bhd v Tan Yoke Chin [2013] 1 LNS 119. This finding is reinforced by the sham documentary trail between BTC Market Trading and Warhol Mac described at paragraphs [145] to [149] above, which shows the two companies transacting at zero or nominal cost, without genuine consideration, behind a facade of ordinary commercial documentation. [217] Ben Liew’s evidence of his formal sign-off authority does not displace this finding. A de jure director need not be shown to have acted in a wholly subservient role for a shadow directorship to be established. Ben Liew’s own testimony that BTC Imperium was “just set up to hold Warhol Mac” is, if anything, consistent with the entities’ true function as corporate vehicles rather than independent trading entities. S/N 54O4hHPEzEanajotjPM5tw [218] Warhol Mac was incorporated by Tommy on 25.11.2020, approximately nine months after he commenced employment with Ouji, and was funded directly by him. [219] It never lodged financial statements or annual reports, contrary to section 259 of the Companies Act 2016. For the reasons given at paragraph [147] above, the court finds that this omission was intended to obscure Tommy’s involvement. [220] The transfer of Warhol Mac’s 50% shareholding from BTC Market Trading to BTC Imperium, itself incorporated on 15.2.2021, on 23.3.2021, some three months after Warhol Mac’s incorporation and shortly before the events giving rise to this suit came under scrutiny, supports the inference that BTC Imperium was interposed as a further layer to distance the principal wrongdoers from the proceeds of the scheme, rather than as an independent trading entity. [221] The court is accordingly satisfied that the corporate veils of BTC Market Trading, Warhol Mac, and BTC Imperium ought to be lifted to the extent necessary to impose liability. These entities were not independent commercial actors operating at arm’s length from Tommy. Rather, each was interposed as a vehicle to receive, hold, or conceal the proceeds of the scheme, and each was, in substance, operated under Tommy’s direction and control. BTC Imperium’s submission that it conducts no independent business dealings and cannot accordingly be liable is, for this reason, rejected. Its S/N 54O4hHPEzEanajotjPM5tw very passivity as a corporate vehicle is consistent with, rather than a defence to, its role in the scheme as found by the court. Dishonest Assistance and Knowing Receipt: Ben Liew and Li Teng Ouji’s Case [222] Ouji’s case is that Ben Liew and Li Teng, as directors and shareholders of BTC Market Trading and as the family members whose relationship to Tommy made the scheme possible, knowingly assisted Tommy in his breaches of fiduciary duty and knowingly received the proceeds of those breaches. [223] Ouji relies on the four-element framework for dishonest assistance set out by the Privy Council in Royal Brunei Airlines v Tan Kok Ming Philip [1995] 3 All ER 97, requiring proof that there has been a disposal of the plaintiff’s assets in breach of trust or fiduciary duty by someone other than the defendant, that the defendant assisted in or procured the breach, that the defendant acted dishonestly or had a dishonest state of mind, and that the plaintiff thereby suffered loss. [224] Ouji submits that the applicable standard of dishonesty in Malaysia is the objective-subjective test affirmed by the Federal Court in CIMB Bank Bhd v Maybank Trustees Bhd, S/N 54O4hHPEzEanajotjPM5tw namely that the Defendant’s conduct must be dishonest by the standards of honest people and that the Defendant must be shown to have appreciated that his or her conduct contravened ordinary standards of honesty. [225] Ouji further relies on the Court of Appeal’s decision in Kuan Pek Seng @ Alan Kuan v Robert Doran & Ors and other appeals [2013] 2 MLJ 174, which held that “an accessory is liable for the loss occasioned by his ‘knowing assistance’, to the same extent as the principal, but only with respect to the breach he knowingly assisted.” [226] As to knowing receipt, Ouji relies on the three-element test affirmed by the Court of Appeal in Ooi Meng Khin v Amanah Scotts Properties (KL) Sdn Bhd [2014] 6 MLJ 488, namely:

a disposal of the plaintiff’s assets in breach of fiduciary duty; (ii) the beneficial receipt by the defendant of assets traceable to the plaintiff’s assets; and (iii) knowledge on the part of the defendant that the assets received are traceable to the breach of fiduciary duty. [227] Ouji further relies on that authority’s adoption of a flexible, fact-centred test of unconscionability, such that actual knowledge of a breach of trust or fiduciary duty is not invariably necessary to establish liability, particularly where the circumstances of a transaction are so unusual, or so contrary to accepted commercial practice, that it would be unconscionable to permit the Defendant to retain the benefit of the receipt. S/N 54O4hHPEzEanajotjPM5tw [228] In support of these elements, Ouji relies on a series of WhatsApp communications. [229] On 19.3.2020, two days after BTC Market Trading’s incorporation, Li Teng asked Tommy, “what contract?”, to which Tommy replied by describing “a contract between our company and future company”. Li Teng then wrote “BTC lo”, followed immediately by “Ben Tommy Choo”, to which Tommy replied “ya”. The exact evidentiary basis for this was established during the cross-examination of Tommy when Ouji's counsel confronted him with the WhatsApp messages sent at 8:36pm, forcing him to confirm the sequence under oath: “ADS: You see there's an exchange between yourself and your sister. Ok. Where your sister asks first, what contract? Do you see that? Just above that 8:32? ADS: And then followed by between our company and future company. ADS: So, you are saying between our company and future company, LOL, Li Teng then says BTC lo, right? That she says that at 8:36, correct? S/N 54O4hHPEzEanajotjPM5tw ADS: And then immediately after that, what did she say? LKH: Ben Tommy Choo. ADS: Yes. LKH: She suggested that. ADS: Ok. I'm not asking what she suggested. That's what she wrote, right? LKH: Ya. That's what she wrote. ADS: And then after that, the LOL that you say, then you go on to say, ya. Do you see that? LKH: Yes.” [230] This specific conversation was also put to Li Teng during her cross-examination by Ouji's counsel. Counsel explicitly asked her, “On the 19th of March 2020, from 8:36pm PM until 8:37 PM, Tommy was referring to our company and future company, and he asked you about the name of our company, and you replied BTC, Ben, Tommy, Choo. Is that correct?” to which she evasively replied, “I only know that my husband wanted to set up a company”. [231] Ouji submits that Ben Liew’s evidence at trial that “BTC” instead stood for “Bitcoin” is irreconcilable with this contemporaneous exchange, and invokes the principle affirmed by the Federal Court in Tindok Besar Estate Sdn S/N 54O4hHPEzEanajotjPM5tw Bhd v Tinjar Co that where oral testimony is contradicted by contemporaneous documentary evidence, the latter must prevail. [232] Ouji also relies on an exchange of 16.3.2020 in which Tommy told Li Teng that “each of us have a different role to play”, and on a WhatsApp conversation dated 2.5.2020 between Ben Liew and Li Teng, in which Ben Liew, discussing Li Teng’s departure from her then employment to join BTC Market Trading, characterised her joining as helping “her own brother”, namely Tommy. [233] Ouji further relies on the events of 31.3.2022, the day of Tommy’s termination. On that day, Li Teng instructed Tommy via WhatsApp to “make it messy” in his handover, immediately informed Ben Liew of the termination, and told him to “be prepared” for Ouji’s management to attend at BTC Market Trading’s premises. In a subsequent exchange on 2.4.2022, Li Teng acknowledged that Tommy had brought “big biz to Ben”. [234] Ouji additionally relies on BTC Market Trading’s Directors’ Circular Resolution in Writing dated 28.10.2020, by which Ben Liew and Li Teng were appointed as the two authorised signatories for BTC Market Trading’s AmBank account. S/N 54O4hHPEzEanajotjPM5tw Defendants’ Case [235] Ben Liew and Li Teng’s case is that they were directors and shareholders of BTC Market Trading in the ordinary course of its commercial operations, that they had no knowledge of any breach of duty on Tommy’s part, and that their roles were largely nominal, akin to those of sleeping directors. [236] They contend that they were not actively involved in decision-making or the day-to-day activities of BTC Market Trading, which they say were primarily overseen by Choo and Ivy. [237] Ben Liew’s evidence was that he alone approved BTC Market Trading’s transactions, that Li Teng “did not in charge” of approving those transactions notwithstanding her status as a joint authorised signatory for the company’s bank account, and that “BTC” stood for “Bitcoin”, a cryptocurrency in which he had an interest during the pandemic period, notwithstanding the contemporaneous WhatsApp record. [238] The Defendants submit that reliance on familial relationships alone cannot ground a finding of dishonest assistance or knowing receipt, relying on Newlake Development Sdn Bhd v Zenith Delight Sdn Bhd & Ors [2021] 9 MLJ 581 (High Court) for the proposition that there is no legal presumption that friends or close associates are co-conspirators or complicit in each other’s wrongdoing. S/N 54O4hHPEzEanajotjPM5tw [239] They further submit that Ouji’s voluntary decision to enter into and renew the Distribution Agreement negates any finding of dishonest assistance or knowing receipt, since Ouji freely authorised the very payments now impugned. They also contend that BTC Market Trading in fact performed genuine distribution functions for which the Distribution Margin constituted proper commercial remuneration. Analysis and Findings [240] The court finds that all four elements of dishonest assistance, and all three elements of knowing receipt, are established against both Ben Liew and Li Teng. [241] As found above, the Distribution Margin of RM9,786,414.92 was extracted from Ouji in breach of Tommy’s fiduciary duty. That sum was received by BTC Market Trading, a company of which Ben Liew and Li Teng were, at all material times, the sole directors and majority shareholders. The beneficial receipt by them, through their company, of assets traceable to Tommy’s breach is therefore established. [242] Ben Liew and Li Teng, as the directors and shareholders of BTC Market Trading whose family connection to Tommy made the scheme possible, assisted in and procured that breach by lending their names and their company to it, and by maintaining, through the Directors’ Circular Resolution of

28.10.2020, joint authority over the very bank account into which the proceeds of the scheme were received. [243] Their conduct, viewed against the WhatsApp communications set out at paragraphs [229] to [233] above, was dishonest by the standards of honest people. The court is satisfied that Ben Liew and Li Teng each appreciated that their conduct contravened those standards, applying the objective-subjective test in CIMB Bank Bhd. [244] Ouji suffered the quantified losses set out in these grounds as a result. [245] The WhatsApp exchanges set out at paragraphs [229] to [233] above demonstrate that Ben Liew and Li Teng were, from the very inception of the scheme on 19.3.2020, aware of Tommy’s role in procuring the distribution contract for their benefit, and were not passive or uninformed directors. [246] The exchange of 19.3.2020, in which Li Teng identified “BTC” as standing for “Ben Tommy Choo” two days after the company’s incorporation, is direct and contemporaneous evidence of Ben Liew and Li Teng’s shared understanding of Tommy’s role at the outset. Ben Liew’s evidence at trial, that the name instead referred to “Bitcoin”, did not credibly displace that evidence. The court prefers the contemporaneous WhatsApp record over that account, applying Tindok Besar Estate. S/N 54O4hHPEzEanajotjPM5tw [247] The exchange of 2.5.2020, in which Ben Liew described Li Teng’s move to BTC Market Trading as helping her brother, further confirms that both understood the venture as bound up with Tommy’s own interests rather than as an arm’s-length commercial arrangement. [248] The exchange of 31.3.2022, in particular Li Teng’s instruction to Tommy to “make it messy”, and her subsequent acknowledgement on 2.4.2022 that Tommy had brought “big biz to Ben”, is powerful evidence of knowing participation rather than innocent commercial involvement. It is consistent only with an understanding, shared by both Ben Liew and Li Teng, that BTC Market Trading’s fortunes were tied to Tommy’s continued position within Ouji. [249] The court rejects the submission that Ouji’s own decision to enter into and renew the Distribution Agreement negates dishonest assistance or knowing receipt. That submission is circular. The decision to enter into the agreement was itself procured by Tommy’s breach of his disclosure duty, and a party deceived into contracting cannot be said to have freely authorised the receipt of the proceeds of that deception. [250] The court also does not accept that Ben Liew’s evidence of approving BTC Market Trading’s transactions independently of Li Teng assists the Defendants. Even taken at face value, that evidence does not displace the Directors’ Circular Resolution of 28.10.2020, which establishes that both Ben Liew and Li Teng held, and were entitled to exercise, S/N 54O4hHPEzEanajotjPM5tw authority over the account into which the Distribution Margin flowed. [251] Liability in knowing receipt does not require that each recipient personally authorise every transaction. It is sufficient that the recipient possessed the requisite knowledge of the taint attaching to funds received by a company under his or her joint control. [252] The court further rejects the Defendants’ submission that familial relationships alone cannot found a finding of complicity, and their reliance on Newlake Development for the proposition that there is no legal presumption that friends or close associates are co-conspirators or complicit in each other’s wrongdoing. [253] The court’s finding in this case does not rest on familial ties alone. It rests on the totality of the documentary record, including the WhatsApp communications set out above, the financial flows to BTC Market Trading, the Directors’ Circular Resolution of 28.10.2020, and the admissions made by Ben Liew and Li Teng under cross-examination. Those admissions include Ben Liew’s acceptance that he was involved in the distribution of Ouji’s products and that he reviewed BTC Market Trading’s financial inflows and outflows. S/N 54O4hHPEzEanajotjPM5tw [254] The unusual character of the arrangement is itself significant. An exclusive distributorship was awarded, without competitive tender, to a company incorporated on the very date of the Distribution Agreement’s execution and controlled by the family of Ouji’s own Head of Sales. [255] Applying the flexible and fact-centred test of unconscionability approved in Ooi Meng Khin, that arrangement is so far removed from ordinary commercial practice as to support liability in knowing receipt independently of any more particularised finding of actual knowledge. In any event, the court is satisfied on the evidence that actual knowledge on the part of both Ben Liew and Li Teng has been established. Unlawful Means Conspiracy Ouji’s Case [256] Ouji’s case is that Tommy, Ben Liew, and Li Teng conspired by unlawful means to cause it loss through a coordinated scheme comprising the incorporation of BTC Market Trading, the procurement of the Distribution Agreement, the diversion of goods and samples, and the establishment of the competing ‘Blinic’ business. S/N 54O4hHPEzEanajotjPM5tw [257] Ouji relies on section 10 of the Evidence Act 1950, which provides: “Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of those persons, in reference to their common intention after the time when the intention was first entertained by any of them, is a relevant fact as against each of the persons believed to be so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it”. [258] Ouji submits that the WhatsApp exchanges in evidence, when considered together with the conduct of the parties, satisfy this statutory test. [259] As to the applicable elements, Ouji relies on Renault SA v Inokom Corp Sdn Bhd & Anor and other appeals [2015] 5 MLJ 394 (Court of Appeal, KN Segara JCA, as he then was) for the four elements of the tort. BTC Market Trading, Ben Liew, Li Teng, Warhol Mac and BTC Imperium likewise rely on Renault SA, which held that the first element is an agreement between two or more persons for the purpose of injuring the plaintiff, and that such an agreement “is not limited to a signed and sealed agreement but any informal agreement, including a combination of efforts of the alleged co-conspirators”. S/N 54O4hHPEzEanajotjPM5tw [260] Ouji further rely on SVBeverages Holdings Sdn Bhd & Ors v Kickapoo (M) Sdn Bhd [2008] 4 MLJ 187 (Court of Appeal, Ahmad Maarop JCA, as he then was), which held that the tort requires “an agreement or combination of two or more with the common intention to effect an unlawful purpose or to do a lawful act by unlawful means resulting in damages to the plaintiff”. [261] Ouji submits that an express agreement need not be proved. Rather, the court may infer an agreement to further a common object from the overt acts of the parties, deliberate and tacit cooperation being sufficient, applying Cubic Electronic Sdn Bhd v MKC Corporate & Business Advisory Sdn Bhd and another appeal [2016] 3 MLJ 797 (Court of Appeal), where the court held: “[13] The elements required to bring an action for unlawful means conspiracy and lawful means conspiracy are as follows: A combination or agreement between two or more individuals. It is not necessary to show that there was anything in the nature of an express agreement, whether formal or informal. The court looks at the overt acts of the conspiracy and infers from those acts that there was agreement to further the common object of the combination. It is sufficient that two or more persons combine with the necessary intention or that they S/N 54O4hHPEzEanajotjPM5tw deliberately co-operate, albeit tacitly, to achieve a common end (R v Siracusa [1990] Cr App R 340).” [262] Ouji relies on the totality of the overt acts described above, together with Tommy’s WhatsApp message to Li Teng of 2.4.2022, sent shortly after his termination, in which he stated “Yes I’m very regret to start this BTC”. The exact evidentiary basis for this message was presented during the trial from the WhatsApp logs. During the cross-examination of Li Teng, Ouji's counsel directed her to the message sent at 2:40:02pm, asking: “Tommy, your brother told you that he regretted starting this BTC, is that correct?” to which she confirmed, “Yes, based on the conversation with Tommy Leong”. [263] Furthermore, when Ouji's counsel confronted Tommy with this exact message during his cross-examination, putting it to him plainly: “Now you say, yes, I'm very regret to start this BTC,” Tommy attempted to downplay the admission by arguing it was said in the heat of the moment. He testified, “I think the whole conversation is arguing” and claimed “that is not my actual intention on that kind of wordings”. When counsel pressed him further, asking, “suggesting that you've started BTC, are you disputing that?”, Tommy maintained his defense by claiming his actual intention behind the message was “To involve BTC to start with you guys”. Nevertheless, Ouji relies on this contemporaneous written text as a stark, indisputable admission of his foundational role in establishing the distributorship. S/N 54O4hHPEzEanajotjPM5tw Defendants’ Case [264] The Defendants’ case, principally advanced by BTC Market Trading, Ben Liew, and Li Teng, is that Ouji’s pleadings on conspiracy are deficient in material particulars. They contend that the Statement of Claim fails to plead with precision how the alleged conspiracy occurred, when the agreement was formed, what its terms were, or how it was carried into effect. [265] In support of that submission, the Defendants rely on Radiant Splendour Sdn Bhd & Anor v Dr Mohammad Hanis Osman, in which the High Court held: “[28] I find merit in the defendant’s contention that the plaintiffs’ SOC is deficient in material particulars. Learned counsel for the defendant rightly point out that the pleadings are vague and fail to plead with particularity the defendant’s alleged instructions to Bank Rakyat or how those instructions allegedly led to actionable harm. [29] The failure to properly plead the causative link between the defendant’s conduct and the reliefs sought, particularly when the plaintiffs’ prayers relate primarily to settlement agreements to which the defendant is not a party, creates a disconnect that renders the pleading defective. S/N 54O4hHPEzEanajotjPM5tw [30] A pleading must set out not only the facts but also the connection between those facts and the legal claim made. In the present case, there is insufficient articulation of how the alleged acts of the defendant amount to a breach or tortious act, and how that in turn justifies the reliefs claimed. As such, the court agrees that the pleading does not, on its face, disclose a reasonable cause of action against the defendant. The proposal of the learned counsel of the plaintiffs to have their SOC amended during their final submission does not remedy the fundamental deficiencies in the pleading, nor does it justify a belated revision at this advanced stage of proceedings.” [266] The Defendants further submit that allegations of conspiracy and fraud, being among the most serious that can be made in civil litigation, must be pleaded with particularity rather than by attaching a bare legal label to what is, in substance, a dispute over lawful contractual payments. They contend that Ouji’s Statement of Claim, in seeking to recover the Distribution Margin of RM9,786,414.92, does no more than recharacterise as conspiracy a series of payments made pursuant to a valid and performed contract. Analysis and Findings [267] The court has considered this pleading objection with care, given the seriousness of the allegation, but does not accept S/N 54O4hHPEzEanajotjPM5tw that Ouji’s Statement of Claim is deficient in the manner suggested. [268] Ouji’s pleading identifies the specific sums extracted, the mechanism by which they were extracted, namely the Distribution Margin under the Distribution Agreement, the diversion of goods and samples, the ‘Blinic’ soap bar business, and the River Pool invoices, as well as the parties alleged to have received or facilitated the receipt of those sums. This is materially different from the pleading found deficient in Radiant Splendour, where the court found no articulation of any causative link between the defendant’s conduct and the relief sought. [269] The court further notes that no application for further and better particulars was made before or during the trial. The pleading objection was raised only in closing submissions, after the evidence directed to the alleged conspiracy had been admitted without objection. [270] The court is therefore satisfied that Ouji has both pleaded and proved the mechanism of the alleged wrongdoing with the degree of particularity required by law. [271] On the substance of the conspiracy claim, the court finds that the overt acts established at trial, viewed as a whole rather than in isolation, admit of no innocent explanation. S/N 54O4hHPEzEanajotjPM5tw [272] As the Court of Appeal held in Taz Logistics Sdn Bhd v Taz Metals Sdn Bhd & Ors [2019] 3 MLJ 510, the court must look at the whole picture rather than assess each element of an alleged scheme discretely. In Taz Logistics the court concluded how assessing the events in their narrow confines led the trial judge to a plainly wrong conclusion: "Notwithstanding the clear chronology of events evidencing this course of conduct by the defendants, the learned judge in the instant case:

failed to consider the chronology of events cumulatively. Had she done so, it would not have escaped Her Ladyship that the entirety of the events lent themselves to only one plausible conclusion, namely that there was a deliberate and successful attempt by Dato’ Ridzuan with the knowing assistance of Tengku Azlan and Tengku Aslahuddin as well as Tunku Jawahir to transfer the business, operations and management of Taz Logistics to Taz Metals…...

instead Her Ladyship chose to consider each one of the events within the scope only of its narrow confines, such that each matter viewed in vacuo did not in itself amount to a diversion of assets to Taz Metals." [273] Viewed in that light, the overt acts include the simultaneous incorporation of BTC Market Trading and the execution of the Distribution Agreement on 17.3.2020, the undisclosed familial relationships between Tommy, Ben Liew (Tommy’s S/N 54O4hHPEzEanajotjPM5tw brother-in-law), and Li Teng (Tommy’s sister), the channelling of the 18.5% Distribution Margin to a vehicle beneficially controlled by Tommy’s family, the diversion of Ouji’s goods to Warhol Mac, and the establishment of the competing ‘Blinic’ brand through the same corporate network. [274] The court also has regard to the WhatsApp exchange of 31.3.2022, in which Li Teng instructed Tommy to “make it messy”, and her subsequent acknowledgement on 2.4.2022 that Tommy had brought “big biz to Ben”. As the court has already found in the context of dishonest assistance, these exchanges constitute evidence of knowing participation rather than innocent commercial involvement. They are equally probative of a shared unlawful purpose for the purposes of the conspiracy claim. [275] The court further has regard to Tommy’s WhatsApp message of 2.4.2022, in which he told Li Teng, “Yes I’m very regret to start this BTC.” This is a significant admission which the Defendants have not satisfactorily explained. It supports the inference that the parties shared an unlawful purpose from the very inception of the scheme. [276] The Defendants’ submission that no evidence was adduced to establish when the alleged agreement was formed, what its terms were, or how it was carried into effect does not withstand scrutiny in light of the extensive circumstantial and direct evidence on the record. S/N 54O4hHPEzEanajotjPM5tw [277] Applying the Federal Court’s guidance in Instantcolor System Sdn Bhd v Inkmaker Asia Pacific Sdn Bhd [2017] 4 CLJ 1, that “parties are bound by their pleadings and are not allowed to adduce facts and issues on matters which they had not pleaded”, the court is satisfied that Ouji has both pleaded and proved its conspiracy case through direct and contemporaneous evidence, rather than by relying on matters outside its pleaded case. [278] Nor does the Defendants’ reliance on Newlake Development assist them. While that case establishes that there is no legal presumption that friends or close associates are co-conspirators or complicit in each other’s wrongdoing, the court’s finding here rests on far more than the parties’ familial relationship. It rests on the totality of the documentary evidence, including the WhatsApp communications, the financial flows to BTC Market Trading, and the close temporal coincidence between the incorporation of BTC Market Trading and the execution of the Distribution Agreement. [279] The court accordingly finds that Tommy, Ben Liew, and Li Teng are liable in unlawful means conspiracy for the loss occasioned to Ouji by the scheme found established in these grounds. Other Matters Raised by the Defendants The Estoppel Submission S/N 54O4hHPEzEanajotjPM5tw [280] Two further submissions advanced by the Defendants, which do not fall within the structure set out above, require separate consideration. [281] The first is the Defendants’ contention that Ouji is estopped, by the principle against approbation and reprobation, from now impugning the Distribution Margin payments which it had, throughout the currency of the Distribution Agreement, approved and paid without complaint. [282] The Defendants point out that the Distribution Margin, amounting to 18.5% of sales and totalling RM9,786,414.92, comprised the components of Distributor Margin (8%), productivity (2%), prompt payment (1.5%), salesman subsidy (2%), salesman incentives (2%), and placement (3%). They submit that the margin was calculated and invoiced strictly in accordance with the terms of the Distribution Agreement, that each invoice was approved by Alicia, and that Ouji voluntarily renewed BTC Market Trading’s distributorship on 1.3.2021 despite its knowledge of the margin structure. [283] Counsel for BTC Market Trading, Ben Liew, Li Teng, Warhol Mac and BTC Imperium further submitted at the oral clarification hearing that Alicia had approved every invoice and effected every payment to BTC Market Trading over a substantial period without raising any objection. This, they argue, constituted a representation by Ouji that it regarded S/N 54O4hHPEzEanajotjPM5tw the transactions as valid, such that it would now be unjust to permit Ouji to adopt an inconsistent position. [284] For this proposition, the Defendants rely on the Court of Appeal's decision in Kelana Megah Development Sdn Bhd v Kerajaan Negeri Johor, per Idrus Harun JCA (as he then was), for the principle that a party cannot adopt inconsistent positions, or “blow hot and cold”, by approving and benefiting from a course of conduct at the material time, only later to impugn that same conduct when it suits its case. [285] The court does not accept this submission. [286] The principle relied upon requires the party invoking estoppel to establish that the party sought to be estopped had full knowledge of its rights at the time it affirmed the impugned conduct. Ouji did not possess such knowledge. The conflict of interest underlying the Distribution Agreement, arising from Tommy’s undisclosed familial connection to BTC Market Trading through Ben Liew and Li Teng, was concealed throughout the performance of the Agreement and its renewal on 1.3.2021. Alicia’s approvals of the Distribution Margin payments were therefore given without knowledge of the very facts which now render those payments recoverable. S/N 54O4hHPEzEanajotjPM5tw [287] The court also accepts Ouji’s submission, advanced at the oral clarification hearing, that estoppel is an equitable doctrine and that a party seeking to invoke it must come to court with clean hands. A defence founded upon an arrangement procured through the very non-disclosure now complained of cannot avail the Defendants. [288] Accordingly, Ouji’s continued performance of the Distribution Agreement, and its decision to renew it, do not assist the Defendants. Neither act can amount to an informed affirmation of rights of which Ouji remained unaware. The Valuation of the Samples Claim [289] Second, Tommy submitted, in relation to the samples claim, that the Requested Samples were not purchased by Ouji but were obtained free of charge for marketing and promotional purposes. It was argued that Ouji therefore incurred no acquisition cost and cannot recover a market value which it never expended. Tommy further submitted that the sum of RM3,892,043.50 pleaded by Ouji was, in reality, derived from current market selling prices rather than any cost actually incurred by Ouji. [290] The court accepts that this consideration is relevant to the assessment of quantum but does not accept that it defeats the claim in principle. S/N 54O4hHPEzEanajotjPM5tw [291] The evidence of Alicia Liew and Nicole Ho, corroborated by Ouji’s inventory audit reports generated from the SAP Business One system and tabulated in Breakdown List No. 2, establishes that the sum of RM3,892,043.50 represents the cost value, and not the retail or market value, of the samples requisitioned for promotional purposes between April 2020 and March 2022. [292] The court further finds that Ouji’s SAP Business One inventory audit reports are computerised accounting records generated contemporaneously, in the ordinary course of Ouji’s business, each time a sample was requested, approved, and released, and accordingly satisfy the requirements of section 73A, and were properly proved through the evidence of a witness familiar with the system consistently with section 90A, of the Evidence Act 1950. The Defendants have not challenged the integrity or reliability of the SAP Business One system itself, nor adduced any evidence that the underlying entries were fabricated or unreliable. Their objection amounts to no more than a bare assertion that the recorded figures are wrong, which is insufficient to displace contemporaneous computerised accounting records of this character. [293] The court accordingly rejects the Defendants’ submission that the sum of RM3,892,043.50 is unsubstantiated speculation. Contemporaneous accounting records satisfying the statutory requirements of the Evidence Act 1950 are not to be displaced by unsubstantiated denial, and S/N 54O4hHPEzEanajotjPM5tw it is not for Ouji to disprove every alternative explanation the Defendants might speculate upon, particularly where, as here, the established breaches of fiduciary duty place the burden of any residual uncertainty in quantum on the party whose wrongdoing gave rise to that uncertainty. [294] The obligation of a fiduciary to account for assets misappropriated in breach of duty is not confined to the principal’s acquisition cost where, as here, the fiduciary has diverted those assets into a competing commercial channel from which value was extracted. [295] As the High Court held in MPI Polyester Industries, a breach of fiduciary duty entitles the claimant “to equitable compensation for his loss or to restitution for the fiduciary’s unauthorised gain.” [296] Tommy’s exploitation of his first-tier approval role to channel Ouji’s goods and samples to BTC Market Trading and thereafter to Warhol Mac engages this principle of restitution for unauthorised gain rather than mere reimbursement of Ouji’s outlay. The Defendants’ argument, if accepted, would permit a fiduciary to profit from his own wrong by relying on the gratuitous character of the very assets he misappropriated. [297] In any event, the court is satisfied that the sum of RM3,892,043.50 claimed by Ouji represents the cost value of the diverted samples, rather than their retail or market S/N 54O4hHPEzEanajotjPM5tw value. That figure is properly supported by the documentary evidence described above and constitutes a conservative and adequately proved basis upon which to assess the claim. DETERMINATION OF THE ISSUES [298] On the issues distilled at paragraph [37] above, the court determines as follows: a) Tommy breached his fiduciary duties to Ouji by procuring the Distribution Agreement and the payment of the Distribution Margin to BTC Market Trading. Tommy, BTC Market Trading, Ben Liew, and Li Teng are jointly and/or severally liable to account for RM9,786,414.92. b) Ouji’s goods and samples were misappropriated. Tommy, BTC Market Trading, Ben Liew, Li Teng, Warhol Mac, and BTC Imperium are jointly and/or severally liable for RM3,892,043.50. c) Tommy’s establishment and operation of the ‘Blinic’ soap bar business through Warhol Mac constituted a breach of his fiduciary duty not to compete. Tommy and Warhol Mac are liable to account for RM222,137.00. S/N 54O4hHPEzEanajotjPM5tw d) Tommy caused or permitted River Pool to submit inflated invoices to Ouji. Tommy is liable for the resulting overpayment of RM275,537.58. e) Tommy was a shadow director and the alter ego and controlling mind of BTC Market Trading, Warhol Mac, and BTC Imperium. Their corporate veils are lifted to the extent necessary to give effect to the findings and liabilities imposed in these grounds. f) Ben Liew and Li Teng are liable for dishonest assistance and knowing receipt. g) Tommy, Ben Liew, and Li Teng are liable for unlawful means conspiracy. [299] Having considered all of the written submissions of all parties, the oral arguments advanced at the hearing, and the evidence adduced at trial across eleven days, the court is satisfied that Ouji has established its claims on a balance of probabilities across all four heads of breach. All arguments raised by the Defendants in their written submissions and at the oral hearing that have not been expressly addressed in these grounds have been considered by the court but are not of sufficient merit to disturb the conclusions reached. S/N 54O4hHPEzEanajotjPM5tw CONCLUSION AND ORDERS [300] The court accordingly orders: a) The 1st, 5th, 9th, and 10th Defendants (Tommy, BTC Market Trading, Ben Liew, and Li Teng) to pay RM9,786,414.92 jointly and/or severally as disgorgement of secret profits from the Distribution Margin; b) The 1st, 5th, 9th, 10th, 11th, and 12th Defendants (Tommy, BTC Market Trading, Ben Liew, Li Teng, Warhol Mac, and Imperium) to pay RM3,892,043.50 jointly and/or severally as the value of misappropriated goods and samples; c) The 1st and 11th Defendants (Tommy and Warhol Mac) to pay RM222,137.00 representing the secret profits from ‘Blinic’ soap bar sales; and d) The 1st Defendant (Tommy) to pay RM275,537.58 representing the overpayment on River Pool invoices. [301] Ouji is awarded its costs of this action against the Defendants as follows: a) RM100,000 against the 1st Defendant (Tommy); and S/N 54O4hHPEzEanajotjPM5tw b) RM150,000 against the 5th, 9th, 10th, 11th, and 12th Defendants (BTC Market Trading, Ben Liew, Li Teng, Warhol Mac, and BTC Imperium). 12 July 2026 ATAN MUSTAFFA YUSSOF AHMAD Judge Kuala Lumpur High Court (Commercial Division) Counsel: For the Plaintiff: Shahmi Nazir, Soraya Sulaiman Ong and Jane Chan (Messrs Izral Partnership) For the 1st Defendant: Arlene Tan (Messrs. Messrs Ng, Arlene Tan & Leong) For the 5th, 9th, 10th, 11th, and 12th Defendants: Goh Chiau Wee and Aw Shi Qin (Messrs Foo Hiap Siong & Co)