Sh Yahya Bin Sh Mohamed (Nric No. 530327-01-6257) v Norhana Binti Sharkhan (Nric No: 821115-03-5560) (WA-22NCC-268-05/2019)

The 3 suits which are tried together are about a proprietary and bespoke holistic and integrated computerised software solution system developed for one main client, the Government of Malaysia for all governmental and other approvals for the recruitment of foreign workers by Malaysian employers into Malaysia. It is known generally as the Foreign Workers Centralised Management System or FWCMS. 3

The Plaintiffs claim that the Defendant had by illegitimate means exerted undue pressure and had coerced the transfer of their respective shares in the companies that developed the software to the Defendant by threatening to interfere with the Plaintiffs’ negotiations and contracts with the Government of Malaysia using the Defendant’s close connection and influence with ‘powerful persons’ within the Government.

The Plaintiffs also claim that the Defendant was peddling his influence with persons of power within the Government as consideration in return for the aforesaid shares and cash payments. These agreements are said to be illegal and void against public policy.

In these suits, the Plaintiffs are seeking for their shares which had been transferred to the Defendant and or his nominee to be transferred back based on the principle of restitution and unjust enrichment. The Plaintiffs also ask for exemplary damages.

The Defendant by way of counterclaims, is seeking, inter alia, declarations that the termination of these agreements are improper, that the agreements are valid and enforceable and for payments of the profit guarantee due thereunder.

The following 3 suits are tried together :- 4

Suit No: WA-22NCC-141-03/2019 (‘Suit 141’). The Plaintiff in Suit 141 is JR Joint Resources Holdings Sdn Bhd (‘JR

(ii) Suit No: WA-22NCC-267-05/2019 (‘Suit 267’). The Plaintiff in Suit 267 is Mohd Zaki bin Jaafar (‘Zaki’); and

(iii) Suit No: WA-22NCC-268-05/2019 (‘Suit 268’). The Plaintiff in Suit 268 is SH Yahya bin SH Mohamed (‘SH Yahya’) (Collectively, Suit 141, Suit 267 and Suit 268 shall be referred to as ‘the Suits’ and JR Joint Resources, Zaki and SH Yahya shall be referred to as ‘the Plaintiffs’) [7] The Defendant in the Suits is one Norhana Binti Sharkhan (‘Norhana’ or ‘the Defendant’). [8] JR Joint Resources, Zaki and SH Yahya are shareholders of three

corporate entities, namely Bestinet Sdn Bhd (‘Bestinet’), Tass Tech Sdn Bhd (‘Tass Tech’) and Synerflux Sdn Bhd (‘Synerflux’) respectively (Bestinet, Tass Tech and Synerflux shall be referred to collectively as ‘the Companies’). [9] The Companies were focused on developing and implementing proprietary software solutions or platforms designed to assist the Government of Malaysia (‘GOM’) particularly, through the Ministry of Home Affairs (‘Home Ministry’) in the area of recruitment of migrant foreign workers by Malaysian employers and to screen passengers entering or exiting the country. Whilst the Plaintiffs are distinct and separate entities, all of them are associated with Dato’ Sri Aminul Islam Bin Abdul Nor (‘Amin’). He is the prime mover of 5 the various platforms and is the controlling mind behind these entities. [10] These platforms (collectively referred to as ‘the Scheme’), the entities involved and the Suits which are related thereto are:-

the Foreign Workers Centralised Management Scheme (‘FWCMS’) consisting of fifteen (15) different modules which included the Bio-Medical module (“BMM”) and the ‘Visa Dengan Rujukan’ or e-VDR module (‘e-VDR’). For convenience, the remaining modules are referred to as the Residual Modules (“RM”). All of them were developed by Bestinet which was substantially owned by JR Joint Resources, the Plaintiff in Suit 141;

(ii) the Advance Passenger Screening System (‘APSS’) developed by Tass Tech which was substantially owned by Zaki, the Plaintiff in Suit 267; and

(iii) the Sistem Pengurusan Pekerja Asing (‘SPPA’) developed by Synerflux which was substantially owned by SH Yahya, the Plaintiff in Suit 268. [11] The Defendant in the Suits is the wife and admittedly, the agent of Datuk Mohamad Nizam Jakel Bin Mohamad Jakel (‘Nizam’). He was at all material times the disclosed principal. The Defendant currently holds forty-nine percent (49%) of the share capital of Bestinet and seventy percent (70%) of the share capital of both Tass Tech and Synerflux. 6 [12] The Suits manifest a contractual dispute between the Plaintiffs and the Defendant. The nub of the problem is the legitimacy and enforceability of certain agreements entered into between the parties. The agreements consist of Share Sale Agreements (‘SSA’), Shareholders Agreements (‘SA’) and a Profit Guarantee Agreements (‘PGA’) all dated 20.10.2017. Each of the Companies has its respective SSA, SA and PGA. They are also two (2) Variation Agreements dated 1.3.2018 entered into between JR Joint Resources with Norhana and between Synerflux with Norhana (collectively, all these agreements, namely the SSA, SA, PGA and the Variation Agreements shall be referred to as ‘the Impugned Agreements’). [13] The Plaintiffs have relied on multiple causes of action in their pleadings to challenge the Impugned Agreements. These causes of action encompass duress, economic duress, undue influence, coercion, illegality, failure of consideration, breach of condition precedents, frustration and unjust enrichment. Frustration and undue influence are no longer being pursued by the Plaintiffs. The relief sought include, inter alia, declarations that the Impugned Agreements are legally bad and must be struck down. The Plaintiffs also seek the return of shares transferred to the Defendant under the SSA together with any other accrued benefits in the form of bonuses, dividends and warrants. It is common ground that no bonuses, dividends or warrants accrued to Norhana or Nizam pursuant to the shares. [14] Conversely, the Defendant has traversed all the complaints raised and maintains that the Impugned Agreements were properly 7 entered into in consideration of services rendered by Nizam at the behest of Amin and are valid and enforceable. On that basis, the Defendant has initiated counterclaims in the Suits for declarations that the termination of the Impugned Agreements is improper with consequential relief and seeks recovery of monies due under the PGA. [15] By all accounts and as is apparent from the testimony of witnesses, the protagonists of this controversy are Amin representing himself, the Plaintiffs and the Companies on the one hand and Nizam who represented the Defendant and himself. On certain key factual issues (which shall be discussed below), the oral testimonies between Amin and Nizam were markedly different. [16] In respect of these key factual issues, almost all discussions, negotiations and arrangements reached in respect of the same were entirely confined to Amin and Nizam to the exclusion of all other parties save and except for the Impugned Agreements. None of the witnesses called by the Plaintiffs (PW1, PW2, PW4, PW5, PW6, PW7 and PW8) was privy to the discussions and negotiations that transpired between Amin and Nizam. [17] By agreement of all parties, the facts in Suit 141 was taken as the lead case throughout the trial. Where necessary, specific references were also made in respect of the other two cases in Suit 267 and 268 dealing with the ownership of shares in Synerflux and Tass Tech and their respective SPPA and APSS modules. 8 Chronology of events [18] As will be appreciated later, it is necessary for this Court to set out in some details the chronology of events. [19] JR Joint Resources owned 99.99% of the shares in Bestinet. The company was incorporated on 17.11.2008. By 2011, Bestinet had, by its own effort and ingenuity, developed a holistic and integrated end-to-end computerized system for all governmental and other approvals to facilitate the recruitment by local employers of foreign migrant workers. [20] On 10.5.2011, Bestinet had presented the Scheme to the then Prime Minister Dato’ Seri Najib Razak as part of a Bumiputra Business Fair held at the PWTC in Kuala Lumpur. [21] This meeting was one of the matters that Bestinet had referred to in their letter dated 5.10.2011 to the Prime Minister. The letter described the advantages of the Scheme, and sought the support of the Prime Minister for Bestinet to be given an opportunity to showcase the Scheme for the GOM’s recruitment process. By his handwriting, the Prime Minister asked the then Home Minister (Dato’ Seri Hishammuddin Hussein) to consider the Scheme, which the Prime Minister stated he supported if it brought advantages to the nation. [22] On 17.10.2011, a second meeting with the Prime Minister relating to the Scheme took place. This meeting was mentioned in a letter dated 2.11.2011 written by Bestinet to the Home Minister, which 9 letter requested the Home Minister to give Bestinet an opportunity to present the Scheme. [23] By letter dated 2.8.2012, the Ketua Setiausaha (‘KSU’), the most senior civil servant in the Home Ministry informed Bestinet that the Home Ministry had approved the implementation by Bestinet of the “Proof of Concept” (‘POC’) for the Scheme, but at no cost to the Government. [24] By letter dated 17.12.2012, Bestinet informed the Home Minister that it would like to start the implementation of the POC by offering 3 modules under the Scheme, namely, Bio-Medical, e-VDR and Pas Lawatan Kerja Sementara (‘PLKS’). [25] By letter dated 21.1.2013, the Home Ministry informed Bestinet that it could commence the POC on these 3 modules and hoped that it would be implemented properly. [26] A meeting was held on 3.2.2013 in order to enable Bestinet to explain the Scheme to the staff of the Home Ministry. This was the first of dozens of meetings over the next few years whereat Bestinet explained and demonstrated the working of the Scheme to different ministries and agencies of the Government, including the Ministries of Home, Foreign, Finance and Human Resources and the Immigration Department (which is part of the Home Ministry). [27] By letter dated 14.2.2013, the Home Ministry informed the Foreign Ministry (‘Wisma Putra’) that the POC for the Bio-Medical and e- 10 VDR modules would begin from March 2013 for 6 months. The letter was copied to the Malaysian embassies and consulates in 14 source countries. [28] This was followed by a letter dated 13.3.2013 from Immigration Department to Wisma Putra listing the 14 source countries to which the said modules would extend to. [29] A Circular dated 20.3.2013 was issued by Immigration Department to 30 insurance companies in Malaysia informing them of the requirement to provide insurance for the POC of the Scheme. [30] By letter dated 7.6.2013, Tass Tech presented the “Traveller’s Advanced Screening System” to the Prime Minister. The name of the system was later changed to Malaysia Advance Passenger Screening System or APSS. [31] By Diplomatic Notes issued by Wisma Putra on 11.6.2013 to 15 countries, the GOM advised the said countries of its decision to appoint Bestinet to introduce a “on-line “system on the recruitment of foreign workers into Malaysia”. The “Bio-Medical” module would involve the taking of “Bio-medical” data of potential foreign workers into Malaysia at designated clinics in the 15 source countries. [32] On 15.6.2013, Bestinet rented the infrastructure for the networks and data services from NTT Communication. This was to cater for the whole of FWCMS. 11 [33] By Circular dated 10.9.2013 issued by Immigration Department to our embassies and consulates in 15 source countries, Bestinet was appointed supplier and administrator of the FWCMS from November 2013. This was after the 6 months contemplated under the POC had expired. [34] By Circular dated 10.9.2013, the Immigration Department informed 31 insurers that they should implement by November 2013 the on-line sale of insurance for e-VDR and PLKS. [35] By letter dated 23.9.2013, the Immigration Department wrote to 2 private companies: Heitech Padu Berhad and NERD Sdn Bhd to cooperate with Bestinet by sharing data from myIMMS and NERS systems. [36] By letter dated 20.11.2013, the Immigration Department informed Bank Negara (as regulatory authority over the insurance industry) for insurers to implement the online system to sell and purchase insurance. [37] By letter dated 4.2.2014 from Immigration Department to Bestinet, the GOM requested Bestinet to implement 21 different steps by way of implementation of the Bio-Medical module and e-VDR module. [38] By letter dated 7.3.2014 the Home Ministry informed Wisma Putra that the Bio-Medical module of the Scheme had begun in Nepal on 2.1.2014 and would be implemented in other source countries. The Foreign Ministry’s cooperation was requested. 12 [39] By letter dated 28.4.2014, following the success of the User Acceptance Test (‘UAT’) of the Bio-Medical and e-VDR modules, the Home Ministry informed Immigration Department that the 2 modules would be fully implemented from 15.5.2014 to all labour supply countries by stages, starting with Nepal. [40] By letter dated 9.5.2014 from Immigration Department to Bank Negara, the latter was informed that following the implementation of the Scheme (i.e. the 2 modules) starting from 15.5.2014, as the supervising body of insurance industry, Bank Negara’s co-operation was required because the Scheme involved online purchase of insurance. [41] By letter dated 9.5.2014, the Immigration Department informed Wisma Putra that the date of implementation of the Scheme (i.e. the 2 modules) in 14 countries would be as follows: a. 15/5/2014: Nepal, Pakistan, Sri Lanka, India and Bangladesh; and b. 15/6/2014: Philippines, Myanmar, Cambodia, Indonesia, China, Laos, Thailand, Kazakhstan and Uzbekistan. [42] By letter dated 20.5.2014, Home Ministry directed Immigration Department to make sure that the Scheme (i.e. the 2 modules) is fully integrated and works seamlessly with other immigration systems. [43] By a Circular dated 28.5.2014, the Immigration Department provided all its divisions with a detailed Standard Operating 13 Procedure (‘SOP’) for handling applications through the Scheme (i.e. the 2 modules). [44] By letter dated 11.6.2014, the Home Ministry informed Bank Negara that the integration of the online purchase of insurance through the Scheme (i.e. the 2 modules) was completed, though the service charge was still under adjustment. [45] By Circular dated 12.6.2014, the Immigration Department informed their offices to expand Bestinet’s FWCMS information counter in states nationwide. [46] By letters dated 2.7.2014 and 13.10.2014, Bestinet was in communication with the Home Ministry to ensure a smooth integration of the Scheme (i.e. the 2 modules) with the Immigration Department’s existing system MyIMMs. [47] By Circular dated 4.7.2014, the Immigration Department informed Wisma Putra and embassies of source countries to cooperate to ensure successful implementation of the Bio-Medical and e-VDR modules. [48] By letter dated 19.8.2014, Bestinet informed the Home Minister that Bio-Medical is running and the One Stop Center (‘OSC’) is already set up in Malaysia. Bestinet requested for the “Surat Setuju Terima” (‘SST’) to be issued to “kick start” the rest of the modules. 14 [49] By letter dated 10.12.2014, the Home Ministry informed the Immigration Department of the successful implementation of the POC for 2 + 1 modules of Bio-Medical, e-VDR and online insurance and authorized the full implementation of the FWCMS (Punca Kuasa). This letter was a crucial step in the approval process. [50] On 24.12.2014, Bestinet engaged 3P Capital Partners to provide public private consulting services to Bestinet following the implementation of the Scheme. [51] By Circular dated 22.12.2014, the Immigration Department informed all their departments that the POC of Bio-Medical and e-VDR modules had expired on 15.12.2014. Nonetheless, both modules and online purchase of insurance would be implemented fully from 15.1.2015. [52] By letter dated 19.1.2015, the Immigration Department confirmed to the Home Ministry that the Bio-Medical and e-VDR modules would be fully implemented from 15.1.2015. [53] Thus, it is pertinent to note that by this time, Amin and his team had managed to secure from the GOM the approval for the full implementation of the Bio-Medical and e-VDR modules and was expecting the approval to permit collection of fees from the employers who would be using the modules. 15 [54] In 2015, Nizam first appeared into Amin’s world. Both Nizam and Amin gave differing versions as to what transpired at their first meeting including the date the meeting took place. [55] At this point, it is of note that Nizam’s evidence has changed since the matter first began. His evidence at the trial was that he had met Amin for the first time in February 2015. Amin, on the other hand, has consistently maintained that the first meeting took place in mid-2015, shortly before the very first agreement between Amin and Nizam’s proxy was signed. In the pleadings, Nizam had stated that the first meeting with Amin occurred in mid-2014. More will be said of this meeting which is of significance in this case [‘1st Issue of Fact’] [56] By letter dated 28.5.2015, the Home Ministry informed Immigration Department that the Bio-Medical module would be fully implemented from 15.6.2015, and Bestinet can collect RM100/- from every employer for each employee who uses the module. [57] By Circular dated 5.6.2015, the Immigration Department informed its staff that the Bio-Medical and e-VDR would be activated from 15.6.2015. [58] On 10.6.2015, Synerflux entered into a Consulting Service Agreement with Syed Ashraf, a nominee of Nizam (‘the Synerflux CSA’). 16 [59] On 20.8,2015, the Cabinet Committee approved the implementation of the whole of the Scheme, as reproduced by letter from Home Ministry dated 9.9.2015 to Bestinet. [60] By 3 separate Letters of Intent each dated 26.8.2015, issued by the Government of Malaysia, Bestinet, Synerflux and Tass Tech were appointed to implement FWCMS, BWMS and APSS respectively. [61] The Consulting Services Agreement dated 27.8.2015 (‘Bestinet CSA’) was entered into between Bestinet and Perunding Zon Jernih Sdn Bhd (‘Perunding Zon’). Another Consulting Services Agreement was entered on the same day between Tass Tech and Perunding Zon (‘Tass Tech CSA’). Of note is that under the Bestinet CSA, a sum of RM 200 million was to be paid to Nizam as consideration for his service as ‘consultant, liaison and adviser’ to the company. [62] Again, there is a marked difference between Nizam and Amin on the circumstances leading to the signing of the 3 agreements, particularly the Bestinet CSA (‘the 2nd Issue of Fact’). [63] By letter dated 9.9.2015, the Home Ministry informed State Secretaries of Sarawak and Sabah that the Schemes were extended to their States. [64] By letter dated 21.9.2015, Bestinet requested for approval to be the collecting agency for Home Ministry for the implementation of the Scheme. 17 [65] By letter dated 30.10.2015, the Home Ministry informed Bestinet that they had no objections for Bestinet to be the collecting agency. [66] By letter dated 8.4.2016, Bestinet requested Datuk Seri Zahid Hamidi, Deputy Prime Minister and Home Minister to authorize negotiations towards executing the FWCMS Contract. The Minister’s handwritten note stated: “Sila bincangkan dalam mesyuarat Top 10 untuk kelangsungan system yang telah diterima ini”. [67] By letter dated 14.7.2016, the Home Ministry informed Bestinet that the GOM was satisfied with the achievements and services of Bestinet. [68] By letter dated 17.11.2016, the Home Ministry agreed to the implementation of POC for the other new modules under FWCMS from 15.1.2017 until 15.7.2017. [69] By letter dated 29.11.2016, the Home Ministry invited Bestinet to participate in “Misi Kedua Pasukan Petugas Khas Program Penempatan Sementara Migran Syria 2016”, and other Middle Eastern nations. [70] By letter dated 31.1.2017, Bestinet informed the Immigration Department of the decision to fully implement the Bio-Medical and e-VDR modules for foreign workers from China. [71] On 6.4.2017 and 7.4.2017, SH Yahya attended a workshop with Home Ministry to vet through and finalize the terms of the 18 Concession Agreement for Bangladeshi Workers Migrant System (‘BWMS’) for Synerflux. [72] The Bio-Medical Concession Agreement was signed on 16.6.2017. [73] By letter dated 5.7.2017 from the Home Ministry to Tass Tech, the Government had in principle agreed to the implementation of APSS on a user pay model subject to the negotiation of the terms and conditions. [74] On 24.7.2017, the GOM agreed that Synerflux can start collecting RM100/- per worker for BWMS from 10.2.2017. [75] Between July 2017 and September 2017, Tass Tech had discussions and workshops with Government agencies to finalize the terms of the Concession Agreement for APSS [76] By letter dated 25.8.2017, from Bestinet to Zahid Hamidi, Deputy Prime Minister/Home Minister, Bestinet requested for approval for execution of the FWCMS contract. The Minister’s handwritten note stated: “Sila laksanakan sebagaimana yang terdapat dalam LOI muktamadkan …..dengan segera”. [77] From the aforesaid, it can be seen that by August/September 2017, Bestinet, Tass Tech and Synerflux were at an advanced stage with their negotiations with the GOM for the full implementation of their respective modules and they were embarking on negotiating the terms and conditions of the Concession Agreements for these modules. 19 [78] At Nizam’s instruction, a company called FWCMS Sdn. Bhd was incorporated on 30.8.2017. The significance of this company to this case lies in the version given by Amin which is categorically denied by Nizam. According to Amin, around September 2017, Nizam had shown him a letter bearing FWCMS Sdn Bhd’s letterhead with a hand written notation from the Home Minister directing that the GOM’s foreign workers central management system be awarded to FWCMS Sdn Bhd. A copy of such a letter was not produced before this Court and Nizam in fact denied the existence of such a letter (‘the 3rd Issue of Fact’). [79] By a letter dated 27.9.2017, Bestinet’s solicitors informed solicitors representing FWCMS Sdn Bhd to cease using “FWCMS, or any confusingly similar name as part of your company name”. [80] By a letter dated 10.10.2017, Bestinet appealed to the then Deputy Prime Minister for a signed FWCMS contract. [81] On 13.10.2017, a meeting was held between Amin, Ratha, Nizam and others at the Mandarin Oriental Hotel, Kuala Lumpur. The events at this meeting culminated with the mutual termination of the 3 Consulting Services Agreements and the execution of the Impugned Agreements. Again the parties gave differing accounts of what transpired at the meeting at Mandarin Oriental Hotel and the circumstances leading to the execution of the Impugned Agreements (‘the 4th Issue of Fact’). [82] Following from the Mandarin Oriental Hotel meeting, a Mutual Termination Letter dated 19.10.2017 was executed terminating the 20 Bestinet CSA. The next day, 20.10.2017, a series of agreements were signed relating to the sale of 2,450,000 shares of Bestinet by JR Joint Resources to Norhana, namely:

Share Sale Agreement (‘Bestinet SSA’)

(ii) Shareholders’ Agreement (‘Bestinet SA’)

(iii) Profit Guarantee Agreement (‘Bestinet PGA’) [83] A Mutual Termination letter dated 20.10.2017 was executed in respect of the Tass Tech CSA and on the same day, the following agreements were executed relating to the sale of 10,500,00 shares of Tass Tech to Norhana:

Share Sale Agreement (‘Tass Tech SSA’)

(ii) Shareholders’ Agreement (‘Tass Tech SA’)

(iii) Profit Guarantee Agreement (‘Tass Tech PGA’) [84] Also, on 20.10.2017, a Mutual Termination letter was executed in respect of the Synerflux CSA and the following agreements were executed relating to the sale of 7,000,00 shares of Syneflux to Norhana:

Share Sale Agreement (‘Synerflux SSA’)

(ii) Shareholders’ Agreement (‘Synerflux SA’)

(iii) Profit Guarantee Agreement (‘Synerflux PGA’). [85] On 23.10.2017, the 2,450,000 shares in Bestinet and 10,500,000 shares in Tass Tech were transferred to Norhana. This was 21 followed on 24.10.2017 with the transfer of the 7,000,000 shares in Synerflux. [86] By letter dated 14.11.2017, solicitors representing FWCMS Sdn Bhd informed Bestinet’s solicitor that FWCMS “is in the midst of being wound-up”. [87] By letter dated 15.11.2017 from Bestinet to Zahid Hamidi, Deputy PM/Home Minister, informed the latter that application for approval as an alternative operator to the employer for the PLKS renewal be considered. The Home Minister’s handwritten note stated: “Sila bincang segera dengan saya mengenai perlaksanaan ini”. [88] By letter dated 22.11.2017, Bestinet expressed its concerns to the Home Ministry relating to Nizam’s company, FWCMS Sdn Bhd. [89] By letter dated 27.11.2017, Bestinet again appealed to the then Home Minister for a signed FWCMS contract. [90] On 12.1.2018, SST was issued to Bestinet for the FWCMS module. The letter however stipulated for a period of 6 years instead of the expected 15 years for the FWCMS module. [91] On 23.1.2018, the requisite Performance Bond of RM8,745,000 was furnished by Bestinet. [92] Given the term awarded in their respective SST was only for 6 years instead of 15 years, Bestinet and Synerflux entered into their respective variation agreements with Nizam on 1.3.2018 (‘Bestinet 22 Variation Agreement’ and ‘Synerflux Variation Agreement’). Apart from the variation to the quantum of the profit guarantee and the duration, both the Variation Agreements expressly stipulated for the ‘rest of the terms of both the Agreements (meaning the SSA and PGA) are unaffected and shall continue in full force and effect in accordance with the terms agreed therein’. [93] From March 2018, discussions continued to be held with the GOM on a Concession Agreement for Bestinet. [94] On 9.5.2018, the country held its 14th General Election and witnessed for the first time a change in the government and the installation of a new Pakatan Harapan Cabinet led by Tun Dr. Mahathir as the Prime Minister on 10.5.2018. [95] Bestinet appealed to the then new Deputy Prime Minister for a signed FWCMS contract. [96] By letter dated 17.8.2018 from solicitors representing JR Joint Resources, Zaki and SH Yahya, the Impugned Agreements were rescinded. [97] By letter dated 21.8.2018 from Home Ministry to Synerflux, the GOM suspended the implementation of BWMS from 1st September 2018 until further notice. [98] By letter dated 8.10.2019, Bestinet wrote to Mr. Kulasegaran, Minister of Human Resources requesting for an appointment to discuss the FWCMS system. 23 [99] By letters dated 20.1.2020 from Bestinet to Prime Minister (Dr Mahathir), Home Minister (Tan Sri Muhyiddin), KSU of the Prime Minister’s Office (Datuk Seri Mohd Zuki) and KSU of the Home Ministry (Dato’ Jamil) separately, Bestinet appealed for the execution of the FWCMS contract. [100] By letter dated 12.3.2020, Bestinet wrote to the Home Minister (Hamzah Zainuddin) requesting the execution of the FWCMS contract. [101] Until the date of the trial, the GOM had not signed or approved any Concession Agreements with any of the Companies in relation to the FWCMS, BWMS and APSS. No fee was collected for FWCMS and APSS. For BWMS, Synerflux was allowed to collect fees pursuant to the Home Ministry’s letter dated 24.7.2017, but the collection ceased pursuant to the Home Ministry’s letter dated 21.8.2018. At this trial, there is a dispute as to whether the condition precedent stated in the Impugned Agreements requiring Nizam to secure the Concession Agreements had been met (‘the 5th Issue of Fact’). [102] A further dispute of fact emerging from the testimonies of the parties has to do with the actual role or services rendered by Nizam to Amin and the Companies in consideration for the transfer of the shares and payment of the profit guarantees under the respective SSA and PGA. Nizam contended that he had provided his goodwill with the GOM, acted as a liaison or bridge between the GOM and the Companies and gave financial backing or assistance when needed. On the other hand, the Plaintiffs’ case is 24 that Nizam was merely peddling his influence and close connection with the GOM and made no contribution to the substantive business of the Companies (‘the 6th Issue of Fact’). [103] Having set out the overview of the facts, the chronology of events and the areas of factual disputes, I will now proceed to deal with the Court’s findings on the disputed facts which are necessary for the determination of the legal issues before this Court. Court’s Determination of Factual Disputes [104] There are a few material and significant factual disputes between Amin and Nizam that have arisen from their respective testimonies and the pleadings requiring determination by this Court. I have identified these issues of fact above and I will now address them although not necessarily in the same order outlined above. The 1st Meeting [105] The first relates to the first meeting between Amin and Nizam, in particular, the issue as to who first initiated the meeting and what actually transpired at the meeting. [106] According to Nizam, it was Amin who had sought him out and through an intermediary, had requested a meeting with him. The meeting was said to have taken place at Nizam’s office sometime in February 2015. Nizam maintained that Amin had sought him out because the Companies, in particular, Bestinet, were facing problems regarding the FWCMS contract which was promised to 25 Bestinet but the contract had not been awarded. Nizam said that Amin mentioned that he required financial assistance for the continuous implementation of the Scheme and was relying on Nizam’s family business’ (known as Jakel Trading) strong financial and credit standing in Malaysia to procure the financing through financial institutions known to him. Nizam’s version as recounted in his testimony was as follows: ‘A: Sometime in late 2014, I attended a function hosted by the then Minister of Home Affairs, YB Dato’ Seri Dr. Ahmad Zahid bin Hamidi (‘Dato’ Seri Zahid’). During that function, I met a friend of mine, the late Datuk Syed Alman Zain Syed Alwi (‘Datuk Alman’), that is, Dato’ Seri Zahid’s son-in-law. Datuk Alman asked if I would meet a man by the name of Dato’ Amin who had a business proposal with a view to working together. I was told that Dato’ Amin was a director and shareholder of Bestinet and was having difficulty implementing and strategizing a project with the GoM.’ Sometime after that event, I received a call from Dato’ Amin introducing himself and Bestinet. He then asked if we could arrange to meet. I agreed. Q33. When and where was the first meeting between you and Dato’ Amin held? A: The first meeting was held in February 2015 in Jakel’s offices in the Jakel Mall, Jakel Square, Jalan Munshi Abdullah. Q37. What happened during this first meeting between yourself and Dato’ Amin? A: Dato’ Amin suggested that we work together to implement the Scheme and to secure an agreement for the Scheme from the GoM. Q38. Why did Dato’ Amin suggest this? 26 A: At the time, the Scheme was being carried out on a ‘no cost, no commitment’ basis from the GoM. This meant that although Bestinet was incurring all costs and expenses for the utilization of the Scheme, it was not deriving any income from the Scheme. Further, although the e-VDR Module required insurance to be purchased for foreign migrant workers, Bestinet was not permitted to levy extra service charges for the use of the Scheme. Additionally, the GoM was not confident with the manner in which the Scheme was implemented as there were problems identified during the proof of concept stage. Simply put, the Scheme had shortcomings. Consequently, the GoM had concerns about Bestinet and the Scheme. Dato’ Amin told me that my services were required to assist Bestinet in implementing the Scheme by gaining the confidence of the GoM. Dato’ Amin also mentioned that he will require financial assistance for the continuous implementation of the Scheme and its various modules and was relying on Jakel Trading’s strong financial and credit standing in Malaysia to procure the same through financial institutions known to me. Q39. What happened after this meeting? A: I agreed to act as a consultant, a liaison and adviser to the management team for the implementation of the Scheme with the intention of securing contracts from the GoM for Bestinet. I also agreed to assist Bestinet’s related companies’, that is, Tass Tech and Synerflux in the implementation of the SPPA and APSS, which had not been approved by the GoM.’ [107] On the other hand, according to Amin, it was Nizam who had called him to his office at Jakel Mall. The event took place not in February 2015 but sometime in mid-2015 and it was at this meeting that Nizam had told him of his very strong connections in the government and with ‘powerful persons’. Nizam stated that if 27 Amin worked with him, he would use his influence with the “higher ups” in the government to get the concession approved for his Scheme. If Amin refused to accede to his demands, the Scheme would not be awarded to his Companies. His testimony on the event was as follows: ‘It was around this time in mid-2015 that I first received a call from Dato’ Mohamed Nizam bin Mohamed Jakel (“DMN”). He said that someone higher up had given my phone number to him, and asked me to come and meet him in Jakel Mall. I don’t know DMN personally, and had never met him before. But, I know of the Jakel business and I had some general knowledge about them.

When I went to see DMN in his office in the Jakel Mall building, he told me that he had been informed that I was involved in several companies working with the Home Ministry. In the conversation, he mentioned certain things that seemed to show he knew private and confidential details about the projects that BSB, SSB and TTSB were doing that no outsider should have known.

He told me that he knew powerful people, and that he had very strong connections in the government. DMN said that if I work with him, he would use his influence with the “higher ups” in the government to get us the concession approval for our projects. Through my conversation with him, I understood clearly that there was something happening to block us that we will not be able to overcome so easily. This made me so worried.’ [108] Between the 2 divergent testimonies, I am inclined to accept the version as recounted by Amin. My reasons for doing so are based on the following: 28 a. Nizam’s testimony that the GOM was not satisfied with the performance of the Scheme by Bestinet is not supported by the documentary evidence before this Court. Throughout 2011 till 2015, in all the correspondences between Bestinet and the GOM, there is not a single hint of any dissatisfaction in the performance of the Scheme by Bestinet or any of the Companies; b. Nizam’s testimony that the GOM, in particular, the Home Ministry was wary of Amin on the basis of his Bangladeshi origin and the perception that the Scheme might be used as a channel for human trafficking is also not backed up by any evidence. On the contrary, the documentary evidence shows that the FWCMS Scheme and Bestinet had already been vetted by the Special Branch Police and the Immigration Department who had given security clearance to Amin’s Companies. In fact, similar to the claim on its performance, the claim relating to human trafficking is also completely unsubstantiated. Moreover, Bestinet had prominent personality helming as its Chairman. Tan Sri Azmi Khalid who was the previous Home Minister was the Chairman and a director of Bestinet at the material time; c. There is also no evidence that Bestinet, Tass Tech and or Synerflux was in need of financial assistance in order to implement or support the Scheme. On the contrary, Mr Kunal Tayal who was the Chief Financial Officer of Bestinet had testified that the company was in a good financial position in 29 2015 and would have no problem to raise financing from banks if required to do so. This was what he said: “8. Looking at the audited reports of BSB from the financial year ending 2014 until 2018, BSB has been having positive net worth throughout these years. The table below summarizes this: Finalcial Year Net worth Sum 2014 RM 5,795,589 2015 RM 2,316,503 2016 RM 18,041,110 2017 RM 47,561,290 2018

The above table clearly shows BSB’s continuous growth in its asset value. This is reflective of BSB’s financial strength.

10.Based on the above table, BSB has been capable of managing its finances to run Foreign Workers Centralized Management System (“FWCMS”) on its own over the past few years.” “19 Based on the above, BSB has been financially sound and funding SSB and TTSB to run their respective operations. BSB even provides other support services to SSB and TTSB.

All the three companies are capable of running the 3 systems on their own without financial support from any outsiders.

Given the financial strength of the 3 companies, they would also be in a position to obtain financing or loans from financial institutions if required.” 30 This was all the more so since by May 2015, Bestinet was entitled to charge RM 100 for each application of its Bio-Medical module. Mr Kunal Tayal’s evidence was not challenged by the Defendant’s counsel; d. Tan Sri Azmi Khalid, who was Bestinet’s Chairman and director testified that throughout his tenure from 2011 to 2017, Nizam’s name was never raised or brought up for discussion at the meetings of the Board of Directors. If indeed as testified by Nizam, Bestinet had encountered problems with the GOM with its implementation of the Scheme and had lacked the requisite funding, one would have expected that such important issues would have been brought up for discussions at the Board of Directors level and Nizam’s name would have been raised as a potential ‘white knight’ for the Scheme, perhaps with other candidates as well; e. Nizam has neither experience nor expertise at all in the Information Technology (IT) industry and thus could offer no assistance in the implementation of the Scheme. There was no reason for Amin to seek him out. [109] Based on the aforesaid, I agree with learned counsel for the Plaintiffs that there was absence of any motive for Amin to initiate the meeting with Nizam. On the contrary, it was an opportunistic moment for Nizam to approach Amin in mid-2015. By this time, Bestinet had already obtained approval or on the verge of obtaining approval to charge RM 100 from every employer for 31 each of its employee who uses the Bio-Medical module. More importantly, this was the time where the next stage would be for the Cabinet Committee to approve the implementation of the whole of FWCMS Scheme. All the money, effort and time invested into the Scheme since 2011 was about to bear fruits. It was a perfect time to partake in the Scheme. By the same token, this was certainly not a time for Amin to seek out a new partner with no substantial contribution to share in the fruits of his labour. [110] Following from this, I also accept Amin’s evidence that at this meeting and subsequent meetings thereafter, Nizam had indeed mentioned that he knew ‘powerful persons’ and had influence in the GOM and that unless he was involved in the Scheme, Amin would not be awarded the Concession Agreements. Amin summed up his experience and feelings emerging from his meetings with Nizam in this manner: ‘In those meetings DMN made it clear to me that if I appointed him as a consultant and agreed to make payment to him, he would get us the contracts. It was very clear to me through the conversation that without his involvement, we would surely not get the project.’ [111] Amin’s evidence is corroborated by Ratha who testified as follows: ‘Sometime in April or May 2015, DSA informed me that he had got word that an influential individual wanted to interfere in Bestinet and our associated companies business. He did not volunteer the name, and I also did not want to know at that time. 32 I trusted DSA to handle the matter in the best way he knew how.’ [112] I accept that the first meeting was held in mid-2015 and not February 2015 as contended by Nizam. Whilst Amin has consistently mentioned that the first meeting with Nizam had taken place sometime in mid-May 2015, Nizam on the other hand, had pleaded that the first meeting was in mid-2014 but at the trial, he changed his story and stated that the meeting was in February

Further, when counsel for the Defendant was cross-examining Ratha, his question to him was premised upon Nizam meeting Amin in mid-2014 and not February 2015. ‘PR Could be. Now are you aware that in or about May 2014, Dato’ Sri Amin on his own initiative met Dato’ Nizam to seek his assistance for this Bestinet scheme? RATHA No.’ [113] Nizam had explained that the meeting with Amin was in February 2015 and not mid 2014 as pleaded because Jakel Mall was only completed in early 2015. This was what he testified: ‘Ok. Sebab saya ingat saya buka Jakel Mall, saya tengah nak buka Jakel Mall itu Dato’ Seri Amin call saya. Sebab saya buka 19hb Januari macam itu. After right saya buka itu ataupun within that Amin cari saya. So saya recall balik sebab saya buka Jakel Mall 19hb Januari. So Amin datang dalam masa tak sampai sebulan. Dia ramai sangat orang dekat Jakel Mall so saya bawa office, saya sebab office saya ada dua. Satu tingkat 1 dan satu lagi tingkat 9. Tingkat 1 dah siap, saya jumpa tingkat 1. Saya 33 tak jumpa tingkat 9 sebab tingkat 9 siap bulan Mac. Kalau saya jumpa corporate, orang nak jumpa saya, saya akan bawa tingkat 9. Tapi kali itu saya tak bawa sebab office saya belum siap. Sebab saya buka enam tingkat dulu lepas itu baru saya buka balance empat tingkat. So sebab itu saya boleh ingat balik bila saya jumpa. Sebab semua tak ada rekod Yang Arif jadi ‘ [114] To my mind, the timing of such a significant event as the opening of Jakel Mall would not have been forgotten so easily by Nizam. Yet, up until the trial and before he gave evidence, he had continued to maintain that the first meeting had taken place in mid-

For me, even the change of the date from mid-2014 to February 2015 was a tactical manoeuvre - Nizam wanted to claim credit for the Home Ministry’s decision to permit Bestinet to charge RM 100 for each employee using the Bio-Medical module. If the meeting was in mid-2015, such a claim would not be possible. The Consulting Services Agreements [115] The next factual dispute relates to the execution of the CSA. More particularly, in respect of the Bestinet CSA. According to Nizam, it was Amin who had proposed the sum of RM 200 million to be paid to him for his services. On the other hand, Amin’s version is that it was Nizam who had thrusted the said sum on him. He testified that the said sum was not freely negotiated but instead unilaterally imposed by Nizam. [116] To appreciate the issue, it is necessary to appreciate the background facts leading to the execution of the CSA: 34 a. By letter dated 28.5.2015, the Home Ministry informed the Immigration Department that the Bio-Medical module would be fully implemented from 15.6.2015, and that Bestinet can collect RM100 from every employer for each employee who uses the module; b. By Circular dated 5.6.2015, the Immigration Department informed its staff that the Bio-Medical and e-VDR would be activated from 15.6.2015; c. On 10.6.2015, Synerflux entered into a Consulting Service Agreement with Syed Ashraf, a nominee of Nizam. Under this agreement, Synerflux shall pay the Consultant a sum RM1200 for each Bangladeshi Worker who is successfully recruited, selected and deployed with a Malaysian employer using the Synerflux system; d. On 20.8.2015, the Cabinet Committee approved the implementation of the whole of FWCMS, as reproduced by letter from Home Ministry dated 9.9.2015 to Bestinet; e. By 3 separate Letters of Intent each dated 26.8.2015, issued by the GOM, Bestinet, Synerflux and Tass Tech were appointed to implement FWCMS, BWMS and APSS respectively; f. On 27.8.2015, the Bestinet CSA was entered into between Bestinet and Perunding Zon. In consideration for the services rendered by the consultant, Bestinet shall pay the consultant 35 a fee of RM 200 million, three (3) months after the successful execution of the Concession Agreement for the implementation of the FWCMS between the GOM and Bestinet. Bestinet shall pay the consultant immediately upon the first release of funds procured through a bank loan; g. On the same day, the Tass Tech CSA was executed. For the services rendered by the consultant, Tass Tech shall pay the consultant a fee not exceeding USD5.00 only for each passenger that is successfully processed by APSS. In the event the service charges imposed on each passenger by TTSB is lower than USD10.00, the fee payable to the consultant will be renegotiated amicably. [117] In relation to the execution of the Synerflux CSA, this was what Amin said in his evidence in chief: ‘I had no choice but to sign. I knew from the way DMN spoke to me that if I do not sign this agreement, we will never get the government approval. I therefore signed the agreement.’ Amin repeated this during cross examination: ‘YA: That is the question asked, why did you sign the agreement. Amirul: The circumstances were such that, My Lord, that he wanted to involve the business. I have no choice. He want me to sign. He give me piece of paper in front of me, asked me to sign. He didn’t even give me the copy even that time, My Lord. 36 PR: Sorry? Amirul: My Lord, when I signed this agreement, it’s prepared by him. After he understand, when I met him first time, he understand that he hold me about the business which is very strange for me, maybe I will explain later, My Lord. But this document has been prepared by himself. [ ] in house lawyer and give me the piece of paper to sign and asked me to sign and he take back the original. He didn’t even give me the copy. I have to, I follow up with him, after sometime he give me the copy, My Lord.’ [118] With regards to the execution of the Tass Tech CSA and Bestinet CSA, Amin explained the circumstances for the signing as follows: ‘46. After the Cabinet approval, normally the Government will issue an LOI (Letter of Intent). However, we did not receive the LOI. We had also been told that the LOIs for Synerflux and Tass Tech were also ready to be collected.

However, the respective company’s staff were not able to collect the LOI at this time. DMN demanded that I sign consultancy agreements with him as well for both Bestinet and Tass Tech. If not, he said the higher ups in government would not release all three LOIs.

I knew from our various meetings that if I did not give DMN what he wanted, we would not get the LOI that we deserved through our hard work.

By that time, a lot of money had been invested into our IT infrastructure to create the software and have the IT hardware to run the FWCMS. The Plaintiff and Bestinet had also employed a lot of people. If the project was taken away, not only would the Plaintiff lose a lot of money but all my employees would be jeopardized. 37

I therefore felt I had no choice in the matter at all. So, on behalf of Bestinet and Tass Tech, I signed an agreement with DMN’s proxy Perunding Zon Jernih Sdn Bhd. Both agreements in clause 1.2 show that Perunding Zon Jernih was appointed as a consultant just to provide “liaison services” with the Government.

After we signed the agreement, our staff were still not able to collect the collect the LOIs from the Ministry. This seemed very strange indeed. DMN told me that each of the companies must appoint his proxy, Syed Ashraf, as representatives of the three companies to collect the LOI. We did this, and only then did we get copies of the LOI from DMN for all three companies. The originals are still with DMN.’ [119] On the other hand, Nizam’s explanation as to how the figure of RM 200 million had come about was as follow: Now I put it to you that it is not Dato’ Amin, it was you who insisted on the figure. Tidak benar. You disagree. Now can you please explain to me why anybody with any business, anybody who has elementary business knowledge, would want to offer 200 million as consultancy fee for a contract of this nature? It is just mind-boggling. Yes. That’s why lah. Obscenely high. Why would any businessman want to do that? Please answer that. Because you are saying it’s suggested by Dato’ Amin. So now why would Dato’ Amin want to suggest this? 200 million for him to pay. Ok, saya cakap, ok? Tan Sri jadi peguam saya bayar satu juta. Tan Sri pun jadi peguam saya. So sama 38 dengan perkara ini. Nizam, you dapat projek ini, securekan, I give you 200 million. I will get bank borrowing, I bagi you 200 million. Saya cakap ok, good. Eh, handsome. 200 juta. Saya pun terus jadi gila sekejap. Malam itu saya pikir, whoa, bagus ini. Saya pun buat kerja sunguh-sungguh, 200 juta, Yang Arif. Saya meniaga, tiga suku tahun baru dapat dua juta profit. Tiga suku tahun, lapan bulan baru dapat dua juta. Ini kerja tak sampai setahun… business keluar daripada Jakel pun boleh dapat dua juta, ok. Tapi tak ada tak cakap financing daripada saya. Dia akan semua. So bagus juga bagi saya 200 ratus juta. [120] If Nizam’s testimony were to be believed i.e that it was Amin who had proposed the sum of RM 200 million, one is prompted to ask the reason or motive a successful businessman like Amin whose company had been dealing with various ministries and agencies of the GOM for some 4 years at the time of the execution of the CSA, would voluntarily offer to pay Nizam an astronomic sum of RM200 million and to share with him a cut from each application processed under the Tass Tech and Synerflux’s systems under the Tass Tech CSA and the Synerflux CSA. [121] In other words, what did Amin see as the contribution from Nizam as being so valuable to justify making him an offer of RM 200 million and a share in the applications processed under the Tass Tech and Synerflux’s systems? [122] To my mind, the determination as to whether the RM 200 million was unilaterally imposed on Amin by Nizam or whether it was in 39 fact proposed by Amin to Nizam cannot be divorced from my finding of fact that it was Nizam who had initiated the first meeting with Amin and that Nizam had mentioned clearly to Amin at the first meeting that he was closely connected to ‘powerful persons’ who were in a position to deny Amin and the Companies the contracts for the Scheme unless Nizam was involved. [123] The aforesaid coupled with the fact that the 3 Letters of Intent each dated 26.8.2015, issued by the GOM where Bestinet, Synerflux and Tass Tech were appointed to implement FWCMS, BWMS and APSS respectively could only be collected by Nizam further reinforced Nizam’s clout and his close connection with the ‘powerful persons’ to Amin. [124] In this regard, it is necessary to reproduce below Amin’s testimony on the gravity of the situation to him arising from the demonstration of the power or clout that Nizam appeared to him to have on the

After the Cabinet approval, normally the Government will issue an LOI (Letter of Intent). However, we did not receive the LOI. We had also been told that the LOIs for Synerflux and Tass Tech were also ready to be collected.

However, the respective company’s staff were not able to collect the LOI at this time. DMN demanded that I sign consultancy agreements with him as well for both Bestinet and Tass Tech. If not, he said the higher ups in government would not release all three LOIs. 40

I knew from our various meetings that if I did not give DMN what he wanted, we would not get the LOI that we deserved through our hard work.

By that time, a lot of money had been invested into our IT infrastructure to create the software and have the IT hardware to run the FWCMS. The Plaintiff and Bestinet had also employed a lot of people. If the project was taken away, not only would the Plaintiff lose a lot of money but all my employees would be jeopardized.

I therefore felt I had no choice in the matter at all. So, on behalf of Bestinet and Tass Tech, I signed an agreement with DMN’s proxy Perunding Zon Jernih Sdn Bhd. Both agreements in clause 1.2 show that Perunding Zon Jernih was appointed as a consultant just to provide “liaison services” with the Government.

After we signed the agreement, our staff were still not able to collect the collect the LOIs from the Ministry. This seemed very strange indeed. DMN told me that each of the companies must appoint his proxy, Syed Ashraf, as representatives of the three companies to collect the LOI. We did this, and only then did we get copies of the LOI from DMN for all three companies. The originals are still with DMN. We saw that all the three companies got the LOI on the same day. All the three belong to or are associated with us. To me, that was unheard of. It is unusual for 3 major LOIs to be issued to three associated companies, all on the same day, which is 26th August2015. This proved to me that DMN had very special connections. That makes us so worried that we were completely controlled by him.’ [125] The other material fact that weighs in on this issue is that the original copies of the CSA as well as the Letters of Intent were kept by Nizam. This is yet another form of control that Nizam was exerting on Amin in order to ensure that Amin would bow to his 41 demands if he wished for the Scheme to be awarded to him and his Companies. What other purpose would it be for a ‘consultant’ or ‘liaison officer’ of the Companies to hold on to the original Letters of Intent? [126] Thus, to my mind, it is more probable that the RM 200 million consultancy fee payable under the Bestinet CSA was in fact unilaterally imposed by Nizam. Nature of the services under the CSA [127] What was the scope of services to be provided by the Consultant under the CSA? [128] The Bestinet CSA was signed between Bestinet and Perunding Zon. Nizam is not a party to the agreement. Yet, the evidence given by Nizam is that Bestinet was in fact looking to him to provide the services under the same. In other words, Perunding Zon was nothing more than a façade. The real person who was to undertake the services was Nizam. In his testimony, Nizam had stated that he did not want to be personally associated with Amin and his group of Companies as he was concerned for his reputation. However, the use of a sham device raises questions on the true intent of the agreement. [129] Next, the role of the Consultant was stated as ‘a consultant, a liaison and an adviser’ to Bestinet. The agreement provides that the ‘Consultant has the capacity and expertise and has established 42 a high level working relationship with various agencies of the Government and has developed a professional network.’ [130] The said description with the use of the word ‘professional’ was clearly intended to convey an impression that the Consultant was a legitimate, above board, transparent and reputable operator. Yet it is strange indeed that there was no mention of either Perunding Zon or Nizam in any of the correspondence between Bestinet and the GOM pertaining to Nizam’s appointment as Bestinet’s Consultant. For that matter, there was not even a letter from Bestinet introducing the ‘Consultant’ to the GOM. Neither was there any minutes of meetings showing that Nizam or Perunding Zon attending any meetings discussing on matters pertaining to the Scheme. This is notwithstanding Nizam’s claims that he had actually attended more than 30 meetings with the relevant authorities. [131] It would seem that whilst care was taken to ‘legalise’ the relationship between Nizam and Amin, no effort at all was made to formalise his role on behalf of Bestinet vis-à-vis the GOM. Instead, it would appear that Nizam was quite content to be working in the shadow throughout the consultancy period under the CSA. [132] In any case, is not clear what exactly were the ‘services’ actually rendered by Nizam under the CSA. What is clear is that Nizam was not involved in the operational issues of Bestinet or for that matter in any of the Companies. He did not participate in the administration or the general affairs of Bestinet, Tass Tech or Synerflux. He never attended even once the office of Bestinet. He 43 never met its higher management staff. He never took an interest in the Scheme, nor displayed any interest in familiarizing himself with how the 3 modules actually work. He conceded without hesitation that he had no expertise nor experience in IT. [133] From his own testimony, it seems that Nizam’s role was merely to attend meetings with the GOM together with representatives from Bestinet, Tass Tech or Synerflux. When it was suggested to him during cross examination that he had not achieved anything of significance as the ‘liaison officer’, Nizam pointed to the fact that Bestinet was granted the right to charge RM 100 for every application using the Bio-Medical module. However, based on the documents produced to this Court, it is clear that by the time Nizam involved himself with the FWCMS Scheme in mid-May 2015, the GOM had already approved the full implementation of the Bio-Medical module. After the period for the POC had come to an end on 15.12.2014, the Home Ministry had decided for the full implementation of the Bio-Medical and e-VDR modules in May/June 2015. [134] I accept Amin’s evidence that Nizam had played no role at all in securing the right to charge the said RM 100 fee. The CSA that were entered into by each of the Companies made no mention of Nizam securing the same. Further, under the Bestinet PGA, it is provided that Nizam would be entitled to the profit guarantee from the Bio-Medical module only if he was able to secure the Concession Agreement for the FWCMS module. The aforesaid facts suggest that Nizam had no role at all in securing the RM 100 fee. 44 [135] Nizam further testified that his presence was necessary at the meetings because the GOM was not comfortable working with Amin or had no confidence in him. I have already rejected this part of his evidence. In any case, Nizam did not procure any officers from the GOM to testify on their ‘difficult relationship’ with Amin. One must not lose sight of the fact that Amin had been working with the GOM since 2011 and prior to Nizam’s appearing in the picture, there was already a good 4 years of working relationship between Amin and the GOM without any evidence suggesting even remotely that the working relation was strained or uncomfortable. [136] On the contrary, Nizam testified that from end 2016, he had become dis-interested in his role under the CSA. His reason was that Amin had breached his promise under the agreements but no particulars were provided as to the nature of the breach. What is plain is that up until October 2017, no Concession Agreements had been awarded to Bestinet, Tass Tech and Synerflux. [137] What is conspicuous is the fact that under the CSA, the relationship between the parties would come to an end the moment the Concession Agreement is secured. This means that Nizam would no longer have to act as liaison officer during the time when the Scheme is to be fully implemented to sort out any operational issues. If indeed there was a deep seated refusal by the GOM officers not wanting to deal with Amin because of their lack of trust and confidence in him, why would Nizam’s liaison service be dispensed with after the RM 200 million is paid to him? 45 [138] The scope of the services as stated also put paid to Nizam’s testimony that Amin was in need of financial assistance for the Scheme as there is nothing stipulated touching on Bestinet’s need of funds at all in the CSA. [139] At the end of the day, when one cuts through all the forms and look at what Nizam actually brought to the table, one is compelled to conclude that he in fact provided little or nothing of substance in terms of ‘real consultancy’ under the CSA. The aforesaid is consistent with Amin’s testimony that Nizam was in fact offering his close association and connection with the authorities, particularly, the Home Minister as consideration for the RM 200 million. I accept Amin’s evidence that Nizam had not only ‘offered’ his influence and clout over the authorities (whether perceived or actual) to secure the Concession Agreements for him, he had also threatened to use such connections to block Amin and his Companies from securing any contracts for the Scheme unless his demands were met. [140] Indeed, a telling feature of the consultancy relationship is the express stipulation of the following as part of the Consultant’s scope of service in clause 1.2(e): ‘e) Will not act in any manner that will jeopardise the relationship between GOM and BESTINET and/or the operation of the FWCMS’ Whilst a consultant has a duty not to act in a manner that may prejudice his principal’s interest, it is unusual indeed to stipulate 46 this duty as one of the primary scope of his services. The aforesaid, to my mind, supports Amin’s testimony that Nizam had indeed made such a threat and clause 1.2(e) reflects precisely that. The threat was real enough for Amin to require an express undertaking from Nizam that he would not carry out the same as part of his ‘services’. [141] The subsequent event in fact bore out my conclusion on the true nature of the CSA. Sometime on 19.10.2017, the parties mutually agree to terminate the CSA and entered into 3 separate sale and purchase of shares agreement wherein substantial shares in Bestinet, Tass Tech and Synerflux were transferred to Nizam. These are the Bestinet SSA, Tass Tech SSA and the Synerflux SSA referred to above forming part of the Impugned Agreements. By these SSA agreements, all pretences of Amin requiring ‘consultancy services’ and or financial backing from Nizam were discarded and the transfer of the shares to Nizam were stated to be subject to only one major condition, namely, that Nizam would secure the Concession Agreements for the respective Companies. How Nizam would procure the Concession Agreements was left unstated. [142] Suffice it to state that the provisions stipulating the services as ‘consultant, liaison and adviser’ in the CSAs do not reflect the true services to be provided by Nizam. That was nothing more than a sham. [143] This brings us to the next area of factual dispute. This relates to the reason(s) for the parties agreeing to the termination of the 3 47 CSA on 19.10.2017 and the subsequent execution of the Impugned Agreements the very next day. [144] The chronology of the relevant events are as follows: a. A Mutual Termination Letter dated 19.10.2017 was executed in relation to Bestinet. This was followed by the execution of the Bestinet SSA, the Bestinet PGA and the Bestinet SA on 20.10.2017; b. A Mutual Termination letter dated 20.10.2017 was executed in relation to Tass Tech. Again, this was followed by the execution of the Tass Tech SSA, the Tass Tech PGA and the Tass Tech SA on the same day; c. A Mutual Termination Letter dated 20.10.2017 was executed in relation to Synerflux and was followed by the execution of the Synerflux SSA, the Synerflux PGA and the Synerflux SA on the same day; d. On 23.10.2017, notwithstanding the terms of the SSA agreements:

JR Joint Resource’s shares in Bestinet were transferred to Norhana;

(ii) Zaki’s shares in Tass Tech were transferred to Norhana; e. On 24.10.2017, Yahya’s shares in Synerflux were transferred to Norhana. 48 [145] Amin’s version of the events leading to the execution of the Impugned Agreements as set out in his evidence in chief is as follows: ‘56. Sometime in August 2017, DMN saw the full potential of the various projects. Basically, he told me that he needed control of all the three companies. I felt completely shocked.

I pleaded and negotiated with him. I said that this is not right, and that we had worked hard for the projects. Then, one day, at a meeting at Jakel Mall, DMN told me flat out that if I did not give up the shares in BSB, SSB and TTSB then all the projects will not come to us be taken over by him. He demanded 70% in each company. I said that this was not possible.

A few days later, at another meeting, the following happened:

58.1. DMN showed me a letter. It was on the letterhead of a company called “FWCMS Sdn Bhd”. I was completely shocked to see the name of our product on a company that I had no knowledge of.

58.2. Then, I saw that the letter was addressed to the then Minister of Home Affairs. I also saw a handwritten minute to the KSU from the Minister, basically instructing the KSU to implement the FWCMS system under FWCMS Sdn Bhd.

58.3. I was completely stunned and shocked when I saw this. At that time, I was under tremendous pressure. We were very very close to full and complete implementation of the FWCMS, the system that I had thought about so much and invested so much effort and time over the years into developing and perfecting. To think that it would all be taken away was a complete shock to me.

DMN did not let me take a copy of this letter. He also told me at that time that this was another company, and that if I did not 49 agree to give DMN the shares in the three companies, then the FWCMS project will be taken by this FWCMS Sdn Bhd.

I remembered that name and the company. When I returned to the office, I discussed this with our team. Bestinet appointed intellectual property lawyers to send a demand letter to FWCMS Sdn Bhd to stop using our name system. There was some exchange of letters between the lawyers. Eventually, after we were made to transfer our shares to DMN’s wife i.e. the Defendant, FWCMS Sdn Bhd informed us through their lawyers’ letter that they were winding up their company.

We also discovered that the shareholder and director of FWCMS Sdn Bhd was actually one of DMN’s staff. All of this showed me later that DMN was the man behind that company.

I had many more meetings with DMN during that period. I was too scared to protest or take any action against him. I talked and talked with him at length. I was pleading with him not to take Bestinet, TTSB and SSB shares, since the team was working for this project for the last 15 years. I tried to negotiate with DMN, but I felt like I was negotiating with a gun to my head. For me, the FWCMS system was my life’s work, and DMN was threatening to take it away from me. I had to try and save as much as possible as I could.

Since BSB’s business was ongoing, I told DMN that I could not give him a majority stake. I told him my breaking point at that time was that I must retain a majority stake in BSB, SSB and TTSB; and that the team would probably not agree to continue working if majority control was transferred. Since DMN was in the fabric business, I told him the project might fail as he does not understand our business. Also, if I hand over majority control, I was afraid that DMN would be able to force me out of the company and take over all our intellectual property. Therefore, I explained to him that no matter what, I could not let him take majority stake in BSB and the other companies. 50

DMN finally negotiated and agreed that JR could keep 51% in BSB. He would take 49%. But, for SSB and TTSB, he said the higher ups were insisting that he is seen as the 70% owner of these companies. However, he agreed to give 21% of the shares back to me. He pre-signed the share transfer forms, and handed it to a mutual friend with strict instructions that it could only be released to me in the future with DMN’s permission. Since I had no choice at all, I agreed.’ [146] On the other hand, according to Nizam, the shares in the 3 companies were voluntarily offered to him by Amin. This was what he testified during cross examination: ‘TT Where you say, in the fourth line of the second paragraph, ‘As of to date’, which is 19.10.2017, ‘Bestinet has yet to be awarded the concession from the government of Malaysia for the implementation of the SPPA’. So, my question is, you have been telling this Court this whole day, and boasting about your links with the government, your special relationship with the government. Ok. Despite that, two years two months, there’s no, nothing has happened. There is, you have not shown anything, no fruits of your relationship. Bagaimana, Yang Arif? Saya tak – YA Faham tak soalan, Datuk? Faham? Faham. Maknanya soalan kepada Tan Sri kepada saya, saya tak buat apa-apa selama dua tahun. Mana mungkin saya tak buat apa-apa? Saya dah dapat surat daripada kerajaan untuk kutip RM100 pada

Saya dah dapat surat daripada kerajaan 2015, 2016 untuk bersetuju untuk melaksanakan 51 keseluruhan untuk Bio-Medical. Mana mungkin saya tak buat kerja? YA Soalannya tertumpu hanya kepada konsesi agreement sahaja. Konsesi agreement, pasal belum dapat letter of award. Macam mana saya nak dapatkan, sebelum itu, saya, itu semua proses. Sehinggalah sampai 2016, hujung 2016 itu, saya dah fed up. Saya tak nak buat apa-apa. So benda ini lama terbiar, saya tak nak buat apa-apa. Saya dah macam tak beryakin dengan dia punya janji-janji manis dia. Sampailah dia bersetuju dengan satu term baru, barulah saya buat kerja saya, balik semula 100%. So tell me, am I understanding your answer by saying, that you did not make use of your special relations to get the concession agreement from the government for two years two months because Amin had not paid you the 200 million consultancy fee, and therefore you did not go about doing your job. Is that what you’re saying? Yes, about that. Yes. Macam itu pemahaman saya. Yes. Ok. Yes, thank you. Then I move on. If you go to, so that’s part of 92 and 93. If you go to 95 then, you say, you have already said that the shares are now being suggested. So, he refers to the shares in Answer 93, but you referred to the shares in Answer 93, you see that? Betul. Shares in three companies? Ok. Ok, so now we look at 95. You say in answer to the question, that Dato’ Amin was persuasive. He told me 52 that the scheme, the SPPA and APC would last a number of years, as such, I would be entitled to a larger sum compared to the original consultancy fees. So, you expect the Court to believe that you have not done anything after two years two months, Perunding just terminates the contract, it’s a mutual, both signed the contract, and you are saying, you expect the Court to believe that Amin then comes and offer you, offers you something more than 200 million, because we all agree that the shares are worth more than 200 million. Is that your version? JRB Ok, perkara ini, Datuk mengatakan dalam keterangan Datuk yang ini, Dato’ Amin menyatakan Datuk yang, benda ini semua dah dimeterai, Datuk akan dapat lebih daripada 200 juta syer yang ditawarkan Dato’ Amin. Dato’ Amin tawar pada saya, betul. Dia tawar pada saya. [147] There is no dispute that in terms of value, the shares in the Companies coupled with the profit guarantees are worth much more than the RM 200 million stipulated in the Bestinet CSA. Further, by Nizam’s own testimony, as at October 2017, he had still not procured the Concession Agreements as promised and more significantly, Nizam mentioned that by end 2016, he was already disillusioned or ‘fed up’ with Amin and was no longer putting the effort to pursuing the Concession Agreements. [148] With the mutual termination of the CSA, it would have been an opportune moment for Amin to terminate his association with Nizam from what at that point was an unproductive ‘partnership’. 53 [149] Instead, the parties had replaced the one-off payment of RM 200 million payable to Nizam under the Bestinet CSA with an even more outrageous deal. Pursuant to the Impugned Agreements, Nizam would acquire 49% of the share capital of Bestinet and 70% of the share capital of Tass Tech and Synaflux from Amin and his faction. Nizam was to acquire about 20 million shares in the 3 companies for an agreed consideration of just RM3.00 when the par value of the 20 million shares was RM20 million at a ringgit per share. Nizam would acquire these shares on a permanent basis that is, for ever. As alluded to above, the only condition for the shares was for Nizam to secure the Concession Agreements. There was no ‘consultancy’ or ‘liaison’ services to be provided. [150] Under the aforesaid circumstances, it would be difficult to believe that Amin would voluntarily propose to Nizam to accept 49% of the shares of Bestinet and 70% of the shares of Tass Tech and Synerflux which would result in these companies giving up significantly more to Nizam than what were previously agreed under their respective CSA. The likelihood that such offers were made voluntarily is even more unbelievable given that Nizam had incorporated FWCMS Sdn Bhd with the intention of competing with Amin. [151] I find the version as testified by Amin to be more probable and plausible. My reasons for reaching this conclusion are as follows: a. Amin’s version is supported by the fact that a company bearing the name FWCMS Sdn Bhd was indeed incorporated by Nizam at the material times. Although Nizam 54 denied the existence of a letter bearing the said company’s letterhead addressed to the Home Minister with a handwritten notation instructing the KSU to award the Scheme to FWCMS Sdn Bhd, Nizam did not deny that he had incorporated FWCMS Sdn Bhd sometime on 30.8.2017 and that he had the intention to use the said company to venture into the same FWCMS project. The relevant part of his testimony is reproduced: ‘As Dato’ Amin was trying to get out of having to pay the consultancy fees, I considered working on a foreign migrant worker system on my own’. Further, FWCMS Sdn Bhd was wound up after the shares in Bestinet, Tass Tech and Synerflux were transferred to him. I agree that the timing of the incorporation and the dissolution of FWCMS Sdn Bhd supports Amin’s claim that the said company was used by Nizam to pressure him to meet his demands to avoid losing the Scheme entirely; b. Amin’s version is also corroborated by: i. Ratha’s testimony who said: ‘However, sometime in September 2017, DSA told me that DMN showed him a letter under the letterhead of a company known as FWCMS Sdn Bhd. There were handwritten notes from the then Minister of Home Affairs stating that FWCMS Sdn Bhd was in the process of having meetings with Ministry of Home Affairs and was 55 about to be awarded the FWCMS contract. I was very shocked when I heard that. That time, we were under tremendous pressure because we were very close to the full and complete implementation of the FWCMS. We had invested so much time, effort and money into the system and had hundreds of employees depending on us to make the project a reality’ ii. Raja’s testimony where he said: ’31. I knew that BSB was implementing a system called FWCMS which was DSA’s brainchild. Sometime in 2nd half of 2017, DSA told me that DMN showed him a letter. That letter involved a company known as FWCMS Sdn Bhd which had nothing to do with DSA. There was a minute from the relevant Minister that the project will be given to this outside company and not BSB. I saw DSA was convinced that DMN could take away FWCMS from BSB.’ ’32. DSA said DMN also wanted shares in TTSB. This became a real concern to me. Knowing DMN’s influence with high ranking officials in the Government, at least as far as I had seen and from what DMN presented himself to be, I thought that MAPSS may eventually come to a stop if we did not do what DMN asked.’ ’34. Therefore, when DSA told me that we had to follow what DMN asked, I too had to agree as I was afraid we would lose the deal with the Government. We therefore agreed to the proposal to sign agreements to transfer 70% of the shares in TTSB to DMN with the profit guarantee to ensure that he gets his payment. I was also informed by DSA that DMN had agreed to sign shares transfer forms to return 21% of the company to 56 DSA, and that this was in the custody of someone trusted.’ iii. SH Yahya’s testimony where he said: ’29. Pada September 2017, DSA memberitahu saya bahawa Dato’ Mohammed Nizam bin Mohamed Jakel (“DMN”) mahukan saham majority dalam SSB. Jika kita menolak, DMN akan pastikan Kerajaan menghentikan projek kami. Oleh itu, DSA meminta supaya saya memindahkan kesemua saham saya sebanyak 7,000,000 kepada pihak DMN berserta dengan ‘Profit Guarantee’. ’30. Saya bertanda kepada DSA mengapa saya perlu memindahkan saham itu kepada DMN dan memberikan ‘Profit Guarantee’ sedangkan beliau tidak terlibat langsung dalam urusniaga SSB. DSA berkata bahawa DMN orang yang ‘powerful’. Sekiranya saya tidak melakukan demikian, DMN akan memastikan bahawa Kerajaan tidak akan menandatangani Perjanjian Konsesi dengan SSB’ iv. Nor Aliza’s testimony where she said: ’21. DSA, mantan pengarah SSB dan oengarah BSB, memberitahu saya bahawa Datuk Mohamed Nizam bin Mohamed Jakel (“DMN”) sedang cuba untuk mengambil alih perniagaan kami. Hanya jika kami membenarkan DMN mengambil alih, SSB akan kekal dan kami dijanjikan oleh DMN bahawa kami akan mendapat perjanjian konsesi daripada kerajaan. Sebaliknya, jika tidak, DMN akan membuatkan supaya SSB tidak mendapat perjanjian konsesi daripada Kerajaan. 57 ’22. Saya membantah kepada DSA dan mengatakan bahawa ini adalah salah kerana ini merupakan kerja keras kami. Walaubagaimanapun, DSA telah memberitahu saya bahawa kami tiada pilihan. DSA memberitahu saya bahawa “I feel like a gun is pointed to my head. I have no choice but to agree to DMN’s demand”. ’23. DSA juga memberitahu saya bahawa ada satu syarikat bernama FWCMS Sdn Bhd yang ada hubung kait dengan DMN. DSA kata DMN akan menggunakan syarikat ini untuk ‘Hijack’ FWCMS. DSA kata beliau telah Nampak satu minit oleh seorang Menteri memberikan projek FWCMS kepada FWCMS Sdn Bhd tersebut. DSA kata kepada saya, DMN telah memberitahu kata dua kepadanya: jika kami mahu teruskan perlaksanaan BWMS, saham dalam syarikat SSB mesti diberikan kepada DMN…’ c. I also accept Ratha’s testimony on the events that transpired at the meeting at Mandarin Oriental Hotel sometime in mid-October 2017. This was what he said: ‘Sometime after that, around mid-October 2017 (if I am not mistaken, it was Friday, 13th October), DSA and I had a meeting with DMN in Mandarin Oriental Hotel to discuss about DMN’s demand. DMN told us in a very sharp tone that he wanted us to finalize all the agreements over the weekend. At first, we were very reluctant to meet DMN’s demand. I tried to negotiate further with DMN see if he could give us more time to finalize the agreements. DMN then became furious and raised his voice against us. I became upset and tried to argue with him but DSA held my lap signalling me to 58 calm down. Under tremendous pressure, we finally agreed to DMN’s unreasonable demand’. d. Ratha testified that at the said meeting when Nizam raised his voice against him, he had uttered the words ‘turn this table on your face’ to him. Although Nizam had denied uttering those words, between the two, I am inclined to accept Ratha’s testimony. I found his evidence to be consistent, forthright and truthful. His evidence regarding the events at the Mandarin Oriental Hotel was not seriously undermined. [152] The last area of factual dispute relates to the question whether Nizam had met the condition precedent requiring the Concession Agreements to be secured as provided under the SSA. [153] Nizam’s obligation to procure the signed Concession Agreement with the GOM pertaining to each of the Companies and their respective systems - Bestinet’s FWCMS, Tass Tech’s APSS and Synerflux’s BWMS – was expressed to be a condition precedent. The key obligations under the 3 SSA signed on 20.10.2017 are summarized in Table 1 below:

1.1 TABLE 1: SALIENT TERMS OF ALL AGREEMENTS Bestinet Tass Tech Synerflux Norhana’s obligation (Condition Precedent) To Obtain the FWCMS Concession Agreement for a term of 15 years Norhana’s obligation (Condition Precedent) To Obtain the APSS Concession Agreement within 3 months (Stop Norhana’s obligation (Condition Precedent) To obtain a Concession Agreement for services to be provided by 59 Bestinet Tass Tech Synerflux Share Sale Agreement (signed on 20.10.2017) within 6 months (Stop Date), as a condition precedent. Otherwise, the agreement shall be terminated – Clauses 3.02,

4.01 & 4.05 Date), as a condition precedent. Otherwise, the agreement shall be terminated – Clauses 4.01 & 4.05 Synerflux to the Government for a period of 6 years at RM100 per worker, within 3 months (Stop Date), as a condition precedent. Otherwise, the agreement shall be terminated – Clauses 4.01 & 4.06 JR Joint’s obligation To transfer its 2,450,000 shares in Bestinet to Norhana at RM1 on the Completion Date, if the condition precedents are fulfilled – Clause 3.02 & 6.01 Zaki’s obligation To transfer his 10,500,000 shares in Tass Tech to Norhana at RM1 on the Completion Date, if the condition precedents are fulfilled – Clauses 3.02 & 6.01 SH Yahya’s obligation To transfer 7,000,000 shares in Synerflux to Norhana at RM1 on the Completion Date, if the condition precedents are fulfilled – Clauses 3.02 & 6.01 Profit Guarantee Agreement (signed on 20.10.2017) Norhana’s obligation (Condition Precedent) To secure the FWCMS Concession Agreement. Not to be paid dividend so long as the profit guarantee sum is paid – Clause 3.1(a) & (c) Norhana’s obligation (Condition Precedent) To secure the APSS Concession Agreement – Clause 3.1(a) Norhana’s obligation (Condition Precedent) To secure a Concession Agreement from the Government pertaining to the services to be provided by Synerflux – Clause 3.1(a) Amin For Bio-Medical, upon Norhana securing the signed FWCMS Concession Agreement, to pay RM15,000,000 per year. For FWCMS, from the Go Live Date (Bestinet starts collecting fees for FWCMS service), to pay RM80,000,000 per year. - Clause 3.1 Raja & Zaki To pay RM155,000,000 per year not later than 12 months from Go Live Date (when Tass Tech starts receiving fees for APSS service). If the APSS fee is more than RM34.50, Norhana shall be entitled to 50% of the profit on the increased fee. If it is lower than RM34.50, the guarantee sum to be adjusted SH Yahya & Nor Aliza To pay RM50 per worker 3 months from Go Live Date. If there is any change in the fees, the parties shall renegotiate the new amount – Clauses 3.1(a) to (c) 60 Bestinet Tass Tech Synerflux downwards as mutually agreed by the parties. – Clause 3(c) If the number of passenger is lower than the projected number as in the Concession Agreement, to pay a fixed sum of RM100,000,000 for that particular year. The remaining RM55,000,000 shall be renegotiated. If the number of passengers is more, the increase in profit shall be renegotiated. - Clause 3(d) Variation Agreement (signed on 1.3.2018) The FWCMS Concession Agreement term is reduced to 6 years – Clause 1 [I/406] Profit Guarantee Sum is reduced to RM15,000,000 (for BMS) and RM60,000,000 (for FWCMS) – Clause 2 The rest of the terms in the 2 agreements remain in full force-No Variation Agreement-So long as the profit guarantee sum is paid, Norhana would not be entitled to any dividend – Clause 1 [O/190] The rest of the terms in the agreements shall remain in full force [154] There was in fact no signed Concession Agreements procured by Nizam. 61 [155] For Bestinet, Ratha (PW2) testified that, after signing of the Impugned Agreements on 20.10.2017, he and his team had discussions with the GOM agencies to finalize the Concession Agreements, but it halted after 14th General Election. Bestinet wrote many appeal letters to the GOM but there was no response. What is not disputed is that Bestinet did not receive any fees from the implementation of FWCMS module and that the right to collect the RM 100 for the BWMS was suspended on 21.8.2018. [156] For Tass Tech, Raja (PW7) also testified that after signing the Impugned Agreements, Tass Tech continued to meet the GOM agencies to finalize the Concession Agreement, but it halted after the 14th General Election. Its APSS module did not go live, and Tass Tech did not receive any payment from the implementation of APSS. [157] For Synerflux, SH Yahya (PW7) testified that after signing the Impugned Agreements, Synerflux received a Government’s letter dated 21.8.2018 suspending the implementation of BWMS indefinitely, effective from 1.9.2018. The Concession Agreement was never signed. [158] To overcome the absence of signed a Concession Agreement, Nizam was driven to claim that the Surat Setuju Terima or SST issued by the GOM to Bestinet on 12.1.2018 was the contract in question. Was this the case? [159] ‘Concession Agreements’ is defined in the Bestinet SSA to mean ‘the agreements entered or to be entered into between Bestinet 62 and the Government of Malaysia pertaining to the projects known as Bio Medical System and Foreign Workers Centralized Management System (“FWCMS”) by the Government of Malaysia with Bestinet for the Services’. [160] Clause 3.02(a) of the Bestinet SSA further provided that : ‘The purchase consideration for the Sale Shares is RM 1.00 (hereinafter referred to as the “Purchase Consideration”). Further, in order for the Purchaser to enjoy the above nominal value, the purchaser is required to secure the FWCMS project on the following terms:

The Concession Agreement for the FWCMS shall be for a minimum period of fifteen (15) years; and 2. The Concession Agreement for the FWCMS shall be tagged along with the Sistem Kawalan Imigresen Nasional (“SKIN”) concession agreement for a similar period; and 3. The fee chargeable for each worker processed by the FWCMS shall not be less than RM 100 per worker per year based on Pas Lawatan Kerja Sementara (PLKS) renewal.’ [161] Thus, based on the aforesaid, it is plain the Concession Agreement that the parties were referring to for Bestinet is one where it involves an agreement entered into between Bestinet and the GOM for the FWCMS with a period of 15 years, tagged along with the SKIN concession agreement for a similar period and where fee chargeable for each worker processed by the FWCMS shall not be less than RM 100 per worker per year based on Pas Lawatan Kerja Sementara (PLKS) renewal. 63 [162] The SST is not a government contract and Bestinet could neither charge nor collect payment from 3rd party employers for its services under the SST in respect of the FWCMS module. The SST clearly says that a formal agreement must be signed, and that the ability to collect fees was subject to terms and conditions to be negotiated. [163] In fact, the position that Bestinet could not charge for its services from any party, which was the situation prior to February 2015, between February 2015 and the issuance of the SST in January 2018, did not change after the SST was given. Hence, until the agreements were terminated by Bestinet in August 2018, it did not collect monies from such employers. [164] Another indicator that the SST is not a “government contract” is the presence of the “Go Live Date” in the Bestinet SSA and the Bestinet PGA which specifically defines that to mean when Bestinet can collect from 3rd party employers. The fact is that until July 2018, Nizam was still not able to secure the contract from the GOM. [165] Learned counsel for the Defendant argued that by having transferred the Plaintiffs’ respective shares to the Defendant prior to Nizam procuring the Concession Agreements, the Plaintiffs are deemed to have waived the condition precedent. However, this cannot be the case. The entire raison d’etre for the relationship was the procurement of the Concession Agreements. It is unthinkable that Amin would simply forego the Concession Agreements with the transfer of the shares. 64 [166] I accept Amin’s testimony that the shares were transferred just 3 days after the execution of the SSA upon Nizam’s demand or insistence. It is simply illogical that Amin would give up the only security that he had to ensure that Nizam would procure the Concession Agreements. [167] Furthermore, by the Variation Agreement signed on 1.3.2018, the Defendant had agreed that the “rest of the terms of both the Agreements [i.e. the SSA and the PGA] are unaffected and shall continue in full force and effect in accordance with the terms agreed therein’”. As such, about 4 months after the share transfers, Nizam had through the Variation Agreements reconfirmed his obligations in the SSA to produce a Concession Agreement. I therefore find that there was no waiver as alleged. Legal Issues a. Economic Duress [168] The Privy Council (in an appeal from Hong Kong) in Pao On v. Lau Yiu Long [1980] AC 614 through the speech of Lord Scarman explained at pages 635-636, the cause of action for economic duress in the following manner: “Duress, whatever form it takes, is a coercion of the will so as to vitiate consent. Their Lordships agree with the observation of Kerr J. in Occidental Worldwide Investment Corporation v. Skibs A/S Avanti [1976] 1 Lloyd’s Rep. 293, 336 that in a contractual situation commercial pressure is not enough. There must be present some factor ‘which could in law 65 be regarded as a coercion of his will so as to vitiate his consent.’ This conception is in line with what was said in this Board’s decision in Barton v. Armstrong [1976] AC 104, 121 by Lord Wilberforce and Lord Simon of Glaisdale observations with which the majority judgment appears to be in agreement. In determining whether there was a coercion of will such that there was no true consent, it is material to inquire whether the person alleged to have been coerced did or did not protest; whether, at the time he was allegedly coerced into making the contract, he did or did not have an alternative course open to him such as an adequate legal remedy; whether he was independently advised; and whether after entering the contract he took steps to avoid it. All these matters are, as was recognised in Maskell v. Horner [1915] 3 K.B. 106, relevant in determining whether he acted voluntarily or not. : … The compulsion had to be such that the party was deprived of ‘his freedom of exercising his will’ (see p. 916). It is doubtful, however, whether at common law any duress other than duress to the person sufficed to render a contract voidable: see Blackstone’s Commentaries, Book 1, 12th ed. pp 130-131 and Skeate v. Beale [1841] 11 Ad. & E. 983. American law (Williston on Contracts, 3rd ed.) now recognises that a contract may be avoided on the ground of economic duress. The commercial pressure alleged to constitute such duress must, however, be such that the victim must have entered the contract against his will, must have had no alternative course open to him, and must have been confronted with coercive acts by the party exerting the pressure: William on Contracts 3rd ed. Vol. 13 [1970], section

American judges pay great attention to such evidential matters as the effectiveness of the alternative remedy available, the fact or absence of protest, the availability of independent advice, the benefit received, and the speed with which the victim 66 has sought to avoid the contract. Recently two English judges have recognised that commercial pressure may constitute duress the pressure of which can render a contract voidable: Kerr J. in Occidental Worldwide Investment Corporation v. Skibs A/S Avanti [1976] 1 Lloyd’s Rep. 293 and Mocatta J. in North Ocean Shipping Co. Ltd. V. Hyundai Construction Co. Ltd. [1979] Q.B. 705. Both stressed that the pressure must be such that the victim’s consent to the contract was not a voluntary act on his part. In their Lordships’ view, there is nothing contrary to principle in recognising economic duress as a factor which may render a contract voidable, provided always that the basis of such recognition is that it must amount to a coercion of will, which vitiates consent. It must be shown that the payment made or the contract entered into was not a voluntary act.” [emphasis added] [169] Based on the aforesaid, to constitute duress, the commercial pressure that is brought to bear on the victim must be such that the victim must have entered the contract against his will, with no alternative course open to him, and must have been confronted with coercive acts by the party exerting the pressure. The facts must disclose that the victim’s will was vitiated at the time the impugned agreement was entered into and that the vitiation of his consent was due to the illegitimate pressure exerted on him. [170] The approach in Pao On (supra) that to establish duress it is necessary to show that a person has not entered into a contract willingly in the sense of a vitiation of his will has since been modified to ‘a lack of practical alternatives’ . Indeed, in Lynch v DPP of Northern Ireland [1975] AC 653, a case in which the 67 defence of duress was raised by a defendant charged with aiding and abetting murder by driving a car carrying IRA gunmen, Lord Simon held that duress: "... deflects, without destroying, the will of one of the contracting parties. There is still an intention on his part to contract in the apparently consensual terms: but there is coactus volui on his side. The contrast is with non est factum. The contract procured by duress is therefore not void: it is voidable - at the discretion of the party subject to duress." [171] This approach was subsequently followed by Lord Scarman himself in Universe Tankships Inc. of Monrovia v. International Transport Workers Federation and Others [1983] 1 A.C. where the following observations were made by the Law Lords: Lord Diplock ‘The rationale is that his apparent consent was induced by pressure exercised upon him by that other party which the law does not recognise as legitimate, with the consequences that the consent is treated in law as revocable…’ Lord Scarman ‘...The classic case of duress is, however, not the lack of will to submit but the victim’s intentional submission arising from the realisation that there is no other practical choice open to him…’ [emphasis added] 68 [172] Universe Tankships Inc. of Monrovia (supra) has been applied locally in OCBC Securities (Melaka) Sdn Bhd v Koh Kee Huat [2004] 2 MLJ 110 (HC). [173] A contract that has been entered into as a result of economic duress invariably contained such an imbalance terms where they unfairly favour one of the party in an extreme manner that it raises a presumption of ‘procedural unfairness’ described by Lord Brightman in Hart v. O’ Connor [1985] 2 All ER 880 at 887: ‘If a contract is stigmatised as ‘unfair’, it may be unfair in one of two ways. It may be unfair by reason of the unfair manner in which it was brought into existence; a contract induced by undue influence is unfair in this sense. It will be convenient to call this ‘procedural unfairness’. It may also, in some contexts, be described (accurately or inaccurately) as ‘unfair’ by reason of the fact that the terms of the contract are more favourable to one party than to the other. It will be convenient to call it ‘contractual imbalance’. The two concepts may overlap. Contractual imbalance may be so extreme as to raise a presumption of procedural unfairness, such as undue influence or some other form of victimisation. Equity will relieve a party from a contract which has been induced to make as a result of victimisation. Equity will not relieve a party from a contract on the ground only that there is contractual imbalance not amounting to unconscionable dealing.’ [174] In the instant case, I have found that Nizam had, at his first meeting with Amin sometime in mid-2015, in a calculated fashion made known to Amin that he was closely connected to ‘powerful persons’ in the GOM, particularly, the Home Minister and high 69 officers in his Ministry who were the key decision makers for the award of the Concession Agreements for the Scheme. Nizam had projected his close connection or clout to Amin by disclosing to him confidential information and knowledge of the FWCMS Scheme for which according to Amin, only the Minister and or his higher officers would have been privy to. [175] Whether actual or perceived, Amin’s distinct impression and message from that meeting with Nizam was that unless he acceded to Nizam’s demand for monetary payments to be made to him, Nizam with the complicity of these ‘powerful persons’ would make it such that the Concession Agreements would not be awarded to the Companies. In this regard, it is pertinent to take into account the fact that Nizam had himself not denied that there was a perception (rightly or wrongly) that he was close to the then Prime Minister and the Deputy Prime Minister who was also the Home Minister at the material times. [176] It is not difficult to appreciate the enormity of this threat to Amin. He had started spending time and effort focussing on issues relating to the total management for migrant workers since 1995. In 1998, he incorporated JR Joint Resources and in November 2005, when the GOM introduced an “outsourced” foreign worker licensing system, Bestinet was one of the first to obtain such an outsourcing licence. He had come up with the concept and idea of the first version of the FWCMS System in 2003 and since 2004 had started introducing the idea to the GOM with the view to submit a proposal to develop and implement the FWCMS Scheme. 70 [177] In 2008, Amin set up Bestinet as a subsidiary specially to create IT solutions for foreign migrant worker problems, and to make the FWCMS concept a reality. He had invested substantial time, money and effort not only to develop the concept but also had approached and successfully convinced and persuaded prominent and highly qualified individuals to join him in pursuit of his vision and passion in the development of the FWCMS Scheme. [178] Between 2011 until mid-2015, Amin and his team had had numerous presentations and meetings with various relevant government departments, private stakeholders, the Special Branch of the Royal Malaysian Police Force, foreign embassies and international agencies towards securing the Concession Agreements from the GOM for the implementation and operation of the FWCMS Scheme. [179] By end 2014, Bestinet had completed its POC period satisfactorily for both its Bio-Medical and e-VDR modules. The GOM had agreed for their full implementation in various countries in May and June 2015. Bestinet was already expecting to be issued the right to charge RM 100 for each application of its Bio-Medical modules. In fact, Amin was in discussion with the GOM on the implementation of the other 13 modules and working towards securing the Concession Agreements. In other words, mid-2015 was at a point where Amin was beginning to start reaping the fruits of all his labour put in for the last 20 years. 71 [180] The threat to interfere with the contracts between the GOM and the Companies in respect of the FWCMS Scheme was clearly unlawful and made in bad faith. [181] The pressure was intensified when Nizam informed Amin that the Letters of Intent permitting the Companies to implement the approved modules, issued by the GOM could only be collected by him. This was what had led to the execution of the CSA alluded to above. [182] In fact, notwithstanding the execution of the CSA, Nizam continued to exert control over Amin by holding on to the original copy of the Letters of Intent. There was no reasonable purpose for Nizam to retain possession of the original Letters of Intent except to maintain a continuing control over Amin. Even the original copies of the CSA were not provided to Dato Amin until much later. Thus, the threat that the FWCMS Scheme could be scuttled continued to hang over Amin’s head as a sword of Damocles. [183] Further sometime in late 2016 and early 2017, Nizam deliberately stopped his effort to secure the Concession Agreements for Amin as promise. By his testimony, Nizam stated that he was ‘fed up’ with Amin ostensibly because promises of payments were not kept. In fact, sometime in mid-2017, Nizam raised his game further by incorporating a company bearing the name FWCMS Sdn Bhd. He then showed Amin a letter bearing FWCMS Sdn Bhd’s letterhead with handwritten notation by the Home Minister directing that the FWCMS Scheme be awarded to this company. 72 [184] The sole purpose of this action, no doubt, was to exert further pressure on Amin. The letter disclosed an imminent and real prospect of the FWCMS Scheme being taken over by Nizam’s company. It was under such circumstances that Amin, rather than losing everything, succumbed to the new demands forced onto him by Nizam, namely, the mutual termination of the CSA and in place thereof, the execution of the SSA and the PGA giving Nizam a 49% shareholding in Bestinet and 70% shareholdings in both Tass Tech and Synerflux with profit guarantees to be paid for the duration of the Concession Agreements which he was to secure. [185] Learned counsel for the Defendant however maintained that Amin’s allegations are unsubstantiated and unsupported when gauged against the totality of the evidence. In this connection Nizam had denied the existence of the FWCMS Sdn Bhd’s letter. It is contended that the claims based on economic duress are implausible and cannot stand scrutiny especially considering the conduct of the parties, the timelines involved and other agreements entered into. More specifically,

Amin and Nizam met and entered into negotiations in 2015. The Impugned Agreements were executed in October 2017, approximately 2½ years thereafter. Amin himself had confirmed that there were numerous meetings with Nizam. Meetings were also held with members of Amin’s team. During this duration, there was never any protest or objection from any quarter. Also, no alternative courses of action were pursued by Amin or other representatives of the Plaintiffs. No complaints or reports were lodged by Amin or the Plaintiffs 73 notwithstanding the fact that the transaction was substantial and involved the GOM. The law requires proof of the absence of choice which is clearly lacking in the present situation;

(ii) it was simply impossible for the Defendant or Nizam to “hijack” the Scheme or the business of the Plaintiffs. Nizam had no involvement in the management of the Plaintiffs. All data pertaining to the Scheme likewise remained under the control of Amin and the Plaintiffs. Furthermore, the proposals for the adoption and implementation of the Scheme by the GOM had been submitted by the Plaintiffs. Last but not least, the platforms comprising the Scheme were all developed by the Plaintiffs over the course of many years. In those circumstances, it is submitted that it defies logic and common sense to suggest that Nizam was in a position to actually “hijack” the Scheme or the business. Additionally, given the nature of the Scheme, it fell to the GOM to approve and implement the same. The Scheme would have been vetted at numerous levels within the GOM, including the Cabinet, given its size and importance. It is preposterous in these circumstances to suggest that Nizam could dictate terms to the GOM and “hijack” the business for himself;

(iii) the Impugned Agreements were preceded by the execution of CSA entered into between the Plaintiffs and Nizam’s nominees. The CSA were signed off by Amin in August 2015 on behalf of the Plaintiffs. There is no evidence that Amin was forced into the CSA. These CSA were eventually 74 terminated by mutual consent of the parties prior to the execution of the Impugned Agreements. This signals the fact that matters were negotiated between the parties and that the termination of the CSA was a requirement on the part of Amin and his associates.

(iv) the Impugned Agreements were actively negotiated and drafts with amendments were exchanged. All parties were independently advised by solicitors with Joy Rama and Ronald Teo acting for the Plaintiffs and Habizan Rahman (DW3) acting for the Defendant and Nizam. Ratha (PW2) was also involved in the process. On top of that, Joy Rama actually witnessed the execution of the Impugned Agreements in the Sheraton Imperial on 20.10.2017. It is a far stretch to suggest that they were “forced” into the Impugned Agreements when they were independently represented by not one (1) but two (2) solicitors. Allowing and permitting negotiations and representation is certainly not the modus of a victimizer;

there were a number of events which transpired simultaneously with and after execution of the Impugned Agreements. A Memorandum of Understanding was entered into between Amin and Nizam for the purchase of the S5 Group of Companies. Also, a Sale and Purchase Agreement and Profit Guarantee Agreement were entered into which involved Perunding Zon which was working on a project known as “Hantar Pulang Pendatang Asing Tanpa Izin ke Negara Asal” (‘PATI’). Thereafter, shares in Bestinet, Tass 75 Tech and Synerflux were voluntarily transferred to the Defendant. The transfers were effected by the company secretaries of the Plaintiffs who must have acted on their direction. Variation Agreements were also entered into between JR Joint Resources/Synerflux and the Defendant on 1.3.2018. There were also further negotiations between Amin and Nizam to dilute the Defendant’s shares in Tass Tech and Synerflux after the execution of the Impugned Agreements such that her shareholding would be reduced from 70% to 49%. This is reflected in an undated Letter of Undertaking executed by Amin but addressed to Nizam. These events demonstrate that there was a continuing relationship between Amin and Nizam which is entirely inconsistent with the allegation that there was arm-twisting on the part of Nizam and that the Plaintiffs and that Amin were coerced into the Impugned Agreements. Both Amin and Nizam are seasoned businessmen; and

(vi) Apart from the nominal consideration which was paid by Nizam to Dato’ Amin in the presence of Habizan Rahman (DW3), Nizam also rendered services in respect of the Scheme for a period of 2½ years including financial assistance when required. As per Amin’s own testimony, the Scheme was anticipated to generate roughly RM 3 billion. From that perspective, Nizam would have received a relatively small percentage for his efforts. Accordingly, it was contended that the Impugned Agreements were executed voluntarily. 76 [186] With respect, I am not persuaded by learned counsel for the Defendant’s contentions. [187] Firstly, whilst it is true that the Impugned Agreements were executed approximately 2 ½ years after the first meeting in mid- 2015, the threat which was first made at the meeting had continued throughout and in fact made even more imminent in 2017 as added pressure for Amin to capitulate to Nizam’s demands. The fact that there were numerous meetings between Nizam and members of Amin’s team during the period from 2015 to 2017 without any protests does not mean that the threat was not looming in the background, ever present. In any case, there was in fact protest raised against Nizam’s demands for the shares. This happened during the meeting at Mandarin Oriental Hotel sometime 13.10.2017, where according to Ratha’s testimony, Nizam was brazen when Ratha expressed objection to the demands: ‘72A.3 DMN (“Nizam”) was speaking in a very harsh tone, as if he was giving me orders. Nobody in my life has ever spoken to me so harshly and gave me directions in such a rude manner. At one point, DMN said something to the effect that “If you talk so much, I will turn this table on your face.” I also started raising my voice at this point. I felt that this young and arrogant man was being extremely rude and speaking without any respect to me. It was at this point that DSA (“Amin”) held my lap to calm down.’ [188] To my mind, there were no viable alternative courses of action that could be pursued given that the ‘powerful persons’ in this case involved the then Prime Minister and Deputy Prime Minister. 77 Rightly or wrongly, the perception given to Amin was that these powerful personalities were complicit in the plot and given their control over the country, he was left with nothing more than a ‘take it or leave it’ proposition thrusted upon him in or about October

In such a case, lodging any police reports may prove not only futile but self-destructive. In any case, not raising any protest when knowing the futility of such protest does not mean acceptance of the situation. [189] As regards the contention that it was simply impossible for Nizam to ‘hijack’ the FWCMS Scheme since he was never involved in the management of the Plaintiffs and the platforms comprising the Scheme were all developed by them over the course of many years, again, with respect, learned counsel for the Defendant missed the point. What was being hijacked was not the operation of the FWCMS Scheme but the expected payments to be received from the end-users – the fruits from the FWCMS Scheme. This was why Nizam was never interested in the management and operation of the Scheme and or the Companies. True it is that without Amin’s FWCMS Scheme, Nizam would be incapable of developing a similar product within time to take over. But if the FWCMS Scheme were to be pulled back by GOM from Amin, Nizam would have nothing to lose whilst Amin would stand to lose everything. In his own words, Amin expressed his predicament as follows: ‘I was pleading with him not to take Bestinet, TTSB and SSB shares, since the team was working for this project for the last 15 years. I tried to negotiate with DMN, but I felt like I was 78 negotiating with a gun to my head. For me, the FWCMS system was my life’s work, and DMN was threatening to take it away from me. I had to try and save as much as possible as I could.’ [190] There is no dispute that the parties were represented by their respective solicitors who had engaged in some negotiation and exchange of drafts prior to the execution of the Impugned Agreements. The execution was also duly witnessed by the lawyers. However, the involvement of solicitors does not mean that there were no threats or illegitimate pressure acting on Amin when his Companies executed the Impugned Agreements. At all times, the parties were never negotiating at arm’s length. The commercial terms were thrusted upon Amin with very limited room for negotiation. The lawyers were needed to only formalise the terms and to perhaps safeguard the parties’ respective positions but only within the confined of what were already determined terms. The option of not entering into the Impugned Agreements was not a practicable and commercially acceptable one for Amin. [191] I also respectfully reject the submission that the execution of the Memorandum of Understanding for the purchase of the S5 Group of Companies and the Sale and Purchase and Profit Guarantee Agreement entered into which involved Perunding Zon relating to the ‘Hantar Pulang Pendatang Asing Tanpa Izin ke Negara Asal’ or ‘PATI’ suggest that the parties were negotiating at arm’s length in respect of the Impugned Agreements. No evidence was adduced on the background and circumstances for the S5 Group and PATI agreements. Neither was this put to any of the Plaintiffs’ witnesses. 79 [192] As for the transfers of the shares in Bestinet, Tass Tech and Synerflux 3 days after the execution of the Impugned Agreements, this to my mind shows that Nizam was able to ride roughshod over the agreed terms of the Impugned Agreements. Although none of the Condition Precedents had been satisfied for the sale of shares transaction, Nizam had put pressure on Amin to hand over the share certificates and transfer forms, and got himself or his nominee registered as shareholder. [193] As for the subsequent Variation Agreements on 1.3.2018 which reduced the amount of profit guarantee payable to the Defendant, these had come about because the GOM had vide its SST only stipulated a 6 year arrangement and Nizam had told Amin that that the ‘higher ups’ had informed him that it would not be possible for them to get a 15 year agreement but a 6 year agreement instead. The Variation Agreements were entered into to provide that: a. the term of the Concession Agreement that Nizam was supposed to get for FWCMS Scheme was reduced from 15 years (as stated in the SSA) to 6 years; and b. accordingly, the guaranteed sum was changed to RM 75,000,000 per year for 6 years i.e. RM 15,000,000 for Bio Medical module and RM 60,000,000 for FWCMS module. [194] As regard the Variation Agreement signed in relation to Synerflux, it was a mere formality, to insert a clause that the Defendant would not claim dividends from the company as long as she was paid the profit guarantee. 80 [195] Of relevance is the fact that the Defendant had agreed that notwithstanding the Variation Agreements, the “rest of the terms of both the Agreements [i.e. the SSA and PGA] are unaffected and shall continue in full force and effect in accordance with the terms agreed therein’. Thus, it can hardly be said that the parties by entering into the Variation Agreements meant that the pressure that was put to bear was no longer present. [196] Then, reference was made to the negotiations between Amin and Nizam which had resulted in the Defendant’s shareholding in Tass Tech and Synerflux to be reduced from 70% to 49%. This reduction was agreed to only after Amin informed Nizam that his ‘breaking point’ was that he must retain a majority stake in Bestinet, Synerflux and Tass Tech as his team would probably not agree to continue working if majority control was transferred. Although Nizam finally agreed to the reduction, nevertheless, the reduction was given in the form of pre-signed transfer forms which were kept by a third party. This was because according to Nizam, the ‘higher ups’ were insisting that he is seen as the 70% owner of these companies. If anything, this only reinforced the perception that Nizam’s demands had the approval of the ‘higher ups’ or were condoned by the ‘higher ups’. [197] The contention that the Impugned Agreements were voluntarily executed because the amounts payable to Nizam would constitute only a small percentage of the anticipated billions that could be generated from the Concession Agreements simply cannot be sustained. An extortion of a small percentage from a multi-billionaire’s fortune does not make the giving voluntary. In any 81 case, the considerations that were extracted under the Impugned Agreements were so exorbitant that there is manifested a contractual imbalance referred to above. [198] Accordingly, it is my judgment that the Plaintiff has successfully established on the balance of probabilities that the Impugned Agreements were indeed executed under an illegitimate economic pressure which was the significant cause for the Plaintiffs entering into the Impugned Agreements. The effect of the duress had left the Plaintiffs with no practical choice or alternatives but to sign the Impugned Agreements. For this reason, I hold that the Impugned Agreement were indeed voidable as contended by the Plaintiffs. [199] In exercise of their rights, each of the Plaintiffs had terminated or rescinded the Impugned Agreements vide the written notice dated 17.8.2018. The notices were given about 3 months after the General Election in May 2018 which had resulted in a change to the Government. [200] I do not think that there was any unreasonable delay in the giving of the notices by the Plaintiffs to rescind the Impugned Agreements. With the change in the Government, some time would be needed for the ‘dust to settle’ before it would be clear to the Plaintiffs that Nizam’s close connection and influence with the Government and with senior officers in the Home Ministry was no longer a real threat. Further, prior to issuing the formal letters of demand, Amin had visited Nizam to seek the return of all the shares but to no avail. 82 [201] In the circumstances, I am of the opinion that the steps taken to set aside the Impugned Agreements were within reasonable time and that there was no affirmation of the same. [202] With the Impugned Agreements rescinded, the Plaintiffs are entitled to have the shares that were transferred to Nizam or the Defendant to be transferred back to them [See: Occidental Worldwide Investment Corp. v. Skibs AS Avanti, Skibs AS Glarona, Skibs Navalis [1976] 1 Llyod’s Law Reports 293 at 336]. In Universe Tankships Inc. of Monrovia (supra), Lord Diplock held: ‘The use of economic duress to induce another person to part with property or money is not a tort per se; the form that the duress takes may or may not, be tortious. The remedy to which economic duress gives rise is not an action for damages but an action for restitution of property or money exacted under such duress and the avoidance of any contract that had been induced by it; but where the particular form taken by the economic duress used is itself a tort, the restitutional remedy for the money had and received by the defendant to the plaintiff’s use is one which the plaintiff is entitled to pursue as an alternative remedy to ab action for damages in tort.’ b. Impugned Agreement void for influence peddling [203] The Plaintiffs further contended that the Impugned Agreements are contrary to public policy and/or void for illegality. The doctrine of illegality is statutorily provided for in Section 24 of the CA, which states:- 83 “The consideration or object of an agreement is lawful, unless …

the court regards it as immoral, or opposed to public policy…” [204] The leading 20th century authority on how repugnant the common law regards private citizens being employed for gain or profit to procure advantages from public officials is Montefiore v. Menday Motor Components Company, Limited [1918] 2 KB 241. The headnote reads:- ‘It is contrary to public policy that a person should be hired for money or valuable consideration to use his position and influence to procure a benefit from the Government, and a contract for that purpose is therefore illegal and void’. ‘Where it appears from the evidence during the hearing of a case that the contract sued on is contrary to public policy it is the duty of the judge to take the objections that the contract is illegal and void.’ [emphasis added] [205] The facts were these. The defendant company (acting through a Mr. Keeling) gave to the plaintiff, Mr. Montefiore, a Commission Note in the following terms: “In consideration of your finding me the necessary capital, I am prepared to pay you 10 per cent on the amount introduced either direct or indirect, and also to allot you forty shares in the Menday Motor Components Company, Limited.” 84 [206] In the action that followed in the High Court, the plaintiff alleged that he had found capital, or alternatively introduced capital, for the defendant by having arranged with the U.K. Treasury to provide the defendant with the sum of 2,000£ which was paid to the defendant. The plaintiff alleged that he thereupon became entitled to be paid by the defendant a commission of 200£ and to have the shares allotted to him by the defendants. The defendant paid to the plaintiff three sums amounting in all to 100£ and thereafter ceased payment. The plaintiff claimed to recover the balance 100£ commission due to him under the contract, and a declaration that he was entitled to have allotted to him forty shares in the defendant. [207] Justice Shearman at pages 157 and 158 said as follows: Page 157-158 ‘Mr. Keeling’s account of the transaction is substantially to the same effect, and he adds that Mr. Montefiore at the interview ‘talked airily of his acquaintance with a high official of the Air Board’; that he thought Mr. Montefiore had ‘put in a good word for him’; and that he thought Mr. Montefiore ‘was working to get an advance for me a few thousands.’ I believe this statement the more readily because Mr. Montefiore, in giving evidence in the case, repeatedly alluded to certain high officials, and said that one of them had complimented him for his patriotism in certain Schemes he appears to have propounded.’ Page 158 85 ‘The Plaintiff bases his claim upon the allegation that his introduction and services caused the advance of money to be given by the Government to the defendants. I am satisfied, … that what was bargained for between the plaintiff and the defendants was the recommendation by the plaintiff of the merits of the defendants and the exercise of the influence of the plaintiff with servants of the Crown in order to induce an advance of public money to the defendants for the securing or the obtaining of Government contracts. The true consideration for the giving of the note was that the plaintiff should use his alleged position, and the value of his good word, in favour of the defendants in getting Government assistance in the form of money or contracts. I do not propose to decide the question whether the plaintiff was the effective cause of the capital being found for the defendants by the Government. In my judgment the contract sued upon is illegal and void as contrary to public policy. It is well settled that ‘when it is apparent on the face of a contract that it is unlawful, it is the duty of the judge himself to take objection, and that, too, whether the parties take or waive the objection. This was so decided by Lord Mansfield in Holman v Johnson

at law, and by Lord Eldon in Evans v Richardson (1817), and has been consistently acted on ever since.’ [emphasis added] [208] Justice Shearman laid down the following statements of principle which have been adopted in many jurisdictions, including Malaysia:- ‘A contract may be against public policy either from the nature of the acts to be performed or from the nature of the 86 consideration. In my judgment it is contrary to public policy that a person should be hired for money or valuable consideration when he has access to persons of influence to use his position and interest to procure a benefit from the Government. This was expressly decided by Lord Eldon in Norma v. Cole (4) when he said: ‘I cannot suffer this cause to proceed. I am of opinion this action is not maintainable; where a person interposes his interest and good offices to procure a pardon, it ought to be done gratuitously, and not for money: the doing an act of that description should proceed from pure motives, not from pecuniary ones.’ So long ago as the reign of Edward VI, it was provided by the statute of 5 & 5 Edw. 6, c. 16, that it was illegal to bargain for any brokerage or money for the transference of an office, or any part of an office, concerning the receipt, controlment, or payment of any money or revenue of the Crown. And a later statute, 49 Geo. 3, c. 126, made it a misdemeanour to receive money for any office, place, or employment particularly specified in that Act. While I do not go to the length of holding that the defendants were bargaining with the plaintiff that they should receive an office under the Crown, I agree with the remarks of Coltman J. in the case of Hopkins v. Prescott (5) that where a person undertakes for money to use his influence with the Commissioners of Taxes to procure for another party the right to sell stamps, &c., if the contract were not void by statute, it would be void at common law as contrary to public policy. It is well settled that in judging this question one had to look at the tendency of the acts contemplated by the contract to see whether they tend to be injurious to the public interest. In my judgment, a contract of the kind has a most pernicious tendency. At a time when public money is being advanced to private firms for objects of national 87 safety it would tend to corrupt the public service and to bring into existence a class of persons somewhat like those who in ancient times of corrupt politics were described as ‘carryers’, men who undertook for money to get titles and honours for those who agreed to pay them for their influence: see the remarks of Lord St. Leonards in Egerton v. Earl Brownlow. (1) In my judgment it is both in accordance with precedent and with public interest that I should declare this contract void as against public policy, with the result that both the action and counter-claim are dismissed with costs.’ [emphasis added] [209] There are 3 recent Malaysian cases that are of relevance. First, the Federal Court decision in Merong Mahawangsa Sdn Bhd v. Dato’ Shazry Eskay bin Abdullah [2015] 5 MLJ 619. The facts were as follows. The Government of Malaysia announced a plan for a bridge to replace the Johore-Singapore Causeway. The appellants requested the respondent “to render his services to procure and secure the award” of the execution of the project from the Government of Malaysia, for which services the appellants agreed to pay RM20 million to the respondent. This was stated in a letter of undertaking from the first appellant to the respondent. The appellants failed to pay under the letter of undertaking, and the respondent commenced an action claiming payment of the RM20 million, inter alia, on the ground that he had rendered the services to the appellants by obtaining the tender and securing the bridge project from the Government of Malaysia. The appellants claimed that procurement of the bridge project on account of the 88 respondent’s close relationship with the Government of Malaysia and Dato’ Seri Megat Junid (a minister) was against public policy and that the said letter of undertaking was illegal and void. Jeffrey Tan FCJ observed:- “[1] The question upon which leave was granted to appeal against the order of the Court of Appeal in respect of the matter decided by the High Court in the exercise of its original jurisdiction, reads: Whether an agreement to provide services to influence the decision of a public decision maker to award a contract is a contract opposed to public policy as defined under Section 24(e) of the Contracts Act, 1950 and is therefore void?” “[41] In Brett Andrew MacNamara v. Kam Lee Kuan [2008] 2 MLJ 450, Balia Yusof J. as he then was, referred to the following passage in Pollock and Mulla on Indian Contract and Specific Relief Act, (10th Ed), on the meaning of ‘public policy’. Public Policy The principle of public policy is this: ex dolo molo non oritur action. Lord Brougham defines public policy as the principle which declares that no man can lawfully do that which has a tendency to be injurious to the public welfare.” “[55] On the authority of those cases, Philips J. said that ‘it is possible to deduce the following principles underlying this head of public policy: (a) it is generally undesirable that a person in a position to use personal influence to obtain a benefit for another should make a financial charge for using such influence, particularly if his pecuniary interest will not be 89 apparent; and (b) it is undesirable for intermediaries to charge for using influence to obtain contracts of other benefits from persons in a public position.” “[57] Philips J. then went on to say that some heads of public policy are based on universal principles of morality and that when ‘a contract infringes such a rule of public policy the English court will not enforce it, whatever the proper law of the contract and wherever the place of performance: Some heads of public policy are based on universal principles of morality. As Lord Halsbury LC said in Re Missouri Steamship Co [1889] 42 Ch D 321 at page 336: Where a contract is void on the ground of immorality, or is contrary to such positive law as would prohibit the making of such a contract at all, then the contract would be void all over the world, and no civilised country would be called on to enforce it. Where a contract infringes such a rule of public policy the English court will not enforce it, whatever the proper law of the contract and wherever the place of performance. Other principles of public policy may be based on considerations which are purely domestic. In such a case there would seem no good reason why they should be a bar to the enforcement of a contract to be performed abroad.” [58] But there should be no difficulty to place to which head of public policy applies to a contract for the sale of influence, for it is ‘a recognised head of English public policy that the court will not enforce a contract for the sale of influence, and particularly where the influence is to be used to obtain contracts or other benefits from persons in a 90 public position: see Norman v. Cole [1800] 3 Esp 253, Montefiore v Menday Motor Components Ltd [1918] 2 KB 241; [1918-1919] All ER Rep 1188, Lemenda and Tekron Resources v Guinea Investment Co [2003] EWHC 2577 (QB), [2004] 2 Lloyd’s Rep 26’ (Marlwood Commercial Inc v Kozeny; Omega Group Holdings Ltd v Kozeny [2006] EWHC 872 (Comm) per Jonathan Hirst QC, sitting as a deputy judge of the High Court). The ‘….public policy……is that against the upholding of corrupt practices including influence peddling: see Montefiore and Lamenda’ (R v V [2008] EWHC 1531 (Comm) per David Steel J).” “[74] Section 24 is a codification of the English common law. Therefore, it is contrary to Malaysian public policy that a person be hired for money or valuable consideration, to use his position and interest to procure a benefit from a government, as the sale of influence engenders corruption and undermines public confidence in the government, which is inimical to public interest. It was preposterous to submit ‘that when the government officials themselves have no qualms of the widespread practice of awarding contracts or projects to their cronies then surely this practice is acceptable in Malaysia. “[77] There could be no mistake about it, the RM20 m was intended as payment for service rendered by the Respondent to secure the bridge project for the Consortium. But what sort of service was rendered by the respondent? In the instant case, the answer was provided by the respondent. The respondent pleaded that he ‘used his influence and good relationship with the Government of Malaysia to procure the original bridge project (SIG project) for the benefit and interest of the (first appellant). In his amended statement of claim at 164-166 AR, the respondent particularised his close relationship with named Federal Ministers and his dealings with Federal Ministers with 91 respect to the bridge project. But it was not in pleadings alone that influence peddling was admitted by the respondent. In his witness statement (see 564-580 AR), the respondent affirmed his pleaded facts and even provided further details of his influence and the manner in which he exerted his influence and convinced those Federal Ministers (in particular, see 569-571 AR. ‘An agreement, the object of which is to use the influence with the ministers of government to obtain a favourable decision, is destructive of sound and good administration. It showed a tendency to corrupt or influence public servants to give favourable decisions otherwise than on their own merits. Such an agreement is contrary to public policy. It is immaterial, if the persons intended to be influenced are not amendable to such recommendations’ (Mulla Indian Contract and Specific Relief Acts (13th Ed Vol 1) at 702-703). On the facts and on the face of it, it was so plain and obvious that the consideration was unlawful, and that the letter of undertaking was void. On that ground, the claim should have been dismissed.” “[79] For the above reasons, we … answer the leave question, surely obviously, in the affirmative, allow this appeal with costs, affirm, for different reasons, the order of the trial court and set aside the orders of the Court of Appeal.” [emphasis added] [210] This decision was followed by the Court of Appeal in John Ambrose v. Peter Anthony [2017] 4 MLJ 374. In this case, the plaintiff’s claim against the defendants was founded on oral agreements entered into between the plaintiff and the first defendant (the director and majority shareholder of the second defendant company). Pursuant to the oral agreements made 92 between the years 2009 and 2010, the first defendant requested the plaintiff to secure for the benefit of the second defendant two government projects in Labuan and Kota Kinabalu. In consideration of the plaintiff securing the projects for the benefit of the second defendant, the first and second defendants jointly agreed to pay the plaintiff a commission at the rate of 10% of the total contract value of the projects and further sum of RM20,000 per month until the completion of the two projects. When the defendants failed to pay the commissions due to the plaintiff, the latter filed a claim against the defendant for payment of the agreed commissions pursuant to the oral agreements. Tengku Maimunm JCA (as Her Ladyship then was) stated:- “[21] Reference was also made to Mulla Indian Contract Act and Specific Relief Acts (13th Ed, Vol. 1) at pages 702-703 which states: An agreement, the object of which is to use the influence with the Ministers of Government to obtain a favourable decision, is destructive of sound and good administration. It showed a tendency to corrupt or influence public servants to give favourable decisions otherwise than on their own merits. Such an agreement is contrary to public policy. It is immaterial, if the persons intended to be influenced are not amendable to such recommendations. : “[44] In our judgment, it is not necessary that the exact words of ‘used the position and influence and good relationship with the Government of Malaysia’ must emerge in the evidence. Suffice if it emerged in the evidence that the plaintiff had the position, influence and good relationship with the government and had used that 93 position, influence and good relationship to procure the UMS projects for the second defendant from the government. We find such evidence in the following testimony of the plaintiff (record of appeal Part A and B: p. 73).” : “[51] In the instant appeal, it is clear from the evidence that the plaintiff has the position, influence and good relationship with the Prime Minister cum Minister of Finance, Minister of Higher Education and various officers and that it was through the plaintiff’s acquaintance and good relationship with the above personalities that he succeeded in procuring the UMS projects for the second defendant. Hence, notwithstanding the fact that the plaintiff did not state expressly in his evidence that he had used his influence or good relationship with the government, we find that the principles enunciated in Merong Mahawangsa are applicable to the instant appeal. We are thus constrained to uphold the findings of the trial judge that the oral agreements are illegal under Section 24(e) of the Act.” : “[55] The occupation (and thereafter the renovation) of the first defendant’s property by the plaintiff were pursuant to the illegal oral agreements. In our judgments, the parties were in pari delicto when they entered into the illegal oral agreements. As such the plaintiff is not entitled to be restored or compensated for the expenses spent on the renovation of the said property as this is not a case where the contract may be said to be discovered to be void under Section 66 of the Act (see Soh Eng Keng v Lim Chin Wah [1979] 2 MLJ 91; Mustafa bin Osman v Lee Chua [1996] 2 MLJ 141. The loss of the plaintiff shall lie where it falls. [56] We therefore agree with the learned trial judge who had allowed the first defendant’s counterclaim for the 94 recovery of the possession of the property without making an order for restitution of the amount expended by the plaintiff for the renovation.” [emphasis added] [211] Recently, in 2020, the Federal Court in Wong Yee Boon V Gainvest Builders (M) Sdn Bhd was asked to determine whether the ratio decidendi in Merong Mahawangsa can be extended to private arrangements between private parties. In Wong Yee Boon, the subject matter was an introducer agreement between the parties which provided for payment of a fee in the event the plaintiff was successful in procuring a subcontract award for the defendant. The project employer, a government-linked entity, rejected the quotation. The majority judgment of the FC held that the plaintiff failed to fulfil his obligation under the introducer agreement and was therefore not entitled to any payment. Notably, the FC declined to answer the leave question. [212] In the dissenting judgment of Rohana Yusuf FCJ (now PCA), Her Ladyship found that the introducer agreement did not contain any clauses of influence peddling and Merong Mahawangsa cannot apply to the facts of the case. It was held:- “[96] The respondent had not established what was the clear and harmful effect that could be deduced from such an act of circumventing that tender process. … [97] The other aspect of Merong Mahawangsa is this. That the object of the agreement to procure the award of the government project was supported by substantial and cogent evidence, including the admissions by the relevant parties. Whereas the alleged influence peddling in the present appeal is not even 95 stated in the introducer agreement. In any event as alluded to earlier, the introducer agreement does not contain any clause on influence peddling. There is therefore no cogent evidence in support of such peddling. This is yet another reason why Merong Mahawangsa cannot apply to the introducer agreement.” [213] Learned counsel for the Defendant contended that in the present case, the services rendered by Nizam was not in the nature of ‘influence peddling’. The facts in Merong Mahawangsa can be distinguished from the present case. Firstly, the terms of SSA do not contain any express clause on influence peddling. Secondly, unlike the facts in Merong Mahawangsa and Wong Yee Boon v Gainvest Builders, there was no tender exercise for the Scheme. The Scheme was proposed to the GOM by way of written proposals followed by direct negotiations. [214] The consideration as spelt out in Clause 3.02 of the SSA (read together with Clause 4.01) sets out Nizam’s obligations. To be precise, Amin had requested Nizam to provide advisory and liaison services and have discussions as well as negotiations with the GOM and all other relevant government agencies and non-government associations with the sole intention of procuring the Scheme for the Plaintiffs. [215] The object of each of the SSA is clearly for the provision of advisory services to procure the Scheme. The object and consideration is without a doubt lawful and do not fall within the definition of section 24(e) of the CA, 1950. According to learned counsel for the Defendant, the following evidence demonstrates 96 that Nizam had rendered lawful and valuable services towards procuring the Scheme for the Plaintiffs:-

it is common practice to meet with policymakers when it involves direct negotiations concerning a GOM contract. Nizam engaged Amin, Tahir, Ratha and the various GOM agencies. In 2015 and 2016, Nizam attended as many as 30 meetings to discuss the implementation of the Scheme. Nizam marketed and promoted the Scheme to various government officers. In doing so, Nizam and the management team of the Companies met with many people including senior government officers of Home Ministry and the Immigration Department. He continuously arranged many meetings between representatives of the Plaintiffs and the GOM for them to explain the technical aspects of the Scheme and to get feedback for its implementation. As explained by Nizam during cross-examination, Nizam merely acted as a bridge of communication and did not possess and exercise any influence over the GOM officials;

(ii) further, the decision-making process involved multiple Government departments and including those at the very top of the GOM and the Cabinet. The matter was at all material times given the fullest and most careful consideration. This is evident from the delay in getting the Scheme up and running. It is absurd in these circumstances to suggest that Nizam could “influence” the Government officials. Even the Chairman of Bestinet at the material time, the former Minister 97 of Home Affairs, Tan Sri Azmi bin Khalid, had no “influence” over the officials in his former ministry, what more Nizam;

(iii) quite apart from his liaison services, Nizam also provided and facilitated assistance to the Plaintiffs. Nizam provided Tass Tech with a friendly loan in the sum of RM 5 million for the purposes of increasing its paid-up capital from RM10 million to RM 15 million; and

(iv) further, when Bestinet and Tass Tech required financing in the sum of RM 300 million and RM 600 million respectively, Nizam assisted the Plaintiffs to seek out financial assistance from financial institutions on the strength of Jakel’s reputation and standing. This was done with the assistance of Mohd Rizal of Rizal & Associates Sdn Bhd. However, the financing was ultimately not provided or utilized. [216] Based on the aforesaid, learned counsel for the Defendant submitted that Nizam had rendered services and he was successful in his endeavours. The advisory and liaison services rendered by Datuk Nizam to secure the projects cannot be said to have “corrupted or influenced public servants to give favourable decisions otherwise than on their own merits”. As such, the Impugned Agreements cannot be struck down as being illegal and void. [217] With respect to learned counsel for the Defendant, I have in my finding based on the documentary evidence and the oral testimony of the witnesses, come to the following conclusions on the facts: 98 a. Notwithstanding that Nizam had purported to characterise his services to be that of ‘consultant, liaison and adviser’, in truth, he was actually selling his close connection and or association with the Government authorities, particularly, the then Deputy Prime Minister who was also the Home Minister at the material times, whether perceived or actual; b. During the period from the execution of the CSA until the execution of the Impugned Agreements, there was not a single letter introducing Nizam to the GOM as the ‘consultant’ or ‘liaison officer’ or ‘adviser’ to Bestinet or TassTech or Synerflux. Neither was there any minutes of meetings where Nizam had attended in any of that capacity on behalf of the Companies. Nizam also never signed any letters to the GOM on behalf of the Companies; c. There is no dispute that Nizam had neither expertise nor experience in the IT industry and he was not involved at all in the management and or operations of Bestinet, Tass Tech and or Synerflux. In fact, he was not even keen to nominate any directors to the Companies; d. After the CSA were mutually terminated, all pretenses as to Nizam’s services as ‘consultant, liaison and adviser’ was dropped and in the Impugned Agreements, his obligation was solely to secure the Concession Agreements for Bestinet, Tass Tech and Synerflux. Yet, there is absolutely no evidence that Nizam had attended any formal meetings where the terms for the Concession Agreements were being 99 discussed or negotiated by him on behalf of these Companies. How does one fulfill an obligation to secure the award of the Concession Agreements to Bestinet, Tass Tech and Synerflux without engaging with the GOM in the negotiations of the terms? Such negotiations were left to Amin’s team, led by Ratha. Instead, Nizam was content to work in the ‘shadow’; e. I have rejected Nizam’s testimony that his services was needed because Amin and his team was generally disliked and distrust by the Government officers. There is simply no evidence in support of such assertions. On the contrary, Amin and his team had been dealing with the GOM since 2011 before Nizam thrusted himself to the scene without any hint of any such ‘dislike’ or ‘distrust’ in any of the correspondences between the parties. There was in truth no need for Nizam to be the ‘bridge of communication’ as claimed; f. Nizam claimed that he had attended at least 30 meetings with the GOM to discuss the implementation of the FWCMS Scheme. In fact, Nizam was challenged during his cross examination that many of these meetings were really for his other personal or Jakel’s contracts. Suffice it to state that apart from his mere say so, Nizam had not produced any evidence in support of this part of his testimony. Whilst it is not disputed that Nizam did tag along in some meetings between Amin’s team and the GOM, such attendances on Nizam’s part, to my mind, were probably nothing more than a 100 show to Amin of his close connection and or association with the ‘higher ups’ as he had claimed since there is no evidence that he made any contribution of substance at these meetings; g. Similarly, the claim that Nizam had provided his financial backings to Amin is not borne out by the evidence. The injection of RM 5 million into Tass Tech as a friendly loan was according to Amin not requested for in the first place. In any case, this said sum was repaid within the next few days. More significantly, it seems clear that Amin and his Companies never needed any financing for the FWCMS projects. That this was so can be seen from the fact that even though Rizal & Associates were unable to raise the funds, there was no impact at all to the implementation of the Scheme. [218] The aforesaid together with my holding that Nizam did in fact convey to Amin at their first meeting in mid-May 2015 of his close connection with ‘powerful persons’ in the GOM as well as his conduct displaying his clout over the GOM alluded above, namely where the Letters of Intent could only be collected by him and securing the handwritten notation of the Home Minister directing the foreign workers’ scheme to be given to his company, FWCMS Sdn Bhd (to cite just 2 such instances) lead me to conclude that on the balance of probabilities Nizam was in fact and in truth peddling his influence over the GOM as consideration for the Impugned Agreements. 101 [219] Based on the authority of Merong Mahawangsa (supra), I therefore hold that the Impugned Agreements are void for illegality and against public policy under section 24(e) of the Contracts Act 1950. [220] Learned counsel for the Defendant contended that even if illegality is found in the transactions thereby rendering the Impugned Agreements void, the Plaintiffs cannot recover the shares which were transferred to the Defendant as it is trite that an illegal transaction cannot be enforced. [221] In cases where the plaintiff enters into the illegal transaction by innocent mistake or where the plaintiff was induced to enter into the illegal transaction by fraud, undue influence or duress so as to render the plaintiff an innocent party, the law may set about reversing the consequences, financial or proprietary, of the transaction so far as the parties have given effect to them. However, if a plaintiff has knowingly paid over money or handed over a property in pursuance of an illegal contract, the Court will simply decline to have anything to do with it. The first approach seeks to regulate the consequences of the illegal transaction, so as to put the parties so far as possible in the position they would have been in had the transaction never occurred. Public policy favours granting reliefs to the innocent plaintiff as they were not a party to the wrongdoing. The second simply withholds all legal remedies and generally leaves the loss to lie where it falls [See: Singma Sawmill Co Sdn Bhd v Asian Holdings (Industrialised Buildings) Sdn Bhd [1980] 1 MLJ 21 (FC)]. 102 [222] According to learned counsel for the Defendant, it is the second approach that applies to this case. The loss must lie where it falls. [223] Again, with respect, this contention however is based on the assumption that there is no evidence of undue influence, coercion or duress so as to render the Plaintiffs an innocent party. This is not the case based on my finding of the facts. [224] In any case the new approach to the doctrine of illegality is that stated by the UK Supreme Court in Patel v. Mirza [2016] AC 467, [2016] UKSC 42 where Lord Toulson laid down the three considerations to be applied when allowing a party to a contract tainted by illegality to recover monies paid under the law of unjust enrichment. The trio of considerations referred to is set out at para [101] in the judgment of Lord Toulson: ‘I would say that one cannot judge whether allowing a claim which is in some way tainted by illegality would be contrary to the public interest, because it would be harmful to the integrity of the legal system, without a) considering the underlying purpose of the prohibition which has been transgressed, b) considering conversely any other relevant public policies which may be rendered ineffective or less effective by denial of the claim, and c) keeping in mind the possibility of overkill unless the law is applied with a due sense of proportionality. We are, after all, in the area of public policy. That trio of necessary considerations can be found in the case law.’ [225] This trio of considerations has been accepted by the Federal Court as applicable in Malaysia in Liputan Simfoni Sdn Bhd v 103 Pembangunan Orkid Desa Sdn Bhd [2019] 4 MLJ 141 at [115], [118], FC. [226] The Plaintiffs are seeking restitution or the re-transfer of the shares in the Companies that were transferred to Nizam or the Defendant under the Impugned Agreements. The Plaintiffs based their claim on unjust enrichment. [227] It is settled law that a cause of action based on unjust enrichment will give rise to restitutionary relief where the following elements are satisfied:-

the defendant must be enriched;

the enrichment must be gained at the plaintiff’s expense;

the retention of the benefit was unjust; and

there must be no defence available to extinguish or reduce the defendant’s liability to make restitution. [See: Dream Property Sdn Bhd v Atlas Housing Sdn Bhd [2015] 2 MLJ 441 (FC)] [228] To my mind, it is plain that Nizam has indeed been enriched in this case and the enrichment was at the Plaintiffs’ expense. By all account, the Plaintiffs were progressing well on their own merits with their negotiations with the GOM on the Scheme and were already implementing some of the modules under the FWCMS. Nizam, on the other hand, by use of unlawful and illegitimate means had pressured the Plaintiffs to transfer their respective shares in the Companies to Nizam and or the Defendant. Nizam 104 offered no consideration for the shares except to undertake not to exercise his influence and close connection with the ‘higher ups’ to prevent the Companies from securing the Concession Agreements. In such a circumstance, it will clearly be unjust to permit Nizam or the Defendant to retain the shares. [229] There is no defence that Nizam or the Defendant can rely on to extinguish or reduce the liability to make restitution. To permit the Plaintiffs their claims for the return of their shares, notwithstanding the illegality of the Impugned Agreements, will not be harmful to the integrity of our legal system at all. The underlying purpose for treating the Impugned Agreements illegal and null and void for influence peddling is that such contracts are destructive of sound and good administration of the country. They show a tendency to corrupt or influence public servants to give favourable decisions otherwise than on their own merits. The use of such influence to threaten interfering with the GOM’s decision to award contracts in order to extract monetary benefits for oneself is not only offensive but undermines public confidence in our government administration. [230] Thus, to permit the Plaintiffs to claim for the shares based on a cause of action for unjust enrichment will not diminish the underlying reasons for prohibiting such influence peddling contracts. The contrary is in fact the case. [231] I am also of the opinion that there are no other relevant public policies which may be rendered ineffective or less effective if this Court were to allow the Plaintiffs’ said claim for unjust enrichment. 105 On the contrary, if the Plaintiffs’ claims are denied, it would make a mockery of the Court’s condemnation of influence peddling contracts as the perpetrator would end up in this case with the very thing that he had sought for in exchange for exercising his influence. [232] Finally, to allow the Plaintiffs to have their respective shares in the Companies return to them would not be a disproportionate response in this case as the parties are merely placed in their original position prior to the Impugned Agreements. Exemplary Damage [233] Learned counsel for the Plaintiffs has urged this Court to also make an order for exemplary damages against the Defendant given Nizam’s repugnant and mala fide conduct in this case. [234] On the question of exemplary damages, I will begin by referring to the oft-cited description of exemplary damages from Mayne & McGregor on Damages, 12th Ed: ‘Such damages are variously called punitive damages, vindictive damages, exemplary damages, and even retributory damages. They can apply only where the conduct of the defendant merits punishment, which is only considered to be so where his conduct is wanton, as where it discloses fraud, malice, violence, cruelty, insolence or the like, or, as it is sometimes put, where he acts in contumelious disregard of the plaintiff’s rights.’ 106 [235] An award of exemplary damages is intended to punish the defendant for conduct showing a conscious, contumelious and outrageous disregard for the plaintiff’s rights and to deter him from committing like conduct again. [236] The locus classicus on exemplary damages is the judgment of Lord Devlin in Rookes v. Barnard [1964] AC 1129 where His Lordship propounded two categories of circumstances where exemplary damages could be awarded: a. oppressive, arbitrary or unconstitutional action by the servants of the government; and b. cases where defendant’s conduct had been calculated by him to make a profit for himself which may well exceed the compensation payable to the plaintiff. [237] For the second category, Lord Devlin stated that: ‘Where a defendant with a cynical disregard for a plaintiff’s rights has calculated that the money to be made out of his wrongdoing will probably exceed the damages at risk, it is necessary for the law to show that it cannot be broken with impunity. This category is not confined to moneymaking in the strict sense. It extends to cases in which the defendant is seeking to gain at the expense of the plaintiff some object.’ [238] In addition to the aforementioned categories, Lord Devlin also propounded three considerations to be taken into account when awards of exemplary damages are being considered: 107 i. the plaintiff cannot recover exemplary damages unless he is the victim of the punishable behaviour; ii. the power to award exemplary damages must be used with restraint; and iii. the means of the parties are material in the assessment of exemplary damages. [239] The aforesaid principles have been applied by our Court of Appeal in Tradewinds Properties Sdn Bhd v Zulhkiple bin A Bakar & Ors [2019] 1 MLJ 421 and Sambaga Valli a/p KR Ponnusamy v Datuk Bandar Kuala Lumpur & Ors and another appeal [2018] 1 MLJ 784. [240] More specifically, in Sambaga Valli (supra), the Court of appeal held as follows: “[33] The exemplary damages or punitive damages—the two terms now regarded as interchangeable—are additional damages awarded with reference to the conduct of the defendant, to signify disapproval, condemnation or denunciation of the defendant’s tortious act, and to punish the defendant. Exemplary damages may be awarded where the defendant has acted with vindictiveness or malice, or where he has acted with a ‘contumelious disregard’ for the right to the plaintiff. The primary purpose of an award of exemplary damages may be deterrent, or punitive and retributory, and the award may also have an important function in vindicating the rights of the plaintiff (see Rookes v Barnard [1964] 1 All ER 347; … Broome v Cassell & Co [1971] 2 QB 354 …)” 108 [241] The Court of Appeal in Sambaga Valli also applied the 3 principles considerations in assessing the quantum of exemplary damages in the case. It was also emphasised by the court that: “… exemplary damages are not intended to compensate the plaintiff and are not recoverable as a matter of right. The amount of the exemplary damages award is left to the judge’s discretion and is determined by considering the character of the defendant’s misconduct, the nature and extension of the plaintiff’s injury and the means of the defendant. The quantum of exemplary damages to be awarded must be appropriate to the wrongdoing inflicted to the parties involved.” [242] Applying the aforesaid principles to the present case, I do agree that this is indeed a proper case where exemplary damages ought to be imposed. Nizam’s main objective was to extract money to be derived by the Plaintiffs from the Scheme. He contributed nothing to the Scheme but wanted the benefits from efforts put in by the Plaintiffs. In carrying out his objective, Nizam blatantly blackmailed the Companies into giving him exorbitant amounts and substantial control over the Companies. His actions had inflicted fear, distress and hopelessness upon Amin and the Plaintiffs. Such actions also would have a crippling effect on the ability of meritorious companies dealing with the GOM. If exemplary damages is not awarded, Nizam would come out of this episode no worse off as he never had the shares of the Companies to begin with. [243] Accordingly, I order that the Defendant to pay each of the Plaintiffs in Suit 141, Suit 267 and Suit 268 a sum of RM 109 500,000.00 as exemplary damages. Given Nizam’s financial means and his odious conduct in this case, the quantum is reasonable and just. Conclusion [244] In conclusion, I hold that the Plaintiffs have established their respective cases on the balance of probabilities and the Defendant has failed in her counterclaims. I hereby set out the orders of this Court in respect of the 3 suits as follows: In respect of Suit 141: a. A declaration that the Share Sale Agreement dated 20.10.2017 and the Variation Agreement dated 1.3.2018 are null and void and not binding on JR Joint Resources Sdn Bhd; b. A declaration that the Profit Guarantee Agreement and the Shareholders’ Agreement both dated 20.10.2017 are null and void and not binding on JR Joint Resources Sdn Bhd; c. a declaration that the transfer by JR Joint Resources Sdn Bhd of its 2,450,000 ordinary fully paid up share in Bestinet Sdn Bhd (constituting 49% of the shareholding in Bestinet Sdn Bhd) to the Defendant is null and void; d. the Defendant do return and transfer back to JR Joint Resources Sdn Bhd the said 2,450,000 ordinary fully paid 110 up share in Bestinet Sdn Bhd (constituting 49% of the shareholding in Bestinet Sdn Bhd) to JR Joint Resources Sdn Bhd forthwith; e. the Senior Assistant Registrar of the High Court be authorised to execute any instrument of transfer of the aforesaid shares if the Defendant fails, neglects or refuses to do within 7 days of the request from JR Joint Resources Sdn Bhd; f. the Defendant do pay JR Joint Resources a sum of RM 500,000.00 as exemplary damages; g. the Defendant do pay JR Joint Resources Sdn Bhd costs of RM 120,000.00 subject to allocator; h. Interest at the rate of 5 % per annum on the sum of RM 500,000.00 and RM 120,000.00 from the date of this judgment and full realisation; i. The Defendant’s counterclaim is dismissed. In respect of Suit 267: a. A declaration that the Share Sale Agreement dated 20.10.2017 is null and void and not binding on Mohd Zaki bin Jaafar; 111 b. A declaration that the Profit Guarantee Agreement and the Shareholders’ Agreement both dated 20.10.2017 are null and void and not binding on Mohd Zaki bin Jaafar; c. a declaration that the transfer by Tass Tech Sdn Bhd of its 10,500,000 ordinary fully paid up share in Tass Tech Sdn Bhd (constituting 70% of the shareholding in Tass Tech Sdn Bhd) to the Defendant is null and void; d. the Defendant do return and transfer back to Mohd Zaki bin Jaafar the said 10,500,000 ordinary fully paid up share in Tass Tech Sdn Bhd (constituting 70% of the shareholding in Tass Tech Sdn Bhd) to Mohd Zaki bin Jaafar forthwith; e. the Senior Assistant Registrar of the High Court be authorised to execute any instrument of transfer of the aforesaid shares if the Defendant fails, neglects or refuses to do within 7 days of the request from Mohd Zaki bin Jaafar; f. the Defendant do pay Mohd Zaki bin Jaafar a sum of RM 500,000.00 as exemplary damages; g. the Defendant do pay Mohd Zaki bin Jaafar costs of RM 120,000.00 subject to allocator; h. Interest at the rate of 5 % per annum on the sum of RM 500,000.00 and RM 120,000.00 from the date of this judgment and full realisation; 112 i. The Defendant’s counterclaim is dismissed. In respect of Suit 268: a. A declaration that the Share Sale Agreement dated 20.10.2017 and the Variation Agreement dated 1.3.2018 are null and void and not binding on SH Yahya bin SH Mohamed ; b. A declaration that the Profit Guarantee Agreement and the Shareholders’ Agreement both dated 20.10.2017 are null and void and not binding on SH Yahya bin SH Mohamed; c. a declaration that the transfer by SH Yahya bin SH Mohamed of its 7,000,000 ordinary fully paid up share in Synerflux Sdn Bhd (constituting 70% of the shareholding in Synerflux Sdn Bhd) to the Defendant is null and void; d. the Defendant do return and transfer back to SH Yahya bin SH Mohamed the said 7,000,000 ordinary fully paid up share in Synerflux Sdn Bhd (constituting 70% of the shareholding in Synerflux Sdn Bhd) to SH Yahya bin SH Mohamed forthwith; e. the Senior Assistant Registrar of the High Court be authorised to execute any instrument of transfer of the aforesaid shares if the Defendant fails, neglects or refuses 113 to do within 7 days of the request from SH Yahya bin SH Mohamed; f. the Defendant do pay SH Yahya bin SH Mohamed a sum of RM 500,000.00 as exemplary damages; g. the Defendant do pay SH Yahya bin SH Mohamed costs of RM 120,000.00 subject to allocator; h. Interest at the rate of 5 % per annum on the sum of RM 500,000.00 and RM 120,000.00 from the date of this judgment and full realisation; i. The Defendant’s counterclaim is dismissed. Dated the 26th day of August 2021 ONG CHEE KWAN Judicial Commissioner High Court of Kuala Lumpur, NCC2 114 COUNSEL:

Tan Sri Tommy Thomas with Mr. Shanmuga A/L A. Kanesalingam, Mr. Jeya Kumar A/L Vaithilingam and Mr. Jonas Lee Fook Khong for Plaintiffs (in all 3 suits)

Mr. Porres Royan with Dato' Chornalingam, Sri Kumar, Mr. Shaarvin Raaj A/L Selva Kumar and Ms. Roobini Stephanie Sittampalam for Defendant (in all 3 suits) Messrs. Kumar Partnership (Kuala Lumpur)

Pao On v. Lau Yiu Long [1980] AC 614 2. Lynch v DPP of Northern Ireland [1975] AC 653 3. Universe Tankships Inc. of Monrovia v. International Transport Workers Federation and Others [1983] 1 A.C.

OCBC Securities (Melaka) Sdn Bhd v Koh Kee Huat [2004] 2 MLJ

Hart v. O’ Connor [1985] 2 All ER 880 6. Occidental Worldwide Investment Corp. v. Skibs AS Avanti, Skibs AS Glarona, Skibs Navalis [1976] 1 Llyod’s Law Reports 293 7. Montefiore v. Menday Motor Components Company, Limited [1918] 2 KB 241 8. Merong Mahawangsa Sdn Bhd v. Dato’ Shazry Eskay bin Abdullah [2015] 5 MLJ 619 9.

John Ambrose v. Peter Anthony [2017] 4 MLJ 374 Wong Yee Boon v Gainvest Builders (M) Sdn Bhd [2020] 3 MLJ 571

Singma Sawmill Co Sdn Bhd v Asian Holdings (Industrialised Buildings) Sdn Bhd [1980] 1 MLJ 21 (FC) 115

Patel v. Mirza [2016] AC 467

Liputan Simfoni Sdn Bhd v Pembangunan Orkid Desa Sdn Bhd [2019] 4 MLJ 141

Dream Property Sdn Bhd v Atlas Housing Sdn Bhd [2015] 2 MLJ

Rookes v. Barnard [1964] AC 1129

Tradewinds Properties Sdn Bhd v Zulhkiple bin A Bakar & Ors [2019] 1 MLJ 421

Sambaga Valli a/p KR Ponnusamy v Datuk Bandar Kuala Lumpur & Ors and another appeal [2018] 1 MLJ 784

Section 24(e) of the Contracts Act 1950.