Tan Sri Dato' Kam Woon Wah v 1. ) Dato' Sri Andrew Kam Tai Yeow (WA-22NCvC-822-12/2021)

DATO’ SRI ANDREW KAM TAI YEOW (No. K/P: 620202-10-6039)

HANNAH KAM ZHEN YI (No. K/P: 911130-14-5118) … DEFENDAN-DEFENDAN GROUNDS OF DECISION [Encl. 4: Plaintiff’s Application for Injunctive relief] [1] This is the hearing of an application in Encl. 4 on the part of the Plaintiff abovenamed, upon the Plaintiff through his counsel undertaking to abide by any order the Court or a Judge may make as to damages in case the Court or a Judge should hereafter be of opinion that the Defendants shall have sustained any by reason of the order to be made herein which the Plaintiff ought to pay, for an order as follows: 30/05/2025 11:13:32

That the Defendants and each of them by themselves their solicitors or agents or servants or otherwise be restrained and an injunction be granted restraining them and each of them from making any application under Section 52 of the Mental Health Act 2001 or commencing any proceeding under the Mental Health Act 2001 against the Plaintiff pending the final disposal of this suit;

That in the event the Defendants or any of them have commenced any proceeding under the Mental Health Act 2001 against the Plaintiff as at the date of the order to be made herein, the Defendants and each of them by themselves their solicitors or agents or servants or otherwise be restrained and an injunction be granted restraining them and each of them from taking any further steps in such proceeding pending the final disposal of this suit;

That a penal notice in Form 83 (b) of the Rules of Court 2012 be indorsed on the order to be made herein;

That the costs of this application be paid by the Defendants to the Plaintiff;

Further or other orders or directions as this Court deems fit and proper. [2] The grounds of this application are as follows:

There are, at the time of the filing of this suit, several ongoing suits and/or appeals and/or legal proceedings between the Plaintiff and the respective Defendants;

In several letters written by solicitors for the Defendants, inter alia, the Courts, the Defendants have alleged that the plaintiff is suffering from mental illness and/or is incapable of managing his affairs. The Defendants have threatened to institute proceedings under the Mental Health Act 2001 against the Plaintiff;

The Defendants having failed in several of the proceedings, and in particular the 1st Defendant being financially straitened, in a desperate attempt to scuttle the suits and judgments against him, is seeking to file proceedings against the Plaintiff under the Mental

The Plaintiff is and was at all material times fully compos mentis and entirely capable of managing his affairs and those of the companies of which he is in charge (as confirmed by a Psychiatric Report dated 16 December 2021);

The material on which the Defendants propose to rely is wholly unreliable and spurious by reason of which:

the Plaintiff has an exceptional and unusually strong case against the Defendants;

(ii) any proceedings that are contemplated by the Defendants against the Plaintiff will be prima facie frivolous, vexatious, oppressive and an abuse of the process of this Court;

(iii) a similar injunction will probably be granted at the trial;

(iv) it is just and equitable that the Plaintiff's interest be protected by immediate issue of an interlocutory injunction, otherwise he will suffer irreparable injury and inconvenience;

the balance of convenience is in favor of preserving the status quo pending the disposal of this suit; and

(vi) other grounds stated in the Affidavit in Support of Tan Sri Dato’ Kam Woon Wah affirmed and filed herein. [3] The cause papers filed in relation to Encl. 4 are as follows: a) Plaintiff’s Affidavits in Support (Encl. 5 and 6) and Affidavits in Reply (Encl. 34, 35, 40, 43 and 83); b) 1st Defendant’s Affidavits in Reply (Encl. 26, 27, 28, 29 (Additional) and 31 (Expert Affidavit of Dr. Bharathi Vengadasalam dated 28.1.2022) and Affidavits in Reply (Encl. 36 and 78); c) 2nd Defendant’s Affidavit in Reply (Encl. 25); d) Plaintiff’s Written Submissions, Submissions in Reply and Bundle of Authorities (Encl. 11, 12, 45, 46, 53, 54 and 215); e) 1st Defendant’s Written Submissions, Submissions in Reply and Bundle of Authorities (Encl. 47, 48, 55, 56 and 216); and f) 2nd Defendant’s Written Submissions, Submissions in Reply and Bundle of Authorities (Encl. 49, 50, 57 and 58). Background [4] On 27.12.2021 (Encl. 66), upon hearing inter-partes, the Court granted an Ad Interim Order and thereby ordered and directed that the Defendants and each of them by themselves or agents or servants or otherwise be restrained, an injunction is hereby granted restraining them and each of them from taking any further steps in the proceeding commenced by the 1st Defendant under the Mental Health Act 2001 (MHA 2001) against the Plaintiff save and except upon the Plaintiff’s counsel undertaking that the 1st Defendant shall be at liberty to take all steps (including making ancillary applications) to oppose the striking out application filed by the Plaintiff herein in OS No. WA-24 NCvC-2619-12/2021 until the disposal of this application (Encl. 4: Plaintiff’s Application for Injunctive relief) on 18.3.2022. The written grounds of judgment dated 6.3.2022 (Encl. 60) is incorporated in the Plaintiff’s Bundle of Authorities (Encl. 70 Tab. 3). [5] By Order of Court on 29.4.2025, the 2nd Defendant’s Application to Set Aside Ad Interim Injunction (Encl. 32) was thereby dismissed with costs of RM5,000 to be paid forthwith by the 2nd Defendant to the Plaintiff. Submissions by the Plaintiff [6] The Plaintiff, aged 92 (in 2021 when Encl. 11 was filed on 24.11.2021) is an advocate and solicitor but not in active practice. The 1st Defendant is the biological son of the Plaintiff and the 2nd Defendant is the 1st Defendant’s daughter. However their relationships broke down and the Plaintiff eventually disowned and disinherited the Defendants. [7] The Plaintiff produced evidence to demonstrate that he was fully compos mentis and entirely capable of managing his affairs and those companies of which he is in charge as follows:

the Plaintiff’s and sister affidavit dated 10.12.2021 (Encl. 5); and

Report by Dr. Deva Dass, Consultant Psychiatric dated 16.12.2021 (Encl. 5) confirming that the Plaintiff has no identifiable psychiatric or neurological disorders, and that he is able to live an active life and be very involved with his business and life. The report of Dr. Deva Dass constitutes clear evidence that the Plaintiff has been examined by a consultant psychiatrist who has confirmed that he is compos mentis. Submissions by the 1st Defendant [8] The 1st Defendant has submitted as follows:

The Plaintiff's claim does not disclose a serious question to be tried;

There is no cogent evidence that the Plaintiff is compos mentis;

The Mental Health OS is the more appropriate forum;

The Plaintiff is unlikely to succeed at trial; and

Encl. 4 is barred by Section 54 of the Specific Relief Act 1950. [9] Despite the decision of the Court of Appeal in Civil Appeal No. W- 02(IM)(NCvC)-392-03/2023, it does not warrant a blatant and immediate injunction to any and all applications under the Mental Health Act 2001 and the circumstances of this case must still be adjudicated independently. Test for an Interlocutory Injunction [10] From the authorities of American Cynamid CO v. Ethicon Ltd [1975] 1 AII ER 504, Keet Gerald Francis Noel John v. Mohd Noor bin Abdullah & Ors [1995] 1 MLJ 193 & AV Asia Sdn Bhd v. Measat Broadcast Network Systems Sdn Bhd [2014] 3 MLJ 61, it can be summarised that the material questions that the Court must ask itself when considering whether an Interlocutory Injunction sought to be granted are:

whether the Plaintiff’s claim discloses a bona fide serious issue to be tried;

whether damages would be an adequate remedy; and

whether the balance of convenience lay in favour of granting or dismissing the injunction application. [11] The 1st Defendant submits that the Plaintiff has clearly failed to meet the threshold as follows:

There is no cogent evidence that the Plaintiff is compos mentis;

The Plaintiff’s Application is barred by section 54 of the Specific

The Plaintiff has not adequately proven as to how he would suffer any damage, what more that any purported damage could not be adequately compensated by damages. Submissions by the 2nd Defendant [12] The first prayer is for quia timet injunction, to essentially prevent the Defendants from filing an action under the MHA 2001 and given that such an action has been filed by the 1st Defendant this is now redundant. The second prayer is to prevent the Defendants from proceeding with any action that has been commenced against the Plaintiff. [13] The Mental Health suit has already been commenced against the 1st Defendant only. Corollary to this, a party seeking an injunction must have an identifiable cause of action against the other. The 2nd Defendant is not a party to the MHA suit and there is no cause of action pleaded against the 2nd Defendant. The Law [14] The criteria for granting an interlocutory injunction is well settled and has been summarized succinctly in the case of Keet Gerald Francis Noel John v. Mohd. Noor @ Harun Bin Abdullah & 2 Ors. [1995] 1 CLJ 292 as follows:

there must be a serious question to be tried;

whether damages are an adequate remedy; and

balance of convenience. [15] The Court of Appeal in the case of Mobikom Sdn. Bhd. v. Inmiss Communications Sdn. Bhd. [2007] 3 MLJ 316 at p. decided that a Court has jurisdiction and power to grant an Anti-suit Injunction whenever the interests of justice call for or demand it. [16] The Court of Appeal in the case of Tan Kok Tong v. Hoe Hong Trading Co. Sdn. Bhd. Communications Sdn. Bhd. [2007] 4 MLJ 355 at p. 359 decided as follows: “[6] Every Court has inherent jurisdiction to prevent an abuse of its process. It is a jurisdiction that is essential to ensure that the Court’s process is not used for a collateral purpose; that is to say a purpose other than to obtain redress for a genuine grievance.” [17] In the case of PPES Resorts Sdn. Bhd. v. Keruntum Sdn. Bhd. [1990] 1 MLJ 436 at pp. 357 & 440, the High Court decided that every Court has inherent jurisdiction to prevent an abuse of its process and that a quia timet injunction is a proceeding by which the court is enabled to prevent its jurisdiction from being stultified. Section 54 (b) of the Specific Relief Act 1950 does not muzzle the court in any way from granting an interlocutory injunction in the nature of quia timet to restrain a person from instituting or prosecuting a proceeding in an appropriate case. Analysis and Decision [18] The Ad Interim Injunction orders were granted by this Court after an inter-partes hearing, hence it is not open to the 2nd Defendant to apply to set it aside. [19] On 18.3.2022 (Encl. 67), upon hearing inter-partes, the Court granted an Ad Interim Order and thereby ordered and directed that the Ad Interim Injunction dated 27.12.2021 be extended until the disposal of the Notice of Application dated 20.12.2021 (Encl. 4) on 13.4.2022. [20] On 27.5.2022 (Encl. 97), upon hearing inter-partes, the Court granted an Ad Interim Order and thereby ordered and directed that the Ad Interim Injunction dated 27.12.2021 be extended until the final disposal of the Notice of Application dated 20.12.2021 (Encl. 4) at the High Court. [21] On 10.1.2022 (Encl. 19), the 1st Defendant filed a Notice of Appeal at the Court of Appeal against the Ad Interim Injunction granted on 27.12.2021. On 13.1.2022 (Encl. 24), the 2nd Defendant filed a Notice of Appeal against the Ad Interim Injunction granted on 27.12.2021. The appeal in Mahkamah Rayuan Sivil No. W-02 (IM) (NCV)-115-01/2022 was unanimously dismissed with costs of RM5,000.00 subject to allocatur on 15.12.2022 (Encl. 25). [22] Encl. 4 is the Plaintiff’s application for an injunction to restrain the Defendants from commencing or proceeding with any application under the MHA 2001 against him. The 1st Defendant proceeded to file Originating Summons No. WA-24NCvC-2619-12/2021 under the MHA 2001 against the Plaintiff. The Plaintiff has produced irrefutable evidence that the Defendants’ allegations of his mental incapacity and OS 2619 are mala fide and an abuse of process. Such allegations and OS 2619 have been designed to scuttle litigations between the parties and/or avoid liability. OS 2619 was struck out on 10.2.2023 upon the Plaintiff’s application and thereafter the Defendants’ appeal to the Court of Appeal in W-02(IM)(NCvC)-393-03/2023 was dismissed on 22.10.2024. [23] The Court finds that the argument ventilated by the 1st Defendant in the submissions (Encl. 48 para. 40) that the question of the Plaintiff’s mental capacity ought to be determined in the Mental Health OS in accordance with the MHA 2001 and not summarily by ancillary proceeding is now made academic in the light of the Court of Appeal decision on 22.10.2024. The submissions (Encl. 48 para. 50) urging the Court to refuse the injunctive relief sought by the Plaintiff in Encl. 4 and allow the necessary inquiries to take place in the Mental Health OS is also made academic. [24] The Plaintiff has established a prima facie case that any proceedings under the Mental Health Act 2001 that are contemplated by the Defendants against him will be frivolous, vexatious, oppressive and an abuse of the process of this Court. [25] The Defendants do not have any medical evidence to support their allegations that the Plaintiff has suffered from mental incapacity or is unable to manage his affairs. [They relied on material which is unreliable and spurious.] Their allegations have been proven wrong by a Consultant Psychiatrist's Report. (supra Encl. 5). [26] The Plaintiff is not required in law to produce any evidence to prove his mental capacity in view of the presumption of capacity/sanity for every adult. The English High Court decided in the case of Gorjat v. Gorjat [2010] EWHC 1537 (Ch) as follows: “139. Finally, at common law, the burden of proving lack of mental capacity lies on the person alleging it. To put the matter another way, every adult is presumed to have mental capacity to make the full range of lifetime decisions until the reverse is proved.” [27] Based on the foregoing reasons, the Court is of the considered view that it is just and equitable for the Plaintiff's interest be protected by immediate issue of an injunction to be granted restraining the Defendants from making any application under Section 52 of the MHA 2001 or commencing any proceeding under the MHA 2001 against the Plaintiff pending the final disposal of this suit. [28] The mere filing of a proceeding under the Mental Health Act 2001 (including an application under Section 52 thereof) against the Plaintiff will subject him to public ridicule, odium and contempt. The stigma that will result from such proceeding will cause the Plaintiff irreparable harm, injury and inconvenience. It will also pave the way for the Defendants to halt the legal proceedings between them and escape liability from judgments obtained by the Plaintiff. [29] The Court has jurisdiction and power to grant an Anti-suit Injunction in order to prevent any abuse of its process. Consequently, the Court finds that the balance of convenience is tilted in favour of preserving the status quo by the grant of the injunction prayed for in the Plaintiff's application herein pending the disposal of this suit. Conclusion [30] Based on the foregoing reasons, Encl. 4 is hereby allowed with costs of RM10,000.00 to be paid forthwith by the Defendants to the Plaintiff. Dated 29 April 2025. sgd ………………………………………….. (EDDIE YEO SOON CHYE) Judicial Commissioner High Court of Malaya Kuala Lumpur COUNSEL Solicitors for the Plaintiff Mr. Y. C. Wong (Ms. Hannah Yeoh Yi Han with him) Messrs. Y. C. Wong Kuala Lumpur. Solicitors for the Defendants Mr. Lim Wei Jiet (Mr. Nevyn Vinosh Venudian with him) Messrs. Lim Wei Jiet Kuala Lumpur.