Tay Chee Huat v Teh Teik Hup (JA-24-10-09/2019)

TEH TEIK HUP

TEY TIAN HWANG

TAY KOK YONG

PENDAFTAR PERTUBUHAN MALAYSIA (bagi pihak Jabatan Pendaftaran Pertubuhan Malaysia Negeri Johor) …DEFENDANTS GROUNDS OF JUDGMENT (Enclosure 1)

This is a suit by Plaintiff seeking for a declaration that the Plaintiff and 2 other individuals known as Tey Kiang Hoe and Tay Chee Boon be recognized respectively as President, Secretary and Treasurer. Plaintiff and the other 2 are then, identified as “Team A” due to the split in the unity of the clans, in the South Johor Tay Association (hereafter referred to as “PTJS”).

The Plaintiff also sought for leave to permit the Plaintiff as President of the Association to hold an Annual General Meeting (“AGM”) or Extraordinary General Meeting for the purpose of: a. voting, selecting and appointment of new office-bearers of the Association; b. The compliance with the Statutory Notice dated 26.8.2019 issued by D4 or any other Statutory Notice issued by virtue of section 13 and/or section 16 of the Societies’ Act 1966 be stayed until the above AGM or EOGM is performed and completed.

It is to be observed that when reference is made to certain terms, parties have used them interchangeably to refer to one and the same thing. “Council Meeting” (“CM”) for example also refers to “Management Committee Meeting” (see: enclosure 64 at page 11 pdf. “Notice of Convene the 9th Council Meeting of 22nd Term Council PTJS 92015-2016 Date: 18 June 2016” and page 12.pdf “Minutes of 9th Management Committee Meeting of PTJS Date:

18.6.2016”. B. Facts & Issues: Findings by this Court

PTJS was registered on 11.9.1973. The Plaintiff of Team A was appointed as Chairman@ President at an AGM on 22.4.2015. During the first Council Meeting 2015/2016 on 22.3.2015, the Plaintiff was elected as office-bearers together with Tey Kiang Hoe who was the General Secretary. Their term would expire on 31.12.2016 (see: enclosure 63 of the List of Office-bearers lodged with D4 ROS).

Various events were discussed and decisions arrived at in the subsequent Council Meetings. In a meeting held on 11.6.2015, it was agreed that 45th Anniversary magazine of PTJS be published and a journalist by the name of Ang Lai Kui be appointed as the Executive Editor of the project.

In another Council meeting held on 14.1.2016, it was agreed that the publication fee of RM50,000.00 for souvenir program would be sourced through donations and 1000 copies of the magazine would be published for the 45th Anniversary Souvenir Program. Another AGM for a new term of 2016 was then held on 13.3.2016 followed by a CM. C. The 1st Council Meeting 2016 held by Team A

The 2016 AGM was held on 13.3.2016 with the proposal to publish the 45th Anniversary Souvenir program being tabled and passed. With the 2016 AGM held, the first Council meeting for the new term was held on 30.3.2016. There were many decisions made by the appointed office bearers of Team A, that were either disputed or faced with counter-proposals by the Defendant 1-3 (identified hereafter as “Team B”).

Evidence was adduced that one member of Team B offered to manage the editorial work for the souvenir program at a cost of RM8,000.00, lesser than RM25,000.00 awarded, the awarded sum said to be extravagant. A point was also raised that Team A had permitted a greater number of members to attend the dinners organized by other Associations. This goes against the usual practice of sending only 2, resulting in more expenditure incurred by PTJS. There is no denying that the practice in limiting to only 2, is in fact in accordance with the Constitution of PTJS.

The Council meeting held on the 30.3.2016 saw a crack in the tie between PTJS’s members splitting them into 2 clans, when its validity became the focus of the dispute. The Plaintiff who was then identified as “Team A” took the stand then, that 10 committee members present constituted a sufficient quorum, relying on Rule 15(a) of the Chinese version of the Constitution.

To the contrary and contended by Team A as being unaware, the English version of the Constitution, (this being the official one registered with ROS: see enclosure 66 of D4’s BOD) stipulates something else. The English version states that the quorum to hold a committee meeting “shall be half of the number of AJK Members”. The AJK Members at the material time was 25, hence the required quorum to conduct the committee meeting would be 13.

The Defendants (D1-D3) Team B contended that even relying on the Chinese version of the Constitution, there were only 9 AJK Members who attended. This goes against what was pleaded by the Plaintiff Team A, that 10 AJK Members attended the meeting on 30.3.2016. The insufficient number of quorums caused a stir, then, as decisions as highlighted earlier, were made in that said committee meeting. Hence, the validity of any decisions arrived at and the status of any resolutions made in that 30.3.2016 meeting is disputed by Team B.

Having recognized the insufficient number of quorums, moved the Plaintiff to declare in the subsequent CM held on 28.4.2016 that the 30.3.2016 meeting be declared as a Forum instead. Team A took the view that the effect of this pronouncement, was to render all the decisions made on the 30.3.2016 as nullified or void.

This Court came to a finding that the view taken by Team A above is strengthened by the 28.4.2016 minutes of the follow-up CM. It saw the motions, were repeated to be tabled and discussed once more under the heading “2. Re-approve and review previous motion” (See: enclosure 33 minutes of meeting dated 28.4.2016 at page 21 pdf. the English translation and enclosure 67 at page 5 pdf. the BM translation).

Such being the case, whether 9 or 10 that was reflected by Team A is of no significant as it is still of insufficient quorum. This CM was given a treatment merely as “Forum” and decisions made in that illegal CM were in fact tabled once more in the follow-up CM on 28.4.2016. D. The 2nd Council meeting on 28.4.2016

This 2nd Council meeting became the avenue for Team B to move for a motion of no confidence against Team A. A motion of no confidence, proposed to be moved against the top members of the office-bearers’ of PTJS is a controversial issue and no denying, a very important one. Attention of all members ought to be have been properly drawn to this fact to enable informed decision made by members. As it is, this Court found no notice with this specific agenda circulated to members.

The absence of this very important issue or topic in the agenda of the meeting, to this Court’s view gave rise to an only inference that it is intended to catch all members including the affected office-bearers, by surprise. As such, whether those present at that said meeting were well informed and prepared to vote, to this Court is questionable (see: Lee Nyuk Heng & Anor v Pembangunan & Ladang Hassan Sdn Bhd & Ors. [2002]

SD2’s evidence on the other hand, said he was aware of this motion and it would be tabled in the CM, even before the meeting was convened. How this came to his attention and who else were in the know, that is whether only selected members were notified. All these suggest members who were present, came with a mind set with likelihood of bias to sack the Plaintiff, even before the Plaintiff was accorded with opportunity to explain. This is in breach of natural justice, more so in the absence of proper notice to all members, members caught unprepared (see: Darshan Singh v Farid Kamal Hussain [2004] 2 MLRA 91, Tan Sri Dato’ Muhammad Ali Hashim v Sindora Berhad & Ors [2013] MLRHU 405).

This can be seen from the minutes recorded by Madam Kong, describing members being agitated. The minutes also states of Vice Education Director Tay Moy Kiow who was a newcomer to the said meeting, describing there were 2 sides of the clan and her hope that “it will be alright soon”. As a matter of fact, D2 Tey Tian Hwang when asked by D1 Teh Teik Hup for his opinion on D1’s proposal to sack the President, had indicated his view that “things must be handled in reasonable, normal procedure and clearer way”.

As it turned out, from reading of the said minutes, this Court noted and observed that an act to remove the Plaintiff as President was initiated by Team B, ignorant that there were reservations displayed amongst members as can be seen from the extracted facts above.

This Court equally observed that accusations were made towards Team A. However, without a proper decorum of members behaving in an orderly manner, it would have been logic for Team A to wait until all are sober, before providing any explanations. The recalcitrant attitude of the members of Team B can be seen by the refusal to accept the Plaintiff@ Chairman’s proposal, for the issues to be discussed much later.

As can be seen from the minutes, this move was made by the Plaintiff as a last resort, before the meeting was brought to an end at 9.25pm. The minutes being a contemporaneous document, it is this Court’s finding that it was adjourned for discussion a little later by the Chair, to enable members to cool down. It was never intended by the Plaintiff as Chairman, to deviate from answering those accusations.

This is so, as the minutes clearly captured the discussion of the issues be stood down and to be ventilated later (the BM version of the translation states “dibincangkan kemudian selepas hal-hal lain”). (See: Chooa E Pek & Ors v Un. Siang Mead Ors [1982] 1 MLRA 454 [FC]. For these reasons too, there is no reason for this Court not to accept the minutes taken by Madam Kong who was the official person and neutral as she had served other Chairman of PTJS before.

The Plaintiff did not shy away from answering those issues as the Plaintiff made his appearance once more at about 10.30PM only to discover that voting process to sack him taking place. At this juncture, D2 was appointed as “acting President”. What is certain is that Team A was deprived of any opportunity to explain. This Court finds that the 2nd part of this meeting being invalid for the reasons stated above. E. Council meeting on 31.5.2016

In this subsequent CM, Team B contended that there were 2 versions of the minutes on 28.4.2016 recorded by Madam Kong. Yet, this Court concluded that the contents of these 2 minutes if they carry any material difference in the version, was never put across to Team A. Without such suggestion and proof before this Court, it is non-justiciable for this Court to make a finding if there was tampering or contents falsified. In any event, it was never pleaded by the Defendants. Hence, is not a matter to be adjudicated by this Court.

As to the “Motion of No Confidence”, the Plaintiff and other office-bearers were elected in the AGM of PTJS, hence this Court agrees with the submission by the Plaintiff that their dismissal or removal must similarly be in the AGM. PTJS Constitution Rule 10(e) states “the General Meeting of members (AGM) shall have the power to elect and dismiss the Management Committee members”.

Rule 15(b) also provides “the election of Office Bearers shall be carried out by the members at a General Meeting of Members (“AGM)”. In short “He who hires also has the right to fire” and in this case, as the appointment was in the AGM, the sacking of the President and office-bearers must also be by way of an AGM (see: Sabdin Ghani v Musa Aman [1993] 2 CLJ 109, Pwrsatuan Katholik Santa Mariam v Ambrose Saminathan [2025] MLRHU 2488).

With this decision, it is the finding of this Court that the subsequent acts of Team B in proceeding with the CM on 28.4.2016 despite being adjourned by the Plaintiff at 9.25pm and Team B appointing D2 to chair the consequential meeting, is an illegal act. The subsequent CM held by Team B on some other dates, change of signatories and withdrawal of cash money from PTJS’s account equally are void and invalid.

Team B had proceeded to hold another CM on 31.5.2016 with D2 sitting as “Acting President”. Team B also held an EOGM on 25.9.2016. ROS did not recognize these appointments and recommended both Teams to discuss and determine the names of members to hold office, this list must be agreed by both Teams. Having failed to comply with ROS’s condition, prompted ROS to issue a Notice under section 13, dated 30.7.2017 with the purpose to de-register PTJS (see: enclosure 34 at page 6 pdf.).

Team A had written to ROS via letter dated 20.8.2019 to notify ROS of PTJS’s cause of action to hold an emergency meeting on 24.8.2019. The meeting is with the agenda to hold an EGM to discuss on election matters. Whilst this was taking place, ROS had again issued a notice dated 26.8.2019 seeking for a list of office-bearers to be agreed by both Teams (see: enclosure 33 at page 7 pdf).

This would only mean that ROS did not recognize the committee members set up by Team B but instead ROS had suggested for both Team A and Team B to discuss amicably towards achieving this. ROS had sought for an AGM or EGM be held. This Court is of the view that by having this, a fresh voting process where nomination of candidates would normally require it be seconded and thus ensures appointment are transparent. The result of the said appointment of the committee members or office bearers hence, cannot be disputed by any members. F. Actions initiated by ROS

The complaints by Team B highlighted above were forwarded to ROS via Tay Kay Beng’s letter dated 7.4.2016. ROS issued a notice under section 13(2) of the Act, dated 18.1.2017 requesting Team A for an explanation. Explanations were given by Team A to ROS via a letter dated 25.1.2017 (see: enclosure 33 at page 26 & 28 pdf. of notice by ROS and reply by Team A).

In ROS’s reply to Team B via its letter dated 19.3.2017, ROS informed Team B of ROS’s finding that Team A’s explanation as satisfactory and had accepted the said explanations but with a warning to adhere to the provisions in the Societies Act at all time (see: enclosure 34 at page 1. Pdf).

In the meantime, Team B had rushed with its earlier agenda to the expel the Plaintiff as President and Mr. Tey Kiang Hoe as secretary. Issuance of Notice of an EOGM was done with the date of the EOGM fixed on 25.9.2016. The Notice to this EOGM was issued by way of ordinary post to all members and advertised in the Sin Chew Jit Poh paper as required by the Constitution.

The Plaintiff knew of this Notice when he read it in the paper. The Notice caused him to lodge a police report on 21.9.2016 denying the contents in the said Notice said to defame him and

This Court was of the view that with ROS accepting the explanations offered by Team A and this was notified to Team B, there was nothing adverse or any wrong act found by ROS, that was committed by Team A. Hence the act of Team B in pushing for an EOGM on 25.9.2016 without waiting for the ROS’s stand, amounts to interfering with the standard role played by ROS to regulate societies in accordance with the Societies Act. G. Change of signatories requested by Team B

Sometime in January 2019, Team B had sought from CIMB Bank to effect a change in signatories of PTJS account. On being aware of this move, Team A had lodged a police report opposing this move. CIMB Bank did not proceed to allow the required changes made by Team B.

Evidence was adduced that Team B however had earlier, made some withdrawals from the said account amounting to RM132,164.48 as at 28.2.2019. It is the finding of this Court, that having found the prior removal of the Plaintiff and other office-bearers of Team A not in accordance with the Constitution, it therefore triggered a domino effect of other actions taken by Team B in relation to the running of the society, as bad in law.

This moved this Court to further make a finding that as the appointment of the new office-bearers were not done in accordance with the recognized convention as contained in the Constitution, the withdrawal of PTJS’s funds by Team B by way of 51 cheques being illegal. The Constitution Rule 10(e) and Rule 11 requires withdrawal of certain amount to be preceded by an approval obtained in a General Meeting of Members or Management Committee. This moved the Bank to response by freezing the PTJS’s account.

All the actions taken by Team B was done in the course of Team A agreeing to hold an EGM as recommended by ROS (see: para 28 of this Judgment). In short, whilst there were correspondences between Team A and ROS, Team B had initiated its own path by overriding what had been agreed with ROS by Team A, to hold an AGM or EGM.

However, in relation to the contention by the Plaintiff that D1 to D3 had collected rental from PTJS’ rented premises but had failed to credit the said rent to PTJS’s account, this Court differs. The Plaintiff contended, the sum calculated to be RM31,800.00 was misappropriated by D1 to D3. This Court did not find any evidence to support this allegation of misappropriation by Team B instead took the view that even if the said sum was collected, it ought to be converted to the advantage of both Team A and Team B.

The advantage to both teams as seen by this Court was that a civil proceeding for certiorari to stop D4 from de-registering PTJS was initiated. Arising from this civil proceeding, a certiorari order dated 12.11.2018 (see: enclosure 33 at page 52 pdf.) was issued by the High Court. The result in fact, PTJS’s existence remain valid hence was a benefit to both Team A and Team B. For this reason, the Plaintiff’s claim for this sum was dismissed by this Court.

Therefore, acting on the premise that the issuance of a certiorari order earlier by this Court is made on the basis that PTJS is still in existence, this Court had allowed the Plaintiff’s claim. In short, the Plaintiff’s claim was merely to comply with the Court’s direction that PTJS’s registration remain valid. This is added with ROS’s direction to hold an AGM or EGM as being enforceable.

For all these reasons, Plaintiff’s claim for a declaration that the Plaintiff and the initial office-bearers (otherwise identified as Team A) remained as Chairman, Secretary and Treasurer is allowed. This is to facilitate the calling of an AGM or EGM for the purpose of the voting process and appointment of new committee members of PTJS. This Court ordered for the AGM or EGM to be held within one month from the date of the Court Order.

In doing this, the list of members of PTJS must be confined and limited to only members as registered with PTJS on 28.4.2016 being the date of the CM meeting. As to the list of members on 25.9.2016 being the date of the EOGM, there appears to be some disparity in term of the number as the minutes suggested there were 34 names present whilst the letter from PTJS dated 25.9.2016 (prepared by Team B) suggested the number of members present to be only 23. No evidence was led if the rest from the 34 names were on the list of members.

For this reason, this Court would maintain the members allowed to be present to nominate and vote on the agreed date for the AGM or EGM by both Team A and B, would refer to the list of members as on 28.4.2016. Reason being nothing on the face of the record to suggest the said list contained any error.

The agenda of the AGM or EGM is merely to appoint new office-bearers of PTJS and nothing else. Once this is done, ROS must be notified. The other consequential agendas including the status of PTJS’s account and amount in it will then follow subsequently.

Arising from the earlier deduction arrived at by this Court, the 1st to the 3rd Defendant are also directed to pay the sum of RM132,164.48 into the account of PTJS within 30 days with interest of 5% from date of judgment to realization.

Having arrived at the above decision, this Court further found that this results in the dismissal of the counter-claim by D1 to D3. Similarly, except as clearly allowed by this Court, all other claims for general and exemplary damages both by the Plaintiff and Defendants are dismissed. Dated 26th July 2026 Sgnd. (NURULHUDA NUR’AINI BTE MOHAMAD NOR) JUDGE HIGH COURT OF MALAYA JOHOR BAHRU For the Plaintiff :

S. Jeyakumar

K.Vijayam Messrs Vijay & Co For the 1st to 3rd Defendants : Mohamed Fairoz Elyas Majeed Messrs Elyas Majeed For the 4th Defendant : Presence dispensed with