Court DecisionMY-COA

N-01(NCvC)(W)-56-02/2023

Top ATC Industries Sdn Bhd v Cheok Lam Chuan (N-01(NCvC)(W)-56-02/2023)

Court of Appeal of Malaysia29 Jul 2025

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1 IN THE COURT OF APPEAL OF MALAYSIA AT PUTRAJAYA (APPELLATE JURISDICTION) CIVIL APPEAL NO: N-01(NCVC)(W)-52-02/2023 BETWEEN LEE KOK CHIAN …APPELLANT AND CHEOK LAM CHUAN …RESPONDENT Heard together With IN THE COURT OF APPEAL OF MALAYSIA AT PUTRAJAYA (APPELLATE JURISDICTION) CIVIL APPEAL NO: N-01(NCVC)(W)-56-02/2023 BETWEEN TOP ATC INDUSTRIES SDN BHD …APPELLANT AND CHEOK LAM CHUAN …RESPONDENT 31/07/2025 12:18:59 N-01(NCvC)(W)-56-02/2023 Kand. 38 [In the Matter of the High Court of Seremban, Negeri Sembilan Darul Khusus Civil Suit No: NA-21NCvC-8-11/2018 Between Cheok Lam Chuan - Plaintif And

Fu Zhi Mao Group Sdn. Bhd.

Thana Balan A/L Rajamanickam

Abdullah Zubair Chan bin Abdullah

Theselim Begam bin Mohd Yusoff

TOP ATC Industries Sdn. Bhd.

Lee Kok Chian

Pendaftar Hakmilik Negeri Sembilan

Pengarah Tanah dan Galian Negeri Sembilan - Defendants] CORAM: S. NANTHA BALAN, JCA AZMI BIN ARIFFIN, JCA AHMAD KAMAL BIN MD. SHAHID, JCA JUDGMENT Introduction [1] There are 2 appeals before us, namely, Appeal No: N- 01(NCVC)(W)-52-02/2023 (“Appeal 52”) and Appeal No: N- 01(NCVC)(W)-56-02/2023 (“Appeal 56”). The appeals are directed at the decision of the Learned Judge of the High Court (“the Judge”) delivered on 10 January 2023 after a full trial in High Court Suit No. NA-21NCvC-8-11/2018 (“Suit 8”). [2] The Plaintiff in Suit 8 is Mr. Cheok Lam Chuan (“Plaintiff”). The Plaintiff claimed that at all material times he, together with Cheok Yit Tuck (“the deceased”) were the legal registered owners of land held under Geran 159176, Lot 14182, Pekan Lukut, Daerah Port Dickson, Negeri Sembilan (“the subject land”). It is the Plaintiff’s pleaded case that he and the deceased held the land as trustees pursuant to a Declaration of Trust dated 24 May 1982 (“the Trust”) which was duly registered with the relevant Land Office. At all times the Plaintiff held and continued to hold the issue document of title (“IDT”) for the land. [3] According to the Plaintiff the subject land was fraudulently transferred to Fu Zhi Mao Group Sdn. Bhd (1st Defendant -“D1”). The 2nd Defendant, Thana Balan A/L Rajamanickam (“D2”) and Abdullah Zubair Chan bin Abdullah (3rd Defendant - “D3”) were directors of D1. It is the Plaintiff’s pleaded case that D2 and D3 are involved in land scams and had perpetrated fraudulent land transfers involving other lands. [4] It was alleged that after the subject land was fraudulently transferred and registered in D1’s name, it was subsequently transferred to the 5th Defendant (“D5”). Thereafter, D5 transferred the subject land to the 6th Defendant (“D6”) via Nombor Perserahan: 27739/2016 on 1 November 2016. [5] At the time of filing of Suit 8, the subject land was in D6’s name as the registered owner. Essentially, via Suit 8 the Plaintiff sought to obtain a declaration that he was/is the lawful registered owner of the subject land and various consequential orders to nullify the transfer of the subject land to D6, and for the land to be re-transferred to his name. [6] Before the commencement of the trial, judgment in default (“JID”) had been entered against D1, D2 and D3 on 12 April 2019. Thus, as a result of the JID, the Plaintiff is deemed in law as having proven fraud against D1, D2 and D3. The legal position in this regard may be gathered from paragraph [9] of the Federal Court’s decision in Kamarulzaman Bin Omar & Ors v. Yakub Bin Husin & Ors [2014] 2 MLJ 768, [2013] MLJU 1412, [2014] 1 AMR 493, [2014] 1 CLJ 987 (FC), where it was stated that when parties against whom fraud is alleged, do not defend the claim and judgment in default is entered against them, it is assumed that fraud has been proven against these parties. [7] Initially, the Plaintiff had claimed against the 4th Defendant (“D4”). D4 was the conveyancing solicitor for D5 with respect to the transfer of the subject land from D1 to D5. The Plaintiff alleged that D4 failed to detect the various “red flags” and the inherent infirmities in the purported conveyancing transaction. The Plaintiff also alleged that D4 was part of a wider conspiracy to defraud. The Plaintiff also claimed against the Pendaftar Hakmilik Negeri Sembilan (“D7”) and Pengarah Tanah dan Galian Negeri Sembilan (“D8”) for their negligence in facilitating the impugned transfers for the subject land. However, the claim against D4 was withdrawn and the trial proceeded only against D5, D6, D7 and D8. [8] The Judge made a finding that D5 and D6 were subsequent purchasers and that they had failed to prove that they were bona fide purchasers for valuable consideration. As for D7 and D8 the Judge found that they were negligent and ordered them to cancel the registration in D6’s name and to re-transfer the title to the Plaintiff’s name. D7 and D8 were ordered to pay costs to the Plaintiff. [9] The Learned Judge allowed the Plaintiff’s claim which was principally directed at D5 and D6 and granted the reliefs sought and ordered the subject land to be transferred back to the Plaintiff. The Learned Judge awarded aggravated damages in the sum of RM100,000.00 to be paid by D5 and D6. They were also ordered to pay costs of RM50,000.00 each to the Plaintiff. The Order of the High Court dated 10 January 2023 reads as follows: “(a) Diisytiharkan bahawa Plaintif ialah pemilik berdaftar yang sah terhadap hartanah yang dipegang bawah Geran 159176, Lot 14182, Pekan Lukut, Daerah Port Dickson,

Negeri Sembilan;

Disytiharkan bahawa pindahmilikan Geran 159176, Lot 14182, Pekan Lukut, Daerah Port Dickson, Negeri Sembilan ke atas nama Defendan ke-6 melalui Nombor Perserahan 27739/2016 pada 1 November 2016 adalah batal dan tak sah;

Pemindahmilikan Geran 159176, Lot 14182, Pekan Lukut, Daerah Port Dickson, Negeri Sembilan ke atas nama Defendan ke-6 melalui Nombor Perserahan 27739/2016 sebagai pemilik berdaftar dimansuhkan atau dibatalkan dengan serta merta oleh Defendan ke-7 dan/atau Defendan ke-8, iaitu Pendaftar Hakmilik Negeri Sembilan dan/atau Pengarah Tanah dan Galian Negeri

Sembilan;

Defendan ke-7 dan/atau Defendan ke-8 hendaklah dengan serta merta memberi kesan kepada pengisytiharan-pengisytiharan dan perintah-perintah yang dikurniakan oleh Mahkamah yang mulia ini seperti di atas menurut seksyen 417 Kanun Tanah Negara;

Defendan ke-5 dan Defendan ke-6 hendaklah membayar gantirugi teruk sebanyak RM100,000.00 kepada Plaintif;

Defendan ke-5 hendaklah membayar kos sebanyak RM50,000.00 kepada Plaintif;

Defendan ke-6 hendaklah membayar kos sebanyak RM50,000.00 kepada Plaintif;

Defendan ke-7 dan Defendan ke-8 hendaklah membayar kos sebanyak RM 10,000.00 kepada Plaintif; dan

Faedah terhadap gantirugi di atas sebanyak 5% setahun hendaklah dibayar oleh Defendan-Defendan tersebut daripada tarikh penghakiman sehingga tarikh penyelesaian sepenuhnya.” [10] D5 and D6 are aggrieved by the decision of the Learned Judge. Hence, these appeals. The Appellant in Appeal 52 is D6 and the Appellant in Appeal 56 is D5. For convenience, we shall refer to the Appellants in Appeal 52 and Appeal 56 as “D6” and “D5” respectively, and the Respondents in both appeals as (“Plaintiff”). Background Facts [11] Based on the Declaration of Trust dated 24 May 1982, the Plaintiff (Cheok Lam Chuan) together with Cheak Yit Tuck (deceased) were the registered proprietors and co-trustees of land held under Geran 17067, Lot 1493, Mukim Port Dickson, Daerah Port Dickson, Negeri Sembilan comprising an area of 56 acres, 1 rood and 20 poles on 9 August 1982 (“the Original Land”). [12] The Original Land was subsequently subdivided into 28 individual subdivided titles from a Master Title dated 31 December

1999

The 28 original pre-computer issue documents of title were delivered to Mr Seah Choon Chye (PW1), the conveyancing lawyer, on 13 November 2000. Thereafter, 24 titles were duly transferred to the respective beneficiaries. However, the remaining 4 titles which belonged to Cheoh Bau Tuan (a beneficiary) could not be transferred, as he passed away on 14 December 2002 after a very long illness. The 4 original "Suratan Hakmilik Sementara" titles were in the custody of PW1 from 2000 to 2013 and it was only on 29 July 2013, that the 4 original “Surat Hakmilik Sementara” titles (“pre-computer titles”) were delivered to Cheoh Tuan Joo (PW3), the son of the late Cheoh Bau Tuan, deceased. [13] In 2016, PW3 handed over the original four (4) titles in exchange for four (4) new computer titles from the Pejabat Tanah, Port Dickson. There are as follows: “(a) Geran No. Hakmilik 159176, Lot No. 14182, Pekan Lukut, Daerah Port Dickson, Negeri Sembilan (Exhibit P9) (the subject land);

Geran No. Hakmilik 159180, Lot No. 14190, Pekan Lukut, Daerah Port Dickson, Negeri Sembilan (Exhibit P14);

Geran No. Hakmilik 159181, Lot No. 14184, Pekan Lukut, Daerah Port Dickson, Negeri Sembilan (Exhibit P10); and

Geran No. Hakmilik 159182, Lot No. 14191 Pekan Lukut, Daerah Port Dickson, Negeri Sembilan (Exhibit P15).” Fraudulent Transfer [14] On 21 January 2016, the subject land was purportedly "transferred" to D1. The transferor was an imposter, using the name of the Plaintiff, Cheok Lam Chuan and beguiled the Pendaftar Hakmilik Negeri Sembilan (7th Defendant - “D7”) and the Pengarah Tanah dan Galian Negeri Sembilan (8th Defendant – “D8”) into accepting the transfer form (Form 14A), which was forged, together with a fake issue document of title. The (fraudulent) transfer purportedly from Cheok Lam Chuan (imposter) to D1 was registered on 21 January 2016. However, there is no record at the Registry of Titles showing Cheok Lam Chuan as the registered proprietor of the subject land because Cheok Lam Chuan held the land as co-trustee, together with Cheok Yit Tuck. The transaction (No. Perserahan 961/2016) is not found in the records of the Registry of Titles. [15] As a matter of fact, the subject land was transferred from the imposter or fake Cheok Lam Chuan to D1 on 21 January 2016 and thereafter D1 entered into a Sale and Purchase Agreement with D5 on 24 February 2016. According to the Plaintiff, it is significant and in the present circumstances, rather sinister, that the Sale and Purchase Agreement between D1 (as vendor) and D5 (as purchaser) was just slightly more than a month after the subject land had been transferred to D1. [16] The transfer from D1 to D5 was registered on 23 March

2016

[No. Perserahan: 5595/2016]. As mentioned earlier JID had been entered against D1 and its directors, and therefore fraud had been established against these parties.

The next event of significance that occurred is that on 29 March 2016, (6 days after the transfer of the land from D1 to D5), D5 entered into a Sale and Purchase Agreement with D6. The transfer of the subject land from D5 to D6 took place on 1st November 2016. [No. Perserahan: 27739/2016].

(ii) The chronology of transfers involving the subject land may be summarised as follows: Cheok Lam Chuan + Cheok Yit Tuck (registered owners and co-trustees of the subject land. ⬇ Cheok Lam Chuan (the Imposter) ⬇ Fu Zhi Mao Group Sdn Bhd (D1) ⬇ TOP ATC Industries Sdn Bhd (D5) ⬇ Lee Kok Chian (D6)

III

(iii) At this juncture, it is perhaps relevant to mention that apart from the subject land, another parcel, namely Geran No. Hakmilik 159181, Lot No. 14184, Pekan Lukut, Daerah Port Dickson, Negeri Sembilan (Exhibit P10) was also the subject of a fraudulent transfer to one Charles Oh and subsequently transferred to Bitara Angkasa Sdn Bhd (“Bitara”). The genuine landowner sued Charles Oh, Bitara and the Registrar of Land Titles. Charles Oh did not defend the claim and judgment in default was entered against him. The High Court impugned the transfer to Bitara holding that they were “immediate” purchasers and did not have an indefeasible title. The matter went to the Court of Appeal and Bitara’s appeal was allowed. (See: Bitara Angkasa Sdn Bhd v Cheok Lam Chuan & Ors. [2024] 1 CLJ p.202 CA) (“Bitara Angkasa”).

(iv) In allowing the appeal, the Court of Appeal opined that Charles Oh was the “immediate purchaser” and that Bitara was the “subsequent purchaser” who had indefeasible title as they were bona fide purchasers for valuable consideration. The issue of whether D5 was an immediate purchaser, or a subsequent purchaser is dealt with in paragraphs [28] to [30] of this Judgment. Plaintiff’s Case [17] In the Writ and Statement of Claim dated 14 November 2018, the Plaintiff’s pleaded case against the D1, D5 and D6 are as follows: “PEMINDAHMILIKAN HARTANAH LOT 14182 TERSEBUT DARIPADA DEFENDAN PERTAMA KEPADA DEFENDAN KE-5

Plaintif menegaskan bahawa pada 23 Mac 2016, Defendan Pertama telah kononnya memindahmilik hartanah Lot 14182 tersebut secara frod kepada Defendan ke-5 (No. Perserahan: 5595/2016) dengan kononnya wang balasan sebanyak

Rm1,000,000.00.

Plaintif juga menegaskan bahawa pembayaran wang balasan dan sumber kewangan Defendan ke-5 adalah diragui dan berunsur frod. Defendan ke-5 sedang mengalami kerugian dan mempunyai current liabilities sebanyak RM3,195,022.00 seperti yang tercermin dalam carian syarikat bersandarkan carian rasmi syarikat Defendan ke-5.

Plaintif menegaskan dan akan menegaskan bahawa transaksi antara Defendan Pertama dan Defendan ke-5 telah dikendalikan oleh Defendan ke-4 yang merupakan common solicitor. Namun demikian, Defendan ke-4 telah gagal untuk berasa sangsi terhadap transaksi antara Defendan Pertama dan Defendan ke-5 sedangkan Defendan Pertama hanya merupakan sebuah syarikat dormant dan Defendan ke-5 mengalami kerugian serta mempunyai liabiliti yang tinggi.

Plaintif menegaskan dan akan menegaskan bahawa pemindahmilikan daripada Defendan Pertama kepada Defendan ke-5 adalah batal dan tak sah bersandarkan alasan-alasan berikut:

Pada semua masa yang material, Defendan Pertama tidak mempunyai suatu hakmilik yang sah di sisi undang-undang. Hakmilik Defendan Pertama adalah batal dan tak sah dan boleh disangkal bawah seksyen 340 (2) (a) dan / atau seksyen 340 (2) (b) Kanun Tanah Negara. Defendan ke-2 dan Defendan ke-3 telah terlibat secara langsung dalam keseluruhan perbuatan frod;

(ii) Defendan ke-2 dan Defendan ke-3, iaitu pengarah-pengarah Defendan Pertama adalah pendalang yang merancang transaksi antara penjual palsu dan Defendan Pertama;

III

(iii) Pemindahmilikan daripada Defendan Pertama kepada Defendan ke-5 adalah dilaksanakan dengan menggunakan instrumen (Borang 14A) yang tidak sah dan batal. Borang 14A yang dilaksanakan oleh Defendan ke-5 adalah tak sah dan batal. Borang 14A kononnya dilaksanakan oleh pengarah-pengarah Defendan ke-5, iaitu Loi Cheng Pheng (No. Passport: 751354077) dan Jonathan Loi Yeow Koon (No. K/P: 800730-14-5419) sebagai penerima pindahan (transferee) pada 1 Mac 2016. Namun demikian, Loi Cheng Pheng (No. Passport: 751354077) hanya dilantik sebagai pengarah Defendan ke-5 pada 13 November 2017;

(iv) Geran Defendan Pertama adalah geran palsu dan diperolehi secara frod;

Defendan Pertama kononnya menerima pemindahmilikan hartanah Lot 14182 tersebut daripada penjual palsu pada 21 Januari 2016. Dalam masa yang tersingkat, iaitu lebih kurang 2 bulan, Defendan Pertama telah kononnya memindahmilik hartanah 14182 tersebut kepada Defendan ke-5 untuk wang balasan sebanyak RM1,000,000.00. BUTIR-BUTIR FROD PEMINDAHMILIKAN DARIPADA DEFENDAN PERTAMA KEPADA DEFENDAN KE-5

Defendan Pertama telah memindahmilik hartanah Lot 14182 tersebut kepada Defendan ke-5 dengan menggunakan geran palsu;

Hakmilik Defendan Pertama adalah batal dan tak sah bawah seksyen 340 (2) (a) dan (2) (b) Kanun Tanah

Negara;

Defendan ke-2 dan Defendan ke-3 adalah pendalang yang merancang keseluruhan perbuatan frod;

Borang 14A kononnya dilaksanakan oleh pengarah-pengarah Defendan ke-5, iaitu Loi Cheng Pheng (No. Passport: 751354077) dan Jonathan Loi Yeow Koon pada 1 Mac 2016 sebagai penerima pindahan (transferee). Walhal Loi Cheng Pheng hanya dilantik sebagai pengarah Defendan ke-5 pada 13 November 2017. Justeru, Borang 14A di mana kononnya Defendan ke-5 menerima pemindahmilikan daripada Defendan Pertama adalah instrumen yang terbatal bawah seksyen 340 (2) (b) Kanun

Tanah Negara;

Sumber kewangan Defendan ke-5 adalah diragui. Carian syarikat Defendan ke-5 menunjukkan bahawa Defendan ke-5 mengalami kerugian dan mempunyai current liabilities sebanyak RM3,195,022.00. Namun demikian, Defendan ke-5, sebuah syarikat dan bukan individu kononnya membeli hartanah Lot 14182 tersebut dengan wang tunai sebanyak RM1,000,000.00. Defendan ke-5 dikehendaki membuktikan bayaran wang balasan sebanyak RM1,000,000.00 tersebut. PEMINDAHMILIKAN HARTANAH LOT 14182 TERSEBUT DARIPADA DEFENDAN KE-5 KEPADA DEFENDAN KE-6

Plaintif menegaskan bahawa pemindahmilikan daripada Defendan ke-5 kepada Defendan ke-6 adalah tidak sah dan diperoleh melalui instrumen yang batal dan tak sah. Geran dalam pegangan Defendan ke-6 adalah geran palsu dan tak sah di sisi undang-undang. Borang 14A yang kononnya memindahmilik hartanah Lot 14182 tersebut kepada Defendan ke-6 juga merupakan instrumen yang tak sah bawah seksyen 340 (2) (b) Kanun Tanah Negara.

Plaintif menegaskan dan akan menegaskan bahawa hakmilik Defendan ke-5 adalah terbatal bawah seksyen 340 (2)

Kanun Tanah Negara. Justeru, Plaintif menegaskan bahawa Defendan ke-5 tidak mempunyai hakmilik yang sah di sisi undang-undang untuk menjualkan hartanah Lot 14182 tersebut kepada Defendan ke-6 bersandarkan prinsip 'nemo dat quod non habet'.

Plaintif menegaskan dan akan menegaskan bahawa Defendan ke-6 telah gagal untuk menyemak asal usul dan keesahan geran hartanah Lot 14182 tersebut sebelum menerima pemindahmilikan daripada Defendan ke-5. Plaintif menegaskan bahawa sebagai pembeli yang berhemat, Defendan ke-6 mempunyai tanggungjawab untuk membuat suatu penyiasatan yang menyeluruh terhadap geran hartanah Lot 14182 tersebut.

Plaintif menegaskan bahawa Defendan ke-6 tidak merupakan seorang pembeli suci hati (bona fide purchaser) bersandarkan alasan-alasan berikut:

Defendan ke-5 telah kononnya menerima pemindahmilikan hartanah Lot 14182 tersebut daripada Defendan Pertama pada 23 Mac 2016;

Sepantas kilat, dalam masa 6 hari selepas 23 Mac 2016, Defendan ke-6 telah kononnya membeli hartanah Lot 14182 tersebut daripada Defendan ke-5 melalui perjanjian jual beli bertarikh 29 Mac 2016 dengan wang balasan sebanyak RM2,000,000.00;

Transaksi antara Defendan ke-6 dan Defendan ke-5 adalah secara tunai sedangkan transaksi tersebut melibatkan wang balasan yang besar;

Walaupun Defendan ke-6 dan Defendan ke-5 memasuki perjanjian jual beli pada 29 Mac 2016, transaksi antara Defendan ke-6 dan Defendan ke-5 mengambil masa selama 8 bulan untuk disempurnakan. Hartanah Lot 14182 tersebut telah kononnya didaftarkan atas nama Defendan ke-6 pada 1 November 2016;

Defendan ke-6 telah gagal, enggan dan/atau ingkar untuk menyiasat atau menyemak keesahan geran hartanah Lot 14182 tersebut;

Defendan ke-6 telah gagal, enggan dan/atau ingkar untuk menyemak latar belakang hartanah Lot 14182 sebelum menerima pemindahmilikan daripada Defendan ke-5;

Defendan ke-6 telah gagal untuk berasa sangsi terhadap hakmilik Defendan ke-5. Defendan ke-5 menerima pemindahmilikan daripada Defendan Pertama pada 23 Mac 2016 dan menjualkan hartanah Lot 14182 tersebut kepada Defendan ke-6 pada 29 Mac 2016. Jurang tempoh hanya 6 hari sahaja dan diragui berunsur frod;

Defendan ke-6 dan / atau ejen Defendan ke-6 telah gagal, enggan dan / atau ingkar untuk menyiasat dan menyemak latar belakang Defendan ke-5. Loi Cheng Pheng (No. Passport GBR: 502570352) yang kononnya melaksanakan Borang 14A pada 2 September 2016 bagi pihak Defendan ke-5 tidak merupakan pengarah Defendan ke-5 semasa pelaksanaan Borang 14A. Loi Cheng Pheng (No. Passport GBR: 502570352) hanya dilantik sebagai pengarah Defendan ke-5 pada 13 November 2017. Kecacatan Borang 14A tersebut menjadikan pindahmilik daripada Defendan ke-5 kepada Defendan ke-6 batal dan tak sah.

Oleh demikian, Plaintif menegaskan dan akan menegaskan bahawa Defendan ke-6 bukan seorang pembeli suci hati dan seksyen 340 (3) Kanun Tanah Negara tidak memberikan apa-apa perlindungan kepada Defendan ke-6. Borang 14A yang kononnya memberikan pemindahmilikan kepada Defendan ke- 6 adalah instrumen yang tak sah dan terbatal bawah seksyen 340 (2) (b) Kanun Tanah Negara.

Plaintif juga menegaskan bahawa geran dalam pegangan Defendan ke-6 adalah suatu geran palsu.” D5’s Defence [18] In the Defence dated 25 January 2019, D5 denied the Plaintiff’s allegations and pleaded among others, that: “10. Selepas Defendan Ke-5 memasuki Perjanjian Jual Beli dengan Defendan Pertama, Defendan Ke-5 mempunyai kewangan untuk membayar baki Harga Jualan.

Walaubagaimanapun, Defendan Ke-5 tidak ingin memungkiri Perjanjian Jual Beli tersebut dan Defendan Ke-5 telah meminjam wang sebanyak RM1,000,000.00 daripada Defendan Ke-6 untuk membayar baki Harga Jualan tersebut.

Selepas mendapat bantuan daripada Defendan Ke-6, Defendan Ke-5 telah membayar Baki Deposit dan baki Harga Jualan Hartanah tersebut kepada Defendan Ke-4 sebagai Pemegang Kepentingan mengikut terma di bawah Klausa 3.2 dan bayaran tersebut juga telah dibayar dan/atau diberikan kepada Defendan Pertama mengikut Perjanjian Jual Beli tersebut.

Untuk memenuhi terma-terma Perjanjian Jual Beli, Defendan Pertama telah memindahmilik milikan Hartanah tersebut kepada Defendan Ke-5 seperti yang dijanjikan dalam Perjanjian Jual Beli melalui Borang 14A bertarikh 1.3.2016 dan telah disahkan dan didaftarkan oleh Defendan Ke-7 dan Defendan Ke-8 di dalam Geran Hartanah tersebut pada 23.3.2016.

Walaubagaimanapun, selepas Hartanah dipindah milik kepada Defendan Ke-5, masalah kewangan Defendan Ke-5 masih belum dapat diselesaikan, oleh itu Defendan Ke-5 menawar kepada Defendan Ke-6 untuk membeli Hartanah tersebut pada harga jualan sebanyak RM2,000,000.00 dan pinjaman mesra ("friendly loan”) daripada Defendan Ke-6 kepada Defendan Ke-5 sebanyak RM1,000,000.00 akan ditolak daripada harga jualan tersebut.

Defendan Ke-6 bersetuju dengan tawaran Defendan Ke-5 dan mereka telah memasuki satu Perjanjian Jual Beli bertarikh 29.3.2016 (selepas ini dikenali sebagai "Perjanjian Jual Beli LKC") untuk menjual beli Hartanah tersebut pada RM2,000,000.00 yang disediakan dan dikendalikan oleh peguamcara dari Tetuan Rahim & Tan.

Untuk memenuhi Perjanjian Jual Beli, Defendan Ke-5 telah memindahmilik milikan Hartanah tersebut kepada Defendan Ke-6 seperti yang dijanjikan dalam Perjanjian Jual Beli LKC dan telah disahkan dan didaftarkan oleh Defendan Ke-7 dan Defendan Ke-8 di dalam Geran Hartanah tersebut pada 1.11.2016.

Defendan Ke-5 juga telah menerima balasan baki wang harga jualan sebanyak RM1,000,000.00 selepas menolak pinjaman mesra yang diterima daripada Defendan Ke-6.

Oleh itu, Defendan Ke-5 menyatakan bahawa pada setiap masa yang material transaksi jual beli antara Defendan Pertama dan Defendan Ke-6 adalah satu transaksi panjang lengan ("arm's length transaction").

Pada setiap masa yang material, Defendan Ke-5 dan Defendan Ke-6 adalah pembeli-pembeli bona fide dan/atau suci hati untuk balasan yang berharga ("a bona fide purchaser for valuable consideration") dan pendaftaran hakmilik dan kepentingan Defendan Ke-5 di dalam Geran Hartanah tersebut pada 23.3.2016 dan pendaftaran hakmilik dan kepentingan Defendan Ke-6 di dalam Geran Hartanah tersebut pada 1.11.2016 tidak boleh disangkal.” D6’s Defence [19] In the Defence dated 18 April 2019, D6 denied the Plaintiff’s allegations above, and pleaded among others, that: “5. Kecuali and melainkan bahawa Defendan Ke-5 adalah pemilik terdahulu, Defendan Ke-6 tiada pengetahuan mengenai fakta-fakta latar belakang atau peristiwa-peristiwa terdahulu berkenaan tanah di bawah GRN 159176 Lot No. 14182 Pekah Lukut, Daerah Port Dickson ("Tanah Subjek") seperti yang dituduh dalam perenggan-perenggan 10 hingga 29 Penyataan Tuntutan. Maka, Defendan Ke-6 menafikan sebarang dakwaan material di dalamnya yang merujukkan dan/atau membabitkan Defendan Ke-6, jika ada.

Perenggan 33 Penyataan Tuntutan adalah dinafikan dan Plaintif diletakkan beban bukti yang ketat. Defendan Ke-6 selanjutnya menegaskan dan akan menegaskan seperti berikut:

Pada semua masa material dan sebelum pemindahan milik Tanah Subjek kepada Defendan Ke-6, Defendan Ke-5 adalah pemilik berdaftar Tanah Subjek;

Pada semua masa material, instrumen-instrumen dan/atau dokumen "hakmilik" untuk memberi kesan kepada pemindahmilikan Tanah Subjek daripada Defendan Ke-5 kepada Defendan Ke-6 adalab tulen dan sah;

Pada semua masa material, instrumen-instrumen dan/atau dokumen “hakmilik” telah diterima dan/atau dikeluarkan oleh Defendan-defendan Ke-7 dan Ke-8 secara sah dan/atau di sisi undang-undang untuk memberi kesan kepada pemindahmilikan tersebut;

Pada semua masa material, nama Defendan Ke-6 telah didaftatkan secara wajar dalam dokumen hakmilik Tanah Subjek oleh Defendan-defendan Ke-7 dan Ke-8 melalui prosedur-prosedur dan/atau proses undang-undang yang wajar dan / atau sah; dan

Defendan Ke-6 adalah kini pemilik berdaftar Tanah Subjek tersebut.

Defendan Ke-6 selanjutnya menegaskan dan akan menegaskan seperti berikut:

Pada semua masa material, Defendan Ke-6 adalah pembeli bona fide dengan nilai;

Waktu pelengkapan transaksi atau masa penjualan tidak dalam ара-ара cara membatalkan transaksi atau sebaliknya menjadikan transaksi sebagai mala fide;

Defendan Ke-6 telah memenuhi segala kehendak undang-undang termasuk, pembayaran duti setem untuk menyempurnakan transaksi tersebut;

Ia tidak mempunyai kewajipan seperti yang didakwa oleh Plaintif yang dikenakan kepada Defendan Ke-6 sebagai seorang pembeli. Dalam semua keadaan, perbalahan tersebut adalah tidak berkaitan dengan tindakan kini terhadap Defendan Ke-6 oleh Plaintif;

Defendan Ke-6 tiada pengetahuan tentang urusan dalaman Defendan Ke-5 dan tidak mempunyai kausa untuk membangkit sebarang isu atau dijadikan cemas pada masa material mengambil kira, antara lain, bahawa Defendan Ke-5 tidak pernah sehingga hari mencabar dan / atau membangkit sebarang isu berkenaan kewibawaan (authority) penandatangannya;

Pendaftaran pemindahmilikan telah dilaksanakan sejak 2016 sehingga hari ini dengan pengetahuan penuh

Defendan Ke-5;

Plaintif tidak mempunyai locus untuk kononnya mencabar yang sama bagi pihak Defendan Ke-5. The High Court [20] The Judge ruled in favour of the Plaintiff. The Judge’s reasons for his conclusions may be gleaned from the Grounds of Judgment which reads as follows: “[21] After considering the facts, evidences and submission of the parties before this Court, I am of the view that there is an element of fraud surrounding the transactions of sale and purchase of the Land. It is trite that where the title is defeasible by reason of fraud as specified in subsection 340(2)(a) of the National Land Code, it shall be liable to be set aside under s 340(3). [22] It is to be noted that I am mindful with the defendants' submission that the Plaintiff had to prove fraud beyond reasonable doubt and not on a balance of probability. However, based on the facts of the case, I take the view that the whole transaction involving the Land was suspicious. [23] Here, even though there was absolutely no evidence as to who is the imposter that purportedly had sold the Land to D1. However, this Court could not accept the fact that it takes only few months to settle the transfer from the imposter to D1 and then from D1 to D5 and until the last one from D5 to D6 (i.e. from 21 January 2016 until 29 March 2016). I refer to the case of Datuk Jaginder Singh & Ors v Tara Rajaratnam [1983] 2 MLJ 196 (FC), per. Lee Hun Hoe CJ (Borneo) which stated that. "Fraud may also be caused by deliberately and dishonestly registering an interest and then transferring the interest even before the ink is dry to another person without the consent of the original registered proprietor. [24] Next, even though D5 and D6 pleaded that they are subsequent purchaser who are protected by the proviso in section 340(3) of the National Land Code, however I find that they have failed to prove that they are bona fide purchasers and/or in good faith for valuable consideration. With short timeline of transfer, I doubted as how the land search can properly be conducted by the parties. Usual conveyancing practices take some time to complete the whole process of transfer. But not to our case whereby the transfer of the Land D1 to D5 took only one (1) month and from D5 to D6 took only six (6) days. For this, I refer to the case of T Sivam a/l Tharamalingam (as representative/administrator for the estate of Nagamuthu a/l Periasamy, deceased) v Public Bank Bhd [2018] 5 MLJ 711 in which the Federal Court decided as follows: The existence of good faith or otherwise depended on the particular facts of each case; it was a question of fact in each case for the court to determine on the evidence. Good faith did not simply mean absence of fraud, deceit or dishonesty; it also required acting honestly, reasonably or fairly. Knowledge of a dispute as to the ownership of property and knowledge of fraud, for example, could vitiate good faith. The elements of good faith were not closed but depended upon the circumstances in each case. [25] With regard to the Plaintiff's claims against D7 and D8, even though D7 and D8 are performing their statutory obligations under the law, I find that they have been negligence in failing to keep the documents relating to transfer from the imposter to D1. [26] The Court after evaluating the facts and evidence with a fine tomb comb, I therefore allow the Plaintiff's claims at paragraphs 46(a), (b), (c), (d) dan (f) of the Statement of Claims and awarded aggravated damages to the Plaintiff for the amount of RM100,000.00 which to be paid by the D5 and D6. I allow costs to be paid to the Plaintiff in which RM50,000.00 to be paid by D5 and D6 each and RM10,000.00 combinedly paid by D7 and D8.” The Relevant Provision of Laws [21] Section 340 of the National Land Code (Revised 2020) Act 828 reads as follows: 340 Registration to confer indefeasible title or interest, except in certain circumstances

The title or interest of any person or body for the time being registered as proprietor of any land, or in whose name any lease, charge or easement is for the time being registered, shall, subject to the following provisions of this section, be indefeasible.

The title or interest of any such person or body shall not be indefeasible—

in any case of fraud or misrepresentation to which the person or body, or any agent of the person or body, was a party or privy; or

where registration was obtained by forgery, or by means of an insufficient or void instrument; or

where the title or interest was unlawfully acquired by the person or body in the purported exercise of any power or authority conferred by any written law.

Where the title or interest of any person or body is defeasible by reason of any of the circumstances specified in subsection

(2)-

it shall be liable to be set aside in the hands of any person or body to whom it may subsequently be transferred; and

any interest subsequently granted thereout shall be liable to be set aside in the hands of any person or body in whom it is for the time being vested: Provided that nothing in this subsection shall affect any title or interest acquired by any purchaser in good faith and for valuable consideration, or by any person or body claiming through or under such a purchaser.

Nothing in this section shall prejudice or prevent—

the exercise in respect of any land or interest of any power of forfeiture or sale conferred by this Act or any other written law for the time being in force, or any power of avoidance conferred by any such law; or

the determination of any title or interest by operation of law. D5’s Submission [22] The submissions that were made on behalf of D5 may be summarized as follows:

D5 is a bona fide subsequent purchaser of the subject land from D1;

D1 is the purchaser of the subject land from the Plaintiff and had sold of the land to D5;

Subsequently, D5 appointed its solicitors, Ms. Theselim (D4) from Messrs Theselim Mohd Yusoff & Co. to handle the sale and purchase of the subject land;

D4 prepared the Sale and Purchase Agreement and Form 14A and the same was signed by directors of D5 and Directors of D1 before her on 24 February 2016;

D4 attended to the stamping of the Sale and Purchase Agreement wherein stamp duty of RM24,000.00 was paid;

On 23 Mac 2016, D4 presented Form 14A together with the original Title together with Pelan B1 to the Land Registry and was duly endorsed by the Land Registry under No. Perserahan 5595/2016;

D5 paid the earnest deposit of RM20,000.00 to the property agent (Lim Kim Soon) and the balance deposit of RM80,000.00 was paid to directly to D1;

After the execution of the Sale and Purchase Agreement with D1, D5 faced financial difficulty to pay the balance purchase price and had to seek a friendly loan of RM1,000,000.00 from D6;

D5 was unable to repay D6 and had offered the subject land to D6 at a purchase price of RM2,000,000.00 wherein the sum of RM1,000,000.00 will be considered as part payment of the purchase price;

D1 then transferred the ownership of the subject land to D5 and D5 then became the registered proprietor at the subject land;

D5 paid the Real Property Gain Tax to Income Tax

Income Department;

Two years later, D5 received the Writ and Statement of Claim dated 16 November 2018 filed by the Plaintiff;

D5 has no knowledge of the Plaintiff’s allegation of a land scam;

Plaintiff is not the registered proprietor of the subject land. He is merely a joint trustee, which is contrary to section 344(1) of the National Land Code (Revised 2020) Act 828 and is suspicious;

Plaintiff’s claim is not bona fide and/or he did not come with clean hands;

The Plaintiff had withdrawn the suit against D4 and conceded that there is no element of fraud and/or conspiracy to defraud to the sale and purchase transaction. Hence, it is unconscionable to maintain the suit against D5 when D5 relied and depended wholly on D4 and D4 is the one actively involved and communicated directly with D1 and its directors;

There were contradictory statements and/or suspicious conduct by the Plaintif;

All the quit rent receipts for the year 2012 to 2016 for the subject land produced by the Plaintiff reveal that the registered proprietor is Cheoh Tuan Joo who is one of the beneficiaries for Cheoh Bau Tuan (deceased) and not the Plaintiff and the Plaintiff is the representative for Cheoh Tuan Joo. This is clearly contrary to the law and contrary to the Plaintiff’s pleading that he is the joint trustee for

Cheoh Bau Tuan;

The new computer title of the subject land at the Land Registry produced by the Plaintiff dated 18 May 2016 Version No. 3 shows that D5 is the valid registered proprietor of the subject land and a caveat was entered by D6 on the subject land;

Plaintiff and Cheoh Tuan Joo only reported the purported fraudulent transfer in 2018 and not in 2016. They kept silent until 2018. No reasonable explanation was offered for the inordinate delay and this raised red flags on the Plaintiff’s conduct;

No evidence tendered by the Plaintiff to prove that a fake NRIC, forged signature or fake land title used for the transfer of ownership from D1 to D5;

The Land Registry have verified that all documents for the transfer of ownership from D1 to D5 and the title of the subject land had been duly registered in D1’s name and later, D5’s name is valid and proper;

Mr. Loi Cheng Pheng has the capacity to sign Form 14A as D5’s director, as the SSM search dated 22 Mac 2015 clearly show Mr. Loi Cheng Pheng is the appointed director at the material time. Hence, Form 14A is not void pursuant to Section 340(2) (b) National Land Code;

D5’s financial ability cannot be questioned when at all material times the purchase price of RM1,000,000.00 for the Sale and Purchase transaction between D1 and D5 had been duly paid and acknowledged receipt by D1;

There was no conspiracy to defraud by D1 and its directors and by D5 as alleged by the Plaintiff;

The Plaintiff’s allegation of the conspiracy to defraud against the D5 is nothing but bare allegations; (aa) The Plaintiff has never pleaded in his statement of claim the issue of D5 not being a bona fide purchaser for the subject land; (bb) The burden of proof for fraud and / or conspiracy to defraud is beyond reasonable doubt. No cogent evidence of fraud and / or conspiracy to defraud awas established against D5;

(cc) D5 being bona fide purchaser and / or in good faith for valuable consideration is entitled to invoke protection under the proviso of section 340(3) of National Land Code;

(dd) The claim for aggravated damages (RM100,000.00) should not have been awarded to the Plaintiff when it was not pleaded by the Plaintiff; (ee) Cost amounting RM50,000.00 should not have been awarded to the Plaintiff because evidence shows that D5 in fact is the victim of the acts or omission of D4 and the Land Registry; (ff) D5 had appointed D4 as its conveyancing solicitor and had relied entirely on her expertise in respect of the sale and purchase agreement dated 24 February 2016 vis-à- vis the transaction between D1 and D5 and the Plaintiff himself, on the first day of trial had withdrawn the claim against D4 and conceded no conspiracy to defraud by D4; (gg) In order to show the genuine interest to purchase the subject land, D5 paid the deposit and thereafter appointed D4 as a conveyancing solicitor to prepare the sale and purchase agreement between the D5 and D1 and to manage the overall transfer of the subject land; and (hh) D4 also confirmed that the original title for the subject land has been given to her by the directors of D1 and that the full purchase price has been received by D1 through the acknowledgement of the directors of D1 and that the directors of D1 has authorized D4 to surrender D1’s title to be transferred to D5 as per the sale and purchase agreement dated 24 February 2016. D6’s submission [23] These were the submissions that were made on behalf of D6.

D6 is the subsequent purchaser who acquired the title in good faith and for valuable consideration and thus, the proviso to section 340(3) of the National Land Code shall apply notwithstanding that there was fraud and/or forgery in the previous transactions;

D6 had paid the purchase price in full and in cash to D5 for the subject land. That explained why there was no documentary proof of payment. The said consideration was clearly reflected in Form 14A which was presented for the registration of transfer;

D6 had also paid the stamp duty amounting to RM54,000.00 and had submitted CKHT Forms and a sum of RM60,000.00 as retained property gains tax to the

Inland Revenue;

The learned High Court Judge failed to take into consideration the evidence ie the land search reflecting the ownership of D5 at the material time and has misdirected himself by deciding that the land search cannot be properly conducted by the parties on the ground of a short timeline of the sale;

D6 has discharged his burden of proving that he was a purchaser in good faith for valuable consideration;

The record of registration is conclusive evidence of ownership. Thus, D6 is entitled to rely on the same to determine that he is the registered owner of the subject land who purchased it from the D5 at the material time;

D6 need not go behind the title to ascertain the validity of the information pertaining to the subject land as indicated on the register and the circumstances under which D5 came to be registered;

D6 is under no obligation nor is he under any legal duty to go beyond the register to investigate and verify the history of all past transactions done in respect of the subject land;

It is absurd to label D6 as not a bona fide purchaser simply because he has not done such background search; and

As D6 on 1 November 2016 was registered as the proprietor of the subject land it is conclusive evidence that the D6 is the registered proprietor. Our Decision Whether D5 was an “immediate purchaser” [24] At the outset, we will deal with the argument taken on behalf of the Plaintiff that D5 was an “immediate” purchaser who did not have an indefeasible title. In this regard, counsel for the Plaintiff referred to the decision of the Federal Court in Kamarulzaman bin Omar & Ors v. Yakub bin Husin & Ors [2014] 2 MLJ 768 (FC) and submitted that since the title to the subject land was transferred to D1 through fraud and forgery, therefore this vitiates and extinguishes the title which was registered in the name of D1 (per s.340 (2) of the National Land Code) and accordingly D1 had nothing to transfer to D5. As such, it was argued that when the title became transferred to D5, then the status of D5 is that of an immediate purchaser and not a subsequent purchaser. [25] We are unable to accept the argument that was made on behalf of the Plaintiff. In our view, D1 is the immediate purchaser (transferee) and D5 and D6 are subsequent purchasers (transferees). The same argument was raised in the case of Baskaran Govindasamy & Ors v. Chiew Yit Kin [2025] 7 CLJ 1 (Baskaran’s case) where this Court had held that the trial Judge in that case had erred in construing the appellant (Baskaran) as an immediate purchaser. It would suffice if we reproduce the relevant parts of the Court of Appeal’s judgment in that case as it deals with Kamarulzaman bin Omar & Ors v. Yakub bin Husin & Ors [2014] 2 MLJ 768 (FC) and other related cases including the seminal case of Tan Ying Hong v. Tan Sian San & Ors [2010] 2 CLJ 269; [2010] 1 MLRA 1; [2010] 2 MLJ 1 (FC) and lastly, the case of Bitara Angkasa (supra). [26] First, we shall refer to that part of the judgment in Baskaran’s case which had alluded to the trial judge’s approach to the question as to whether the appellant (Baskaran) was an immediate purchaser or subsequent purchaser. The passages read as follows: “[115] The Federal Court has now clarified that a purchaser is not in law considered a subsequent purchaser under the proviso to s. 340(3) of the NLC if he has acquired his title not from an immediate purchaser but from imposters of those entitled to the land. [Kamarulzaman bin Omar & Ors v. Yakub bin Husin & Ors [2014] 1 CLJ 987; [2014] 2 MLJ 768, FC Held 1, Jeffrey Tan FCJ]. [116] Similarly, in this case the seventh and eighth defendants did not acquire the Subject Land from a purchaser who bought from a fraudster seller. Instead, the seventh and eighth defendants bought the Subject Land from the third defendant who had obtained title fraudulently by executing a fraudulent Form 14A which contains the plaintiff's forged signature. [117] Therefore, based on Kamarulzaman bin Omar & Ors v. Yakub bin Husin & Ors [2014] 2 MLJ 768 FC, the seventh and eighth defendants are immediate purchasers and not subsequent purchasers. They are therefore not entitled to indefeasibility of title as against the plaintiff under the proviso to s. 340(3) of the NLC. [118] On this ground alone, the plaintiff is entitled to judgment against the seventh and eighth defendants.” [27] The Court of Appeal disagreed with the trial judge in Basrakan’s case. The Court of Appeal’s reasons and conclusions on this point (which we hereby adopt for purposes of the present appeals) may be gathered from the following passages of the judgment which read as follows: “[21] Based on the Kamarulzaman 's case (supra), we are of the view that:

the Federal Court in Kamarulzaman 's case (supra) had approved and followed the Federal Court decision in Tan Ying Hong 's case (supra);

(ii) if we were to apply the simplified explanation by the then Chief Justice, Zaki Azmi (as he then was) in Tan Ying Hong 's case (supra) to the present case, the plaintiff would be A, the third defendant would be B and the seventh and eighth defendants would be C;

III

(iii) the third defendant (B) is an immediate purchaser, if his title was obtained by fraud by him or anyone else to which he was a party or privy then his claim to the title will be defeated;

(iv) the seventh and eighth defendants (C) on the other hand are subsequent purchasers. If the seventh and eighth defendants can show that they had acquired the title or interest in good faith and for valuable consideration, their title to the subject land would be indefeasible;

in Kamarulzaman 's case (supra), unlike the present case, there was no immediate purchaser or purchaser (regardless of whether the immediate purchaser was a party to the fraud). The first to fourth respondents were imposters of those entitled to the estate of the deceased. They, like the fake Boonsom who impersonated the true Boonsom, had no title to pass to the fifth and sixth respondents. They had obtained title from the deceased through fraud in the distribution of the estate of the deceased and not through a fraudulent sale and purchase; and

(vi) given the above, Kamarulzaman 's case (supra) can clearly be distinguished from the present case. The learned JC had erred in applying Kamarulzaman 's case (supra) and holding that the seventh and eight defendants are immediate purchasers of the subject land. [22] Further, the Court of Appeal in Bitara Angkasa Sdn Bhd v. Cheok Lam Chuan & Ors [2024] 1 CLJ 202; [2024] 1 MLRA 577; [2024] 1 MLJ 541 which involves similar facts to the current case has held as follows: Is Bitara Angkasa an immediate or a subsequent purchaser? [29] The learned High Court judge found that Bitara Angkasa is an immediate purchaser of the land by reason that Charles Oh has been involved in the fraud as claimed by LC Cheok because judgment in default has been entered against him; see para [21] above. [30] According to Bitara Angkasa, it is instead a subsequent purchaser of the land and thus entitled to rely on s 340(1) and (3) of the NLC. In other words, Bitara Angkasa enjoyed deferred indefeasibility of title to the land. ... [32] The interpretation of s340 of the NLC on indefeasibility of title vis a vis an immediate purchaser and subsequent purchaser is a question of law which has been conclusively settled in Tan Ying Hong v Tan Sian San & Ors [2010] 2 MLJ 1; [2010] 2 CLJ 269 (FC) (overruling Adorna Properties Sdn Bhd v. Boonsom Boonyanit @ Sun Yok Eng [2001] 1 MLJ 241; [2001] 2 CLJ 133 FC) where Arifin Zakaria CJ (Malaya) (later CJ) held as follows with emphasis added by us... [33] We are however mindful that the learned High Court judge found Bitara Angkasa an immediate purchaser of the land based on the following dicta of Abang Iskandar FCJ (now PCA) in He-Con Sdn Bhd v. Bulyah bt Ishak & Anor (as administrators for the estate of Nor Zainir bin Rahmat, the deceased) and another appeal with emphasis added by us: [102] The immediacy of the purchase relates to the vitiating vendor, not how far removed it is in the tally among the purchasers. To be a subsequent purchaser, it must have purchased the interest in the property that is being used as a security from a purchaser who is one that is bona fide for value. Any direct dealing with a rogue will necessarily vitiate the transaction rendering it defeasible, although it is duly registered. .... [37] Adopting the simplified manner of analysis of Zaki Tun Azmi CJ, we find that both the Adorna Properties Sdn Bhd v Boonsom Boonyanit @ Sun Yok Eng case and Tan Ying Hong v. Tan Sian San & Ors case involved forgery by A. The transferred title of B was not set aside in Adorna Properties Sdn Bhd v. Boonsom Boonyanit @ Sun Yok Eng case but the registered charge was set aside in the Tan Ying Hong v. Tan Sian San & Ors case because B was held to be an immediate chargee that could not resort to the proviso in s. 340(3) of the NLC. In respect of the CIMB Bank Bhd v. AmBank (M) Bhd & Ors, it also involved forgery by A to discharge the charge and transfer of the title to B. C, the eventual charge of the charge created by B was held to be a subsequent chargee. As to the He-Con Sdn Bhd v. Bulyah bt Ishak & Anor (as administrators for the estate of Nor Zainir bin Rahmat, the deceased) and another appeal, it is a case of competing interests in the land by reason of double dealings rather than strictly linear dealings between A and B and thereafter B and C that involved vitiating factors such as forgery or fraud. [38] Since the He-Con Sdn Bhd v. Bulyah bt Ishak & Anor (as administrators for the estate of Nor Zainir bin Rahmat, the deceased) and another appeal case is strictly not a case that directly concerned s 340 of the NLC, the dicta of Abang Iskandar FCJ (now PCA) as reproduced in para [33] above must necessarily be obiter dicta only. [39] The relevant fact scenario here involved forgery by A but also with B in fraudulent cahoots (established by reason of the default Judgment) and thereafter transferred to C. [40] In this regard, it was held by Azahar Mohamed FCJ (later CJ (Malaya)) in Pushpaleela a/p R Selvarajah & Anor v. Rajamani d/o Meyappa Chettiar And Other Appeals [2019] 2 MLJ 553; [2019] 3 CLJ 441 (FC) as follows on similar facts with emphasis added by us: [128] As a subsequent purchaser, the first defendant had purchased the land in good faith and for valuable consideration. The High Court found that the first defendant had at all material times neither knowledge nor notice of the commission of the fraud by the second defendant in cahoots with the fraudster that resulted in the transfer of the land to the second defendant. In respect of the sale of the land by the second defendant to the first defendant, the first defendant appointed its solicitor’s TS Teoh & Partners. Both the first defendant and its solicitors conducted land searches on the land before the entry of the sale and purchase agreement between the first defendant and the second defendant. The searches done on 13 July 2006 and 21 July 2006 revealed that the title was clean and free from caveats including the private caveat lodged by the plaintiff's son on 1 March 2001. [129] Applying the well-established principle to the present case, it is our considered opinion that the first defendant who conducted searches on the register and purchased the land in good faith and for valuable consideration, had, upon registration as the proprietor on the register document of title, acquired an indefeasible title, notwithstanding that the second defendant's title itself is defeasible. Hence, subsequent transfer of the land to the first defendant and the registration thereof in the name of the first defendant was indefeasible by reason that the first defendant was the bona fide purchaser for valuable consideration. [41] By analogy, we therefore hold that Bitara Angkasa is a subsequent purchaser that acquired deferred indefeasibility to the title of the land notwithstanding that Charles Oh had committed fraud in cahoots with LC Cheok's imposter. [42] We are further mindful that the fraud by Charles Oh here is only presumed based on the default judgment obtained by LC Cheak following the case of Kamarulzaman bin Omar & Ors v. Yakub bin Husin & Os unlike in Pushpaleela a/p R Selvarajah & Anor v. Rajamani d/o Meyappa Chettiar and other appeals where it was affirmatively proved; see Rajamani a/p Meyappa Chettiar v. Eng Beng Development Sdn Bhd & Ors [2016] 4 CLJ 510; [2016] 3 MLJ 660; [2015] 2 AMR 767. [43] In the premises, we therefore find that the learned High Court Judge has plainly erred in law that justified our appellate intervention. (emphasis added) [23] Given the above, we are of the view that the learned JC had erred in law and facts in holding that the seventh and eighth defendants are immediate purchasers of the subject land and not subsequent purchasers.” Indefeasibility of Title [28] Thus, in so far as the appeals before us are concerned, our position is as stated by the Court of Appeal in Baskaran’s case and we likewise hold that D5 and D6 are subsequent purchasers. Thus, the sole question which remains for determination here is whether D5 and D6 have acquired an indefeasible title to the subject land. D5 and D6 asserted that they are both bona fide purchasers for valuable consideration. Indeed, this was one of the issues for determination in the trial. [29] In this regard, it is relevant to quote from the case of See Leong Chye @ Sze Leong Chye & Anor v. United Overseas Bank (M) Bhd and another appeal [2021] 5 MLJ 759, where Vernon Ong FCJ (as he then was) dealt with the topic of defeasibility and indefeasibility and immediate and subsequent purchasers and held as follows: “[67] The question of whether a title or interest in land is defeasible or indefeasible is a question of mixed fact and law. In our view, the answer to this question depends on whether the purchaser is an immediate or subsequent purchaser. This is a question of fact which turns on the particular circumstances of each case. If the purchaser is an immediate purchaser, then the law applicable to that purchaser's title or interest is sub-s 340(2) of the NLC. Accordingly, the immediate purchaser’s title or interest is not indefeasible. His title or interest in the title may be set aside by the rightful owner of the land if it was obtained through any one of the vitiating factors listed under sub-s 340(2) of the NLC-fraud, misrepresentation, forgery, insufficient or void instrument. The fact that the immediate purchaser may have acquired his title or interest in good faith and for valuable consideration is irrelevant and of no avail. So long as any of the vitiating factors are established on the evidence, the immediate purchaser's title or interest in the land is liable to be set aside (see Tan Ying Hong (2010); Kamarulzaman Omar e Ors v. Yakub Husin & Ors [2014); Samuel Naik Siang Ting v Public Bank Berhad [2015]; He-Con Sdn Bhd v Bulyah Ishak & Anor [2020]). [68] If, however, the facts show that the purchaser is a subsequent purchaser, then the law applicable is the proviso to sub-s 340(3) of the NLC. This means that a subsequent purchaser's title or interest in the land is also not indefeasible if it can be shown that he was not a purchaser in good faith and for valuable consideration; put another way, if the subsequent purchaser is not a bona fide purchaser for value, then his title or interest in the land may be set aside. If, however, the subsequent purchaser is a purchaser in good faith and for valuable consideration, then his title or interest in the land will become indefeasible under the proviso to sub-s 340(3) of the NLC (see T Sivam Tharamalingam [2018]); CIMB Bank Bhd [2017]; Liputan Simfoni [2018]; Puspaleela R Selvarajah [2019]).” [30] In Setiakon Engineering Sdn Bhd v. Mak Yan Tai & Anor [2024] 5 MLJ 460, Abdul Rahman Sebli CJ (Sabah and Sarawak) (delivering the majority judgment of the court) dealt with the issue of evidence required to prove the bona fide of a subsequent purchaser and held relevantly as follows: “[106] In proving good faith and for valuable consideration under s.340(3), obviously it cannot be done just by looking at the register document of title as suggested by the appellant. That of course would be sufficient for the purpose of ascertaining who the registered owner of the land is as the register document of title accurately reflects (mirrors) all vital details with regard to the land's registered owner and the conditions, restrictions et cetera that the land is subject to. It must be appreciated that the intention behind the proviso to s.340(3) is to conciliate and strike a balance between the rights and interests of the innocent subsequent purchaser and the rights and interests of the unfortunate original land owner who had been dispossessed of his land by fraud. [107] To reiterate, where it involves the purchase of land by a subsequent purchaser, it is only where the title to the land had been acquired in good faith and for valuable consideration that the shield of indefeasibility is accorded to the title. Otherwise the default position under s.340(3) remains that the title is defeasible and liable to be set aside in the hands of the subsequent purchaser. [108] The quantum of proof required of the subsequent purchaser to discharge his burden of proving good faith and for valuable consideration in the purchase of the land is proof on the balance of probabilities (as opposed to the heavier burden of proving a case beyond reasonable doubt).” Were D5 and D6 bona fide purchasers for value? [31] It is settled law that the burden of proof was on D5 and D6 to show on a balance of probabilities that they were bona fide purchasers for valuable consideration. (See: Lord Thankerton's judgment in Bhup Narain Singh v. Gokhul Mahton LR 61 IA 115 - which is authority for the proposition that “the burden of proving that one is a bona fide purchaser for value lies upon him who so asserts”). However, in the present case, upon evaluating the evidence, the Judge concluded (rightly in our view) that the burden of proof had not been discharged by D5 and D6. In his judgment, the Judge held: “[24] Next, even though D5 and D6 pleaded that they are subsequent purchaser who are protected by the proviso in section 340(3) of the National Land Code, however I find that they have failed to prove that they are bona fide purchasers and/or in good faith for valuable consideration. With short timeline of transfer, I doubted as how the land search can properly be conducted by the parties. Usual conveyancing practices take some time to complete the whole process of transfer. But not to our case whereby the transfer of the Land D1 to D5 took only one (1) month and from D5 to D6 took only six (6) days. For this, I refer to the case of T Sivam a/l Tharamalingam (as representative/administrator for the estate of Nagamuthu a/l Periasamy, deceased) v Public Bank Bhd [2018] 5 MLJ 711 in which the Federal Court decided as follows: The existence of good faith or otherwise depended on the particular facts of each case; it was a question of fact in each case for the court to determine on the evidence. Good faith did not simply mean absence of fraud, deceit or dishonesty; it also required acting honestly, reasonably or fairly. Knowledge of a dispute as to the ownership of property and knowledge of fraud, for example, could vitiate good faith. The elements of good faith were not closed but depended upon the circumstances in each case.” [32] The question therefore boils down to whether the Judge had misappreciated the evidence in concluding that D5 and D6 had not proven that they were bona fide purchasers for valuable consideration. In approaching this issue, we have undertaken an examination of the evidence and we now make the following observations. [33] According to Loi Cheng Peng (DW2), the witness who testified on behalf of D5, around early 2016, he was introduced to the subject land by a property agent, named as Lim Kim Soon ("Lim") and was interested to purchase the subject land at the purchase price of RM1,000,000.00. Lim also provided a copy of the letter dated 27 January 2016 issued by IPC Island Property Consultants Sdn Bhd which pertained to the valuation of the subject land. [34] Subsequently, D5 appointed D4 as their solicitor to handle the sale and purchase transaction. At all material times, D5 claimed to have paid the earnest deposit of RM20,000.00 to the property agent and the balance deposit of RM80,000.00 was paid directly to D1. After the execution of the sale and purchase agreement with D1, D5 faced financial difficulty to pay the balance purchase price and had to seek a friendly loan of RM1,000,000.00 from D6. [35] According to DW2, after the completion of the sale and purchase transaction with D1, D5 was unable to repay D6 and had offered D6 to purchase the subject land at the purchase price of RM2,000,000.00, in which the RM1,000,000.00 will be considered as part payment of the purchase price. D6 accepted the offer and instructed his solicitors from Messrs Rahim & Tan to handle the sale and purchase transaction with the D5 and the same was completed and the subject land was duly registered under the name of D6 by the Land Registry on 5 November 2016. [36] To recap, the transaction between the imposter who pretended to be the Plaintiff and D1 was fraudulently carried out by using the Plaintiff’s full name, fake NRIC which the photograph therein is not the Plaintiff’s, forged signature and fake land title because the original was in the Plaintiff’s safekeeping. Subsequently, the transaction between D1 and D5 was fraudulently carried out by using a fake Land Title and the Form 14A which was signed by Loi Cheng Peng is a void instrument because he was not a director of D5 at the material time. The Evidence [37] Cheok Lam Chuan (PW2) testified in his witness statement and said as follows (Enclosure 4 Records of Appeal Volume 2A pages 113-121). “S13: Siapakah yang menyimpan salinan asal keempat-empat suratan hakmilik H.S. (D) yang dikutip oleh Cheoh Tuan Joo daripada Tetuan Seah Choon Chye? J13: Saya yang memegang salinan asal keempat-empat suratan hakmilik H.S. (D) tersebut setelah Cheoh Tuan Joo mengutip salinan asal keempat-empat suratan hakmilik H.S.

(D) tersebut daripada Tetuan Seah Choon Chye. S14: Bilakah salinan asal keempat-empat suratan hakmilik H.S.

(D) tersebut ditukar kepada geran? J14: Pada atau lebih kurang pada tahun 2016, salinan asal keempat-empat suratan hakmilik H.S. (D) tersebut telah ditukar kepada geran. S15: Siapakah yang menyimpan salinan asal keempat-empat suratan hakmilik geran komputer? J15: Setelah salinan asal keempat-empat suratan hakmilik H.S.

(D) tersebut digantikan kepada suratan hakmilik geran, saya yang menyimpan keempat-empat suratan hakmilik geran. S16: Apakah berlaku kepada tanah yang dipegang bawah Geran 159176, Lot 14182, Pekan Lukut, Daerah Port Dickson? J16: Tanah yang dipegang bawah Geran 159176, Lot 14182, Pekan Lukut, Daerah Port Dickson (selepas ini dirujuk sebagai 'hartanah Lot 14182') telah dipindahmilik kepada pihak lain secara tipu. S17: Bagaimana kamu mendapat tahu hartanah Lot 14182 dipindahmilik kepada pihak lain secara tipu? J17: Selepas Cheak Yit Tuck meninggal dunia pada 2 Jun 2009, bil-bil cukai tanah bagi hartanah Lot 14182 adalah dikeluarkan atas nama Cheoh Tuan Joo, iaitu salah seorang benefisiari bawah harta pusaka Cheoh Bau Tuan. Bil-bil cukai tanah bagi hartanah Lot 14182 tersebut daripada tahun 2012 hingga 2016. Cheoh Tuan Joo tidak menerima bil cukai tanah berturut-turut bagi tahun 2017 dan 2018. Pada atau lebih kurang pada April 2018, Cheoh Tuan Joo membuat semakan dan memaklumkan saya bahawa hartanah Lot 14182 tersebut telah dipindahmilik kepada pihak lain secara tipu. Setelah mendapat makluman daripada Cheoh Tuan Joo bahawa hartanah Lot 14182 tersebut telah dipindahmilk kepada pihak lain secara tipu, saya telah mendapat nasihat daripada Tetuan Seah Choon Chye bahawa pemilikan hartanah Lot 14182 tersebut telah ditukar nama kepada suatu syarikat yang saya tak kenal. S18: Apakah berlaku seterusnya? J18: Saya telah mengarahkan peguam saya untuk memasukkan kaveat persendirian bagi melindungi kepentingan benefisiari-benefisiari harta pusaka Cheoh Bau Tuan. Kaveat persendirian saya telah didaftarkan pada 24 Mei 2018 melalui nombor perserahan 5912/2018.” [38] Mohd Alfian bin Alwi, an Assistant Registrar from Pejabat Tanah dan Galian, Negeri Sembilan (DW5) testified in his witness statement and said as follows (Enclosure 4 Records of Appeal Volume 2A pages 165-171): “Soalan: Apakah kaitan Defendan Ketujuh (D7) dan Kelapan (D8) di dalam kes ini? Jawapan: Defendan Ketujuh dan Kelapan bertindak sebagai agensi yang mendaftarkan urusniaga pindahmilik hartanah yang dipegang di bawah Geran 159176 Lot 14182 Pekan Lukut Daerah Port Dickson, Negeri Sembilan.

Soalan:

Preamble

Menurut rekod tuan, apakah urusan pindahmilik yang telah dikendalikan dan didaftarkan oleh Defendan ke-7 dan Ke-8? Jawapan: Pada 21/1/2016, Defendan Ke-7 dan Ke-8 menerima satu urusniaga pindahmilik daripada Tetuan Khairuddin Lina Leong & Co Kajang yang mahu mendaftarkan Borang 14A daripada pemilik bernama Cheok Lam Chuan kepada penerima pindahmilik Fu Zhi Mao Group Sdn Bhd dan telah didaftarkan sebagai perserahan no. 961/2016. Soalan: Adakah Borang Pindahmilik 14A serta dokumen-dokumen lain bagi perserahan 961/2016 tersebut ada dalam Ikatan Dokumen? Jawapan: Tiada. Soalan: Mengapa tiada? Jawapan: Dokumen-dokumen perserahan 961/2016 tersebut tiada dalam simpanan PTG dan telah dicari berulang kali tetapi masih gagal dijumpai. Soalan: Mengapa pihak tuan mendaftarkan dokumen-dokumen tersebut? Jawapan: Dokumen-dokumen tersebut dipercayai adalah teratur dengan adanya Borang 14A, Geran hakmilik dikemukakan, dan cukai tanah telah dibayar dan disertakan sepertimana tercatit dalam Penyata Perserahan 961/2016 di muka surat 273 IDB C. Soalan: Apakah terdapat urusniaga lain yang melibatkan hartanah Lot 14182? Jawapan: Pada 23/3/2016, Defendan Ke-7 dan Ke-8 telah menerima satu lagi urusniaga Borang 14A pindahmilik daripada Fu Zhi Mao Group Sdn Bhd kepada Top ATC Industries Sdn Bhd yang didaftarkan di bawah perserahan No. 5595/2016. Soalan: Ada lain-lain urusniaga? Jawapan: Pada 1/11/2016, Defendan Ke-7 dan Ke-8 telah menerima satu lagi urusniaga Borang 14A pindahmilik daripada Top ATC Industries Sdn Bhd kepada Lee Kok Chian yang didaftarkan di bawah perserahan No. 27739/2016. Soalan: Mengapa kesemua dokumen didaftarkan? Jawapan: Kesemua pindahmilik tersebut didaftarkan kerana pada masa itu Pendaftar Hakmilik berpuas hati kesemua dokumen tersebut adalah teratur dan layak didaftarkan. Soalan: Adakah lain-lain urusniaga? Jawapan: Ya, terdapat permohonan memasukkan Kaveat Persendirian oleh Lee Kok Chian pada 1/4/2016 dengan alasan untuk menjaga kepentingannya yang telah memasukki perjanjian dengan pemilik Lot 14182 pada ketika itu iaitu Top ATC Industries Sdn Bhd dan didaftarkan di bawah perserahan 2649/2016. Soalan:

Preamble

Menurut rekod tuan, ada atau tidak pihak lain yang memasukkan kaveat? Jawapan:

Preamble

Menurut rekod, Plaintif sendiri ada memohon memasukkan Kaveat Persendirian pada 24/5/2018 dengan alasan berlaku perbuatan memindahmilik hartanah tersebut kepada pihak ketiga tanpa persetujuan mahupun pengetahuan Cheok Lam Chuan dan ia didaftarkan di bawah perserahan 5911/2018. Soalan:

Preamble

Menurut rekod tuan, adakah apa-apa perserahan yang telah didaftarkan di hartanah tersebut? Jawapan:

Preamble

Menurut rekod, Lee Kok Chian telah menarik balik Kaveat Persendiriannya seiring pendaftaran pindahmilik kepadanya pada 1/11/2016 dan didaftarkan di bawah perserahan no. 10518/2016 seperti tercatat dalam Carian Rasmi Hakmilik dan Maklumat Tidak Berkuatkuasa. Soalan:

Preamble

Menurut rekod tuan, kenapa Plaintif memasukkan Kaveat Persendirian ke atas Lot 14182? Jawapan: Plaintif mendakwa bahawa beliau tidak pernah menandatangani Borang Pindahmilik serta memindahmilik Lot 14182 yang dipegangnya sebagai Pemegang Amanah kepada Fu Zhi Mao Group Sdn Bhd dan Paintif telah membuat repot polis dan mendakwa berlaku penipuan. Soalan: Apa tindakan yang telah pihak tuan lakukan? Jawapan: Kaveat Pendaftar telah didaftarkan pada 28 Mei 2018 di bawah perserahan no. 6035/2018.” Cross-examination of Mohd Alfian Bin Alwi [39] (Enclosure 9 Record of Appeal Part B & C Volume 2 (5) pages 803-809): Ini adalah dokumen daripada Tuan, pejabat Tuan sendiri. Ok, Tn Alfian. Bersandarkan dokumen ini, yang dikeluarkan oleh PTG ataupun Pendaftar Hakmilik Negeri Sembilan, benar atau tidak pada, kalau menurut dokumen ini, sebelum geran yang lama dikomputerkan menjadi computer title, geran asal adalah atas nama Cheok Yik Tat dan Cheok Lam Chuan sebagai pemegang amanah, benar atau tidak? Alfian: Benar. Ini adalah suratan hakmilik sementara iaitu geran asal sebelum dikomputerkan, sebelum jadi title geran komputer, berkomputer. Sila lihat suratan hakmilik sementara, has been marked as P1, Yang Arif, muka 13, 14 dan 15, sehingga 16 lah, minta maaf. Benar atau tidak bahawa bersandarkan suratan hakmilik sementara ini, pemegang tanah iaitu HSD 21640, PT 2725 adalah Cheok Yik Tat dan Cheok Lam Chuan sebagai pemegang amanah, benar atau tidak? Alfian: Maka, sebelum Cheok Lam Chuan boleh menjadi pemilik berdaftar, seharusnya ada pemindahmilikan daripada Cheok Yik Tat dan Cheok Lam Chuan kepada Cheok Lam Chuan, betul atau tidak? Alfian: Ya, betul. Maka, kalau pemindahmilikan daripada Cheok Yik Tat dan Cheok Lam Chuan kepada Cheok Lam Chuan adalah satu transaksi yang benar, ia akan ada dalam rekod Pendaftar Hakmilik Negeri Sembilan, betul atau tidak? Alfian: Betul. Saya nak tanya Tuan, soalan, adakah apa-apa rekod di Pejabat Pendaftar Hakmilik ataupun PTG, apa-apa rekod di bawah Kanun Tanah Negara sehubungan transfer atau pindah milik daripada Cheok Yik Tat, Cheok Lam Chuan kepada Cheok Lam Chuan? Alfian: Tiada. Dan Tuan, sila juga lihat kepada muka surat 9, nombor perserahan 961/2016. Benar atau tidak bahawa tiada apa jua rekod bawah Kanun Tanah Negara di Pejabat Pendaftar Hakmilik sehubungan apa yang diendrosekan di sini iaitu pemindahmilikan daripada Cheok Yik Tat kepada Fu Zhi Moa Group Sdn Bhd, tiada? Alfian: Tiada. Tiada apa jua rekod, betul atau tidak? Alfian: Betul. Dan juga tiada apa jua rekod daripada Cheok Lam Chuan kepada Fu Zhi Mao? Alfian: Bukan. Ok, saya rakamkan semula soalan saya. Dengar betul-betul. Kalau ada satu transfer, dealing ataupun transaction diserahkan kepada PTG, mesti ada rekod, bukan? Maka, kalau tidak ada rekod, itu adalah sesuatu yang luar biasa kan? Alfian: Apa? Bersetuju dengan saya, luar biasa? Alfian: Setuju, ya. Mr: Dan sila lihat jawapan kamu, pernyataan saksi kamu, soalan bagi, Soalan No. 10 "Mengapa pihak Tuan mendaftarkan dokumen-dokumen tersebut?" Ini adalah berdasarkan rekod sebab pada ketika itu, Tuan tidak ada di sana, Tuan yang tidak menguruskan ini, bersandarkan rekod yang sedia ada. Kamu kata "Dipercayai adalah teratur." Maka, di sini, maksud "dipercayai teratur" adalah ia mematuhi Seksyen 301, Kanun Tanah Negara kan? 301, Kanun Tanah Negara iaitu bila pengira itu dia memastikan ada title, memastikan ada attestation, tengok permission form, content, execution, attestation and instrument of dealing, assessment, quit rent dan sebagainya, semua ada, maka, you kata teratur. Bersetuju dengan saya bahawa semasa menerima title dan Borang 14A ini, kalau ada attestation dan sebagainya, PTG menerimanya sebagai teratur tidak bermakna geran itu adalah geran, semestinya geran yang autentik atau tulen, betul atau tidak? Alfian: Betul. Maka, kamu terima sebab dia mematuhi, ok, ada title, tengok ok, ada 14A, attestation semua dah sain, ok, quit rent semua dah, stamp duty semua dah selesai, terima. Alfian: Dan benar atau tidak untuk Cheok Lam Chuan, secara peribadi, Cheok Lam Chuan secara peribadi, in his personal capacity untuk menjadi pemilik berdaftar di bawah Kanun Tanah Negara, dia mesti ada transaksi antara Cheok Yik Tat dan Cheok Lam Chuan berikan kepada Cheok Lam Chuan, betul atau tidak? Alfian: Betul. Kalau tidak ada apa jua transaksi dalam rekod Pendaftar Hakmilik, ia tidak boleh diterima sebagai proprietor bawah Kanun Tanah Negara, benar atau tidak? Alfian: Benar. Kalau dia tak boleh diterima sebagai proprietor atau pemilik di bawah Kanun Tanah Negara, ia bermakna dia tak boleh menjual atau membuat apa-apa dealing dengan tanah itu kepada Pihak Ke-3 termasuk Fu Zhi Mao, betul atau tidak? Alfian: Betul. Maka, benar atau tidak bahawa dalam database you tiada apa jua rekod sehubungan transfer of property from Cheok Lam Chuan kepada Fu Zhi Mao? Alfian: Ya Dan tiada apa jua rekod sehubungan transfer of property from Cheok Yik Tat, Cheok Lam Chuan sebagai pemegang amanah kepada Cheok Lam Chuan. Alfian: Ya.” [40] Loi Cheng Peng (DW2) Director of D5 in his witness statement (Enclosure 9 Record of Appeal Part B & C Volume 2 (5) pages 143-149) said: “Q: Can you inform the Court what happened after parties executed the Sale and Purchase Agreement dated 24.2.2016? We have paid the stamp duty and the purchase price. We were informed by the 4th Defendant that the said Land proprietorship had been transferred to 5th Defendant vide the memorandum of transfer Form 14A dated 1.3.2016 executed by the 1st Defendant's directors and the 5th Defendant's directors and such has been verified, accepted and registered by the 7th Defendant and the 8th Defendant on the land title dated 23.3.2016. How did the 5th Defendant pay the 1st Defendant? The 5th Defendant is an investment holding company which was incorporated to hold the assets of my other company and not doing any business. Therefore, for all the payments to 1st Defendant, we have paid through my other company Advance Tech Communications Sdn Bhd and monies borrowed from Mr. Lee Kok Chian. Why did the 5th Defendant borrow monies from the 6th Defendant? We were short of fund and we do not want the sale and purchase transaction to be defaulted. Can you tell the Court what happened afterwards? After the said Land had been transferred to 5th Defendant, our financial position was still unresolved and due to this matter, I and my other director, Jonathan Loi had no other choice but to offer to sell the said Land to the 6th Defendant at the sum of RM2,000,000.00. Can you inform the Court what was the response of the 6th Defendant? The 6th Defendant agreed to our offer and both parties also agreed to take into account the monies borrowed amounting RM1,000,000.00 as part of the purchase price. What happened thereafter? The 6th Defendant appointed Messrs. Rahim & Tan to prepare the Sale and Purchase Agreement dated 29.3.2016 and handling of the sale and purchase transaction. The 6th Defendant paid the remaining balance purchase price and the said Land was transferred to the 6th Defendant.” [41] During cross-examination, DW2 (Enclosure 6 Record of Appeal Volume 2C-Part B pages 599-603) said: And I'm just showing you that it is written there in Bahasa, 'Pembelaan Defendan Kelima.' Defendan Kelima is Top ATC. So, this is the statement of defence by Top ATC. Alright. Now, you look at page 46, paragraph 9H, H for horse.

You have relied on your company. When I say you means Top ATC. Has relied on 'Klausa 3.2, perjanjian jual beli, menyatakan deposit telah dibayar kepada ejen Lim dan baki deposit dan baki harga jualan dibayar kepada Defendan Keempat sebagai pemegang kepentingan.' That is as a stakeholder. Ok, so, you're relying on Clause 3.2 of the S&P agreement, ok? Now, more specifically, please look at page 47, paragraph 12? Para 12, page 47, para 12. You're saying that 'baki deposit, there's a balance of the deposit, that is about RM80,000, and 'baki harga jualan hartanah, that is RM900,000, 'telah dibayar kepada Defendan Keempat,' that is your lawyer Theselim, 'sebagai pemegang kepentingan. As a stakeholder in accordance to Clause 3.2. Is that statement correct? Yes, it's a statement. Yes. Correct, yes? So, Top ATC paid RM980,000 to Theselim Begam Bt Mohd Yusoff, that's the Fourth Defendant, as the stakeholder under the agreement, correct? Alright. So, according to your defence, l'm relying on your defence, paragraph 12, you are telling the Court, you're pleaded here, that RM980,000 was paid to the Fourth Defendant in accordance to Clause 3.2 of the S&P agreement. Is that correct? Yes. Mr Loi, now that you have said yes that the RM980,000 was paid to your lawyer, D4, as the stakeholder, can you show any proof, documentary proof this money RM980,000 was paid to D4? Cash. We are paying cash. I have not finished my question. Can you show any proof, documentary proof means you show some receipt where the money has been paid to D4, your lawyer? The receipt was handled by me, not by my staff. So, I must have misplaced the receipt, that's all. It's paid. Beg your pardon? I must have misplaced the receipt, it's paid. It's a voucher. You misplaced the voucher? I could have lost it. I don't know. I couldn't find it. That's the truth. So, now you are saying that you can't produce the documentary proof because you have misplaced it. Let me put it to you, very firmly, Mr Loi, that you are not telling the truth to the Court because yesterday, your lawyer, Pn Theselim, had testified that the monies were not paid to her at all. She didn't say any monies going to her office. I'm putting it to you, what's your response? So, if that's what she said, that's what she said. Yes? So, your lawyer, Pn Theselim, had testified that the monies were not paid to her whereas you in your defence, said that the money was paid to her. Correct. So, who is correct? Your lawyer or Loi? The lawyer is correct. It's money. Lawyer is correct. Now, you, how do you, you see, if Top ATC makes a payment to Fu Zhi Mao, a company to a company, it's by way of a cheque or a bank draft, right? Cash. How do you pay cash to a company? That's what they asked. They asked for cash. No, just answer how do you pay cash to a company, Fu Zhi Mao? Collect the cash and give it to them. I put it to you, that there was no payment by Top ATC to Fu Zhi Mao. That's not... What's your response? That's not true. Not true? Can you show a bank statement? You said payment vouchers all missing. Now, I give you a second chance. Can you show, wait, l've not finished my question. Alright. Can you show any bank statement by Top ATC, bank statement saying that monies had been taken out from the account of Top ATC and paid. That money. Wait, I have not finished my question. And you look at the payment voucher up there and the payment voucher down, they carry the same cheque number. Why is it the same cheque number having two different payment vouchers? This is by my staff. I don't handle this sort of thing, by my staff. But you have inserted that into the bundle, ok. Now, look at the second one, second payment voucher down there. Legal fees RM5,000, surveyor's fees RM3,000 and then bracket, Langkawi project. Which Langkawi project are you referring to? That probably is that the KC Lim, the agent. No, Mr Loi, you are not answering my question. I'm telling you, this is the payment voucher. … It's a different company, not Top ATC, Advance Tech Communications Sdn Bhd. Correct. A totally different entity. You can have several companies but they are each a different entity at law. You look at the payment voucher. When I asked you why is it the same cheque number but two different payment vouchers, you said I can't answer that, right? I never say can't answer that. It is my document, this is my signature, this is my company. Ok, then you explain to me why the payment vouchers up there and the payment voucher down, there are two payment vouchers here, carry the same cheque number with different contents? I just told you, it's prepared by my staff. Yes. So, you can't answer. So, you said prepared by my staff, I can't answer. But it's before the Court and ok, never mind. Now, look at the payment voucher down. You agree with me that this document, which was put into the bundle and served on all the parties, refers to a Langkawi project. Am I right? They said there. Right? Yes. Yes. Same bundle, 196. You agree that this document doesn't say anything, any payment between Fu Zhi Mao and Top ATC. I repeat. This document here, this payment voucher, doesn't say anything about, based on the contents, about payment by Top ATC to Fu Zhi Mao. Am I right? That's what you say, yes, it's. Yes or no? Say yes or no. Yes. Do you agree with me that the content here merely says land deal agreement. It doesn't say which land deal agreement. Am I right? That's what the staff normally do. I mean, they try to make it simple, you know, lazy, whatever. Yes or no? You agree or not? It merely says land deal agreement. Can be any. I don't agree this is the agreement. It doesn't tell us which land agreement this document is talking about - But there's no other land agreement that we do. I just showed you a Langkawi project payment voucher, right? Langkawi is agent's, I don't know, agent fee or whatever, nothing to do with land. You're just mumbling, not giving any evidence. Now, you look at the date. The date is 06.01.2016, am I right, this payment voucher? Yes. On this date, the land did not belong to Fu Zhi Mao at all. Fu Zhi Mao was only purportedly, I would say fraudulently, so I won't, it's up to the Court to decide. Fu Zhi Mao was registered only on 21.01.2016. So, when you talk about this land deal agreement, Fu Zhi Moa was not the registered owner of the property. I don't know. We rely on the agent. We rely on the land office. We rely on the lawyer. If not good enough, I don't know what is good enough. We don't go to the land office and check. Because we, I do not know who is this Mr Lim, he's at large. The Court also doesn't know who is this Mr Lim and you bring in a different company, Advance Tech Communications Sdn Bhd, and it's dated 06.01.2016. It doesn't specify which land agreement that you are talking about and against that backdrop, I'm putting it to you that this land deal agreement cannot refer to our land transaction because Fu Zhi Mao was only registered as a owner of the property, subject matter before this Court, On 21.01.2016. I don't know.” [42] During cross-examination, Puan Theselim Begam Binti Mohd Yusof (DW1) (Enclosure 5 Record of Appeal Volume 2B Part B pages 495-496) said: Benar atau tidak bahawa pembayaran balance purchase price sebanyak RM900,000 ini, RM900,000 ini juga tidak melalui firma guaman kamu, meski pun kamu merupakan peguamcara bagi Top ATC? THESELIM: Benar. Maka kamu tidak mempunyai personal knowledge, secara peribadi samada wang ini sebenar-benarnya telah dibayar oleh Top ATC kepada Fu Zhi Mao? THESELIM: Benar. Muka surat 47. Saya baca perenggan 10, 11 dan 12 sebelum saya tanya soalan, supaya kamu dapat latar belakangnya, kamu tahu latar belakangnya. Muka surat 47, Ikatan A Pliding, lihat 10 perenggan 10. Selepas Defendan Kelima memasuki perjanjian jual beli dengan Defendan Pertama, Defendan Kelima mempunyai masalah kewangan untuk membayar baki harga jualan. Walau bagaimana pun perenggan 11, Defendan Kelima tidak ingin memungkiri perjanjian jual beli tersebut dan Defendan Kelima telah pinjam wang sebanyak RM1,000,000 daripada Defendan Keenam, aitu Lee Kok Chian untuk membayar baki harga jualan tersebut. Dan perenggan yang ke 12, selepas mendapat bantuan daripada Defendan Keenam, Defendan Kelima telah membayar baki deposit iaitu RM80,000 dan baki harga jualan hartanah iaitu RM900,000 kepada Defendan Keempat sebagai pemegang kepentingan, stakeholder, mengikut klausa atau fasal 3.2 perjanjian jual beli. Benar atau tidak bahawa, bersandarkan keterangan yang kamu telah beritahu kepada Mahkamah yang mulia ini, baru-baru ini, apa yang diplidkan oleh Defendan Kelima Top ATC adalah tidak benar bahawa baki deposit dan baki harga jualan hartanah sebanyak RM900,000 itu telah pun dibayar kepada Defendan Keempat iaitu Theselim Begam Bt Mohd Yusoff sebagai stakeholder? Tak betul? THESELIM: Tak betul. Saya tidak menerima sebarang baki bayaran tersebut. Maka, apa yang diplidkan oleh Top ATC adalah tidak benar, betul atau tidak? THESELIM: Betul. Sila lihat Ikatan C muka surat 185. Sandari, yang disandari oleh kamu jait satu surat, sepucuk surat bertarikh 21.03.2016. Fu Zhi Mao Group San Bhd iait Defendan Pertama tulis kepada Puan, Puan Theselim, Syarikat Fu Zhi Mao Group Sdn Bhd tapi yang ditandatangani adalah hanya seorang pengarah saja bukan? THESELIM: Betul. Dan ini adalah satu, sepucuk surat yang, yang merupakan a bit odd, ganjil sebab di sini Thana Balan mengarahkan Puan untuk present 14A itu, borang pindah milik itu untuk didaftarkan atas nama Top ATC walau pun balance of purchase price itu belum dibayar. THESELIM: Betul.” [43] The above evidence can be summarised in this way. DW2 said that he paid the balance purchase price (RM980,000.00) to DW1 (D4) as stakeholder in accordance to Clause 3.2 of the Sale and Purchase Agreement. However, during cross-examination, DW1 denied receiving the balance purchase price, deposit and earnest deposit as the stakeholder under the said agreement. [44] Interestingly, DW2 said that he paid the amount but yet failed to show any proof of payment to DW1. DW2 then relied on vouchers as proof of payment. However, these payment vouchers were all missing. [45] Apart from the evidence above, during the trial DW2 also tendered payment voucher dated 6 January 2016 (Exhibit D19) which was issued not by D5 but by another company, Advance Tech Communications Sdn Bhd which was a different legal entity. Exhibit D19 now produced and shown (Enclosure 10 Record of Appeal-Part C Volume 2 (6) page 1019). [46] Another payment voucher dated 5 February 2016 refers to a Langkawi Project. D5 was only registered as proprietor of the said land on 23 March 2016. The Sale and Purchase Agreement between D1 and D5 was not executed at that material time. [47] The Sale and Purchase Agreement was executed between D1 and D5 only on 24 February 2016. Payment voucher dated 5 February 2016 now produced and shown (Enclosure 10 Record of Appeal-Part C Volume 2 (6) page 1021). [48] It is also interesting to note that these two-payment vouchers carry the same cheque number. Thus, it is relevant to ask - why was the same cheque number captured in two different payment vouchers? In the upshot, looking at the evidence as a whole, we are satisfied that there was (as a matter of evidence) no concrete, compelling or cogent evidence of actual payment of RM1 million paid by D5 to D1. The two payment vouchers relied on by D5 as proof of payment does not support D5’s defence. This is a highly unusual transaction where even though the balance of the purchase price was not paid but D1 nevertheless asked D4 to go ahead and register the land in D5’s name. [49] Based on the Summary Financial Information which is a document printed out from the Companies Commission of Malaysia (SSM) Enclosure 7 pages 835-840 Record of Appeal-Part & C-Volume 2D) which relate to D5’s Financial Year End 31/12/2013, the details of the financial figures show as follows:

Non-current assets: RM951,270.00

Current assets: RM1,968,791.00

Non-current liabilities: RM0.00

Current liabilities: RM3,195,022.00

Revenue: 0.00

Profit/ (loss) before tax: - 274, 963.00

Profit/ (1039) after tax: - 274, 963.00 [50] From the above figures, it is crystal clear that D5 is not only a dormant company but also is in an unhealthy financial position. Hence, the question is - how could D5 pay the balance amount? More importantly, D5 failed to adduce evidence of its cash flow solvency. This had seriously weakened the probative force of D5’s case. On close scrutiny of the evidence presented, we find that the contention raised by D5 could not possibly hold water. Suffice to say that D5 was not able to establish that they were a bona fide purchaser for the subject land. [51] We turn now to D6. [52] D6 argued that he had paid the purchase price in full and in cash to D5 for the subject land and to corroborate the fact of payment, during the cross-examination of D5’s witness, the said witness had confirmed that D5 has received the full purchase price from D6. [53] D6 explained why there was no documentary proof of payment, because the purchase price was paid in cash. Further, it was contended that there was no complaint whatsoever by D5 on the payment of the purchase price as testified by D6’s conveyancing solicitor during cross-examination and re-examination. D6 had also paid the stamp duty amounting to RM54,000.00 and had submitted CKHT Forms and a sum of RM60,000.00 as retained property gains tax to the Inland Revenue. [54] Hence, it was argued on D6’s behalf that the Judge had erred in law and fact in deciding that the there was no valuable consideration by D6. D6 argued that before entering the Sale and Purchase Agreement with D5, his solicitor had conducted a company search on D5 and a land search on the subject land. The land search shows that D5 was the registered proprietor of the subject land at that material time and there was no encumbrances or restrictions on the subject land. Hence, D6 has discharged his burden proving that he was a purchaser in good faith for valuable consideration and thus the Judge has erred in law and fact by failing to arrive to such a finding. [55] D6 further argued that he need not go behind the title to ascertain the validity of the information pertaining to the subject land as indicated on the registration and the circumstances under which D5 came to be registered. Neither D6 is under any obligation nor is he under any legal duty to go beyond the registration to investigate and verify the history and the trail of all past transactions pertaining to the subject land. It was argued for D6 that all he has to do is just to take the ordinary precautions that a reasonably prudent purchaser would have taken in the circumstances. It is also unreasonable to expect or demand that D6 to 'dig into' the historical background of the subject land. It is even more absurd to label D6 as not a bona fide purchaser simply because he has not done such background search. [56] D6 (DW4) testified in his witness statement and said as follows (Enclosure 4 Records of Appeal Part B Volume 2 (1) pages 228-232) said: “Question: Do you know why are you being sued by the Plaintiff in this action? Answer: The alleged fraudulent transfer had nothing to do with me. The Plaintiff then claimed that there was a conspiracy amongst the 1st to 5th Defendants to fraudulently transferred the Subject Land from the 1st Defendant to the 5th Defendant. Again, I had nothing to do with the aforesaid transfer and there is no allegation by the Plaintiff whatsoever against me to implicate that I was involved in the two transactions mentioned above. Question: What do you have to say about the Plaintiffs position against you? Answer: At the time of the transaction, the Subject Land was indeed registered in the name of the 5th Defendant. When my conveyancing solicitors proceeded to submit the documents for registration, it was duly accepted by the Land Office and the transfer was duly registered. There is no reason for me to be suspicious more so I would not have parted with my money if there was any red flags being raised by the Land Office. I also not see how it can be so blameworthy to buy a property from an owner who has just acquired the same. The Plaintiff is merely raising whatever issues they can find to justify their claim to take the Subject Land from me for free. I am the registered proprietor of the Subject Land and I am protected by the law. It is not for the Plaintiff to simply challenge my ownership by simply finding faults in the transaction or purporting to magnify trivial matters which do not in any way affects the legality of the sale and purchase between me and the 5th Defendant. The Plaintiff also lodged a Private Caveat on my Subject Land. I have expressly reserved my rights against the Plaintiff on that in my Defence.” [57] During cross-examination, D6 (Enclosure 5 Record of Appeal Volume 2B Part B pages 781-785) said: Yes. Are you saying that RM2 million, you don't have any documentary proof to show that you've paid RM2 million? This is a business friend under such situation so, paying cash, how to get proof like that? So, are you telling this Court, are you testifying under oath to this Court that you don't have proof that you paid the deposit sum of RM200,000? Yes, can be considered like that. So, don't have any documentary proof? Don't have. So, since you do not have, you cannot prove that you paid the RM200,000 upon execution of this agreement on 29/03/2016. I disagree. What does he disagree? I disagree with the suggestion that no proof means no payment. No, my question is, you do not, listen to my question very carefully. You're giving evidence to this honourable Court saying that you don't have any proof by way of receipt, cheque, bankers' cheque or bank statement saying that you paid this RM200,000 as deposit to the vendor on 29/03/2016. That is so. Likewise, you cannot prove to this Court that you paid the balance sum of RM1.8 million, you don't have any proof by way of cheque, bank statement, cashiers order that you paid RM1.8 million to the vendor. That is so. Yes. And it took about seven months from the date of the S&P agreement for this property to be registered in your name, so, it is outside the completion date of three months plus one. I put it to you that, or you agree with me, don't you, that you don't have any proof by way of, in black and white either by way of a cheque or bank statement that you paid the interest, 8% per annum, outside the completion date. It's just a yes or no answer. What is he trying to say? TRANSL: Yes. From the witness. Actually this 8% did not pay because I know the… No, just say was it paid or not? 8% not paid. So, look at the Clause 3.1. It says that the balance of purchase price must be paid to Mr Lee's lawyers, that is Rahim & Tan, to Serene Tan of Rahim & Tan as stakeholders because the vendor did not have a lawyer. You agree with me that you didn't follow that? You didn't pay to the lawyers the balance purchase sum? Correct.” [59] In re-examination D6 (Enclosure 5 Record of Appeal Volume 2B Part B page 785) said: “WLL: You were asked about the, you agreed with the, my learned friend's suggestion that there's no documentary evidence to prove that you have paid, you made payment of 8% late payment interest. Do you remember that? But you wanted to make some explanation. Can you please tell the Court what were you trying to say? The reason being, I knew the vendor here. We were friends, doing business together. When he brought the land over, we did tell him that this is a big money. So, I need time to discuss with my other partners before letting him know. So, when we confirmed that we are taking this land, we did also tell him we need time more than three months to raise the money. And then vendor agreed that he would not ask for any extra money from us. And then we took about seven months' time to raise this money. That is all.” [60] Tan Pei Shan, Serene (DW3) the conveyancing solicitor for D6 in her witness statement (Enclosure 4 Record of Appeal-Part B Volume 2A pages 156-158) said: “A : This is the Sales and Purchase Agreement dated 29.3.2016 ("the Sale and Purchase Agreement") that was entered into between the 5th Defendant and Mr. Lee Kok Chian, the 6th Defendant in relation to their sale and purchase of a land held under Grant 159176, Lot 14182 Pekan Lukut, Daerah Port Dickson, Negeri Sembilan ("the said Land") at the purchase price of RM2,000,000.00 which was prepared by myself upon the instruction by the 6th Defendant. Can you tell the court, which party were you acting for in respect of the Sale and Purchase Transaction? I was acting for the purchaser who is Mr. Lee Kok Chian. Can you tell the Court, what was your responsibility in this Sale and Purchase Transaction? Prior to the preparation of the Sale and Purchase Agreement, I have conducted a search on the title of the said Land that was provided by the 5th Defendant and it was stated that the registered owner at that material time was the 5th Defendant. Thereafter, I have prepared the Sale and Purchase Agreement and the Memorandum of Transfer Form 14A for the parties to execute on the same. On the same date, the 6th Defendant also executed the private caveat application and the same was lodged on 1.4.2016 by my firm. Around September 2016, I have also submitted the same to Lembaga Hasil Dalam Negeri ("LHDN) for stamp duty adjudication. Thereafter on 12.10.2016, the 6th Defendant paid the stamp duty amounting RM54,000.00 in accordance to the Notis Taksiran dated 21.9.2016 and a Stamp Certificate was duly issued on 12.10.2016. I have also submitted the CKHT 502 dated 15.8.2016 together with the payment of RM60,000.00 being the payment for Real Property Gains Tax (RPGT) on behalf of the 6th Defendant. Thereafter, I was also requested by the 5th Defendant to assist them to file CKHT2A on their behalf on 22.8.2016. After I was informed that the balance purchase price was duly paid and received by the 5th Defendant, I, on 1.11.2016, proceed to present the duly executed Memorandum of Transfer Form 14A dated 2.9.2016 together with all the supporting documents in respect of the 5th Defendant and the 6th Defendant at Pejabat Tanah Daerah Negeri Sembilan presentation number 27739/2016. Upon presentation, on the same date, the 6th Defendant is registered as the registered proprietor of the said Land by Pendaftar Hakmilik Negeri Sembilan.” [61] During cross-examination, DW3 (Enclosure 8 Record of Appeal Volume 2 (4) Part B pages 735-762 said: Now, let us look at the terms and conditions of this sale and purchase agreement. You agree with me, don't you, that the total purchase price was RM2 million? Yes. That is a big amount. Do you agree? Correct. Now, please refer to page 221, of the 1st Schedule at page 221. Do you agree with me that one of the terms and conditions of this contract, this sale and purchase agreement is that the deposit sum of RM200,000 shall be paid upon execution of this agreement? Correct. Can you show the payment, can you show any documentary proof that this RM200,000 was paid on the day this agreement was executed? No Ms Serene, instructions were given by Lee Kok Chian to you because he was your client and you prepared this S&P agreement, you have said that you've prepared this agreement according to the instructions given by your client, Lee Kok Chian. So, it must be his instruction to prepare these terms and conditions as per the 1st Schedule, am I right? Yes. So, it clearly says that RM200,000, that is 10%, shall be the deposit sum and it shall be paid upon execution of this agreement as balance deposit, right? Right, correct. But you are unable to show any documentary proof by way of receipt if this RM200,000 was paid on this date, 29/03/2016, am I right? Yes. Do you agree that looking at page 221 of the 1st Schedule, it clearly says that the balance purchase price of RM1.8 million shall be paid within three months the completion date. Correct. And if there is an extended completion period, it shall be an automatic one month. Correct. But if it is outside the completion period, if it is outside three months then the purchaser, your client, Lee Kok Chian, has to pay Top ATC Industries interest at 8% per annum. Correct. So, you would have to pay, each, for that month, extended month should pay another RM12,000. If... I don't have my calculator with me. I mean, if it is 8% per annum. Correct? Yes. Thank you. Now, let us look at this agreement. Page 202 of the same bundle, Bundle C, is as regards payment of balance purchase price of RM1.8 million, Clause 3, I'm going to read Clause 3.1. It says that the balance of purchase price shall be paid by Lee Kok Chian, the purchaser, to you, the purchaser's solicitor as stakeholders since he does not have his own solicitors, it's clearly stated that the balance purchaser price shall be paid to you, to your firm as stakeholders on or before the expiration of the period as stipulated in Section 9 of the 1st Schedule. Am I right? Yes. Was this balance purchase price paid to you as stakeholders? Neither was the deposit paid to you, the RM200,000. Correct. In other words, the RM2 million didn't go through the firm. Yes. But nowadays a prudent purchaser must make prudent enquiries in view of the land scams in our country. Ok, never mind. Let me proceed. So, I put it to you that this would have raised a red flag. Two days. In fact, according to your own testimony just now, you said early part of March. That means your client has given you instructions regarding this purchase well before Top ATC became the registered owner of this property. Yes. Because you didn't so it's fair for you, you can't answer, you said you didn't. I'm saying that had you done so, pendaftar hakmilik would have advised you that there's no such record. Let us look at Bundle B, yes, Ms Serene? Bundle B. Bundle B, please look at page 8, 9 and 10, yes? If you made a more comprehensive search on the title, you would have obtained a carian rasmi hakmilik dan maklumat tidak berkuasa which is at page 8 and 9 and you can see that the S&P agreement between, the purported S&P agreement between Cheok Lam Chuan and Fu Zhi Mao was 23/12/2015 but the land was registered on 21/01/2016. Ok, here, it will show the registration of the transfer on 21/01/2016 and you can see that from Fu Zhi Mao to Top ATC was just about, it was registered on 23/03/2016, just about two months. So, you agree with me, yes? And then within two days, your client wants to buy over the property giving you instructions and, in fact, the S&P agreement was prepared between Top ATC and the Lee Kok Chian within six days, then was registered on 23/03/2016 in favour of Top ATC and the S&P agreement between Top ATC and Lee Kok Chian was dated 29/03/2016. So, six days. From Cheok Lam Chuan to Fu Zhi Mao, it was about one month. Doesn't matter. That is, ok, transferred, registered on 21/01/2016 and then to, from Fu Zhi Mao to Top ATC on 23'° of March, within two months. That would have made you wonder, isn't it, there's something, yes, some red flags to attend to. Am I right if you had gone through all this series of transactions? No, not necessarily because the title was given. I mean, they produced the original title, yes. That is the staple answer by its conveyancing lawyer, you say, I look at the title but the title could have been a fake title, am I right? We wouldn't know. Yes. I wouldn't know. Yes, that's good. You wouldn't know. That's right. Let us look at the title that you had. You had given us a photostat copy in the bundle. Just a minute, yes? Look at Bundle C, 186 and 187. That is a photostat copy of the title that you received, right? Yes. Am I right? Yes. Where the first page did not carry any signature, just a TT by pendaftar, right? Yes. And then, you have 187 and 188 and if you look at 187, it writes, yes, it says that Top ATC rekod ketuanpunyaan, am I right? Correct. Now, let me give you an original copy of a title of the same land which is still in the custody of my client. Yang Arif, with Your Lordship's permission, I would like to show - What's the version written there, version, computer version? Version 3. Version?

And the title that ATC gave it to you carries what version?

Same, yes? Version 3, Version 3. Is the endorsement on the second page the same? Is it identical? Why is it not identical? It carries Lee Kok Chian's caveat, isn't it, in the original title? Correct. So, they are not identical, isn't it? No, no, are they identical? Yes or no? On the second page? Not identical or identical? Original with the photostat copy of the title that ATC gave you at page 186 and 187, particularly - Not identical. Yes? Not identical. Mr Manian, can we know what's the date of the title? Tarikh 18/05/2016. Let us look at page 49, your statutory declaration. Is it not true that you have no sight, that "Semasa menandatangani perjanjian tersebut dan sebelum pindahmilik daripada penjual kepada pembeli dapat disempurnakan, pembeli telah membayar kepada penjual". You don't have any documentary proof, any proof, documentary proof that your client has had paid RM200,000 to the vendor, am I right? Correct. Despite the fact that you swore under oath under the statutory declaration, am I right? Yes. We will appreciate, I think the Court will appreciate if you're a witness of truth. You have had testified earlier today that the money transaction, payment from the purchaser to the vendor was not within your knowledge, it didn't go through you. Correct. Since it didn't go through you, you don't have any record of that payment. Correct. You don't have any proof of that payment. Yes You can be certain if you have seen receipts or given receipts of the payment, showing that it has been paid by the purchaser to the vendor. That document you don't have, am I right? Yes. Top ATC, the vendor, was registered as the owner on 23d of March and within six days, Lee Kok Chian asked you to sign that S&P agreement, he gave you instructions much earlier, he signed the S&P agreement on 29/03/2016, six days thereafter but it took about seven months to get it registered on 01/11/2016, am I right? 01/11/2016. I can't remember the date. Ok, never mind. Let's look at it. Agricultural land, quite a big area, you know how many acres? 2.239 hectares. Ok. Did your client ask you to do any valuation report? When you acted for Lee Kok Chian in this transaction... Yes? When you made the search, did you make a search on Top ATC, the vendor company? SSM search, yes.

2.239 hectares is about 5.5 acres. Such a big area, isn't it? So, no valuation report was made, am I right? Not that I know of. And you made a search on the company, Top ATC? Yes. And you discovered that it was a dormant company? I can't remember what I Yes, ok, let's look at your search. Ok, let's look at, look at page 228 of Bundle C, Yang Arif. Bundle C, 228, which has been marked as D13, right at the top, nature of business. Dormant, am I right? Yes. So, you would have been put an inquiry, isn't it? This vendor, Top ATC, selling very fast, immediately, within, I think within two days you were making a search and your client had given instructions much earlier, even before the company was registered as the owner of the land and now you look, you make a search, it's a dormant company without any trading activity. That would have put you, a prudent solicitor acting on behalf of his or her client on enquiry, isn't it? To be more prudent? Am I right? Not necessarily. I am acting for Lee Kok Chian, not for Top ATC. Yes, but it could be, even though you're acting for Lee Kok Chian, you would want to ascertain that it is actually not a fraudulent sale or fraudulent transfer. Like I said earlier, they produced the title, I do the search, it was registered under Top ATC, we proceed. Ok. Did you ask for, the vendor ATC is the company, did you ask for members resolution or directors’ resolution? I honestly cannot remember at all because I can't find any info in my file. I put it to you that you didn't. That's why you don't have. I don't agree. I can't remember. Do you have it in your file? I just said I can't find it in my file. Ms Tan, do you agree with me that you act on the instructions of your client, which is my, your, Mr Lee Kok Chian, agree? On this transaction? Yes. Ok, if Mr Lee Kok Chian told you that the payment has been made and then there's no complaint by the purchaser to say that he hasn't received anything, then you are able to confirm that payment was actually received on the transaction, agree? You mean no complaint from the vendor? Yes. Yes, agree. No complaint by the vendor and the instruction given was said payments has already been made to them directly. That's why it didn't go through your office, agree? Agreed. My Lord, since we're putting things on record, I would also like to put on record that there's no pleaded case by my learned friend against the transaction between my client and the 5th Defendant on fraudulent transaction. Their pleaded case against my client on that transaction involving my client was only to say that my client was not prudent enough to do the due diligence, there was a duty, they say there was a duty. There was no allegation of fraud. That is a submission purpose. No, I just want to put on record, there's no allegation of fraud insofar as the transaction was concerned. My Lord, that's their pleaded case against my client. JUDGE: Tak apa, submit, yes? Can. I just want to put on record. That's all, My Lord.” [62] In short, D6 admitted that he had no documentary evidence to prove that the payment of RM2 million has been paid to D5 because D6 claimed that the purchase price was paid in cash. Neither did D6 pay the monies through his solicitor (Rahim & Tan) as stakeholders. The reasons given by D6 that the vendors were their friends and so payment are all made in cash is quite unbelievable and incredulous as it involved a large sum of money. Furthermore, there was no concrete evidence to prove that D6 actually paid RM2 million to D5. In addition, DW3 (the solicitor for D6) could not confirm whether D6 had paid the full purchase price to D5. [63] It is also important to keep in mind that the transfer of the subject land from D1 to D5 took only one (1) month. D5 became the registered owner of the subject land on 23 March 2016 whilst the Sale and Purchase Agreement between D5 and D6 is dated 29 March 2016 which means that 6 days after D5 became the registered proprietor, they executed a Sale and Purchase Agreement with D6. [64] Clearly, the series of transaction between D1 and D5 and thereafter between D5 and D6 was done in a great hurry and in a highly unusual manner, and coupled with the absence of any clear compelling, credible and cogent evidence of payment of the purchase price by D5 to D1 and by D6 to D5, effectively neutralised any claim of bona fides by D5 and D6. In addition, it is also curious that D6 gave instructions to DW3 to start preparing the Sale and Purchase Agreement even before D5 became the registered owner of the subject land on 23 March 2016. [65] In our view, on the topic of whether a party is a bona fide purchaser for valuable consideration, it is relevant to refer to the principles laid down in Au Meng Nam Anor v. Ung Yak Chew & Ors [2007] 5 MLJ 149, where the Court of Appeal held as follows: “[17] It is central to the doctrine of indefeasibility housed in s 340 that the issue document of title must itself be genuine. In Adorna Properties, the instrument of transfer and other attendant documents were forged. But the title was genuine. In the present appeal I accept the submission of learned counsel for the appellant that there is cogent evidence going to show that the issue document of title used to effect the transaction here was itself a forgery. Hence Adorna Properties is clearly distinguishable from the facts of this case. In my judgment the learned judge misdirected himself in not holding for the appellants on this ground. The appellant's case must succeed because the vendors had no title to pass. You cannot give what you do not have — nemo dat quod non habet. And the only exception is in favour of a bona fide purchaser for value. See, M & / Frozen Food. As my learned brother Raus Sharif has demonstrated in his judgment, the evidence conclusively points against the respondent on this issue. The burden of proving that he is a bona fide purchaser lay on the respondent (Bhup Narain Singh v Gokhul Chand Mahton R61 IA 115) and he plainly failed to discharge it. [41] With the above in mind, I will now examine learned trial judge's reasoning in holding that the first defendant was a bona fide purchaser for valuable consideration. One of the reasons given was that the sale and purchase agreement speaks for itself. To the learned trial judge, the first defendant was a bona fide purchaser and had given valuable consideration because of the existence of the sale and purchase agreement and the purchase price had been paid in full. With respect such reasoning is seriously flawed. An existence of a sale and purchase agreement and the payment of the purchase price in full cannot be the only indicator to show whether a person is a bona fide purchaser or otherwise. Other salient features surrounding the sale and purchase agreement must be considered. In the present case, the learned trial judge failed to take into account the followings:

The completion date of the sale and purchase agreement was nine months from the date of signing. The purchase price was RM400,000. However, 80% of the purchase price was paid on the date of signing of the agreement, and the balance was paid three months after the date of signing.

(ii) About three months after the purchase and the said land being registered under his name, the first defendant attempted to sell che said land for RM1,200,000. In the attempted sale, the said land was valued for stamping purposes for RM1,286,000.

III

(iii) Both the 'vendor' possessed only temporary identity cards when the sale and purchase agreement was signed. No queries or searches were made of the relevant authorities.

(iv) Admission by the second defendant, the solicitors acting for the first defendant, during cross examination that if given time, he would be able to write to the Jabatan Pendaftaran Negara, to find out the identity of the ‘vendors' who came to his office, with temporary identity cards. However, he did not do so because the first defendant insisted in concluding the transaction on the same day. Had the learned trial judge taken the above facts and circumstances into consideration, he cannot possibly conclude that the first defendant was a bona fide purchaser for valuable consideration, so as to be protected under s 340(3) of the Code. To me, the first defendant had acted hastily. He concluded the sale without any proper investigation into the title or the persons claiming to be proprietors. No doubt he had every right to take advantage of the low price that was offered to him but he took the risk. When he embarked into such risk, it cannot be at the expense of the plaintiffs. This is because while he had a choice, the plaintiffs had none. In fact, the plaintiffs were helpless. The plaintiffs could not do anything to prevent the fraud. Even locking the title in a safe would not had help the plaintiffs. In such circumstances the court must not favour the first defendant, over the plaintiffs. To do so, would be doing injustice to the plaintiffs. [43] Further, had the evidence adduced in this case been properly considered and assessed by the learned trial judge, a reasonable inference would be that the first defendant knew at the time he bought the said land, the purchase price was below the market value. But he wanted to take advantage of the low price. He did a fast track to complete the purchase. In doing so he disregarded his obligations to investigate the alleged proprietors and the genuineness of the documents. My respectful view is that a purchaser in good faith does not include a purchaser who is careless or who had been negligent. In Oliver v Hinton [1899] Chancery

Division

Division 264 Lindley MR said:

Content

To allow a purchaser who acts with such gross carelessness to deprive a prior innocent mortgage of her priority would be the greatest injustice.

So too here. The first defendant is under the obligation to investigate properly all matters relating to the sale of the said land and not to just blindly accept what was claimed by the vendors' as correct and genuine. When he failed to take the ordinary precautions, which ought to be taken in such a matter he is not entitled to the protection of the court.”

The case of Au Meng Nam (supra) above was also followed by another panel of the Court of Appeal in Mohd Salim bin Said & Ors v. Tang Pheng Kee & Anor and another appeal [2014] 3 MLJ 504; [2014] 6 CLJ 485. In Lipuran Simfoni Sdn Bhd v. Pembangunan Orkid Desa Sdn Bhd [2019] 4 MLJ 161, the Federal Court speaking through the judgment delivered by Hasan Lah (as he then was) held as follows: “[65] On the other hand, in the more recent line of cases such as Au Meng Nam it was held that the purchasers have to investigate properly all matters relating to the sale of land and not to blindly accept what was said by the vendors. The purchasers have to take the ordinary precautions which ought to be taken in an acquisition of land before they can be considered to have proven themselves to be bona fide purchasers.

The decision of Au Meng Nam was referred to by another panel of the Court of Appeal in Yap Ham Seow v Fatimawati bt Ismail & Ors and another appeal (2014) 1 MLJ 645; [2013] 9 CLJ 577. At pp 678-679 (ML)); pp 619-620 (CLJ) of the report, the Court of Appeal said:

102

Premised on the above, we are convinced that the third defendant had concluded the sale without any proper investigation into the title or the persons who are the actual proprietors. The third defendant took advantage of the low purchase price and he acknowledged that this was done to evade tax. We failed to see why an enormous sum of money was then paid to Wong. The third defendant offered no explanation. The third defendant in the conveyance of the land was under obligation to investigate properly all matters relating to the sale of the land. Clearly based on the facts and circumstances of this case the third defendant was negligent in not doing so. In our considered view a negligent purchaser cannot be accorded the protection of this court 110 because a purchaser in good faith does not include a purchaser who has been negligent or who had kept his eyes shut (Au Meng Nam & Anor v Ung Yak Chew & Ors [2007] 5 MLJ 136 (Au Meng Nam). This court in Au Meng Nam had held that the purchaser is under the obligation to investigate properly all matters relating to the sale and not just blindly accept what was claimed by the vendor as correct and genuine. The purchaser in that case clearly disregarded his obligations to investigate the alleged proprietors and the genuineness of the documents. Hence, when a purchaser failed to take ordinary precautions which ought to have been taken in such a marter, he is not entitled to the protection of the court.

103

The case of Au Meng Nam reiterated the governing principles as propounded by Linley MR in Oliver v Hinton [1989] 2 Ch 264. The Chancery Court in Oliver u Hinton found the purchaser to be grossly negligent in failing to make inquires as to the title and relied on his agent completely. The Chancery Court through Linley MR held that: In the present case there has been no fraud on the part of the Defendant; there has only been gross negligence in the ordinary sense of words. ... negligence so gross as would justify the Court of Chancery in concluding that there had been fraud in an artificial sense of the word-such gross negligence, for 111 instance as omitting to make any inquiry as to the title of the property. In that sense of the word, I think, there has been in the present case on the part of the Defendant negligence so gross as would have led the Court of Chancery to impute fraud of that kind to her. I do not mean to suggest that there was any fraud in fact.”

The question of whether the D6 was bona fide purchaser for value is plainly a question of fact and on the evidence here, we are more satisfied that the Judge applied the relevant law correctly to the facts of the case and rightly concluded that D5 and D6 had failed to prove that they are bona fide purchasers for valuable consideration. To put it quite bluntly, the series of transactions between D1 and D5 and then between D5 and D6, were done in circumstances which does not vouch for its authenticity or credibility.

It is trite law that the appellate court will not readily interfere with the findings of fact arrived at by the trial court to which the law entrusted the primary task of evaluation of the evidence unless the trial court has so fundamentally misdirected itself. Thus, looking at the totality of the evidence, we are of the considered view that D6 is not a bona fide purchaser for value under the proviso to section 340(3) of the National Land Code for the reasons adumbrated above.

Conclusion

In conclusion, we may summarise or views as follows. On 21 January 2016, the subject land was fraudulently "transferred" to D1. Thereafter D1 entered into a Sale and Purchase Agreement with D5 on 24 February 2016. The short time gap here of a sale to D5 which was just slightly more than a month after the subject land had been transferred to D1 is itself a red flag. Then comes the transfer from D1 to D5 which was registered on 23 March 2016. [No. Perserahan: 5595/2016]. On 29 March 2016, (barely 6 days after the transfer of the land from D1 to D5), D5 entered into a Sale and Purchase Agreement with D6. The transfer of the subject land from D5 to D6 took place on 1st November 2016. [No. Perserahan: 27739/2016].

Apart from the sinister conclusions that are to be derived from the suspicious timing of the transaction between D1 and D5, there is the added fact that D5 had failed to prove that it had made any payment to D1. Indeed, D5 was hardly in a position to pay such an amount given their poor financial status. Thus, D5 is deprieved of the shield of indefeasibility by reason of its inability to establish that they were a bona fide purchaser for valuable consideration (per the proviso to s.340 (3) of the National Land Code).

As for D6, due to the short timeline of sale of the subject land, ie. 6 days after the D5 had became the registered proprietor, D6 ought to have suspected that the previous transaction could be fraudulent. D6 should have undertaken the ordinary precautions and investigations as a reasonable and prudent purchaser. However, D6 deliberately shut his eyes to the obvious and refrained from checking or making further inquiries about the earlier land transfer.

In addition, there was nothing in the Sale and Purchase Agreement dated 29 March 2016 or in evidence to prove that D6 had earlier loaned a sum of RM1 million to D5 and/or that the balance purchase price payable was only another RM1 million. Hence, D6’s contention that he had paid the purchase price in full and in cash to the D5 for the subject land and the attempt to use DW2’s evidence which confirmed that the D5 had received the full purchase price from D6 as purported corroboration of such a payment, during the cross-examination, are not credible or convincing to say the least. In the upshot, D6 ceased to have the shield of indefeasibility under the Proviso to section 340 (3) of the National Land Code.

We turn now to the vexed question of “cash payments”. In these appeals D5 and D6 seem to be suggesting "there is nothing wrong in making payments in cash". We agree that there is nothing wrong with making cash payment. However, when challenged, the party which claims to have made payment in cash must show the source of the funds and a credible paper trail to establish that money (in cash) was indeed paid to the recipient. Otherwise, they run the risk of an adverse inference being made – that no monies were in fact paid. [74] Hence, it is not surprising that in light of the rampant cases of land fraud and illegal money-lending cases, and the tendency of the parties to assert that they made payments in cash, it is only fair and just that these parties be imposed with the burden of proving the authenticity of these so-called cash payments. Hence, the mere say-so, or the production of payment voucers or self-serving payment receipts, per se, will not suffice and are likely to be documents which 114 are conveniently created to facilitate nefarious or dubious transactions.

Therefore, it is necessary and imperative that convincing, cogent, and credible evidence of cash payment be produced in order to prove that cash payment was indeed made. As such, payments in cash of huge amounts will invariably raise serious questions as to the source of such monies, particularly, as in this case, when there is a lack of evidence as to D5’s source of monies and their ability to pay such amounts.

Here the source of monies and the ability of D5 to make the purported cash payments were challenged by the Plaintiff from the outset. However, D5’s witness was unable to provide any credible explanation or evidence as to how D5 was able to make cash payments and there was a distinct lack of documentary evidence to substantiate its source of monies. In this regard, it is relevant to refer to the significant observations of the Federal Court in Aviation Development Corporation (M) Sdn Bhd v. Yayasan Selangor [2022] 4 CLJ 165 (FC) which discussed (at paragraphs [73] – [79]) the burden of proof on a party to prove that cash payments were in fact made.

Ultimately, as a matter of evidence, it is quite clear that D5 and D6 could not prove that they made the relevant “cash” payments to the recipients. We should also add that when there are contractual documents such as a sale and purchase agreement which provides for stakeholder monies to be held by a solicitor, and where it is 115 stipulated that payments were to be made to the solicitor named in the contract and if the parties “by-pass” the contractual provision for payment, then the parties take the risk that the Court will or may conclude that no monies were in fact made and that the “by-pass” is itself suspicious or sinister. Hence, trial judges must be ever vigilant to detect the nefarious mechanisms by which land scams are being perpetrated and should not “willy-nilly” accept an oral assertion that payment was made in cash and should not readily believe so-called “payment vouchers” or “payment receipts”.

Aggravated Damages

Before we conclude, it is necessary for us, for completeness, to address the arguments that were made on behalf of D5 and D6 – that the Judge erred in awarding aggravated damages which was not pleaded by the Plaintiff. In this regard, the complaint with regard to the wrongful grant of aggravated damages is predicated on paragraph [8] of the Memorandum of Appeal for Appeal 52 and paragraph [5] of the Memorandum of Appeal for Appeal 56. In our view, these arguments have merit. Procedurally, it is necessary for a party to plead and particularize their claim for aggravated damages. Here, there was no plea in the Statement of Claim for aggravated damages although in paragraph 46(f) of the Statement of Claim, the following relief was pleaded (only as against D1, D2, D3 and D5 and D6 was excluded). “(i) Gantirugi teruk ditaksirkan di hadapan Timbalan Pendaftar dan/atau Penolong Kanan Pendaftar dan dibayar 116 oleh Defendan Pertama, Defendan ke-2, Defendan ke-3 dan Defendan ke-5 kepada Plaintif.”

However, in the Statement of Claim, there were no particular whatsoever to show that there is contumelious or exceptional conduct or motive on the part of D5 and D6 and that the Plaintiff suffered an intangible loss, injury to personality or mental distress, as the case may be so as to warrant the grant of aggravated damages.

In this regard, it is appropriate to refer to the judgment of the Singapore Court of Appeal in Noor Azlin Bt Abdul Rahman & Anor v. Changi General Hospital Pte Ltd [2022] 1 SLR 689, [2021] SGCA 111 where Justice Andrew Phang JCA lucidly explained at paragraphs [259] to [261] the legal requirement for aggravated damages to be be pleaded and particularized. “(i) [259] In our judgment, it follows inexorably from the above distinction that aggravated and punitive damages constitute “special damages” for the purpose of pleadings. Neither follow in the ordinary course and both are exceptional in character. Let us explain.

(ii) [260] Punitive damages are wholly anomalous and therefore awarded only exceptionally. First, they are a “response to conduct which is beyond the pale and therefore deserving of special condemnation” (see ACB at [176]). Such conduct is necessarily rare – it does not follow in the ordinary course. Second, they are exceptional in nature because they represent a departure from the general rule that damages in tort are awarded to compensate a plaintiff for wrongs suffered and to place him back in the same position as if the tortious wrong had not been committed (see above at [58]). The law therefore does not and cannot presume that conduct giving rise to or arising in connection with a tort is “outrageous” or deserving of “punishment, deterrence, and condemnation”. Such conduct must be pleaded and proved to the satisfaction of the court. We therefore agree with the approach taken by the Judge at [192] of the Judgment ([3] supra), as well as in cases such as AKRO Group DMCC v Discovery Drilling Pte Ltd [2019] 4 SLR 222 at [164]–[165] that punitive damages must be specifically pleaded and particularised.

III

(iii) [261] In a similar vein, aggravated damages are awarded only when the plaintiff is able to show that there is “contumelious or exceptional conduct or motive on the part of the defendant and that the plaintiff suffered an intangible loss, injury to personality or mental distress, as the case may be” (see Li Siu Lun at [138], citing the High Court decision of Tan Harry and another v Teo Chee Yeow Aloysius and another [2004] 1 SLR(R) 513 (“Tan Harry”) (affirmed by this court in Teo Chee Yeow Aloysius and another v Tan Harry and another [2004] 3 SLR(R) 588) at [82])). Furthermore, aggravated damages are unique because they are awarded for the aggravation of injury by the manner in which the defendant committed the wrong or by his motive in doing so, either or both of which might have caused further injury to the plaintiff’s dignity and pride (see ACB at [156], citing Freddie Koh at [75]–[77] with approval). Crucially, this occurs in circumstances where the normal measure of general compensatory damages, which is usually sufficient to compensate plaintiffs for their loss, is insufficient so as to require a further compensatory award, over and above an award of general compensatory damages. This enhanced hurt must therefore be proved specifically by the plaintiff to the satisfaction of the court. In short, there is nothing ordinary about aggravated damages, and nothing for the law to presume. It is for this reason that there is a long line of cases in support of the proposition that aggravated damages must be pleaded specifically and with particularity (see, for example, Li Siu Lun at [163] and Tan Harry at [83]). As succinctly put by the authors of Bullen & Leake & Jacob’s Singapore Precedents of Pleadings (Jeffrey Pinsler gen ed) (Sweet & Maxwell, 2016) at para 25.08: In special circumstances, the court may grant additional damages as aggravated damages. The facts which ‘aggravate’ the plaintiff’s loss must be pleaded, for example exception or contumelious conduct or motive, and malice. [emphasis added]. This same point was also made by the authors of Singapore Civil Procedure at para 18/12/13 as follows: The facts relied on to support a claim for aggravated damages should be specifically pleaded (Perestrello e Companhia Limitada v. United Paint Co. Ltd. [1969] 1 W.L.R. 570; ; [1969] 3 All E.R. 479, CA (Eng), Rookes v. Barnard [1964] A.C. 1129; [1964] 1 All E.R. 367). Where the facts relied on do not support such a claim, the claim may be struck out (A.B. v. South West Water Services Ltd. [1993] Q.B. 507; ; [1993] 2 W.L.R. 507; [1993] 1 All E.R. 609, CA (Eng)). [emphasis added].” [81] In the circumstances, on the issue of aggravated damages, we agree with the submission that were made by counsel for D5 and D6 that there was a misdirection by the Judge in granting such damages which were not pleaded. As such, the appeal by D5 and D6 on aggravated damages is allowed and we hereby set aside the order of the High Court which ordered D5 and D6 to pay aggravated damages to the Plaintiff. [82] Hence, for the several reasons discussed in the earlier part of this judgment, on the issue of whether D5 and D6 were bona fide purchasers for valuable consideration, we uphold the conclusion of the Judge that they were not bona fide purchasers for valuable consideration and we therefore take the view that there is no basis for any appellate interference. We conclude by referring to the reminder by the Federal Court in Ng Hoo Kui & Anor v. Wendy Tan Lee Peng, Administrator Of The Estates Of Tan Ewe Kwang, Deceased & Ors [2020] 10 CLJ 1, [2020] 1 LNS 1060 [2020] 12 MLJ 67, [2020] MLJU 1469, [2020] 8 AMR 227 (FC): “(i) As long as the trial judge's conclusion can be supported on a rational basis in view of the material evidence, the fact that the appellate court feels like it might have decided differently is irrelevant. In other words, a finding of fact that would not be repugnant to common sense ought not to be disturbed. The trial judge should be accorded a margin of appreciation when his treatment of the evidence is examined by the appellate courts.” [83] In our view, the Judge, having considered all the evidence, was fully entitled to reach his evaluative judgment as per the grounds of judgment. Although D5 and D6 have criticised the Judge's approach and reasoning, we are not persuaded that the Judge's approach was erroneous, the reasoning flawed or the conclusions wrong. [84] As such, it cannot be said that the Judge's conclusion was one which no reasonable tribunal similarly circumstanced would have arrived at. It is not a finding which is "plainly wrong" in any sense. [85] In the result, we agreed with the Judge that ultimately D5 and D6 failed to prove on a balance of probabilities that they are bona fide purchasers for valuable consideration vis-à-vis the purchase of the subject land. Consequently, they are deprived of the shield of indefeasibility per the Proviso to s.340(3) of the National Land Code. [86] Premised on the above, save for the award of aggravated damages in respect of which the appeals are partially allowed, we unanimously dismissed D5’s and D6’s appeal with cost of RM20,000.00 each to be paid by the Appellant (D6) in Appeal 52 and the Appellant (D5) in Appeal 56 to the Respondent (Plaintiff) (subject to allocator fees). The order of the High Court, save for the order relating to aggravated damages, is hereby affirmed. Date: 30 July 2025 - sgd - Azmi bin Ariffin Judge Court of Appeal Malaysia Counsel For the Appellant :

John Khoo Boo Lai 2. Wee Wai Keong 3. Nurul Alia Afina Binti Mohd Zaidi [Ismail Khoo & Associates]

For the Respondents :

Manian a/l Raju 2. Raswanti a/p Nagaindren [Manian Raju & Associates]

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Malaysian judgment

Case metadata

Court: Court of Appeal of Malaysia
Decision date: 29 Jul 2025
Case number: N-01(NCvC)(W)-56-02/2023
Coram: YA Datuk S. Nantha Balan A/L E.S. Moorthy; YA Dato' Azmi Bin Ariffin; YA Dato' Ahmad Kamal Bin Md. Shahid
Practice area: Section 340 of the National Land Code (Revised 2020) Act 828 - Registration to confer indefeasible title or interest, except in certain circumstances - Fraudulent Transfer - “immediate purchaser” - “subsequent purchaser” - bona fide purchaser for valuable consideration - Indefeasibility of Title - burden of proof had not been discharged - forged signature and fake land title - no concrete, compelling or cogent evidence of actual payment - the series of transactions were done in circumstances which does not vouch for its authenticity or credibility - burden of proof on a party to prove that cash payments were in fact made - Aggravated Damages - no plea in the Statement of Claim - deprived of the shield of indefeasibility per the Proviso to s.340(3) of the National Land Code
Version: Alasan Penghakiman 1
Published: 31 Jul 2025
Source ID: d95e9e7e-db9f-49d5-8230-2c3f295c25d3

Catchwords

Section 340 of the National Land Code (Revised 2020) Act 828 - Registration to confer indefeasible title or interest, except in certain circumstances - Fraudulent Transfer - “immediate purchaser” - “subsequent purchaser” - bona fide purchaser for valuable consideration - Indefeasibility of Title - burden of proof had not been discharged - forged signature and fake land title - no concrete, compelling or cogent evidence of actual payment - the series of transactions were done in circumstances which does not vouch for its authenticity or credibility - burden of proof on a party to prove that cash payments were in fact made - Aggravated Damages - no plea in the Statement of Claim - deprived of the shield of indefeasibility per the Proviso to s.340(3) of the National Land Code

Parties

Top ATC Industries Sdn Bhd - appellant - ejudgment_parties
Cheok Lam Chuan - respondent - ejudgment_parties

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Catchwords

Top ATC Industries Sdn Bhd v Cheok Lam Chuan (N-01(NCvC)(W)-56-02/2023)

How this case connects

Cited by

Authorities cited

Negeri Sembilan;

Sembilan;

Rm1,000,000.00.

Negara;

Tanah Negara;

Defendan Ke-5;

Income Department;

Cheoh Bau Tuan;

Inland Revenue;

Soalan:

Conclusion

Aggravated Damages

For the Respondents :

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Top ATC Industries Sdn Bhd v Cheok Lam Chuan (N-01(NCvC)(W)-56-02/2023)

How this case connects

Cited by

Authorities cited

Negeri Sembilan;

Sembilan;

Rm1,000,000.00.

Negara;

Tanah Negara;

Defendan Ke-5;

Income Department;

Cheoh Bau Tuan;

Inland Revenue;

Soalan:

Conclusion

Aggravated Damages

For the Respondents :

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