Xin Tian Hao Trading Inc v 1. ) Tian Hao Plastic Sdn Bhd (BA-23NCvC-4-01/2024)

TIAN HAO PLASTIC SDN BHD

TIAN HAO MARKETING SDN BHD

FOO SEONG WEI (NO. K/P: 880701-10-5285) …DEFENDANTS

On 16th April 2024, this Court had allowed Interim Prohibitory Injunction to the Defendants to restrain them from having any dealings with all the materials specified in Annexure A of this application. 13/10/2025 15:32:25

Dissatisfied with the Courts decision, Defendants appeal to the Court of Appeal.

The Plaintiff is a corporation incorporated under the Business Corporation Law of the State of New York, having a registered address at 5409 8th Avenue, Brooklyn, New York 11200 United States.

The 1st Defendant (D1) is a company incorporated in Malaysia under Companies Act 2016 with its registered address at L1-2- 30B, 1st Floor, Jalan Pekan Baru 36, Off Jalan Meru, 41050 Klang, Selangor and having its business address at No. 42 & 44, Jalan 5/KU6, Kawasan Perindustrian Sungai Puloh, Batu 5 ½ and No. 7 & 9, Jalan Batu 5 Off Jalan Kapar, Klang Central Industrial Park, 42100 Klang, Selangor.

The 2nd Defendant (D2) is a company incorporated in Malaysia under Companies Act 2016 with its registered address at L1-2- 30B, 1st Floor, Jalan Pekan Baru 36, Off Jalan Meru, 41050 Klang, Selangor and having its business address at No. 42 & 44, Jalan 5/KU6, Kawasan Perindustrian Sungai Puloh, Batu 5 ½, 41400 Klang Selangor.

D1 dan D2 are related companies. Both D1 and D2 share the same registered and business addresses. The shareholders, directors and company secretary of D2 are also the shareholders, directors and company secretary of D1.

The 3rd Defendant (commonly known as Henry Foo and bearing nickname “Big Dee”)(“Henry Foo”) is a Malaysian citizen having his last known address at No. 9, Lorong 7A, Rumah PKNS, Batu 4 Jalan Kapar, 42100 Klang Selangor. Henry Foo is recorded as a shareholder and director of D1 and D2.

In around September 2018, two individuals namely (i) Li, SuiXin (the incorporator and director of the Plaintiff) and (ii) Huang, Yao Dong (referred to collectively as “Stakeholders”) set up a business in relation to trading and processing plastic and synthetic materials (“Materials”).

The 1st Defendant (D1) were incorporated for purposes of operating this business. The set up of D1 was fully funded by the Stakeholders.

The arrangement for the operation of this business (“said Arrangement”) can be summarised as follows:

D1 rents factories in Klang (“Klang Factories”) in Malaysia and procure the necessary license to process the Materials.

(ii) The Plaintiff purchases and ships the Materials in freight containers from United States to the Klang Factories for D1 to process.

(iii) After processing, upon the instructions of the Plaintiff or the Stakeholders, the processed goods or products (“Goods”) will be exported to other countries or be sold to other parties on behalf of the Plaintiff. Occasionally, D1 will also be instructed to sell the Materials (in the original form) to third party purchasers on behalf of the Plaintiff.

(iv) The proceeds derived from the sale pf the Materials and/or Goods will generally be paid to the Plaintiff. On some occasions, D1 is authorised by the Plaintiff to collect or accept such proceeds.

The 3rd Defendant (“Henry Foo”) is engaged by the Stakeholders to assist with the operation of D1 with a fixed consideration of RM5,000.00. Henry Foo is assisted by his wife, Teh Ming Huai. Generally, Henry Foo is in charge of assisting with the operations of D1 while Teh Ming Huai is in charge of preparing the accounts of D1. Specifically, whenever freight containers containing Materials were shipped to the Klang Factories, Henry Foo will accept and unload the same at the Klang Factories.

(vi) The operation of D1 was financed by the Plaintiff and/or the Stakeholders, or through the proceeds derived from the sale of Materials or Goods which the Plaintiff authorises D1 to collect. Before dispute arises between the parties, the business activities of D1, including income and expenditure of D1 as well as the sales of Materials or Goods, were reported by Teh Ming Huai to the Stakeholders on monthly basis.

On or around 01.09.2021, the 2nd Defendant (D2) was incorporated by, inter alia, Henry Foo. The Stakeholders were being informed that D2 was incorporate purportedly as an arm of D1 to primarily deal with the sale of the Materials and/or Goods on behalf of the Plaintiff. In short, the said Arrangement continues to be in force as between the Plaintiff, D1 and D2 where:

D1 focuses on processing the Materials; and

(ii) D2 focuses on sale of Materials and/or Goods.

Henry Foo is named as a director of D1since 01.07.2021 and currently hold 60% shareholding in D1. However, the appointment of Henry Foo as director and allocation of D1’s shares to Henry Foo were not made known to the Plaintiff nor the Stakeholders at the material time. Before dispute arises between the parties, the Stakedeholders and the Plaintiff were at all times under the impression that the operation of D1 (as well as the said Arrangement) is subject to the instructions of the Stakeholders.

During the period of June to August 2023, the Plaintiff purchased 20 freight containers of Materials (20 Containers of Materials) shipped them to the Klang Factories to be processed and/or sale by D1 and/or D2. The 20 Containers of Materials arrived at the Klang Factories during the period of August to October 2023.

In around August-September 2023, Henry Foo suddenly demanded to vary the terms of the said Arrangement in the following manner:

Initially in August 2023, Henry Foo demanded a sum of RM192,000.00 be paid by the Plaintiff or the Stakeholders purportedly being chimney exhaust installation costs of D1, and that his service consideration of RM5,000.00 per month be increased. The Plaintiff and Stakeholders were not agreeable to such demand and attempted to negotiate with Henry Foo to continue the said Arrangement.

(ii) Subsequently in September 2023, Henry Foo further demanded substantial changes to the nature of the Said Arrangement, including inter alia

D1/D2 be paid service charges at RM200 per tonne;

The Plaintiff shall guarantee at least 200/300 tonnes of Materials be processed or sold monthly by D1/D2; and

The Plaintiff or the Stakeholders advance funds for renovation of the Klang Factories.

The Plaintiff and the Stakeholders are not agreeable to the variation which substantially changes the nature of the said Arrangement and imposes unreasonable burden on the Plaintiff and the Stakeholders.

As a result, Henry Foo informed the Stakeholders that D1 and D2 will no longer operate under the said Arrangement and requested the Plaintiff to remove the 20 Containers of Materials from the Klang Factories, on condition that D1 still be paid with the sum of RM192,000.00.

With the intention to avoid hassle so that the Plaintiff could quickly remove the 20 Containers of Materials from the Klang Factories, the Stakeholders paid the sum of RM192,000.00 into the bank account of D1.

However, the Plaintiff only managed to remove a very small portion of the 20 Containers of Materials from the Klang Factories before Henry Foo stopped and prevented the removal process on or around 21.10.2023. Henry Foo demanded further sums (up to a total RM2,409,267.66) to be paid to D1 and/or D2 as a condition for the Plaintiff to continue removing the 20 Containers of Materials. The Plaintiff and the Stakeholders are not agreeable to pay such sums demanded.

Based on the removal records and sale records provided to the Plaintiff, the Subject Materials as listed in Annexure A of Enclosure 2 remain in the Klang Factories, which are currently under the control of D1, D2 and/or Henry Foo. The detention of the Subject Materials was expressly admitted by Teh Ming Huai through a Whatsapp message dated 04.11.2023.

The Plaintiff, through its solicitors, issued a letter of demand dated 22.11.2023 to D1 to demand for the return and re-delivery of possession of the Subject Materials. To the Plaintiff’s surprise, D1, through its solicitors’ letter dated 27.11.2023, responded to state that D1 does not have record of Subject Materials.

Immediately upon receiving D1’s response, on 29.11.2023, the Plaintiff lodged a police report against the wrongful detention of the Subject Materials as well as the extortion of the sum of RM2,409, 267.66 by the Defendants.

In around end December 2023, the Plaintiff was informed by the police that the police concluded that the incident reported is not matter suitable for criminal investigation. The Plaintiff then files this suit herein against the Defendants premised upon tort of detinue and claim, inter alia, for the recovery of the Subject Materials.

The Defendants’ intention to deprive the Plaintiff of the Subject Material is evident through the letter dated 27.11.2023 issued by D1’s solicitors denying the fact that the 20 Container of Materials and/or the Subject Materials were ever in its custody despite clear evidence of the same.

Section 50 and 51 Specific Relief Act 1950 gives this Court power to grant interim injunction.

Order 29 Rule 1 and 2 Rules of Court 2012 which sets out the procedural rules in respect of interlocutory injunction.

The leading authority in respect of granting of interlocutory prohibitory injunction is the Court of Appeal case of Keet Gerald Francis Noel John v. Mohd Noor bin Abdullah & Ors [1995] 1 MLJ 193 (COA) where the Court of Appeal sets out the following factors for consideration in granting a Prohibitory Injunction:

Whether there are bona fide serious issues to be tried meriting a trial;

(ii) Taking into account the practical realities of the case, where the justice of the case lies; and

(iii) Whether the injunction produces a just result for the interim period in maintaining status quo. The Courts’ Findings

This Court finds that there are serious issues to be tried and the case of Keet Gerald have been fulfilled without a Prohibitory Injunction, the Defendants may freely deal with the subject materials without restriction so as to diminish the value of the subject materials.

This Court allowed the Interim Prohibitory Injunction for the benefit of Plaintiff. Bertarikh: 8th October 2025 sgd ZAHARAH BINTI HUSSAIN PESURUHJAYA KEHAKIMAN MAHKAMAH TINGGI NCVC 2