XXXX v Foo Yong (WA-22NCVC-237-05/2017)

LOKE KOK KUEN … DEFENDANTS IN THE MAIN SUIT IN THE COUNTERCLAIM … PLAINTIFF IN THE COUNTERCLAIM

ERIC YAP (United Kingdom Passport No. 511152057)

ONG TIONG TJUAN (NRIC NO. 840218-14-6187) … DEFENDANTS IN THE COUNTERCLAIM AND IN THE COUNTERCLAIM BY LOKE KOK KUEN (D2) LOKE KOK KUEN … DEFENDANT AND IN THE COUNTERCLAIM TO THE COUNTERCLAIM BY ONG TIONG TJUAN ONG TIONG TJUAN (NRIC NO. 840218-14-6187) … DEFENDANT

[1] This matter comes before this Court pursuant to an order of the Court of Appeal that allowed the appeal against the earlier order of the High Court delivered on 27.6.2024. That said high Court Order was set aside. The Court of Appeal ordered that the matter be reheard before another Judge of the High Court. [2] The Court of Appeal directed that the re-trial be conducted based on the existing documentary evidence and the recorded notes of proceedings of the eight witnesses who had testified at the original trial, with no further witnesses or additional evidence to be adduced. The matter was directed to be proceeded with by way of fresh written and oral submissions. [3] The present proceedings therefore constitute that re-hearing ordered by the Court of Appeal. In compliance with the appellate directions, this Court has carefully considered the existing documentary record, the notes of evidence of the witnesses previously recorded over 20 days of trial, as well as the comprehensive written and oral submissions advanced by learned counsels for all parties. [4] The underlying action arises from the dispute between the parties relating to matters surrounding the affairs of Technology Revolution On Net Sdn Bhd (TRON). Including the parties’ respective rights and liabilities said to arise from the Perjanjian Penyelesaian Muktamad dated 27.3.2015 (Final Settlement Agreement hereinafter referred to as FSA) and related transactions involving shares, management and financial dealings of TRON. The litigation also encompasses claims in the main action as well as counterclaims between the parties. [5] Given the history of the proceedings and the directions of the Court of Appeal, this Court conducted the re-hearing by way of extensive submissions. The parties took a total of four days to present their oral submissions, supplemented by detailed written submissions and reply submissions addressing both factual findings and legal issues arising from the existing evidential record. [6] Having considered the entirety of the evidence previously recorded, the documentary bundles, and the parties' submissions in this re-hearing, this Court now sets out its decision and the reasons for the same. [7] This action involves several interconnected claims between the parties arising from their involvement in TRON. The trial heard by the High Court comprised not only the Plaintiff’s claim in the main action, but also a series of counterclaims filed between the parties. The Plaintiff’s (Eric) Pleaded Case [8] Eric initiated the main action against the 1st Defendant (Foo) and the 2nd Defendant (Steven) based on causes of action for fraudulent misrepresentation and/or conspiracy to defraud. The core allegation is that Eric was induced to enter the FSA based on false representations made by Foo and Steven. Specifically, Foo allegedly convinced Eric that Steven had borrowed RM38,600,000.00 from him, and Eric agreed to take over this debt because he feared for the safety of Steven and his family. [9] Following a forensic audit, Eric discovered that the representations were false, the alleged debt did not exist, and the sum was never advanced to Steven to assist in TRON as allegedly represented. [10] Eric sought a declaration that the FSA and related letters of undertaking are null and void; the return of RM5,000,000.00 paid to Foo and RM600,000.00 in illegal interest; the discharge of pledged properties; and the assessment of damages. Foo’s Counterclaim [11] Foo filed a counterclaim against Eric, alleging that the latter had breached the FSA. Foo’s counterclaim against Steven and the 3rd Defendant (Ong) claims that Foo was misrepresented by Steven and Ong into acquiring his investment in TRON, which allegedly induced him to part with RM38,600,000.00. Steven’s Counterclaim [12] Steven brought a counterclaim against Foo primarily centered on defamation. The claim is based on an email titled “Credential Check Steven Loke” dated 29.4.2015 and a Facebook post on 21.9.2016 which Foo allegedly called Steven a “con man”. [13] Steven further pleaded that he signed the FSA under duress and coercion exerted by Foo, rendering the FSA voidable at his option. Ong’s Counterclaim [14] Ong mounted a claim against Foo for a balance of RM5,000,000.00, which he asserted is the outstanding balance for the sale of TRON shares under a Share Sale Agreement dated 25.11.2013 (SSA). [15] It is Ong’s position that Foo’s allegations of misrepresentation are spurious and a non-starter, as it was noted that the documents Foo relies on are post-dated his investment. Ong also contends that Foo cannot approbate and reprobate by seeking to enforce the FSA while simultaneously claiming the shares underlying that agreement were obtained through fraud. Issues for Determination [16] The issues to be tried and determined by this Court involve the validity of the FSA, allegations of fraud and misrepresentation, and claims of defamation. The primary focus is whether the FSA was obtained through illegal means. [17] In analysing the evidence, this Court states below the finding of whether Foo and Steven falsely represent to Eric that Steven owed Foo RM38,600,000.00 in personal debt to induce Eric into signing the FSA and taking over that debt. [18] The other question to be answered is whether Foo and Steven conspired to defraud Eric into paying RM5,000,000.00 in cash and pledging RM18,000,000.00 in properties under the guise of settling the non-existent debt. The findings regarding the fraud or inducement will determine whether this Court will declare the FSA and the associated letters of undertaking null and void. [19] Pertaining to Foo’s counterclaim, analysis is also made on whether Eric breached the FSA and whether Foo himself was misrepresented by Steven and Ong into acquiring his initial investment in TRON, leading him to part with RM38,600,000.00. The issue of estoppel is also addressed to conclude whether Foo can simultaneously seek to enforce the FSA while alleging the underlying TRON share acquisition was based on misrepresentation (the approbate and reprobate issue). [20] Regarding Steven’s counterclaim against Foo, this judgment will illustrate its assessment of whether Foo defamed Steven by the publication of the said email and the said posting on Facebook. This Court will also rule on whether Foo owes Ong a balance of RM5,000,000.00 for the purchase of TRON shares under the SSA. There is also a finding on the timing of the alleged misrepresentation - whether it occurred after his investments, as this would render Foo’s defence of misrepresentation a non-starter. The Evidence Acquaintanceship of Eric and Steven [21] The evidence indicates that Eric and Steven were acquainted for many years prior to the events giving rise to the dispute before this Court. It was suggested during cross-examination that their acquaintance dated back to the mid-1990s, when Steven returned from London after graduating. While they did not keep in constant contact, they maintained a connection through a common friend. Steven later turned to Eric for advice when he felt “disturbed and unstable” due to alleged threats from foo, specifically because Eric was already involved with TRON. Relationship between Eric and Foo [22] The relationship between Eric and Foo was initiated through Steven, who introduced them. Foo approached Eric claiming that Steven owed him a personal debt of RM38,600,000.00 and attempted to convince Eric to take over this loan. Prior to the execution of the FSA, the parties met at least four times:

At a meeting at Shangri-La Hotel, where a loan was requested from Eric (Steven was present)

(ii) Two meetings in Hong Kong, the first encounter involved a further loan request, and the second was an offer for Eric to purchase equity in TRON (Steven was present)

(iii) A meeting in Westin Hotel that took place on 17.3.2015 which was a critical session involving Eric, Foo and Foo’s solicitor Dato Angus Tiong of discussion and negotiation of the terms and conditions of the FSA (Steven was not present) Relationship between Steven and Foo [23] Steven and Foo were business associates in TRON where Steven was the founder and Chief Executive Officer (CEO), and Foo was the shareholder. They were introduced through two acquaintances David Sui Hiong Diong and Yeap Lye Hoe, after which Foo expressed interest in investing in TRON. This was due to TRON’s contract with Genting Malaysia Berhad (Genting). [24] However, the relationship deteriorated rapidly and turned rather hostile after Genting terminated the contract in March 2014. Evidence was presented showing that Foo began a campaign of harassment and threats against Steven. This included an incident where Foo allegedly sent an agent to slap Steven in a hotel parking area, an act Foo later appeared to mock in an email. The Involvement of Ong [25] Ong was a majority shareholder in TRON and served as its Executive Director (ED) for Operations and Finance. Like Steven, Ong was introduced to Foo through David Sui Hiong Diong and Yeap Lye Hoe. He became involved with Foo as the seller of TRON shares under various Share Sale Agreements in particular one dated 25.11.2013 (SSA). [26] Through the said SSA, Ong sold shares to Foo and his nominees, for RM11,000,000.00, which Ong claims Foo still owes a balance in the sum of RM5,000,000.00. [27] Steven and Ong were connected through the affairs and management of TRON. Their roles and involvement in TRON formed part of the factual background to the disputes that are iterated below for the consideration of this Court in determining the findings of facts. [28] Ong was drawn into this suit when Foo filed a counterclaim alleging that both Steven and Ong misrepresented the TRON investment to him. Ong, in turn, filed a counterclaim to the counterclaim to recover the alleged outstanding sum of RM5,000,000.00. [29] The evidence indicates that Eric’s initial complaint did not directly concern Ong. Eric’s case was directed against Foo and Steven in relation to the FSA. [30] A recap of the roles of the parties in this suit based on the evidence:

Steven - founder and CEO of TRON

Ong - shareholder and ED of TRON

Foo - shareholder/investor of TRON

Eric - later became a shareholder of TRON The Representations to Eric [31] Evidence of several specific representations made by Foo to Eric is:

Foo claimed that Steven had borrowed RM38,600.000.00 from him in a personal capacity following an earlier share agreement

(ii) Foo represented that this sum had been advanced to Steven specifically to assist in the running and operation of TRON

(iii) Foo represented that the alleged debt had been successfully injected into TRON for that purpose

(iv) Foo convinced Eric to take over Steven’s alleged loan, leading Eric to believe that this was necessary for the safety of Steven and his family

During the meeting at the Westin Hotel on 17.3.2015, Foo (along with his solicitor) discussed and negotiated the terms of the FSA with Eric, which were premised on Eric paying RM5,000,000.00 in cash and pledging RM18,000,000.00 in properties to settle Steven’s alleged debt [32] While Steven’s defence emphasizes he signed the FSA under duress and was not part of the Westin Hotel negotiations, Eric testified that Steven made the following representations:

Steven himself had earlier told him the same story; that he had received an advance of RM38,600,000.00 from Foo to assist in the running of TRON

(ii) Steven, alongside Foo, approached Eric on at least three occasions prior to the FSA (at Shangri La Hotel and in Hong Kong) to request a loan and offer Eric the opportunity to purchase equity in TRON [33] Steven’s situation of being harassed and threatened by Foo was used as a basis for Eric to intervene and agree to the settlement terms to protect Steven and his family. [34] At trial, evidence confirms that Foo did represent to Eric that Steven owed him RM38,600,000.00, although on the witness stand, Foo tried to deflect that responsibility to Steven. His attempt to shift the blame came during his cross-examination when he confirmed the content of the FSA that detailed the said debt, but he denied that he was the source of the representation; he claimed instead that it was Eric who had told him that the information came from Steven. [35] Steven contended that he was not a perpetrator of the fraud, but rather a victim of duress, coercion, and physical intimidation exerted by Foo. He testified that the alleged debt was a “big lie” and that he had never borrowed any money from Foo. He maintained that because the debt did not exist, there was no basis for the FSA payments. [36] There was a lack of Steven’s participation in the negotiations for the FSA at the critical Westin Hotel Meeting on 17.3.2015 where the actual terms and conditions of the FSA were negotiated and finalised between Eric, Foo and Foo’s solicitor. Evidence was led showing that Foo’s solicitor had only discussed the specific terms of the settlement with Steven after he had already signed the FSA. [37] Steven contended that he had contacted Eric not to induce an investment, but to seek advice and suggestions (“saranan”) regarding his safety because he was being harassed and threatened by Foo. Steven relied on extensive evidence to support his claim that he signed the FSA under duress because he had feared for his life and the safety of his family. [38] One was a documented report to the police lodged by Steven. It was due to a commotion caused by Foo at the TRON office on 9.3.2015. The police report consisted of a complaint that Foo caused at the TRON office that morning, making noise and causing a commotion. Steven alleged that Foo had acted disruptively and that he felt under duress. [39] Another documented a physical assault. On 11.3.2015, Foo sent an agent to slap and threaten Steven in the PJ Hilton parking area. A video recording of the assault was provided to this Court. Steven testified that he had brought along his employee, Alvin. Although Foo initially claimed that he was not sure who was in the said video, he later admitted to sending the agent and conceded that the individual in the video looked like Steven. Later, Foo sent an email taunting and mocking Steven about the slap when parties were already engaged in this lawsuit. [40] On 12.3.2015, while Steven was away, his wife informed him that their house fate had been violently rammed several times. This incident was captured on the house CCTV and reported to the police. [41] According to Steven while he was in Singapore, Foo called him and stated “..sign anything I ask you to, otherwise, I will kill you …”. On this claim, Foo completely denied. Through the cross-examination of Steven by Foo’s counsel, it was suggested that the threat had never occurred and that the allegation was a tactical fabrication, of which Steven disagreed. Foo himself responded when confronted with other documented communications, admitted authorship, but denied that they were intended to be threats. [42] The said police report lodged by Steven, encapsulating all the allegations above, was made on 17.3.2015 (same day as the critical meeting at Westin Hotel). The FSA [43] The primary purpose of the FSA was to provide a full and final settlement of an alleged personal debt of Steven. According to the FSA’s recitals, Foo claimed to have advanced RM38,600,000.00 to Steven in his personal capacity. This sum was purportedly provided to assist in the operations of TRON. [44] Eric executed the FSA to take over this alleged loan of behalf of Steven, primarily because he feared for the safety of Steven and his family due to threats by Foo. Foo, involved in the FSA from the beginning to the end of the FSA, had placed his signature. Steven, although not present, was not present at the critical meeting at the Westin Hotel where the conditions were finalised, had also executed it. [45] Under the terms of the FSA, Eric and Foo agreed to the following arrangement to settle the alleged RM38,600,000.00 debt with a payment of RM23,000,000.00 structured in two parts:

Eric agreed to pay Foo RM5,000,000.00 in cash directly to Foo

Eric was required to pledge properties valued at RM18,000,000.00 to Foo’s solicitors, Messrs. Tiong & Woon

In exchange, Foo and Steven were collectively required to transfer 33.33% of the total issued share capital in TRON to Eric [46] The FSA included an Addendum and various Letters of Undertaking entered into between Eric and Foo. [47] The cash payment of RM5,000,000.00 by Eric to Foo and the pledging of the properties to the value of RM18,000,000.00 to Foo’s solicitors are not disputed. Steven’s Alleged Debt [48] The plot twist of this case is that Steven had denied there was ever any alleged debt, which was consistently identified as RM38,600,000.00. Foo claimed to have provided the funds through both bank transfers (cheques) and cash. Foo testified during the cross-examination by Eric’s counsel that the alleged advancement for the sum was done in three tranches in the following manner:

RM14,000,000.00 purported paid in the form of cheques to TRON upon Steven’s instructions

(ii) RM6,000,000.00 purportedly paid in the form of cheques to Ong upon Steven’s instructions

(iii) RM18,600,000.00 purportedly paid directly to Steven in cash. This was completed over several months, from September 2013 to June 2014. [49] At trial, when asked for proof of the claim above, Foo explicitly admitted during cross-examination that he had none, in his words, “Bukti saya tak ada”. He confirmed that no bank records (no receipts, bank transaction documents, or statements) were adduced to support the claimed delivery of this cash or the cheque payments. [50] Steven vehemently denied receiving these funds - he categorized them as “a big lie”. Ong, the majority shareholder and ED for Operations and Finance of TRON, corroborated Steven's statement that the RM38,600,000.00 debt does not exist. [51] Ong confirmed that the contention that RM38,600,000.00 had been injected into TRON for its operations was “incorrect”. He testified that to his knowledge, no such sum was ever given by Foo to Steven or injected into TRON. As the ED in charge of Operations and Finance, Ong confirmed that TRON’s financial statements did not reflect such an investment or loan. [52] Significantly, Foo had failed to adduce a single document that would support his contention of the RM38,600,000.00 loan to Steven and any of the payments of the said sum. Foo conceded to this. TRON’s records showed no injection of RM38,600,000.00, whether through one lump sum or through instalments. Harassment and Threats [53] Steven contended that he had signed the FSA under duress and due to threats of death and criminal intimidation by Foo. Ong provided evidence of contemporaneous communication vide an email on 20.3.2014 whereby Steven, who was in Thailand, informed Ong that he was delegating his duties to Ong because he was too afraid that Foo “will kill me” if he returned to Kuala Lumpur. [54] In terms of the timeline of the physical harassment and intimidation, the trial produced the following evidence:

9.3.2015: Foo arrived at TRON office and caused a disturbance and initiated a commotion

11.3.2015: Foo sent an agent (Steve) to the PJ Hilton car park where Steven was slapped and threatened. Immediately after, Foo called Steven and stated that “this was just the beginning and there is more to come”. There is a video recording of this incident

12.3.2015: Steven’s wife informed him that their house gate had violently been rammed several times, triggering the security alarm. A CCTV footage was recorded.

13.3.2015: Men rang Steven’s doorbell and acted so suspiciously that his wife was forced to call security for protection. The police report lodged was produced at trial

17.3.2015: Steven lodged the police report on the incident of 9.3.2015, detailing the chronology of office commotion, assaults and threats

Pre execution of FSA: Foo called Steven when the latter was in Singapore and issued a direct death threat to coerce his signature on the FSA

14.12.2017: Foo admitted to writing Steven an email which was mocking in nature - “Steven, that slap is for to stop you … I personally called and congratulate them for teaching you how to behave.” In other email correspondence, Foo suggested that Steven was lucky that the slap was not any harder, otherwise, there would have been loss of a tooth and blood. [55] Under cross-examination, Foo admitted that he had sent an agent to meet Steven regarding a Volkswagen car. He also eventually conceded that the person being slapped in the video looks like Steven. [56] Evidence was led regarding a 2019 police report from Foo’s ex-wife, Chen Choi Lin, alleging Foo was hot-tempered and had a history of violence, including throwing furniture and breaking frames at her home. [57] It is the testimony of Eric that Steven had called him seeking advice because he was unstable, disturbed, and being harassed by Foo. Steven testified that Foo’s pattern of harassment was life-threatening and that he continued to attend court with a bodyguard due to Foo. The Forensic Audit [58] Messrs. Ferrier Hodgson MH Sdn Bhd (FH) was jointly appointed by Eric and Foo to carry out investigations into the affairs of TRON. This appointment timing occurred roughly two years after the execution of the FSA on 27.3.2015 as the full report produced by FH is dated 9.3.2017. [59] Apparently, the reason Eric and Foo jointly appointed FH was to specifically investigate allegations of misconduct by Steven and Ong. The primary objective was to determine whether Steven and Ong had committed acts of breach of trust, misappropriated funds, abused their power, or breached their fiduciary duties as directors of TRON. [60] Foo had raised these allegations as a basis for his grievances, and the audit was meant to provide a definitive accounting of TRON’s affairs to settle these disputes. [61] FH Report was produced in full and tendered at trial, admitted as Exhibit P4. As stated by FH, the original purpose was to “conduct a review on the issuance of new shares by TRONSB and its subsequent utilization of the proceeds from the same as well as the advances from the directors/shareholders during FY2012 to 2015 in order to ascertain if the said exercise had been undertaken in the best interests of TRONSB.” [62] The approach undertaken by FH was to initially ascertain (on their best effort basis) the funds that had been raised by various former directors of TRON for and on its behalf, and its subsequent injections into TRON in consideration for the shares or for it to be treated as ‘Advances to Directors/Shareholders’. FH proceeded with its investigative audit, and took into account the FSA executed by Eric, Foo, and Steven, which related to moneys that was purportedly invested into TRON. [63] Pointedly, the FH found no injection of RM38,600,000.00 into TRON. FH Report confirmed it did not exist. It revealed the difference in value between the actual funds injected by Foo and the RM38,600,000.00 that Foo claimed he made in the FSA. [64] FH effectively cleared Steven and Ong of all allegations of misconduct. The FH Report concluded that Foo’s allegations regarding acts of breach of trust, misappropriation of funds, abuse of power, and breach of fiduciary duties were baseless. [65] While the FH Report did not find the RM38,600,000.00 ‘debt’ or ‘injection/investment’ into TRON, it did provide a clear accounting of TRON’s financial movements which aligned with the capitalization of internal debts. [66] Instead of TRON creating brand-new ownership pieces specifically for Foo because he was a new investor in 2013, the shares he acquired already had a history. TRON owed a lot of money to Ong and his father. To settle this, TRON gave them shares instead of cash. These shares, which were created to pay off an old debt, were the starting point (the genesis, so to speak) of the ownership stake that Foo eventually bought. [67] The evidence shows that the shares were created when TRON capitalized the debts it owed to John and his father. This converted TRON’s liabilities (moneys owed) into equity (shares). The documented movement of shares, through company resolutions, the debt was converted into shares, which were then transferred to Foo and his nominees as part of the share sale agreements in February 2013 and SSA in November 2013. [68] It was only after having received this FH Report, which settled the accounting of how funds were actually handled in TRON, that Eric testified he had realised that the representations about the RM38,600,000.00 personal advance purportedly given by Foo to Steven were untrue. Shareholder Foo [69] Before this Court assesses whether Eric has successfully proven his claims or that the defences put forth by Foo and Steven are valid on a balance of probabilities, there is another angle to the factual matrix. That is, whether Foo owes Ong a balance of RM5,000,000.00 for the sale of TRON shares under the SSA. [70] Foo Yong became a shareholder of TRON through two distinct phases of investment in 2013. The initial investment took place in February 2013; the subsequent investment took place in November 2013. The total stake by the time of the legal disputes, Foo and his nominees (Chan Choi Lin and Chan Sew Lai) collectively held 13.15 of TRON’s shareholdings, a figure which Foo confirmed in his cross-examination. [71] The initial investment was conducted via the sale by Ong to Foo and his two nominees for a combined consideration of RM14,000,000.00. This resulted in Foo holding 7% of TRON’ s shareholding. The payment for the share purchase was settled through a combination of direct company payments and debt capitalization. Ong produced a document that showed he had authorized TRON to receive the moneys on his behalf for the share sale. 136 cheques were adduced that showed payments were made directly to TRON. The cheques were issued by several banks - Maybank Bank Berhad, Hong Leong Bank, RHB Bank Berhad, Citibank Berhad, UOB Bank Berhad, OCB Bank Berhad, Standard Chartered Bank Berhad, and Public Bank Berhad. Each cheque was for payment of RM50,000.00 respectively. [72] Ong provided uncontroverted evidence that the shares transferred to Foo and his nominees had their genesis in amounts owing from TRON to Ong and his father. These internal company debts were capitalised into shares, which were then transferred to Foo and the two Chan sisters. Foo explicitly conceded that his initial investment was RM14,000,000.00 which resulted in a 7% shareholding of TRON. This figure matched the combined value of the share sale agreements in February 2013. [73] At trial, Ong further provided a detailed and unchallenged explanation regarding the movement of TRON shares from the capitalization of the debt to the final registration in the names of Foo and his nominees (the two Chan sisters). The transfer of shares to Foo was ultimately verified by the TRON Register of Shares which reflected the allotment of the shares following these transactions that resulted from the capitalized debts. [74] In summary, the balance beyond the identified cheques produced was accounted for by Foo paying TRON directly to settle capitalised debts owed to the Ong family, a process confirmed by company resolutions and the official share register. [75] The subsequent acquisition by Foo through the SSA (on 25.11.2013) from Ong was for an additional 550,000 units of TRON shares directly to Foo for RM11,000,000.00. Nearly 60 cheques were adduced to show that a payment of RM6,000,000.00 was paid to Ong. The purpose of the payments was indicated at the back of the cheques written by Chan Choi Lin, stating they were for “3% share transfer” or “shares in TRON”. [76] Foo had called his expert witness, Lim Yok Chaw (DW4), whom Foo had engaged to support his case against Ong to bolster his denial of specific share sale transactions. DW4 was called to provide the authenticity of the sale share agreements of February 2013. His primary conclusions included that the signatures on the disputed documents were probably written by a different author than the person who provided the specimen signatures (Foo). [77] His reason for doubting the authenticity of the signatures was the detection of a deep V formation at the end of the disputed signatures, which he believed distinguished them from the author’s style. DW4, however, acknowledged that because he worked with photocopies rather than originals, he could not properly analyse the finer details such as pen pressure, line fluency, or line crossing. [78] DW4 did not independently verify the authorship of the specimen signatures provided by Foo’s solicitors. He also admitted that the undisputed 2013 signatures that belonged to Chan Sew Lai also contained the V formation, effectively contradicting his own reason for doubting the disputed signatures. Furthermore, DW4 examined signatures from 2015 to 2019 rather than those closest in time (2013) to the disputed documents. Then, Ong highlighted the letter of demand issued by Foo’s solicitors that acknowledged the purchase of the shares. [79] Foo did not submit the SSA executed in November 2013 for analysis by DW4. Misrepresentation Claims by Foo [80] To support his counterclaim against Steven and Ong regarding his investment in TRON, Foo’s case was built on the assertion that he was induced to invest and maintain his investment based on representations that TRON was a high-value company on the verge of going public. He pointed to a series of emails which he claimed represented that TRON would be listed on the London Stock Exchange in September 2013, September 2014, or 2015. [81] Foo also referred to communications that contained valuations of TRON in the millions of Great Britain Pounds or the equivalent billions of Malaysian Ringgit or US Dollars. [82] A central pillar of Foo’s counterclaim was the status of a major contract between a TRON subsidiary and Genting that was terminated in mid-March 2014. Foo claimed that Steven continued to represent to him that the contract was still active and that TRON had 3,500,000 subscribers and other ongoing commercial activity related to Genting as a form of enticement to keep Foo invested. [83] All the documents Foo relied upon in Enclosures 320, 321, and 322 were dated after Foo had already acquired his shares in 2013 - a fact Foo admitted in his cross-examination. There was no documentary evidence of any representations made prior to the payment of his share acquisition in 2013. Also admitted by Foo is that Ong was not involved in the alleged misrepresentations regarding the calculation of the RM38,600,000.00 debt. [84] Although Foo claimed the emails induced him to invest in TRON and maintain his investment in TRON by giving the impression that a listing was near and that TRON was highly valuable, Steven testified that the emails were merely forwarding emails intended to be transparent about TRON and its ongoing activities. Ong denied that the emails were intended to represent that a listing was imminent and disagreed with the proposition that they were clear representations to Foo regarding the purported London Stock Exchange listing. This Court’s Findings on Eric’s Claim Representations to Eric [85] On the issue of representations made to Eric - on a balance of probabilities, evidence shows that Foo represented to Eric that Steven owed him personally the sum of RM38,600,000.00.

Foo had actively pursued Eric. The trips to Hong Kong illustrate that he sought to induce Eric to part with RM38,600,000.00 to take over Steven’s said loan.

His attempt at shifting the blame to Eric and Steven when he orally claimed at trial that Eric had informed him the said fact was informed to Eric by Steven, in this Court’s considered opinion, fails and does not absolve him for reinforcing such representation. Evidence shows that Foo was present at every meeting and seemed to have played a slightly more dominant role in representing Eric and persuading Eric to enter the FSA.

This finding is further strengthened by the evidence that Foo was significantly involved in the discussions and negotiations of the FSA at the Westin Hotel. The FSA encompassed an agreement that upon the settlement of the sum said to be owed by Steven to Foo, Eric was to take over the shareholding and office position of Steven.

The FSA itself is evidence of the representation - Foo, who had executed the FSA which he was heavily involved in the drafting of and thereafter executed, is called the ‘Creditor’ who “has advanced the sum of RM38,600,000.00 to the Debtor in his personal capacity …”. This shows that he affirms such a representation or rather a position of facts. By executing the FSA, Foo adopted this representation as the fundamental basis for the agreement.

Eric’s oral testimony is corroborated by all these series of evidence which had discharged his initial burden of proof that Foo had represented him as such. The onus shifted to Foo, which the evidence shows had amounted only to attempts to shift the blame back to Eric, which not only defies logic but lacks evidence, and to Steven. This Court finds that Eric has established a prima facie case of fraudulent misrepresentation against Foo on a balance of probabilities, and that Foo had failed to rebut it. The elements of fraudulent misrepresentation can be seen in the Court of Appeal’s cases of Yeohata Machineries Sdn Bhd & anor v CCoil Master Sdn Bhd & Ors [2016] 2 CLJ 414 and Victor Cham & anor v Loh Bee Tuan [2006] 3 CLJ 770. [6] As for Eric’s case against Steven for misrepresenting the facts to him, it is significantly undermined by Eric’s concession on cross-examination that no representation material to his decision was made by Steven. [87] This Court examines whether Steven, on his part, had intentions to defraud Eric (and maybe Foo as Foo alleged), but the evidence shows that he was harassed and threatened by Foo before and leading up to the FSA. Steven claimed that he had signed the FSA under duress exerted by Foo. Steven asserted that the alleged debt was ‘a big lie’ and that he had never borrowed any money from Foo, and denied representing to Eric that there was such a debt. The documentary proof (the thread of emails and WhatsApp messages sent even after the execution of the FSA) supports Steven’s contention. [88] This Court rules that on a balance of probabilities, Steven was threatened and harassed by Foo. Aside from the contents of those emails, to which Foo admitted belonged to him but denied the substance was threats, which in this Court’s view amounted to threats, harassment, and capable of exerting undue pressure and duress, there is other evidence. The police report lodged, the recording of Steven physically assaulted, and the ramming of the gate of his residence, Steven was also not present at the critical meeting at the Westin Hotel on 17.3.2015 and took no part in the discussions to draft the FSA. At the other end, Foo himself admitted that he had sent an agent to slap and threaten Steven at the PJ Hilton parking area. Eric additionally admitted that the threats and assaults against Steven occurred prior to the signing of the FSA and were the primary reason Steven executed the FSA. There is also an email sent by Foo to Steven after the event, mocking Steven for the assault. This Court accepts Steven’s evidence that he had called Eric not to induce Eric for an investment but to seek advice and suggestions regarding his safety because of the harassment and threats he was receiving from Foo. [89] This Court regards Foo’s responses to the evidence of physical assault inflicted on Steven and the subsequent taunting email. It is the finding of this Court that during cross-examination, Foo produced a combination of evasion, admission of authorship, and denial of the threatening nature of his communications. Foo’s responses fail to rebut the evidence that establishes the threats and harassment he had occasioned on Steven. [90] Ong had also called the representation ‘a lie’ because it contradicted the documented financial reality of the share transactions. Ong was aware of the environment of duress because he received contemporaneous documentation from Steven at the time the threats occurred. He received an email dated 20.3.2014 from Steven, who was in Thailand then that he would be temporarily inactive from TRON and Talk Focus Sdn Bhd due to ‘threats of death and criminal intimidation’ from Foo. [91] This Court considers the evidence from the Chan sisters who testified for Foo. According to the Notes of Evidence, the High Court Judge who had presided over the trial had noted the demeanour of one of them not in a favourable manner. The contentions that they both exhibited demeanour evasive and not forthright hold. Their testimonies are contradictory and inconsistent with the statements they made in other legal proceedings regarding Foo’s alleged abusive behaviour. His general temperament came into focus during the trial as there was a police report by Chan Choi Lin (his ex-wife) alleging that he was abusive and hot-tempered. He had only disagreed with the contents of the allegations against him. [92] Thus, the evidence shows on a balance of probabilities that Steven was coerced and threatened by Foo into signing the FSA, rendering the execution a result of duress. The suggestion that the harassment was a fabrication or play-acting raised during the trial by Foo’s counsel goes against the grain of evidence. This Court is mindful that plausibility should never be mistaken for veracity, and oral evidence must be tested against contemporaneous documents. This Court recognises that evidence shows Steven’s participation was obtained through systematic intimidation and violence orchestrated by Foo, rather than a voluntary conspiracy to defraud Eric. [93] Therefore, Eric does not succeed in his claim against Steven for the representation that he owed Foo RM38,600,000.00 in his personal capacity for the running of TRON. On a balance of probabilities, after evaluating whose version is more inherently probable given the surrounding circumstances and objective facts, this Court finds that the representation came from Foo. Fraudulent Misrepresentation [94] Next, this Court finds that the representation made by Foo was a fraudulent misrepresentation. That representation of Steven owing Foo the sum of RM38,600,000.00 is not backed by any evidence. Foo had failed to produce any evidence whatsoever, other than his oral assertion, that he had loaned Steven the said amount for the purpose of running TRON’s operations. See ALW Car Workshop Sdn Bhd v AXA Affin General Insurance Bhd [2019] 7 CLJ 667. [95] Pertinent in coming to the conclusion that Foo had fraudulently misrepresented the said fact to Eric is the FH Report. This Court considers it independent and reliable. There is no injection of any sum that would total to the amount Foo claimed in TRON’s books. Foo himself had failed to offer any documentary proof to show the payment of such a large amount, whether by cheques, instalments, bank transfers, or even cash. Foo had failed to produce anything that would back up his claim. Foo admitted that he did not have any documentary proof for the alleged debt, which this Court finds incredible. [96] In the absence of any documentary evidence, this Court finds it inherently improbable that Foo, even if inexperienced in business dealings, would have advanced sums amounting to millions of Malaysian Ringgit on a personal basis to Steven without retaining any contemporaneous record or proof of such payments. The burden of proof lies on Foo to establish the existence of such alleged advances on a balance of probabilities. The story of dishing out the loan to Steven in three separate tranches remains a story not proven due to the absence of evidence. His failure to produce any supporting documentation, which would reasonably be expected in the ordinary course of such transactions, entitles this Court to draw an adverse inference against him that no such payments were in fact made. The law under s114(g) of the Evidence Act 1950 is hereby invoked. [97] At the opposite, Steven and Ong vehemently called it a lie. To corroborate this, TRON’s records show no injection of such a sum into it. This Court concludes that the representation does not exist and Foo had fraudulently misrepresented to Eric the same. See OCBC Bank (Malaysia) Bhd v Lee Lee Fah [2000] 1 MLJ 134. [98] This Court noted that although Eric and Steven were acquaintances and had known each other for years, Steven did not tell Eric that the misrepresentation made by Foo was a big lie because Steven was operating under an environment of extreme duress and life-threatening fear created by Foo. There was fear for life should Steven refuse to sign the FSA. There was already an incident of physical assault just before the execution of the FSA. Steven’s fear had extended to his family’s safety, premised on the evidence. Despite their long-term acquaintance, Steven’s will was overborne by Foo’s aggression. On a balance of probabilities, this Court finds that Steven felt he had no choice but to corroborate Foo’s big lie to protect himself and his family. The absence of a heads-up from Steven led Eric to believe that the debt was genuine until the subsequent independent audit revealed the fraud. Conspiracy Claim [99] The tort of conspiracy requires a proven unlawful object, or if not in itself unlawful, it must be brought by unlawful means (See SCK Group Bhd & Anor v Sunny Siew Pang & Anor [2010] 9 CLJ 389). There must be a co-existence of an agreement with an overt act causing damage to Eric who claims that there was a conspiracy between Foo and Steven to defraud him. [100] Based on the evidence, Eric has failed to prove a meeting of minds between Foo and Steven. First of all, Eric’s claim that Steven represented to him the alleged debt is not proven. So, the only overt act Eric is able to rely on is the FSA. [101] Evidence shows on a balance of probabilities that Steven had executed the FSA under duress. Under Malaysian law, since there was no consent or free will on the part of Steven in the execution of FSA, the allegations of conspiracy between him and Foo would fundamentally fail because the essential legal requirement of meeting of minds is absent. [102] The tort of conspiracy, whether by lawful or unlawful means, requires a combination, agreement, or understanding between two or more persons. Under section 14 of the Contracts Act 1950 (CA), consent is not free if it is caused by coercion. Without free consent, there is no consensus id idem. See Renault Sa v Inokom Corp Sdn Bhd & Anor and Other Appeals [2010] 5 CLJ 32. [103] As there is no voluntary combination of efforts or agreement to injure Eric, legally, Steven cannot be said to have conspired with Foo who is simultaneously victimizing him through threats and harassment. [104] There is evidence that Steven was frightened for his life at the material time which Foo had not successfully rebuked. Yet there is no evidence to show that Foo and Steven had colluded to defraud Eric into executing the FSA. It is this Court’s finding that Eric’s conspiracy claim is a legal impossibility, as on a balance of probabilities, the evidence shows that Foo and Steven were not acting in concert since Foo was overbearing Steven’s will through intimidation. This Court’s Findings on Foo’s Counterclaim Breach of the FSA [105] Foo alleges Eric had breached the terms of the FSA. Evidently, Foo’s objective was to reinforce the FSA to recover the full settlement sum of RM23,000,000.00. He argued that Eric was estopped from challenging the FSA because Eric had already acted upon it. Eric had paid the sum of RM5,000,000.00, and his status is a TRON shareholder which he uses to assert his rights. [106] To support his claim, Foo relied on the recital to the FSA which explicitly labelled Foo as ‘Creditor’ and Steven as ‘Debtor’ for a sum of RM38,600,000.00. Foo argued that since the parties signed the FSA, they had admitted to the truth of its contents. Foo additionally relied on the debt acknowledgement and settlement terms and the finality clause. [107] Having analysed the evidence, this Court rejects Foo’s evidence and his counterclaim against Eric. An illusion of fraud cannot sustain a contract once the underlying misrepresentation is exposed. [108] The FSA is declared as void as Eric was fraudulently misrepresented by Foo as to the alleged debt of RM38,600,000.00 purportedly owed by Steven, and Steven had executed the FSA under coercion and duress. Foo’s Claim of Misrepresentation by Steven and Ong [109] This Court agrees with counsel’s submissions that this counterclaim is a non-starter. The documents Foo relies on actually post-date his investment in 2013 - not by days or months but by years. Because of the flaw in timing, the contradiction in legal logic, and being unsupported by his own testimony, Foo’s claims failed to gain legal traction. [110] The most critical failure was that the documentary evidence Foo relied on to prove he was induced to invest actually post-dated his investment. Under cross-examination, Foo was forced to admit that every document he cited (in Enclosures 320, 321, and 322) was dated after he had already purchased his shares in TRON. [111] In law, an operative misrepresentation must predate the agreement it is alleged to have induced. Since Foo had already parted with his money before receiving these emails and reports, they could not have been the cause of his investment. [112] Foo’s counterclaim on misrepresentation against Steven and Ong fails due to the anachronistic evidence as to the timing issue and his own admission regarding Ong’s non-involvement. There was direct admission from Foo at trial that Ong was not involved in the misrepresentations that led to the signing of the FSA. Foo conceded that Ong was not the party that made the representations regarding the calculation of the RM38,600,000.00 debt. [113] Further, there is the approbate and reprobate position that applies in this situation. Foo is seeking to enforce the FSA while at the same time claiming that the shares underlying the FSA were obtained through fraud. Foo sought to enforce the FSA through his counterclaim against Eric, which meant he had accepted the FSA as a valid and binding contract. After all, he is in consensus that by the letter of the FSA, he can secure millions of Ringgit Malaysia in cash and property. The FSA was explicitly anchored on the validity of Foo’s investment and shareholding in TRON. Foo relied on his status as a shareholder (acquired through the acquisitions from Ong two years earlier in February 2013 and also the FSA in November 2013) to assert his rights under the FSA. [114] In the same breath, he mounted a counterclaim against Steven and Ong alleging that he had been misrepresented and induced into acquiring those very same TRON shares. [115] It is logically inconsistent. The legal principle of approbate and reprobate, often described as blowing hot and cold, dictates that a party cannot accept and reject the same instrument or transaction to suit their own convenience. A person entitled to one of two inconsistent rights who unequivocally chooses one cannot later pursue the other. By choosing to affirm his shareholding to enforce the FSA, Foo elected a path that was mutually exclusive to a claim that the share acquisition was a nullity due to misrepresentation. [116] Because Foo’s claim was premised on the shares he purchased from Ong, he was legally estopped from alleging that Ong had misrepresented those shares. Ong’s counsel characterized this as a wild goose chase intended to confuse this Court. This Court observed that the inconsistent stand underscored a general lack of veracity in Foo’s testimony, as he attempted to validate and invalidate the same financial movement based on which litigant he was currently targeting. [117] There was a new theory introduced during the cross-examination of Ong by Foo’s counsel at trial. It was suggested that Ong was a conduit who sent information to Steven, knowing it would be passed to Foo. However, this new conduit theory was never part of Foo’s written pleadings. See YK Fung Securities Sdn Bhd v James Capel (Far East) Ltd [1997] 2 MLJ 621. [118] The cardinal rule in civil litigation that parties are bound by their pleadings kicks in (See Repco (Malaysia) Sdn Bhd v Tan Toh Fatt & Others [2012] 1 LNS 116; [2013] 7 MLJ 408 and Ketua Pengarah Jabatan Kerja Raya v Strongkota Development Sdn Bhd [2016] 3 CLJ 741) . Foo is not allowed to lead evidence or raise issues on facts that have not been formally pleaded. Because Foo’s formal counterclaim specifically alleged Ong had made representations directly to him, the introduction of the conduit theory (alleging indirect misrepresentation through a middleman) constituted a clear departure from the pleaded case. [119] The primary objective to prevent surprise and enable disputes to be litigated in an orderly fashion must be achieved in every trial before this Court. Introducing a new theory during cross-examination, this Court considers to be highly prejudicial because Ong (and perhaps other parties affected) is deprived of the opportunity to prepare a defence against that specific version of facts. This last-minute issue that arose after this case has been framed and evidence led is too late in the day and is duly disregarded by this Court. [120] Before this Court is the fact that Foo’s background is that of an astute and experienced businessman who has been active in various investments since 1990. Yet, his investment of RM20,000,000.00 was done without conducting any reasonable due diligence or independent verification of TRON’s financial health. [121] This Court thus finds that it is improbable that a businessman of his calibre would be misled by transparent company updates sent to him after he became a shareholder. Based on the evidence before this Court, Foo has failed to prove his claims against Steven and Ong. Steven’s Counterclaim [122] Steven mounted a counterclaim for defamation against Foo. Two primary instances were identified by Steven. One is an email Foo sent to an individual by the name of Foo Ziyi on 29.4.2015 titled “Steven Loke Credential Check”. [123] An email and a Facebook post dated 22.9.2016 from Foo to a host of individuals with the title ‘Congratulations for all your good deeds’. The specific phrases from the email and Facebook post that Steven claims are defamatory in their natural and ordinary meaning, accusing him of being a conman and a cheat, are: “Don’t be a con man, you are a nuisance to the society, Given the intelligence and smartness is not to con but to used it in a right way. This group of con can you have to repay back.” [124] Through the evidence-led process, this Court noted that Steven highlighted that these communications were targeted at him specifically. Foo admitted under cross-examination that these statements were directed to Steven. Steven, in turn, alleges that the statements portrayed him as a person lacking integrity who engaged in discreditable conduct. He contended that the ordinary and natural meaning of these words brought a bad name to his image and reputation as a businessman. [125] The trial record contains several points that support Steven’s contention that the elements of defamation are met on a balance of probabilities. The documents - the emails and the Facebook posting by Foo-were sent to third parties so the element of publication is fulfilled. [126] On a balance of probabilities, Foo’s intent and malice are proven as these publications fit into the pattern of harassment. Eric testified that Steven had called him to complain about being harassed by Foo, and documentary evidence backed up this fact, as stated in the preceding paragraphs above. [127] A critical component of the sting of Foo’s published communications involved allegations of financial misconduct. But the forensic audit by FH and the produced FH Report concluded that Foo’s allegations of breach of trust and misappropriation against Steven were baseless. [128] Malice can be inferred if a statement is made recklessly or without a fair belief in its truthfulness. The standard of proof which this Court exercises in evaluating evidence is on a balance of probabilities. More likely than not, anchored on the evidence, Foo’s accusation of debt and misconduct by Steven which the FH Report debunked, demonstrated a malicious mind intended to injure Steven’s reputation. [129] There is no evidence to support the defence of justification or fair comment that can be utilized by Foo against the claim of defamation by Steven. See The New Straits Times Press (M) Bhd v AirAsia Bhd [1987] 1 MLJ 36. [130] This Court looked at the totality test, not to look at a title or a single sentence in isolation. The impugned title on the email (Steven Loke Credential Check) established that Foo was engaged in a documented campaign of harassment and taunting against Steven. Steven pleaded that this email was the first in a series of targeted attacks intended to destroy his reputation. It was sent just one month after the physical assault at the PJ Hilton car park area and the ramming of Steven’s house gate in March 2015. The email coming immediately after Foo had used life-threatening duress to force Steven to sign the FSA as a Debtor, the Credential Check title sent to a third party carried the clear implication that Steven was a fraudster who business background was illegitimate. [131] Under the law of defamation, each separate communication is an independent act of libel if it meets the three elements (defamatory meaning, reference to Foo, and publication) (See Raub Australian Gold Mining Sdn Bhd v Hue Shieh Lee [2019] 3 CLJ 729 and Fitters Diversified Bhd & Ors v Mohd Roslan Mahayuddin & Ors [2024] 4 CLJ 657). The 2015 email meets these three elements at the time it was sent to Foo Ziyi. The natural and ordinary meaning was that Steven was dishonest, an allegation Foo later admitted was intended to degrade Steven’s dignity. [132] The 2016 Facebook post, while uploaded a year later, served to bolster the claim of malice for the earlier email. It showed that Foo’s intent to injure Steven was not a one-time emotional outburst but a sustained campaign. [133] This Court finds the time gap actually assists this Court in the finding of express malice, which defeats defences like qualified privilege. See Henry Wong v. John Lee & Anor [1980] 1 MLRH 393. There is evidence of Foo’s continued threats through emails to Steven even as late as 14.12.2017 (more than two years after the initial incident). When the 2016 Facebook posting was made, the investigations into TRON’s financials were well underway. The FH audit eventually found that all of Foo’s allegations of breach of trust and con man behaviour (which formed the sting of both the 2015 email and the 2016 Facebook Post) were baseless. [134] The amount of damages Steven sought is not explicitly stated. The authorities produced at the hearing of the oral submissions illustrate a range of RM100,000.000 to RM2,500,000.00. In this Court’s considered view, a sum of RM100,000.00 respectively for the 2015 email and the 2016 Facebook posting serves justice accordingly. This Court also issues an injunction against Foo from further commenting on anything relating to Steven. Ong’s Counterclaim [135] Ong’s counterclaim is premised on the SSA executed in November

Although Foo had contested the earlier FSAs of February 2013 and had sent them to a handwriting expert for a forensic evaluation, Foo had failed to submit the SSA executed in November 2013. This Court takes it to mean that Foo is not contesting or objecting to the fact that there exists a validly executed SSA entered by him and Ong. This intentional omission constituted a tacit admission that the signatures on the SSA, including Foo’s, are genuine. [136] Evidence is clear that cheques totalling RM6,000,000.00 were paid to Ong pursuant to the SSA. In any event, Foo was unable to provide any alternative explanation for why RM6,000,000.00 was paid vide cheques to Ong if they were not for the TRON share purchase. There is also the subsequent letter of demand issued by Foo’s solicitors that explicitly demanded a refund of the said RM6,000,000.00 paid for the purchase of a 3% stake in TRON. This contemporaneous legal document from Foo’s side served as irrefutable proof that Foo had indeed purchased the shares and acknowledged the transactions. [137] By showing that the total purchase price was RM11,000,000.00 (via the SSA in November 2013) and that Foo had only paid RM6,000,000.00 (via nearly 60 pieces of cheques and Foo’s solicitor’s letter of demand), Ong has proven on a balance of probabilities that the RM5,000,000.00 balance remains outstanding and due. This Court’s Conclusion [138] Eric has proven on a balance of probabilities his claim of fraudulent misrepresentation by Foo. As to the claim (alternative) of conspiracy to defraud by Foo and Steven, the claim fails. This Court will restore Eric to his original position before the FSA was executed. See Nexgram Land Sdn Bhd v pacious Glory Sdn Bhd [2022] CLJU 1417, Sim Thong Realty Sdn Bhd v The Kim Dar @ Tee Kim [2003] 3 CLJ 227 and Abdul Razak Datuk Abu Samah v Shah Alam Properties Sdn Bhd & Another Appeal [1999] 3 CLJ 231. [139] Foo has failed to prove his counterclaim against Eric, and also against Steven and Ong. His counterclaim is dismissed in its entirety. [140] Steven has proven on a balance of probabilities his claim of defamation against Foo. Steven is entitled to compensatory and protective relief. This Court acknowledges that given the documented pattern of harassment and the taunting and mocking emails, a sum for aggravated damages will be awarded to Steven to reflect the malice involved. An injunctive order will also be meted out against Foo to prevent future similar discourse. [141] Ong has proved his counterclaim against Foo on a balance of probabilities. Foo owes the balance of RM5,000,000.00 to Ong. This Court confirms that Yeap Lee Hoe was not an agent of Ong (this was an unpleaded case). Costs [142] There was much ado on the issue of costs. Eric’s counsel sought costs of RM300,000.00, which was echoed by the counsels for Steven and Ong respectively. As Eric had failed to prove his claims against Steven, RM50,000.00 was offered as costs. [143] On the other hand, Foo’s counsel offered costs in the sum of RM75,000.00 to Eric, RM50,000.00 to Steven and RM30,000.00 to Ong. [144] This Court, in deciding on the quantum, takes into account that this trial was launched at the High Court and had taken 20 days for trial. Subsequently, there were the appeals, the re-hearing before this Court and other interlocutory application(s). This Court also took into account the roles of each litigant, the issues and legal arguments that have arisen in the course of the court proceedings (at the High Court and the Court of Appeal). [145] This Court considers it just and reasonable to accord costs to the Plaintiff to be paid by Foo the sum of RM175,000.00 subject to allocator. Eric is to pay Steven costs of RM50,000.00 subject to allocator in failing to prove his claim against Steven. [146] Foo is hereby ordered to pay costs of RM75,000.00 subject to allocator, to each of the three litigants (Eric, Steven and Ong) in his counterclaim. [147] Steven, in successfully winning his case of defamation against Foo is granted costs of RM50,000.00 subject to allocator. [148] Ong, following his success in his claim against Foo for the balance of the payment owed and due to him is awarded costs of RM75,000.00 subject to allocator. This Court’s Orders [149] Premised on the evidence and this Court’s concluded findings, the following are this Court’s orders: Eric’s Claims

This Court declares the FSA dated 27.3.2015 is null and void and is hereby set aside

This Court orders for a restitution - Foo is ordered to return the RM5,000,000.00 cash portion paid by Eric under the void FSA within one month from the date of this Order

Interests of 5% per annum from 10.5.2026 (the date when the payment must be fully settled) until full and final settlement

Foo is ordered to return and release all properties pledged as security under the FSA as there is no longer a valid basis to hold them

Eric to return the concerned TRON’s shares

The alternative claim for conspiracy against Foo and Steven is dismissed

Costs of RM175,000.00 subject to allocator, are to be paid by Foo to Eric. Costs of RM50,000 subject to allocator, are to be paid by Eric to Steven, which this Court deems just, taking into account that Steven did not tell Eric the truth and save this whole financial and legal troubles as he was under duress by Foo Foo’s Counterclaim

Foo’s counterclaims against Eric, and against Steven and Ong are dismissed in their entirety.

Foo is barred from seeking the RM18,000,000.00 in property pledges or any outstanding payments under the now void FSA

Foo is to pay Eric, Steven, and Ong RM75,000.00 respectively in costs, subject to allocator. Steven’s Claim for Defamation

Foo is to pay Steven a total of RM200,000.00 as damages to Steven (RM100,000.00 per defamatory publication) within one month from the date of this judgment

Foo is to pay Steven RM100,000.00 as aggravated damages to Steven within one month from the date of this judgment

Interest of 5% on the judgment sums from 10.5.2026 (when the payments must be fully settled) until full and final settlement

Foo is injuncted and restrained from further publishing, distributing, or disseminating the defamatory words (including conman or nuisance to society)

Costs of RM50,000.00 subject to allocator, is ordered to be paid by Foo to Steven Ong’s Counterclaim

Foo is ordered to pay the outstanding balance of RM5,000,000.00 due under the SSA of November 2013 within one month from the date of this judgment

Interest of 5% on the judgment sum from 10.5.2026 (when the payment must be fully settled) until full and final settlement

Costs of RM75,000.00 subject to allocator, is ordered to be paid to John by Foo. [150] The respective counsels for Foo, Ong and Eric has sought for a penal notice under 45 Rules of Court 2012 to be attached to these Court’s orders. Foo’s counsel objected though no authorities were produced to back his contention that punitive judgments even with specific time period ordered by this Court do not qualify for penal notice to be attached. Thus, this Court orders so. DATED 10 APRIL 2026 ROZ MAWAR ROZAIN JUDGE HIGH COURT OF MALAYA KUALA LUMPUR For the Plaintiff: Bahari Yeow Tien Hong, Tan Jun Yu, Gan Teck Long together with Khairul Izzat Azmee Dominic Gan & Co. (Kuala Lumpur) For the 1st Defendant: Krishna Dallumah, Lee Hong Yap, Joseph Ting together with Krishnaaveni Muniandy Joseph Ting & Co. (Puchong) For the 2nd Defendant: M. Reza Hassan, Mohamad Nufail Altaf together with Teh Kah Yan (Pupil in Chambers) Raja Riza & Associates (Kuala Lumpur) For the 3rd Defendant: Michael Chow Keat Thye, Goh Keng Tat together with Sai Prashen A/L Paartiban (Pupil in Chambers) Goh Keng Tat & Co. (Subang Jaya)