Yap Yoke Chong @ Allan Yap v 1. ) Muhammad Ishak Leong Bin Abdullah (Dahulunya Dikenali Sebagai Leong Theam Fook) (BA-21NCvC-29-08/2023)

MUHAMMAD ISHAK LEONG BIN ABDULLAH (Dahulunya dikenali sebagai LEONG THEAM FOOK) (No. K/P: 501012-08-5781)

SUN SKY PROPERTIES SDN BHD (No. Pendaftaran Syarikat: 200501015612(692659-A))

PENDAFTARAN HAKMILIK TANAH NEGERI SELANGOR …DEFENDAN-DEFENDAN 30/09/2024 11:12:31 BA-21NCvC-29-08/2023 Kand. 85 JUDGMENT Introduction [1] The instant Suit is centred on a land dispute whereby the Plaintiff is seeking:

a declaration that the Letters of Administration de Bonis Non (“the First Defendant’s Letters of Administration de Bonis Non”) issued under Shah Alam High Court Originating Summons No. 31NCvC-143-11/2013 (“SAHC OS 143”) is null and void and of no legal effect whatsoever; and

an Order that the Third Defendant be directed to cancel the transfer of the ¼ undivided share in a piece of land which forms the subject-matter of the instant Suit from the First Defendant to the Second Defendant forthwith. [2] The primary contestation in this main Suit, to all intents and purposes, is between the Plaintiff and the Second Defendant. The Plaintiff’s case is evident from the prayers outlined in paragraph [1] and the Second Defendant’s case is premised on the ground that it is a bona fide purchaser for valuable consideration and had thus acquired an indefeasible title over the Land. [3] As the main protagonists have filed interlocutory applications, the determination of the core issues in the main Suit will have to take a back seat for the time being. [4] The first interlocutory application is by the Second Defendant (in Enclosure 27). This Notice of Application of 26 December, 2023 seeks to strike out the Plaintiff’s Amended Writ (in Enclosure 8) and Amended Statement of Claim (in Enclosure 11) dated 8 September, 2023 and/or alternatively that the Second Defendant be removed as a party from the Amended Writ and Amended Statement of Claim and cease to be a party in the main Suit. These reliefs are sought pursuant to Order 18 rule 19(1)(a) and/or (b) and/or (d) and Order 15 rule 6(2) of the Rules of Court 2012 respectively. [5] The second interlocutory application on 19 April, 2024 is a Notice of Application (in Enclosure 53) by the Plaintiff, seeking to amend his Amended Writ and Amended Statement of Claim. This application is made pursuant to Order 20 rule 5 of the Rules of Court 2012. [6] This decision pertains to the application in Enclosure 53. The Essential Issues [7] In dealing with the Plaintiff’s application to amend his Amended Writ and Amended Statement of Claim, the issues for determination are:

Whether there has been inordinate delay on the part of the Plaintiff in making this application;

Whether the Proposed Amendments is bona fide;

Whether the Proposed Amendments will change the character of the pleaded case; and

Whether the Proposed Amendments will prejudice the Second Defendant and cannot be compensated by costs. The Proposed Amendments [8] Altogether there are six Proposed Amendments in Enclosure 53. [9] The First Defendant has not entered an appearance to the main Suit. [10] The Third Defendant has, by way of a letter dated 6 May, 2024, informed this Court that it has no objection to the Amendment Application. [11] The Second Defendant is not objecting to the 1st, 2nd and 5th Proposed Amendments, and is only objecting to the 3rd, 4th and 6th Proposed Amendments. [12] Hence, this Court shall only examine and consider the 3rd, 4th and 6th Proposed Amendments. [13] The Proposed Amendments for consideration are as follows: 3rd Proposed Amendment: insertion of the underlined sentence.

The Plaintiff’s grandmother, Choo Lin Cheong (f), was the registered owner of a ¼ undivided share in a piece of land held under Grant No. 4010 (now known as 60391) Lot. No. 1, Section 10, Ampang Town, Ulu Langat District, having an area of 3 acres 2 rods and 14 poles (“the Land”), whilst his great grandmother, Shum Poh Sum @ Sam Poh San (f), was the registered owner of the balance of ¾ undivided share in the Land. The Plaintiff is an administrator and beneficiary of the Estate of Shum Poh Sum @ Sam Poh San

(f), which estate includes the balance ¾ undivided share in the Land. 4th Proposed Amendment: insertion of the following words and sentences in paragraphs 20, 22 and 24 of the Statement of Claim.

The Shah Alam High Court had caused to be issued the D1’s LA de Bonis Non, which the Court would not have done had it been aware that the application for D1’s LA de Bonis Non was based on forged documents and the whole application was a scam and the Court’s process was being used in furtherance of the legalizing D1’s scam with D2 and persons unknown.

Consequently, the transfer of the said ¼ undivided share in the Land by D1 to D2 was by fraud, forgery and/or by means of an insufficient or void instrument under Section 340(2) of the National Land Code 1956 since D1 was a fraud and not entitled to be a beneficiary of the Estate of Choo Lin Cheong (f). In this regard, the Plaintiff further avers that D2’s role in the fraudulent scheme was to pose or masquerade as a bona fide purchaser, to prop up the Defendant fraudsters’ claim to deferred indefeasibility of title under the National Land Code 1956 and to protect the spoils of their fraud – namely the ¼ undivided share in the Land and the RM9,169,952.52 compensation sum for partial land acquisition (see below) - from being recovered by the true land owner upon discovery of the fraud. The Plaintiff further avers that D1 and D2 were parties to and vehicles for the fraud, or alternatively, D2 was privy to the fraud committed by D1, as, amongst others, the impugned transaction in the instant suit was not a one-off deal involving D1 and D2, and there were multiple legal proceedings involving fraud-tainted land transactions connected to D1 and D2 via common directors, shareholders and related entities, including but not limited to D2’s former director and shareholder, Peh Chin Lee, who was instrumental in the bringing of another claim in respect of the ¾ share of the Land that involved fraudulent evidence. In addition, the Plaintiff avers that this is a fit and proper case for the lifting and piercing of the corporate veil as may be required in the interests of justice given the use of D2, a private limited company, as a vehicle for fraud.

D2 thereupon applied for the release of a sum of RM9,.169,952.52, being their purported entitlement for the ¼ undivided share acquired by the Government, from the compensation deposited by the PTG with the Public Trustee. In this regard, the Plaintiff avers and will aver that the fraudulent scheme whereby D1 would seize control of the Land as administrator and then sell the same to D2 via a sham transaction, was carried out with knowledge of the intended acquisition by the Government and the acquisition value, as, amongst others, the Gazettes regarding the land acquisition were issued on 23.07.2015 and 14.01.2016 (revision). 6th Proposed Amendment: insertion of the Plaintiff’s prayers for (i) a declaration that the Consent Order dated 8 August, 2017 entered into between the Plaintiff and the First Defendant in Suit 676 is null and void and of no legal effect, and an Order that it be consequently set aside; and (ii) an Order restoring the Plaintiff’s Grant of Letters of Administration dated 7 July, 2014 for the Estate of Choo Lin Cheong (f). pages 4 and 5 of the Writ:

Suatu deklarasi bahawa Surat Kuasa Mentadbir yang diisukan dalam nama Leong Kin Seng dalam Petisyen No.: 291/1952 kononnya adalah tidak sah dan terbatal, dan bagi suatu Perintah bahawa ia dibatalkan dengan serta merta oleh Pendaftar Mahkamah Tinggi Kuala Lumpur.

Suatu deklarasi bahawa Surat Kuasa Mentadbir de Bonis Non yang diisukan kepada Defendan Pertama bertarikh 21.01.2014 melalui Mahkamah Tinggi Shah Alam Saman Pemula No.: 31NCvC-143-11/2013 adalah tidak sah dan terbatal dan tidak berkesan di sisi undang-undang apa-apa pun, dan bagi suatu Perintah bahawa Pendaftar Mahkamah Tinggi Shah Alam diarahkan untuk membatalkan Perintah yang memberikan Surat Kuasa Mentadbir de Bonis Non tersebut.

Suatu deklarasi bahawa Perintah Persetujuan bertarikh 08.08.2017 yang dimasuki di antara Plaintif dan Defendan Pertama dalam Mahkamah Tinggi Kuala Lumpur Guaman Sivil No.: 22NCVC 676-12/2015 adalah tidak sah dan terbatal dan tidak berkesan di sisi undang-undang apa-apa pun, dan bagi suatu Perintah bahawa ia diketepikan sebagai akibatnya.

Suatu Perintah mengembalikan (restoring) Pemberian Surat Kuasa Mentadbir Plaintif bertarikh 07.07.2014 bagi Harta Pusaka Choo Lin Cheong (p). paragraph 25 of Statement of Claim:

25.1. A declaration that the Letters of Administration issued in the name of Leong Kin Seng in the alleged Petition No.: 291/1952 is null and void, and for an Order that it be cancelled forthwith by the Registrar of the Kuala Lumpur High Court.

25.2. A declaration that the Letters of Administration de Bonis Non issued to D1 dated 21.01.2014 vide SAHC OS 143 is null and void and of no legal effect whatsoever, and for an Order that the Registrar of the Shah Alam High Court be directed to cancel the Order granting the Letters of Administration de Bonis Non.

25.4. A declaration that the Consent Order dated 08.08.2017 entered into between the Plaintiff and D1 in Suit 676 is null and void and of no legal effect whatsoever, and for an Order that it be consequently set aside.

25.5. An Order restoring the Plaintiff’s Grant of Letters of Administration dated 07.07.2014 for the Estate of Choo Lin Cheong

(f). The Parties’ Contentions [14] The Plaintiff asserted that the insertion of the additional sentence in paragraph 6 of the Statement of Claim in the 3rd Proposed Amendment is to plead the fact that the Plaintiff is the administrator and beneficiary of the Estate of Shum Poh Sum @ Sam Poh San (f), which estate includes the balance ¾ undivided share in the Land. [15] According to the Plaintiff, the purpose behind the 4th Proposed Amendment is to plead the Plaintiff’s recent discoveries, which the Plaintiff averred that he has deposed to in his earlier affidavits filed in these proceedings and affirmed on 8 March, 2024 and 25 March, 2024, in rebuttal to the Second Defendant’s Striking Out Application, that is, that the First and Second Defendant are parties to and vehicles for the fraud, or alternatively, the Second Defendant was privy to the fraud committed by the First Defendant. [16] Finally, the reason proffered by the Plaintiff in the 6th Proposed Amendment is that the prayers are consequential to the prayers in (i) paragraphs 1 and 2 of the Writ; and (ii) paragraphs 25.1 and 25.2 of the Statement of Claim. [17] More importantly, it was the Plaintiff’s submissions that the

is bona fide and necessary;

(ii) will not have any effect of changing the character of the instant suit from one character to a suit of another and inconsistent character; and

(iii) will not occasion any prejudice or any prejudice that cannot be compensated by costs to the Defendant. [18] The Second Defendant fervently opposed the Plaintiff’s application and its grounds may be summed up as follows. First, it was argued that “the Proposed Amendments seeks to pursue claims and remedies which stand on a very different footing from that which was previously pleaded”. Second there was inordinate delay in the filing of the Amendment Application. Third, the Amendment Application was not bona fide and was a tactical manoeuvre and fourth, it “will cause prejudice to the Second Defendant and cannot be compensated by costs”. The Law and Applicable Principles [19] While Order 20 rule 5 of the Rules of Court 2012 is the overriding provision governing amendments to writ and pleadings, the leading authority on this aspect of the law is Hong Leong Finance Berhad v Low Thiam Hoe [2015] 8 CLJ 1; [2016] 1 MLJ 301; [2016] 3 MLRA 81 (“Hong Leong Finance”). [20] While the earlier case of Yamaha Motor Co Ltd v Yamaha Malaysia Sdn Bhd & Ors [1983] CLJ 428; [1983] 1 MLJ 213; [1982] 1 MLRA 417 remains as good law, the grounds or circumstances adumbrated therein are not exhaustive. When dealing with this aspect of law and practice, Hong Leong Finance provides the current approach to be followed by the courts, supplanting the traditional liberal approach as laid down in the following trilogy of cases, namely, Tildesley v Harper (1878) 10 Ch D 393, Clarapede & Co v Commercial Union Association (1883) 32 WR 262 and Cropper v Smith (1884) 26 Ch D 700. [21] Together with the guidelines laid down in Hong Leong Finance, this Court will consider if the Proposed Amendments: • was not bona fide; • will cause prejudice which cannot be compensated by costs; • will turn the main suit from one character into a suit of another and inconsistent character; • was made after an inordinate and inexcusable delay; or • was a tactical manoeuvre. [22] Leave will be denied if the answer to any of the above questions is in the affirmative. The Decision of this Court Lack of Bona Fide and Inordinate Delay Ground [23] After a thorough consideration of the factual matrix in this case, along with the relevant authorities and the submissions by the parties, this Court is of the considered view that the Plaintiff has not been responsible for any inordinate delay in filing the application in Enclosure 53. The facts in the cases where leave was refused due to inordinate delay are distinguishable from those in the present case. The robust approach envisioned and required by our apex court in Hong Leong Finance is not intended to apply to the circumstances of this case. [24] Regarding the allegation of mala fide, this Court is of the considered view that the Second Defendant has failed to substantiate this claim. On the contrary, the Court concurs with the Plaintiff's position that the amendments were sought out of necessity and were made in good faith. Tactical Manoeuvre Ground [25] Were these Proposed Amendments made as a form of a tactical manoeuvre, to circumvent the Second Defendant’s application to strike out the Plaintiff’s Writ and Statement of Claim? The Second Defendant maintained that “the Amendment Application is a tactical manoeuvre on the part of the Plaintiff to re-write his claim after realising that his original causes of action, reliefs and/or claim may not succeed or may face difficulty during the trial of the present Suit”. [26] The Federal Court in Hong Leong Finance alluded to this notion of tactical manoeuvre in the following terms: Tactical manoeuvre [30] Another factor which our courts have taken into consideration is whether the amendment application was made as a tactical manoeuvre. In the Court of Appeal case of Everise Hectares Sdn Bhd v Citibank Berhad the amendment application was disallowed as the application was a tactical manoeuvre to delay and prevent the respondent bank from completing the sale of land. In the case of Ismail bin Ibrahim & Ors v Sum Poh Development Sdn Bhd & Anor [1988] 3 MLJ 348; [1988] 2 CLJ 632 the amendment application was disallowed as that amendment was made to circumvent the striking out application of the original writ and the statement of claim. [27] Should the present application be disallowed on the basis of Ismail bin Ibrahim & Ors v Sum Poh Development Sdn Bhd & Anor [1988] 2 CLJ 632; [1988] 3 MLJ 348; [1988] 1 MLRH 186 (“Ismail bin Ibrahim”)? As pointed out by the Plaintiff, the facts giving rise to the amendment application in Ismail bin Ibrahim were clearly known by the plaintiffs prior to the filing of the suit, unlike the instant suit where the facts giving rise to the Amendment Application were only known after the filing of the Second Defendant’s Striking Out Application. Further, there was no cause of action/relief prayed for against the Second Defendant in Ismail bin Ibrahim in the original claim, and the amendment application sought to raise a completely new cause of action against the Second Defendant therein. Hence, the tactical manoeuvre ground has not been established. [28] In addition to the above cases, the Plaintiff also relied on Watinah bt Mad Kartam v Dr KS Sarvananthar [2009] CLJU 782; [2009] 9 MLJ 729; [2009] 10 MLRH 398, a case which the Plaintiff submitted as one that mirrors our instant case. It was held in that case that although the application for amendment was made after the striking out application was filed it did not bar the plaintiff from raising the issue of fraud. Character of Suit into Another and Inconsistent Character [29] A classic case to illustrate this ground is Chin Kok Kwong Construction Sdn Bhd v Sunrise Towers Sdn Bhd [1984] 1 CLJ Rep 522; [1986] 2 MLJ 41; [1984] 1 MLRH 61. [30] For purposes of our present application, it is apt that we recap the arguments advanced by the Second Defendant. The first was that “the scope of the Plaintiff’s claim against D2 has been extensively widened to include alleged scam, fraud, forgery, fraudulent scheme, parties to and vehicles of fraud, privy to the fraud, lifting and piercing of the corporate veil and sham transaction against 2nd Defendant”. [31] Second, the Second Defendant also averred that it would be “compelled to meet a case radically different from the one it was first called upon to meet” if the Amendment Application is allowed. [32] Having perused the pleadings, this Court disagrees with the argument that the scope of the Plaintiff’s claim against the Second Defendant has been extensively widened. An expansion of the originally pleaded case will not result in changing the character of the suit from one into another and inconsistent character. Prejudice that Cannot be Compensated by Costs [33] What is the true connotation of the “prejudice that cannot be compensated by costs” ground? [34] The Plaintiff alluded to the case of China Orient Asset Management Corporation v Alexma Corporation Sdn Bhd [2018] 7 AMR 213; [2017] 1 LNS 1558; [2017] MLJU 1532; [2018] 2 MLRA 680 (“China Orient”), a decision of the Court of Appeal. The Court of Appeal explained this ground/exception in the context of an amendment application in the following terms. [14] In this connection, we hasten to observe that although it is quite usual for parties in amendment applications to shout "prejudice", there is a common misappreciation of what "prejudice" means (see ASM Development Sdn Bhd v. Hijjas Kasturi Associates Sdn Bhd [2009] 3 CLJ 1; [2011] 6 MLJ 228). "Prejudice", in the context of amendment applications, cannot mean that if the amendment is allowed, the chances of success of the litigation of the affected party will be severely diminished. "Prejudice" simply means that if the amendment is allowed, the party affected will be unable to pursue or defend the suit, for example, where the material evidence necessary to pursue or defend the suit, and which is necessitated by the amendment, is lost or no longer available. In such a case, the prejudice is clearly seen. In every other case, where no such prejudice arises, the party can be compensated with costs. [15] In our respectful view, this was not such a case where the appellant was prejudiced in the sense that they will be unable to counter the allegations as put forward in the amendments allowed by the High Court. They may be put to some bother in doing so but the general principle is that parties must be allowed every latitude to define the issues between them as that is the core function of pleadings. Even in the case where there had been an omission or mistake, it is a matter of right to have it corrected, if it can be done without injustice, and where it is not made at too late a stage of the proceedings, so that the court can deal with the real question in controversy between the parties (see GL Bakar Ltd v. Medway Building & Supplies Ltd [1958] 1 WLR 1216 as cited with approval by the Supreme Court in Hock Hua Bank Bhd v. Leong Yew Chin [1987] CLJ Rep 126; [1987] 1 CLJ 126; [1987] 1 MLJ 230). [35] The Court of Appeal in China Orient correctly elucidated the concept of prejudice in the context of an amendment application. [36] This “prejudice that cannot be compensated by costs” ground or exception can arise out of a variety of situations and is facts specific. One such circumstance is illustrated in the case of The “Kyoan Maru” QBD (Admiralty Ct.) February 28, 1980 (New Law Journal April 17, 1980). This was a case where the third defendants had sought leave to amend their Defence, to withdraw an admission that they were the carriers of the goods and to allege that at the material time the vessel was demise chartered to the first defendants under a charter-party. The plaintiffs contended that if the amendment were allowed, they would suffer prejudice which could not be compensated by any order of the Court, the reason being that if they had known about the demise charter-party they could have obtained security from the first defendants by arresting the vessel “Gulf King” which was also on demise charter to the first defendants from the third defendants but the first defendants were now in liquidation. [37] It was held by Sheen J that the plaintiffs could not have obtained security from the first defendants by arresting the “Gulf King” as on the true construction of the Administration of Justice Act 1956, section 3(4) a vessel on demise charter could not be arrested. Be that as it may, the application for leave to amend the Defence was refused on the ground that the plaintiffs’ solicitors would have doggedly pursued any opportunity to obtain security from the first defendants and would in all probability have been successful. Hence, if leave were granted to amend the Defence at that stage, the court held that the plaintiffs would be prejudiced in a way which could not be compensated by any order of the Court. [38] As in China Orient, this is not a case where the Second Defendant will be prejudiced in the sense that it will be unable to counter the allegations as put forward in the Proposed Amendments. This is not a case where the Second Defendant will be prejudiced by the Proposed Amendments such that it cannot be compensated by costs. [39] In view of the above findings, the Plaintiff’s application in Enclosure 53 is allowed. [40] This Court will hear further submissions from the parties on the issue of costs for the present application. Dated: 23 September, 2024 sgd [CHOONG YEOW CHOY] Judicial Commissioner High Court of Malaya Shah Alam Counsel: Naren Anand Gill with Ng Yee Lin for the Plaintiff (Messrs. Gill & Tang) Muhammad Suhaib bin Mohamed Ibrahim for the Second Defendant (Messrs. Skrine)