1. PETROCHEMICAL COMMERCIAL COMPANY INTERNATIONAL LTD (Company No.: LL08544) 2. PCCI LTD (Company No.: LL08544) 3. NAVAK ASIA KISH TRADING CO. (PJS) (Company No.: LL08544) 1. NEXUS MANAGEMENT GROUP SDN BHD [Company No.: 671382-X] 2. ASIAN T

IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR (COMMERCIAL DIVISION) [SUIT NO.: WA-22NCC-601-12/2018] BETWEEN 1. PETROCHEMICAL COMMERCIAL COMPANY INTERNATIONAL LTD (Company No.: LL08544) 2. PCCI LTD (Company No.: LL08544) 3. NAVAK ASIA KISH TRADING CO. (PJS) (Company No.: LL08544) …PLAINTIFFS AND 1. NEXUS MANAGEMENT GROUP SDN BHD [Company No.: 671382-X] 2. ASIAN TRADE INVESTMENT BANK LTD [Company No.: LL07211] 3. MEHDI EBRAHIMIESHRATABADI [Passport No.: I95755889] 4. MOHAMMAD REZA SHAHBAKHSH [Passport No.: H35211513] 1 5. MALEKSABET EBRAHIMI [Passport No.: K2540416] 6. OMID LTD [Company No.: LL09574] 7. 5M INVESTMENT HOLDING LTD [Company No.: LL10223] 8. ATIB LTD [Company No.: LL11257] 9. KHADIJEH TAGHAVI SABZEVARI [Passport No.: X96502827] 10. MOHAMMAD EBRAHIMIESHRATABADI [Passport No.: U12994206] 11. DATO MOHAMMED AB HALIM BIN AB RAHMAN [Identity Card No.: 510604035213] 12. MEHRANEH EBRAHIMI ESHRATABADI [Passport No.: Y28300425] 13. AMIR KARGAR NEGHAB [Passport No.: J28779000] 14. ALI VASHAEE [Passport No.: E96090487] …DEFENDANTS 2 GROUNDS OF JUDGMENT Introduction [1] The Plaintiffs filed an application in enclosure 192 pursuant to O. 38 r. 2 (2) of the Rules of Court 2012 to cross-examine the 4th Defendant on the affidavits sworn by him and filed on 15.3.2019 and 27.3.2019 in respect of the assets disclosed or as ought to have been disclosed pursuant to the Freezing Injunction and Discovery Order dated 22.1.2019 (“Freezing Order”) and Schedule C of the Freezing Order. The Plaintiffs also sought a consequential order for the 4th Defendant’s Statement of Defence be set aside and judgement be entered against him if he failed to file affidavits to comply with paragraphs 10 to 12 of the Freezing Order. [2] At the conclusion of the hearing, this Court dismissed the application. The following are the Grounds of Judgment of this Court. Plaintiffs’ basis for the application [3] This suit was filed against the Defendants premised on purported fraud and conspiracy which resulted in loss to the Plaintiffs. [4] The Plaintiffs’ complaint which leads to the filing of this application relates to the responses given by the 4th Defendant in his Statement of Defence which states: 3 a. The transfer of USD 114,781.47 from the 1st Defendant to the 4th Defendant’s daughter Zahra Shahbakhsh was “for the purposes of money exchange and/or transfers for and on behalf of the 4th Defendant to his daughter” (paragraph 3.6.2 (i)); b. The transfer of 7, 205, 000, 000 Iranian Rials to Sazman Omran Kerman (the company of which the 4th Defendant was the Managing Director) was “payment from a debt due and owing to the said company” (paragraph 3.6.2 (ii)). [5] On 12.3.2019, the Plaintiffs requested for further and better particulars in respect of paragraphs 3.6.2 (i) and (ii) requiring the (a) purpose of payment to Zahra Shahbakhsh and (b) the alleged debt due to the Sazman Omran Kerman. [6] On 15.3.2019, the 4th Defendant served his first affidavit in reply where he deposed: i. He did not receive any payments from any of the Defendants to the action and/or Horizon Investment Holding Ltd, EBM Corporation, IMBS Sdn Bhd, MPO Ltd, 5M Capital Investment Pty Ltd (Ontario, Canada), 5M Capital Investment Pty Ltd (Victoria, Australia), 5M Investment Ltd (Cyprus), Global Newman Pty Ltd, and /or Medville Investments (entities named in the Freezing Order); ii. He does not have any accounts in Malaysia; and iii. He does not have assets in Malaysia. 4 [7] He relied on paragraph 13 of the Freezing Order to decline to disclose his assets worldwide based on the Iranian criminal investigations. The 4th Defendant also said he adopted the answers provided by the 2nd Defendant in its first and second affidavits. The second affidavit dated 12.2.2019 exhibited a series of documents marked as exhibit “AHB-1”. [8] The Plaintiffs wrote to request details as required in paragraphs 2, 3 and 4 of Schedule C of the Freezing Order or for the 4th Defendant to explain the purpose of exhibiting exhibit “AHB-1”. On 27.3.2019, the 4th Defendant served his second affidavit which was the same as his first affidavit. [9] As such, the Plaintiffs claimed that the 4th Defendant was perpetuating his refusal to disclose his worldwide assets as required by paragraphs 10 to 12 of the Freezing Order. [10] On 1.4.2019, the 4th Defendant’s solicitors sent a response to the further and better particulars request but merely made mention of the Plaintiff’s Statement of Claim at Appendix 4 which does not explain the purpose of payment to Zahra, let alone the reason why she was paid using funds from Nexus USD accounts. [11] Since the 1.4.2019 letter, nothing more has been furnished by the 4th Defendant hence no explanation on why money was transferred to Zahra or why the payments were made through the 1st Defendant. 5 [12] The Plaintiffs therefore claim to be prejudiced as they are not able to obtain details of the 4th Defendant’s worldwide assets and is in breach of the worldwide injunction imposed under the Freezing Order. The Plaintiffs highlighted that the 4th Defendant has not applied to Court to even to vary the Freezing Order to cater for the 4th Defendant’s travelling, living and legal expenses suggesting that the 4th Defendant has access to sources of financing not disclosed by him. 4th Defendant’s resistance to the application [13] The 4th Defendant in resisting the application claimed that the Plaintiffs were abusing the court process as the cross-examination is tantamount to allowing a rehearsal of the Plaintiffs’ examination of the 4th Defendant in the upcoming trial. It will only delay the matter and a waste of time and resources. [14] It was also argued by the 4th Defendant that it was a tactic to oppress and harass the 4th Defendant. The 4th Defendant maintained that the Court should dismiss the Plaintiffs’ prayer to set aside the defence and enter judgment against the 4th Defendant as it is totally an abuse of the court process. 6 Analysis [15] The application is premised on O. 38 r. 2 which reads as follows: 2. Evidence by witness statement (O. 38 r. 2) (1) Without prejudice to the generality of rule 1, and unless otherwise provided by any written law or by these Rules, at the trial of an action commenced by writ, evidence-in-chief of a witness shall be given by way of witness statement and, unless the Court otherwise orders or the parties to the action otherwise agree and subject to such directions as the Court may make, such a witness shall attend trial for cross- examination and, in default of his attendance, his witness statement shall not be received in evidence except with the leave of the Court. (2) In any cause or matter begun by originating summons and on any application made by notice of application, evidence shall be given by affidavit unless in the case of any such cause, matter or application any provision of these Rules otherwise provides or the Court otherwise directs, but the Court may, on the application of any party, order the attendance for cross-examination of the person making any such affidavit, and where, after such an order has been made, the person in question does not attend, his affidavit shall not be used as evidence without the leave of the Court. (3) Notwithstanding paragraph (1) or (2), the Court may, if it thinks just, order that evidence of a party or any witness or any part of such evidence be given otherwise than by witness statement at the trial or hearing of any cause or matter. (4) Unless otherwise ordered by the Court, a witness statement must be filed in Court and served on the other parties to the action not less than seven days before it is to be tendered and read at the trial. 7 [16] Whether to allow the said application is ultimately an exercise of the court’s discretion. The High Court judgment by Raja Azlan Shah J (as His Royal Highness then was) in Gomez v Gomez [1969] 1 MLJ 228, at 228 and 230, held as follows: This case raises the singularly important question as to whether a person other than the deponent to an affidavit can be cross-examined. Order 38 rule 1 [RSC] provides that "a judge may, on the application of either party, order the attendance for cross-examination of the person making any such affidavit". ... These cases [on cross-examination of deponents] are not to be read as laying down rules of universal application. If once it were taken as settled, then there is no room for the exercise of discretion but a rule of law is substituted for it. The power given by Order 38 rule 1 is obviously a matter of discretion to be exercised in accordance with well-known judicial principles. Development of the law [17] The exercise of discretion is not dependant on judicial precedent. It has been established in many cases that the factors to be taken into consideration are not set and are dependant of the facts of the case and the circumstances surrounding each application. Mahadev Shankar JCA in the Court of Appeal case of Structural Concrete Sdn Bhd v. Wing Tiek Holdings Bhd [1997] 1 CLJ 300, at 306, held as follows: “Exercises of judicial discretion are not judicial precedent because they are only authority for the facts of the particular case.” 8 [18] In Tetuan Kumar Jaspal Quah & Aishah V. The Co-Operative Central Bank Ltd [2007] 4 CLJ 487, the Court of Appeal carried out an extensive analysis of cases which have considered the application under O. 38 r. 2. [19] Zaleha Zahari JCA summed up the analysis of cases to be as follows: “You can discern from the authorities referred by the parties that 3 prime considerations would influence the court in the exercise of its discretion to allow or disallow cross-examination on affidavit. Firstly, the truth of the averment in the affidavit must be challenged or the issues of fact identified. Secondly, cross-examination should only be allowed if the disputed fact is relevant to the issue to be decided and must be limited to that issue only. And thirdly, cross-examination would not advance the cause of justice and should be refused if there is sufficient affidavit evidence or contemporaneous documents to enable the court to properly decide without the need of cross-examination.” [20] Her Ladyship also considered the issue of discretion and contemplated the issue of delay and waste of resources: “For my part, I think the learned judge is correct to disallow the proposed cross-examination. For one thing, the waste of time and money is proven by the parties coming to this court and in all probability will go on to the Federal Court too, while the review is still pending before the registrar. For another, the affidavits and court records would show that there is no dispute of fact that ought to or could be resolved by the proposed cross- examination. I would even say that the so called dispute is in fact totally irrelevant to the issue that the senior assistant registrar has to decide in his review of taxation.” 9 [21] VC George J in Tan Sooi Shin v. Kow Kek Hing [1991] 3 CLJ 1895; [1991] 4 CLJ (Rep) 107 refused cross-examination on the ground that judicial time would be wasted in the determination of an academic question. [22] Anuar J in Kumagai Gumi Co. Ltd. v. Zenecon-Kumagai Sdn Bhd [1994] 1 LNS 73; [1994] 2 MLJ 789 refused cross- examination in that case holding that the matter therein could be decided without reference to any cross-examination since there was abundant documentary evidence that was not disputed which would enable any court to arrive at a decision on the matter. [23] In Indrani Rajaratnam & Ors v. Fairview Schools Bhd. [2002] 1 CLJ 1, the Court of Appeal by majority refused to interfere with the trial judge's exercise of his discretion disallowing cross- examination on affidavits filed on behalf of the respondent in a winding-up petition. Siti Norma JCA held that the grant or refusal of an application under O. 38 r. 2(3) is very much an exercise of a judge's discretion and in the circumstances of that case the trial judge did not err in law or in principle as he had put his mind to relevant considerations in deciding as he did. KC Vohrah J in his concurring judgment formulated a simple test in the following words: “It is important to take into account all facts when considering an application for cross-examination and if it has little relevance or little weight to the issue which the judge has to decide, then cross-examination should not be permitted.” 10 [24] It is also trite that the court should be slow in granting leave for cross-examination of a deponent in an interlocutory matter. Lim Beng Choon J in in Balwant Singh Purba v. R Rajasingam [1987] CLJ (Rep) 468 at 469 held as follows: “This is an application made by the plaintiff for leave pursuant to O. 38 r. 2(3) [RHC] to cross-examine the defendant in respect of the affidavit made by him in support of his application to set aside the interim injunction granted by this Court on 18 December 1986. I dismissed this application after hearing the submissions of Counsel of the respective parties. ... For purpose of this judgment I need only mention two of the principles. The first one is mentioned in the following passage appearing at p. 592 of the English Supreme Court Practice [1979] Vol. 1: There is a discretion as to ordering cross-examination on affidavits filed on interlocutory applications. Cross-examination upon affidavits sworn in applications for interlocutory injunctions is very rare.” The second principle is that the power as conferred by the said O. 38 r. 2(3) can be invoked only in respect of an issue which the Court is asked to determine in the interlocutory proceeding and not in respect of any other issue which should be determined at the trial of the action proper.” [25] The Plaintiffs’ claim is premised on their dissatisfaction with the 4th Defendant’s response. The Plaintiffs claim that the 4th Defendant was not complying with the Freezing Order and Schedule C to the Freezing Order. It was claimed that the 4th Defendant was deliberately withholding information from the Plaintiffs and thus was defying the Freezing Order and the schedules thereto. 11 [26] It is with respect the finding of this Court that the inability of the Plaintiffs to obtain the information from the 4th Defendant either from his affidavits or responses to the letters sent to the 4th Defendant is not automatically resolved by a cross-examination of the 4th Defendant. [27] This Court is of the view that a cross-examination of the 4th Defendant in light of the defence that he put forward will not yield any different result. Lest this Court is accused of being presumptive, it is a reasonable conclusion to make as the nature of the defence is one that seeks to sever all links to the funds purportedly siphoned out from the Plaintiffs. [28] The two (2) responses that the Plaintiffs claim to be unsatisfactory namely the transfer of monies to the 4th Defendant’s daughter’s account using the 1st Defendant’s account and the payment of debt due to one Sazman is something that also relates back to the main suit. It is not exclusively a response to the Freezing Order. Therefore, it is not wrong for the 4th Defendant to argue that this could be taken during the cross-examination of the 4th Defendant at trial. [29] This Court is of the view that the Freezing Order, while comprehensive and all encompassing was drawn up based on the Plaintiffs’ overall assessment of information obtained during the course of building up their case against the Defendants. 12 [30] The Plaintiffs failed to demonstrate to this Court how they intend to persuade the 4th Defendant to divulge more than what has been affirmed by the 4th Defendant. Unless the Plaintiffs are able to demonstrate that they have some clear evidence to contradict and challenge the 4th Defendant, the cross-examination exercise will just be an exercise in futility. [31] The Freezing Order has been used effectively as the various institutions which were served with the said order have responded to the said Order. This in effect is the function of the Order. With the information obtained from the various institutions, it is incumbent upon the Plaintiffs to link the frozen assets to its case and ultimately prove their case during trial. [32] It is the view of this Court that if an application of this nature is allowed, it will mean that each time a plaintiff is not satisfied with the response provided by a defendant under an obligation to disclose, a cross-examination of the said defendant must follow. [33] In this current case, given the number of Defendants, it may potentially result in this Court having to hold many similar cross- examination sessions. Such an exercise will impede into the resources of the Court and parties in particular the 4th Defendant who resides abroad (See Tetuan Kumar Jaspal Quah & Aishah V. The Co-Operative Central Bank Ltd [2007] 4 CLJ 487). Furthermore, the cross-examination if allowed, will stifle preparation for trial. 13 [34] This Court is also of the view that such an exercise will tantamount to witness harassment. It would compel defendants to appear before the court and failing to do so would invite other implications against the defendants for failing to abide by a court order. [35] The decision in SAP (M) Sdn Bhd & Anor v. I World HRM Net Sdn Bhd & Anor [2006] 2 MLJ 678 is instructive. Vincent Ng J held that “leave to cross-examine a deponent of affidavit in interim injunction should be sparingly granted as it would allow the parties to have a rehearsal before the trial and such rehearsals could have an oppressive effect.” [36] This Court is if the view that there must be finality in the fact finding and asset tracing exercise. In the current case before this Court, the response by the respective Defendants must be accepted notwithstanding how unpalatable the responses may be. [37] It bears repetition that the Freezing Order has been effectively used by the Plaintiffs. It is now left to the Plaintiffs to proceed to the next stage of the suit which is the trial. This is when the Plaintiffs will have the opportunity to test and examine the 4th Defendant or any other Defendants on all aspects of their testimony including any averments made during the course of responding to the Freezing Order. 14 Conclusion [38] It is for the above reasons that this Court is unwilling to exercise its discretion. The alternative and consequential reliefs sought by the Plaintiffs merits no consideration. [39] As such, the application is dismissed with costs. (AHMAD FAIRUZ BIN ZAINOL ABIDIN) Judge High Court of Malaya Kuala Lumpur Dated: 15th May 2020 15 Counsels Aniz Ahmad Amirudin (Shabana Ahmad Amirudin with him) for Plaintiff Tetuan Cecil Abraham & Partners Suite 12.01, Level 12, Menara 1MK No. 1, Jalan Kiara, Mont Kiara 50480, Kuala Lumpur Kee Mohd Thariq dan Mohd Hifdzi Hamzah for 2nd and 4th Defendants Ho Kok Yew for 5th Defendant Tetuan Daniel & Wong B3-3-16, Solaris Dutamas No. 1, Jalan Dutamas 1 50480, Kuala Lumpur 16