POH LIONG BAN JABATAN INSOLVENSI MALAYSIA

DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR BAHAGIAN RAYUAN DAN KUASA-KUASA KHAS / PERMOHONAN UNTUK SEMAKAN KEHAKIMAN NO. WA-25-400-12/2020 POH LIONG BAN (NO. K/P: 550926-01-6329 Dalam perkara keputusan Jabatan Insolvensi Malaysia melalui surat bertarikh 26.8.2020 kepada Siva Ananthan aj/l V. Vivekanandan (Si Bankrap); Dan Dalam perkara suatu permohonan untuk Perintah Certiorari; Dan Dalam perkara Seksyen 38(1)(d) Akta Insolvensi 1967 (Akta 360); Dan Dalam perkara Aturan 53 Kaedah-Kaedah Mahkamah 2012 ' ANTARA ... PEMOHON DAN Page 1 of 22 JABATAN INSOLVENSI MALAYSIA ... RESPONDEN Judgment (Enclosure 1) Introduction 1. The Applicant had on 28.12.2020 filed an application for leave to commence judicial review proceedings pursuant to Order 53 of the Rules of Court (ROC) 2012, seeking inter alia, the following orders:- 1.1 4.2 Pemohon diberi kebenaran untuk memohon suatu Perintah Certiorari untuk dikemukakan bagi tujuan membatalkan keputusan Penolong Kanan Pengarah Insolvensi bagi pihak Ketua Pengarah Insolvensi, Jabatan Insolvensi Malaysia melalui surat bertarikh 26.8.2020 yang membenarkan permohonan Siva Ananthan a/l V. Vivekanandan (Si Bankrap) untuk memegang jawatan sebagai “District Governor” (DG) and “Director di Syarikat Rotary International District 3300 (Malaysia) Berhad (RID 3300)”; Suatu deklarasi bahawa Si Bankrap tidak dibenarkan memegang jawatan sebagai “District Governor” and “Director di Syarikat Rotary International District 3300 (Malaysia) Berhad (RID 3300)” sehingga beliau diisytiharkan tidak bankrap; Page 2 of 22 1.3. Kos permohonan ini dijadikan kos dalam kausa ini; dan 1.4 Perintah lain atau relif selanjutnya yang difikirkan sesuai dan adil oleh Mahkamah Yang Mulai ini diberi atau dibuat. In gist, the Applicant is seeking for an order of Certiorari and for declaratory relief to quash the decision of the Respondent issued vide a letter dated 26.8.2020 granting one Siva Ananthan a/l V. Vivekanandan, a ‘bankrupt’ (the bankrupt) sanction to hold the position of “District Governor” and “Director of Rotary International District 3300 (Malaysia) Berhad”. At the conclusion of the hearing, | dismissed the Applicant’s application (Encl. 1). This judgment will contain the full reasons for the dismissal. The following cause papers before this court are as follows:- 4.1. Notice of the Application for Leave for judicial Review dated 28.12.2020 (the Application); 4.2 Statement pursuant to Order 53 rule 3(2) of the ROC 2012 dated 28.12.2020 (the Statement); 4.3 Affidavit in Support affirmed by Poh Liong Ban on 28.12.2020 (the Applicant’s Affidavit); and 4.4 Certificate of Urgency dated 28.12.2020. Page 3 of 22 Background Facts 5. The background facts of this Application, based on the Applicant’s Affidavit, are largely undisputed and can be summarised as follows:- (a) (b) Based on the application by the bankrupt, the Senior Assistant Director of Insolvency on behalf of Director General of Insolvency had issued a letter to the bankrupt dated 26.8.2020 (the Permission Letter) to grant him permission to hold a post as a District Governor and Director at Rotary International District 3300 (Malaysia) Berhad (RID 3300) subject to the conditions listed in the Permission Leiter. , RID 3300 is a public limited company limited by guarantee and consists of 84 Rotary clubs which are registered under the Societies Act 1966. The Rotary clubs are led by a District Governor who is also a Director of RID 3300. Rotary Club of Damansara (RCD) is one of the members of RID 3300. RCD had nominated the Applicant, a member of the RCD, as candidate for the position of District Governor of RID 3300. The bankrupt and another candidate, Yim Ken Fei were also nominated by their Rotary clubs as candidates for that post. Page 4 of 22 (e) (g) (h) Applicant in his affidavit at para 5.3 stated that the Rotary international’s standard procedure in selecting the District Governor of RID 3000 is for all the candidates to be interviewed before one is selected by the District Nominating Committee (DNC). On 4.10.2020, members of the RID 3300 had been informed the following:- (i) that the bankrupt had been selected by DNC to be a District Governor of RID 3300 for the term of 2023/24; and (ii) | any challenge to the above decision made by the DNC must be filed within 14 days. _ From the rumours that the Applicant heard, the bankrupt is chosen to be District Governor of RID 3300 because he had tendered the Permission Letter from the Respondent during the interview with the DNC. The Applicant alleged that the Respondent had erred in law and/or acted beyond and/or without its jurisdiction in allowing the bankrupt’s application and in issuing the Permission Letter as the Respondent failed to consider issues raised in para 7 of the Applicant's Affidavit. Page 5 of 22 (i) Dissatisfied with the issuance of the Permission Letter to the bankrupt, the Applicant seeks an application for judicial review. The Law 6. The Federal Court in WRP Asia Pacific Sdn Bhd v. Tenaga Nasional Bhd, [2012] 4 CLJ 478; [2012] 4 MLRA 257; [2012] 4 MLJ 296 at 303 speaking through Suriyadi Halim Omar FCJ (as he then was) held: “...leave may be granted if the leave application is not thought of as frivolous, and if leave is granted, an arguable case in favour of granting the reliefs sought at the substantive hearing may be the resultant outcome. A rider must be attached to the application though, ie, unless ihe matter for judicial review is amenable to judicial review absolutely no success may be envisaged.” 7. Based on the judgment laid down in WRP Asia Pacific Sdn Bhd (supra), the test to be applied are as follows: (i) whether the subject matter is amenable to judicial review; and if so (ii) | from the materials available, whether the application . is frivolous and if not thought as frivolous, to consider that the Applicant has an arguable case to obtain the relief sought at the substantive hearing. Page 6 of 22 The same principles governing applications for leave to commence judicial review proceedings have also been set out in Tang Kwor Ham & Ors v. Pengurusan Danaharta Nasional Bhd & Ors [2006] 1 MLRH 507; [2006] 1 CLJ 927; [2006] 5 MLJ 60 at 69 where Gopal Sri Ram JCA (as he then was) held: “..the High Court should not go into the merits of the case at leave stage. lts rote is only to see if the application for leave is frivolous... So too will the court be entitled to refuse leave if it is a case where the subject matter of the review is one which by settled law (either written law or ihe common law) is non-justiciable.” In Bandar Utama Development Sdn Bhd & Anor v. Lembaga Lebuhraya Malaysia & Anor [1997]. 3 MLRH 293; [1997] 4 CLJ 725; [1998] 1 MLJ 224 at 225, Visu Sinnadurai J (as he then was) held as follows:- “,.The court, in exercising its discretion that an application for leave be granted must be convinced by the applicants that prima facie the application is genuine and that there is some substance in the grounds supporting the application. ‘The test's threshold is very low; a prima facie case of reasonable suspicion, an arguable case must be shown, not a prima facie case. Additionally, an application must fail if it is frivolous, vexatious, misconceived, made by busybodies with misguided or trivial complaints of administrative errors, groundless, where there are more appropriate alternative remedies, and where the application for judicial remedies is inappropriate”. (emphasis added) Page 7 of 22 10. The then Supreme Court in Association of Bank Officers, Peninsular Malaysia v. Malayan Commercial Banks Association [1990] 1 MLRA 324; [1990] 1 CLJ 33; [1990] 3 MLJ 228 at 228 held as follows:- “The guiding principles ought to be that the applicants must show prima facie that the application is not frivolous or vexatious and that there is some substance in the grounds supporting the application.” Preliminary Objections (PO) 11. The Application and its supporting documents were served by the Applicant on the Respondent upon the instruction of this court. 12. During the hearing of the Application, both the Federal Counsel (FC) from the Attorney General’s Chambers (AGC) and the Respondent were present and raised a similar PO. The PO was premised on the following grounds:- i. Objection on time; ii. No prayer for extension of time; iii. Locus standi; iv. Wrong party; and v. Abuse of process. Page 8 of 22 Decision of the court Objection on time 13. 14. 15. It is the submission of the AGC that the Applicant had failed to comply with Order 53 rule 3(6) of the ROC 2012 which provides as follows:- “An application for judicial review shall be made promptly and in-any event within three months from the date when the grounds of application first arose or when the decision is first communicated to the applicant’. (emphasis added) Case law seems to suggest that the three (3) months’ time limitation is a rigid rule that must be complied with by any party seeking to make an application for judicial review. In the case of Menteri Besar Negeri Pahang Darul Makmur v. Seruan Gemilang Makmur Sdn Bhd [2010] 1 MLRA 325; [2010] 5 CLJ 123; [2010] 4 MLJ 360 at 371 the Court of Appeal held as follows:- “[16] The High Court in its judgment was of the view that the 40 days specified under 0.53 r.3(6) was not rigid. | am of the view the judge erred in ruling that the time frame prescribed by the rules is not rigid. I am in agreement with the appellant’s counsel that compliance with the .time frame prescribed by the rules is fundamental as it goes to jurisdiction. (See Mersing Omnibus Co. Sdn Bhd v. The Minister of Labour Page 9 of 22 16. 17. & Manpower & Anor [1983] 2 CLJ 7; [1983] CLJ (Rep) 266)”. (emphasis added) (See also Ahmad Jefri Mohd Jahri v. Pengarah Kebudayaan & Kesenian Johor & Ors [2010] 1 MLRA 524; [2010] 3 MLJ 745; [2010] 5 CLJ 865) _On the facts herein, the Permission Letter in question was issued to the bankrupt on 26.8.2020 and the bankrupt was the only person the said Permission Letter was issued to. With that, the bankrupt is the only party that is adversely affected by the Permission Letter. Therefore, the date to file an application for judicial review shall be computed from the date of the issuance of the Permission Letter to the bankrupt. In the case of Samsiah bt Leman v. Ketua Polis Negara & Ors [2015] MLRHU 1349; [2016] 7 MLJ 149 at 158, Collin Lawrence Sequerah JC (now J) held:- ‘118] From a perusal of the principles enunciated in the above case, it can be seen at once that the main reason for such compliance is so that public authorities should not be held in suspense as to the legal validity of its decision for a period longer than is necessary. Such a rationale is in accord with sound public policy and good governance for if a public authority can be held in limbo as to whether its decision is susceptible to challenge indefinitely, it would result in unnecessary hesitancy in making decisions for fear that the decision could be impugned at any time”. (emphasis added) Page 10 of 22 18. 19. Based on the above, it is very reasonable for the decision maker not to be.held accountable for a period longer than is necessary. Here, as the Permission Letter was issued to the bankrupt on 26.8.2020, it is only fair for the decision of issuance of the Permission Letter be questioned within three months from the date of the issuance of the letter. Thus, measured from 26.8.2020, the last date for the adversely affected person to file the leave application therefore fell on 25.11.2020. As such, the Applicant was one month out of time by the time he filed the leave application on 28.12.2020. No prayer of extension of time 20. 21. 22. Order 53 rule 3(7) of the ROC 2012 provides as follows:- (7) The Court may, upon an application, extend the time specified in rule 3(6) if it considers that there is a good reason for doing so”. The Applicant had failed to make an application for extension of time to explain the delay in filling the leave application for judicial review. Thus, it is my view that this application must fail on the basis it is time barred rendering this Court with no jurisdiction to hear this application. In the case of Mersing Omnibus Co. Sdn Bhd v. Minister of Labour and Manpower & Anor [1983] 1 MLRA 117; [1983] CLJ 266; [1983] 2 MLJ 54 at 57 the Federal Court held that:- Page 11 of 22 “The appellant was as a result without the time prescribed in Order 53 rule 1A and neither sought an extension of time nor accounted for the delay to the satisfaction of the learned Judge within its explicit requirements. Leave should not therefore have been granted to the appellant to apply for certiorari and the learned Judge had no jurisdiction to do so. On this ground we dismissed ihe appeal before us with costs and directed the deposit lodged in court by way of security to be paid out to the respondents”. (emphasis added) 23. Based on the above, the Applicant’s application for leave for judicial review should be dismissed as the Applicant had failed to make an application for extension of time to explain the delay in filing the leave application for judicial review. Locus standi 24. The learned SFC and the Respondent had submitted that Applicant's application for leave for judicial review should be dismissed as the Applicant does not fulfil the criteria of an adverse person as prescribed under Order 53 r.2(4) of the ROC 2012. 25. Order 53 rule 2(4) of the ROC 2012 provides as follows:- “Any person who is adversely affected by the decision, action or omission in relation to the exercise of the public duty or function shall be entitled to make the application”. Page 12 of 22 26. In the case of Malaysian Trade Union Congress & Ors v. Menteri Tenaga, Air dan Komunikasi & Anor [2014] 2 MLRA 1; [2014] 2 CLJ 525; [2014] 2 AMR 101; [2014] 3 MLJ 145 at 163, the Federal Court held as follows:- “[57] In view of the foregoing we are of the view that the view expressed by the Court of Appeal in QSR Brands Bhd v. Suruhanjaya Sekuriti & Anor that the ‘adversely affected’ test was a single test for all the remedies provided for under 053 of the RHC is to be preferred. Hence the answer to the question posed in this appeal has to be in the negative. [59] We now deal with the issue of whether the 24 to the 14‘ Appellants are persons adversely affected by the Minister's decision to reject the 1% Appellant's application for the disclosure of and access to the two documents. They did not make a similar request to the Minister for the disclosure of and access to the two documents. We agree with the majority's view that their dissatisfaction with the decision of the Minister in rejecting MTUC’s application did not make them persons who were “adversely affected” by the Minister’s decision falling within the ambit of 0.53. They were clearly strangers to the said application. In our view they had not satisfied the test of threshold locus standi under 0.53 r.2(4) of the RHC and as such they were not entitled to the reliefs sought in their application”. (emphasis added) (See also QSR Brands Bhd v. Suruhanjaya Sekuriti & Anor [2006] 1 MLRA 516; [2006] 3 MLJ 164; [2006] 2 CLJ 532; [2006] 3 AMR 320; Page 13 of 22 27. 28. 29. Ketua Pengarah Insolvensi v. Dato’ Dr Chen Lip Keong & Ors [2011] 8 CLJ 393; [2011] 1 MLRA 606) Coming back to the facts in the present cases, the Applicant in para 4.2.6 of the Applicant’s Affidavit alleged that he has interest over the Permission Letter issued to the bankrupt as he was one of the nominee for the position of District Governor of RID 3300. Based on that alleged interest, the Applicant challenges the Permission Letter issued to the bankrupt. However, it is my view that the Applicant has neither a sufficient personal interest over the Permission Letter nor this Application a public interest litigation. This is because based on the Applicant's Affidavit it has been established that:- (a) it was just a rumour that the bankrupt was chosen to be the District Governor of RID 3300 because he had tendered the Permission Letter during the interview with the DNC. (See para 5.5 of the Applicant's Affidavit); (b) the Applicant was not the only candidate besides the bankrupt for the position of the District Governor post (see para 4.2.5 and 5.2 and exhibit “PLB-3’ of the Applicant’s Affidavit; and (c) para 5.3 of the Applicant’s Affidavit stated that the standard procedure is for all the candidates to be interviewed before the Page 14 of 22 30. 31. 32. DNC select the District Governor of RID 3300. Thus, the DNC is the one whom selected the bankrupt as District Governor. Based on the case of Malaysian Trade Union Congress (supra), |am of the opinion that being dissatisfied with the issuance of the Permission Letter did not make the Applicant a person adversely affected within the ambit of 0.53 of the ROC 2012. To me, the Applicant is clearly a mere stranger to the Respondent. Further, | find that the Applicant’s Affidavit did not reflect that the issuance of the Permission Letter had affected his right. Thus, the nexus between the Applicant and the issuance of the permission Letter is unsubstantiated. In the case of Bandar Utama Development Sdn Bhd & Anor v. Lembaga Lebuhraya Malaysia & Anor (supra) the Court held at page 235-236 as follows:- “One of the important circumstances when certiorari will lie is when the complainant's rights, be it statutory or common law, are adversely affected by the decision or action of an authority. As pointed out in Halsbury’s Laws of England Vol. 1(1) (4*" Ed, 1989 Reissue) para 112. Certiorari and prohibition will issue to quash or prohibit the determination of any body or person having legal authority to determine questions affecting the common law or statutory rights or obligations of other persons as individuals. Page 15 of 22 In the present case, the applicants have not challenged that any of their rights had been affected by the construction of the proposed highway interchange. It should also be noted that the applicants had not challenged the construction of the entire highway. They have merely stated that they ‘are affected and aggrieved parties’, or that they are ‘unhappy’ with the particular interchange at Bandar Utama. ... Clearly, in such a situation, where no legal rights are affected, the remedy of certiorari appears to be inappropriate”. (emphasis added) 33. Based on the above, it is my view that the Applicant had failed to pass the threshold of an adversely affected person as prescribed under 0.53 rule 2(4) of the ROC 2012. Wrong party 34. Upon perusal of the Applicant’s cause papers, | am of the opinion that the Application was brought against the wrong party as the Respondent named in this Application was not the decision maker of the impugned decision communicated by way of the Permission Letter. 35. The Respondent should not have been made a party in this Application as the Respondent, Jabatan Insolvensi Malaysia was no more than a government department with no legal entity of its own. Page 16 of 22 36. Added to that, the Applicant must correctly identify the party responsible for the decision in the exercise of the public duty or function which he alleged had adversely affected him. 37. In the case of Ambiga a/p Sreenevasan v. Ketua Pengarah Imigresen Malaysia & Ors [2011] 9 MLRH 572; [2012] 7 CLJ 170; [2012] 1 MLJ 92 at 100, Rohana Yusuf J (now PCA) held as follows:- ‘{12] Thus, since the First Respondent and Third Respondent are not the decision makers of the impugned decision, judicial review cannot lie against them. To put it differently, there is no decision by the First and Second Respondent that is before this court to review. On this ground alone, this application ought to be struck out”. (emphasis added) 38. Further in the case of Samsiah bt Leman v. Ketua Polis Negara & Ors (supra) the Court at page 159 held as follows:- ‘[25] Given the fact that the wrong parties have been cited, the application for leave must fail also on the grounds that it amounts to an application that is ‘frivolous and vexatious’. In so holding | rely on the case cited by the Respondent’s of Association of Bank Officers, Peninsular Malaysia v. Malayan Commercial Banks Association [1990] 3 MLJ 228, which held: The guiding principles ought to be that the applicants must show prima facie that the application is not frivolous or vexatious and that there is some substance in the grounds supporting the application. Page 17 of 22 39. On the evidence in this case the appellants had prima facie an arguable case for the grant of the relief they sought. [26] Reference is also made to the case cited of Boey Oi Leng (t/a Indah Reka Construction & Trading) v. Trans Resources Corp Sdn Bhd [2001] MLJU 566; [2002] 1 CLJ 405 which held: Also, a petition may be described as frivolous where it is obviously unsustainable, e.g, where the petition is res judicata, or where the wrong party is being sued, or without merit and unjustified. (Emphasis added)”. (emphasis added) Based on the above, | take the view that the decision maker which is the Director General of Insolvency Malaysia, should have been made a party to this Application, not the Respondent. Abuse of process 40. 41. The AGC and the Respondent submitted that the Applicant's application for judicial review is an abuse of process because there is in law provision for appeal as provided under the Section 86 of the Insolvency Act 1967. Section 86 of the Insolvency Act 1967 states:- Page 18 of 22 “Appeal to court against Director General of Insolvency 86. If the bankrupt or any of the creditors or any other person is aggrieved by any act or decision of the Director General of Insolvency, he may apply to the court, and the court may confirm, reverse or modify the act or decision complained of and make such order in the premises as it thinks just’. ' 42. Section 2 of the Insolvency Act 1967 then defined ‘the court’ as follows:- “Interpretation 2. In this Act, unless the context otherwise requires- “the court “means the court having jurisdiction in bankruptcy under this Act...”. 43. Section 91(1) of the Insolvency Act 1967 then provided as follows:- “General power of bankruptcy courts 91. (1) Subject to this Act, the court, under its jurisdiction in bankruptcy, shall have full power to decide all questions of priorities and all other questions whatsoever, whether of law or fact, which may arise in any case of bankruptcy coming within the cognizance of the court, or which the court deems it expedient or necessary to decide for the purpose of doing complete justice or making a complete distribution of property in any such case”. (emphasis added) Page 19 of 22 44, 45. 46. Based on the above provisions, it is my view that the Applicant being dissatisfied by the decision of the Director General of Insolvency in issuing the Permission Letter to the bankrupt should appeal against the decision to the Bankruptcy Court, not challenge the same by way of judicial review. (See Dato’ Seri Ir Hj Mohammad Nizar bin Jamaluddin v. Dato’ Seri Dr Zambry bin Abdul Kadir (Attorney General, intervener) [2012] 6 MLRA 259; [2010] 2 CLJ 925; [2010] 2 MLJ 285). Based on the above authorities, | am of the considered opinion that the Applicant must specifically follow the procedure in section 86 of the Insolvency Act 1967 although the word use is ‘may’ as it has the same mandatory effect as the word ‘shall’. It is clear that the filing of this Application by the Applicant is an attempt to supersede the specific statutory requirement under section 86 of the Insolvency Act 1967 thus amounted to abuse of process. Conclusion 47. Bearing in mind that this is an application for leave to commence judicial review proceedings under Order 53 of the ROC 2012, it is trite that the test for leave to commence with judicial review be complied with. Page 20 of 22 48. Thus, this application for leave to commence judicial review proceeding oughi to be dismissed with costs of RM2,000.00 to the AGC and the Respondent respectively without allocatur fee. Dated: |%3 September 2021 Ahmad Kamal bin Md. Shahid Judge High Court Kuala Lumpur Page 21 of 22 Counsels For the Applicant: For the Attorney General: For the Respondent: Cik Sumita Gnararajah (Cik Meera Segaran with her) Rusmah Arunan & Associates Peguambela & Peguamcara 1-20, Centrio Pantai Hillpark, Jalan Pantai Murni, 59200 Kuala Lumpur. (Ref: RAA/BANG/SG/LIT/2647) Cik Noor Atigah bt Zainal Abidin, Federal Counsel, Jabatan Peguam Negara, Bahagian Guaman, No. 45, Persiaran Perdana, Presint 4, 62100 Putrajaya. Cik Norhaslina bt Nordin Penolong Kanan Pengarah Insolvensi, Jabatan Insolvensi Malaysia, Aras 2-3, Bangunan Hal-Ehwal Undang-Undang (BHEUU) Presint 3, Putrajaya, 62692 Wilayah Persekutuan Putrajaya. Page 22 of 22