YAP CHOO @ YAP GEOK YEE THE PERSONAL REPRESENTATIVE OF THE ESTATE OF NEO CHWEE YEEN & 3 ORS

IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR (COMMERCIAL DIVISION) SUIT NO: WA-22NCC-194-05/2020 BETWEEN 1. YAP CHOO @ YAP GEOK YEE (NRIC NO.: 370703-10-5369) ...PLAINTIFF AND 1. THE PERSONAL REPRESENTATIVE OF THE ESTATE OF NEO CHWEE YEEN 2. NEO LAY HOONG (NRIC NO.: 620106-10-5730) 3. NEO MING LEE (NRIC NO.: 750525-14-5441) 4. SYARIKAT AGENT E.N.E (JALAN KELANG) SDN BHD (COMPANY NO.: 68318-X) ...DEFENDANTS GROUNDS OF DECISION 1 Introduction [1] This is an application for injunctive reliefs vide enclosure 12 by the Plaintiff. The reliefs sought were in the nature of restraining and mandatory orders pertaining to the operations of a 4D forecast business. The licence is currently in the name of the 2nd Defendant while the operations of the betting agency being run by the 4th Defendant. [2] The application also included an order for accounts to be rendered by the 2nd Defendant for all monies received from the operations of the 4D forecast business. [3] This court dismissed the application. These are the reasons for the court’s dismissal of the application. Background facts [4] Sometime in the year 1969, the late Neo Chwee Yeen ("late Neo") obtained an agent licence to operate a number forecast betting games business issued by the Ministry of Finance ("Agent Licence"). The 2nd Defendant is the daughter of the late Neo. [5] After the procurement of the Agent Licence, the late Neo then offered to the Plaintiff and eight (8) other individuals, Wong Kok Sing, Heng Chew Hoong, Tan Boon Thiam, Peh Boon San, Chai Chin Kim, Yong Chow Fatt, Ong Teng Pui and Mr Lim (hereinafter collectively referred to as "the said Partners") to form a partnership 2 in the business named Syarikat E.N.E Jalan Klang, Kuala Lumpur ("the said Partnership”). [6] Subsequently, the Empat Nombor Ekor (Selangor) Sdn Bhd offered Magnum Shares to the late Neo as one of the pioneer agents. After the late Neo accepted the offer by Empat Nombor Ekor (Selangor) Sdn Bhd, the late Neo then offered the ownership of the said Magnum Shares to the 4th Defendant and later registered in the name of the late Neo and Wong Kok Sing. [7] In 1981, two individuals of the said Partnership, i.e. Ong Teng Pui and Mr. Lim voluntarily exited the said Partnership. [8] The 4th Defendant was incorporated on 12.3.1981. The principal activity of the 4th Defendant was to act as an agent of M4D (Selangor) Sdn Bhd. The 4th Defendant took over the business of the said Partnership with effect from 13.03.1981. Thereon all commission obtained from the 4D forecast betting business was deposited into the 4th Defendant’s banking account and formed as the principal revenue of the 4th Defendant. [9] In 1983, the 4th Defendant's Board of Directors offered and granted ordinary shares of RM1 each to former Partners to the said Partnership (except the two (2) individuals who had exited from the said Partnership). 3 The Plaintiff’s case [10] The Plaintiff disputes the sole ownership of the Agent Licence as he contends that the Agent Licence was held on a trust arrangement. [11] In essence, the Plaintiff claims that the trust arrangement refers to an agreement between the said Partners to operate the 4D forecast betting business. [12] The material terms of the trust arrangement are that the late Neo will secure the Agent Licence in his name and the profits obtained from the business will be then distributed to the all the said Partners. [13] It was further contended that the Agent Licence cannot be transferred to any third party unless with the consent of the said Partners. [14] On or about 2004, the Plaintiff alleged that there was a significant drop in the commission received from the 4D forecast betting business and which was deposited into 4th Defendant’s banking account. [15] The Plaintiff subsequently discovered the following: a) The transfer of the Agent Licence from the late Neo to the 2nd Defendant; and b) The diversion of the profits received from the 4D forecast betting business to Lik Ho Sdn Bhd (“Lik Ho”). 4 [16] The crux of the application rests on the ownership of the Agent Licence. The Plaintiff alleged that the said Partners entered into a trust arrangement to obtain a licence. It was contended that: (a) All members of trust arrangement contributed equally to pay the necessary fee to procure the Agent Licence; (b) The shares issued by Empat Nombor Ekor (Selangor) Sdn Bhd were registered in the name of both the late Neo and another member, namely Wong Kok Sing. (c) All agent commission received pursuant to the utilisation of the Agent Licence was distributed equally between the members of the trust arrangement. The Defendant’s case [17] The Defendants however, maintained that the trust arrangement alleged by the Plaintiff is an “imagination and creation” of the Plaintiff and flatly deny the existence of any such trust arrangements. Analysis Is there a serious question to be tried based on the alleged trust arrangement? [18] A serious question to be tried was propounded in the case of Keet Gerald Francis Noel John v. Mohd Noor bin Abdullah [1995] 1 MLJ 193 as follows: 5 “…he must ask himself whether the totality of the facts presented before him discloses a bona fide serious issue to be tried. He must, when considering this question, bear in mind that the pleadings and evidence are incomplete at that stage. Above all, he must refrain from making any determination on the merits of the claim or any defence to it. It is sufficient if he identifies with precision the issues raised on the joinder and decides whether these are serious enough to merit a trial. If he finds, upon a consideration of all the relevant material before him, including submissions of counsel, that no serious question is disclosed, that is an end of the matter and the relief is refused. On the other hand if he does find that there are serious questions to be tried, he should move on to the next step of his inquiry”. [See also American Cyanamid Co v Ethicon Ltd [1975] 1 All ER 504 at p 510] [19] It is the view of this court that the Plaintiff failed to establish a serious issue to be tried. This is predominantly because the crux of the issue rests with grant of the Agent Licence. It is an undisputed fact that the Agent Licence is issued by the Minister of Finance under the Pool Betting Act 1967 (“the Act”). S. 5 of the Act reads as follows: “(1) Unless there is established a Board under section 6, the Minister may issue a license to a person for the collection, operation or promotion of pool betting.” [20] The above position in law has not escaped judicial scrutiny. In Annex Gold Sdn Bhd v Empat Nombor Ekor (Perak) Sdn Bhd & Anor [1999] 1 LNS 180, the court reiterated the fact that gaming licences under the Act is granted personal to holder. Abdul Hamid Embong J held as follows: 6 "Syarat (d) di atas terkandung di dalam kesemua lesen sejak ia dikeluarkan kepada WSL Sayugia diingatkan bahawa Kementerian Kewangan hanya mengeluarkan lesen tersebut kepada orang perseorangan. Ini tidak dinafikan oleh CCS, bahkan dia berkata bahawa oleh sebab itulah maka timbulnya keperluan membuat satu aturan lisan untuk melantik WSL sebagai seorang nomini. Syarat- syarat yang dikenakan kepada seseorang ejen di bawah lessen tersebut adalah, pada saya, dikenakan secara peribadi ke atas seseorang individu yang diberikan lesen itu. la tidak boleh dipindahkan atau dilaksanakan oleh orang lain. Seperti yang diputuskan oleh Mahkamah Rayuan dalam kes SABABUMI ketika mentafsirkan s.21 Akta Pertaruhan Pool 1967, bahawa pembacaan keseluruhan Akta 1967 tersebut akan menunjukkan niat Parliamen untuk mengadakan peraturan dan kawalan yang menyeluruh terhadap aktiviti pertaruhan di dalam Negara Ini adalah satu dasar dan polisi Akta tersebut yang perlu diberi kesan oleh Mahkamah ini. Mengulangi kata-kata Gopal Sri Ram HMR dalam kes SABABUMI: "...the agreement, it countenanced, would defeat the Act. The agreement therefore falls squarely within s. 24(b) of the Contracts Act 1950, and is by reason thereof illegal and void" Keputusan Mahkamah Rayuan walaupun berlandaskan kepada s. 24(b) Akta Kontrak dan tidak kepada s.24(a) seperti yang diputuskan oleh Mahkamah Persekutuan, bagaimanapun telah tidak ditolak oleh Mahkamah Persekutuan dan dalam pandangan saya, masih terpakai sebagai asas alternative (kepada s. 24(a) Akta Kontrak), bagi memutuskan yang aturan lisan seperti yang didakwa oleh CCS itu adalah tidak sah di sisi undang-undang dan tidak boleh dikuatkuasakan. Dalam kata lain, dan saya memutuskan dari sudut pandangan manapun, aturan lisan tersebut tetap menyalahi undang-undang dan perlu diisytiharkan oleh Mahkamah ini sebagai satu kontrak yang tak sah." (Emphasis added) 7 [21] Therefore, any oral arrangement or trust relationship that is being alleged by the Plaintiff cannot be upheld. The claim of the Plaintiff is unsubstantiated [22] It is the finding of this court that the claim made by the Plaintiff is unsubstantiated by any proof. It was highlighted to this court that the two (2) documents that the Plaintiff argues to show proof of the trust arrangement that existed between the Plaintiff and the Defendants were: (i) The 4th Defendant’s resolution (“Resolution”) dated 1.4.1989; and (ii) The Letter of Indemnity (“LOI”) dated 8.6.1989 [23] It is the finding of this court that the two (2) documents relied on by the Plaintiff have no bearing to the ownership of the Agent Licence. The said documents do not show the existence of a trust relationship with regards to the ownership of the said licence. [24] The Resolution was a director’s resolution of the 4th Defendant. It pertained to an arrangement entered between Empat Nombor Ekor (Selangor) Sdn Bhd and the 4th Defedant. The Resolution merely authorized Empat Nombor Ekor (Selangor) Sdn Bhd to release share certificates for the ordinary shares in the 4th Defendant for security purposes. In lieu of the share certificate, the 4th Defendant deposited a sum of RM 20,000.00 with Empat Nombor Ekor (Selangor) Sdn Bhd. The late Neo was trustee for the 4th Defendant 8 and one of the two (2) named directors authorized to deal with Empat Nombor Ekor (Selangor) Sdn Bhd. [25] The LOI dated 8.6.1989 was issued by the late Neo to the 4th Defendant acknowledging the sum RM 20,000.00 was held on trust for the 4th Defendant. [26] It is clear to the mind of this court that the two (2) documents did not have any evidential value to support the contention that that the Agent Licence was in fact held on trust for any of the said founding Partners. [27] The LOI on the other hand, was a pure administrative arrangement between the 4th Defendant and the late Neo for the usage of the certificates as security. It does not in any manner relate to the trust arrangement as alleged by the Plaintiff. [28] The alleged oral agreement and trust arrangement was relied upon by way of bare averments without any evidence produced. No documentary evidence, including any notes or minutes of meeting have been produced that can substantiate any intention to establish the said trust arrangement between the Plaintiff and the Defendants. As decided by the Federal Court in the case of Deutsche Bank (M) Bhd v MBf Holdings Bhd & Anor [2015] 6 MLJ 310, any binding agreement requires the meeting of minds or consensus ad idem. [29] It is clear from the cases cited above that the courts will not grant an injunction based on any private agreement reached between the 9 shareholders, let alone based on an alleged agreement where no evidence has been produced of the said agreement or arrangement. [30] In the present matter, the Plaintiff has only made bare averments in his affidavits in support of the application which is not enough to establish a bona fide serious question to be tried nor is it sufficient to establish a ground for an injunction. [31] A bare averment is insufficient to meet the threshold of a “serious question to be tried”. In the case of Sim Chin Hu v Kerk Han Meng & Ors [2020] MLJU, it was held as follows: [15] In the present case, the Plaintiff has not presented before this Court at this stage any documentary evidence at all to show that there was indeed an understanding or arrangement between the Plaintiff and the 1st Defendant that both parties shall be entitled to participate in the management of the 4th Defendant. All that the Plaintiff has done is to rely on his bare averments made in his affidavits that both the Plaintiff and the 1st Defendant had known each other since 1985 when they had worked together in a Taiwanese-owned company and that sometime in 2001, both of them decided to form the 4th Defendant. These facts per se, without more, hardly suffice to establish a serious question to be tried that the 4th Defendant was formed to operate as a quasi-partnership. (Emphasis added) [32] In short, the documents relied on by the Plaintiff does not convince this court that they support the Plaintiff’s contention that a trust arrangement exists. 10 The balance of convenience test [33] A key determinant for an injunction to be granted is the issue of balance of convenience. This would entail this court to consider the maintaining of status quo. [34] In Pekeliling Triangle Sdn Bhd v. Chase Perdana (2003) 1 MLJ 130, the Court of Appeal held that the relevant matters under the balance of convenience must be considered step by step. These steps were outlined by Mohd Noor Ahmad JCA as follows: "First, the learned judge must be satisfied that the plaintiff would suffer irreparable injury or that the plaintiff could not be adequately compensated in damages before proceeding to consider other relevant matters on the balance of convenience. This step is in consonance with what was said by Gopal Sri Ram JCA in Keet Gerald Fancis Noel John v. Mohd Noor bin Abdullah & Ors in para (2) cited above, couched in the phrase "He must take into account all relevant matters, including practical realities of the case before him.... It must be so since American Cynamid v. Ethicon Ltd is the locus classicus on the subject, and the learned judge in that case was not making new law but adopting the basic principles. The second step is if damages would not provide adequate remedy for the plaintiff in the event of it succeeding at the trial, the learned judge should then consider whether that if the defendants were to succeed at the trial in establishing their rights to do that which was sought to be restrained, they would be adequately compensated under the plaintiff's undertaking as to damages to the loss they would have sustained by being prevented from doing so between the time of the application and the time of the trial. If damages in the measure recoverable under such an undertaking would be an adequate remedy and the plaintiff would be in a financial position to pay them, there would 11 be no reason on this ground to refuse an interlocutory injunction. The third step is if there was doubt as to the adequacy of the respective remedies in damages available to either party or to both then only the judge should proceed to consider the question of balance of convenience. And the last step is where other factors appeared to be evenly balanced the question of the preservation of status quo would then come into play." (Emphasis added) [35] In the present case, the late Neo was the named holder of the Agent Licence and after his demise, the Agent Licence was transferred to the 2nd Defendant, upon the approval the Ministry of Finance. Being the Agent Licence holder, the 2nd Defendant can appoint any agent to carry out the said business by using the Agent Licence. [36] The balance of convenience would certainly be in favour of not granting the injunction. The status quo if at all, is to preserve the current arrangement of the parties. To grant an injunction with the strength of argument put up by the Plaintiff would be an inequitable use of this court’s discretion. Damages an adequate remedy [37] It is also clear to this court that damages is an adequate remedy open to the Plaintiff. He can be compensated with damages if at the end of the day, the decision after trial goes in his favour. It is trite that this by itself is sufficient to frustrate this entire application (see Keet Gerald Francis (supra). 12 The nature of the injunction [38] It must also be mentioned that the Plaintiff’s application also seeks this court to grant injunctive reliefs that are mandatory in nature. [39] The Plaintiff is seeking the 2nd Defendant to : (i) Deposit all monies received from the operation of the 4D forecast business into one designated banking account ("Designated Account”), which is to be determined either through the agreement of parties or by an order of this court; (ii) Render a comprehensive account on all monies received from the operation of the 4D forecast betting business pursuant to the Agent Licence and deposited into the Designated Account, from the date of this order until the final disposal of this action; (iii) Sign an affidavit verifying the account stated at (ii) above and the same to be filed in court and served on the Plaintiff or his solicitors, on a monthly basis commencing one month from the date of this order until the final disposal of this action or any further order. [40] It is trite that to grant a mandatory injunction, the court is required to apply a higher threshold. The rationale for the higher standard is due to the consequence of the order, if granted, mandates the Defendants to carry out certain actions which mirrors the outcome of the main suit. It goes beyond prohibitory in nature. 13 [41] It is an established principle of law that an interlocutory mandatory injunction is rarely granted before trial except in exceptional and rare case where the court feels that the case unusually strong and clear in that the court must feel assured that a similar injunction would probably be granted at trial. (See Sivaperuman v. Heah Seok Yeong Realty Sdn Bhd (1979) 1 MLJ 150). The principle was reaffirmed by the Supreme Court case of Tinta Press Sdn Bhd v. Bank Islam Malaysia [1987] 2 MLJ 192. [42] In Shamsudin Bin Shaik Jamaludin v. Kenwood Electronics Technologies (M) Sdn Bhd [1999] 3 MLJ 438, at 454, Abdul Malik Ishak J (as he then was) held that: “In my judgment, the conditions to be fulfilled before an interlocutory mandatory order to be granted may be listed as follows: (1) The applicant must prove by affidavit evidence that his application is an exceptional and extremely rare case which merits the order prayed for. (2) The applicant must show that his case is clear and one which the court thinks ought to be decided at once in his favour. (3) The applicant must show a clear case for relief or a high degree of assurance that the injunction, if granted, would rightly be granted. 14 [43] One of the most important circumstances which will be considered by the court is the degree of probability with which it appears to be established that the applicant will ultimately succeed at the final hearing. The stronger the case of the applicant that the matters complained of are unlawful, the more likely it is that it will be found to be just and equitable that his interests be protected by the immediate issue of an injunction. This was discussed in the Federal Court case of Gibb & Co. v. Malaysia Building Society Bhd [1982] 1 MLJ 271 where Abdoolcader J held that: "Before we deal with the issues raised we should perhaps touch on a point made by Mr Sri Ram for the appellant in referring to the judgment of this court in Sivaperuman v Hoah Seok Yeong Realty Sdn. Bhd [1979) 1 MLJ 150 which, referring to a pronouncement to that effect in Wah Loong (Jelapang) Tin Mine Sdn Bhd v Chia Ngen Yok [1975] 2 MLJ 109, p 114, restates inter alia that an interim or interlocutory mandatory injunction is never granted before trial save in exceptional and extremely rare cases. That statement of the law is correct as an interlocutory application for a mandatory injunction is a very exceptional form of relief (Canadian Pacific Railway v Gaud (1949) 2 KB 239 (at p 249), but there is no reason why interlocutory or indeed interim mandatory injunctions should not issue in proper and appropriate cases and the court has jurisdiction to so order. Fry LJ, said in Bonner v Great Western Railway Company (1883) 24 ChD1 (at p 10): 'I have no doubt of the jurisdiction of the court to grant a mandatory injunction on interlocutory applications as well as the hearing. The case however must be 'unusually sharp and clear (Shepherd v Sandham (1971] Ch 340), and the court must feel a high degree of assurance that at the trial a similar injunction would probably be granted but we should observe that questions of degree are involved which depend inter alia upon considerations of hardship to the parties. 15 In deciding the manner of interlocutory injunction that should be granted courts of equity will consider how the interests of the parties may best be protected, bearing in mind both the position of the parties subsequently at the final hearing and also questions of hardship and inconvenience in the meantime, and will take into account any other relevant discretionary considerations which may arise. One of the most important circumstances which will be taken into account by the court is the degree of probability with which it appears to be established that the applicant will ultimately succeed at the final hearing. The stronger the case of the applicant that the matters complained of are unlawful, the more likely it is that it will be found to be just and equitable that his interests be protected by the immediate issue of an injunction (Bonner). Other matters of particular importance are, on the one hand, the ease or difficulty with which there can be compliance with a mandatory order and the extent of hardship which compliance will cause the respondent and, on the other hand, the nature of the injury and inconvenience which will be caused to the applicant if he does not obtain protection at once (Strelley v Pearson (1880J 15 ChD 113 (at p 117))." (Emphasis added) [44] Based on the above discussion, this case is obviously not an exceptional and extremely rare case for an order of mandatory injunction to be granted. Conclusion [45] It patently clear to this court that this is not a case where the court should grant any injunctive reliefs as prayed by the Plaintiff. The 16 conditions to grant an injunction are clearly not met. In the foregoing, the application is dismissed with costs. (AHMAD FAIRUZ BIN ZAINOL ABIDIN) Judge High Court of Malaya Kuala Lumpur Dated: 5th March 2021 17 Counsels S. Janagasutha, Tan Chong Lii & Siow Chan Wai for Plaintiff Messrs Tan Chong Lii & Co Unit 720, Level 7 Block A, Lobby A, Damansara Intan No. 1, Jalan SS20/27 47400 Petaling Jaya Selangor PH Goh & Soh LL for Defendants Messrs Lai Goh & Associate B-3A-4, Level 3A Block B, Megan Avenue 2 No. 12, Jalan Yap Kwan Seng 50450 Kuala Lumpur Vivian Oh for 3rd party (ENE Selangor Bhd) 18