264 Malayan Law Journal [2023] 4 MLJ

A
Cedric Wong King Ti v Shim Yen Lin

COURT OF APPEAL (PUTRAJAYA) — CIVIL APPEAL

B
NO S-02(IM)(NCVC)-888–04 OF 2021
LEE SWEE SENG, RAVINTHRAN AND GHAZALI CHA JJCA
30 APRIL 2023

Civil Procedure — Injunction — Mareva injunction — Appeal against decision C

of judicial commissioner in dismissing application to set aside ex parte Mareva
injunction and inter parte Mareva injunction — Whether Justice of the Peace in
Sabah empowered to attest affidavits — Whether affidavit defective — Whether
appeal against setting aside of ex parte Mareva injunction which had lapsed was
academic — Whether s 11 of Courts of Judicature Act 1964 and O 41 rr 7 and 8 D
of the Rules of Court 2012 complied with — Whether requirements of Mareva
injunction were satisfied — Courts of Judicature Act 1964 s 11 — Rules of Court
2012 O 2 r 1, O 41 rr 4, 7 & 8 — Sabah Oaths Ordinance (Cap 89)
— Subordinate Courts Act 1948 s 2 & Fourth Schedule
E
A company known as Sunlight Aqua Sdn Bhd which was set up by both the
appellant and the respondent had managed to obtain endorsement and
funding for a prawn farming project from the Sabah Foundation.
Subsequently, the respondent sued the appellant for fraudulently setting up
another company known as Sunlight Seafood to enter into an agreement with F
a subsidiary of Sabah Foundation. The court found in favour of the respondent
and pursuant to the said judgment (‘the said judgment’), the respondent had
obtained ex parte Mareva injunction. In response, the appellant applied to set
aside and discharge the ex parte Mareva injunction as well as the respondent’s
inter parte application for Mareva injunction. The judicial commissioner (‘the G
JC’) dismissed the appellant’s application and found, inter alia, that a Justice of
the Peace (‘JP’) in Sabah was empowered by law to attest affidavits and even if
it were otherwise, the defect was curable under O 2 r 1 of the Rules of Court
2012 (‘the ROC’) and was therefore admissible under O 41 r 4 of the ROC. In
relation to the merits of the Mareva injunction application, the JC found that H
the appellant had a good arguable case and that the appellant had assets within
the jurisdiction. Further, His Lordship found that the terms of the ex parte
order were not onerous or oppressive as there was evidence that the respondent
would have sold her share of Sunlight Aqua Sdn Bhd for RM30m to a potential
buyer had the the project not been diverted to other companies by the I
appellant. Disgruntled with the decision, the appellant filed the present appeal.
The issues arose were: (a) whether a JP in Sabah could affirm affidavits;
(b) whether the appeal was academic — in relation to this issue the respondent
argued that since the ex parte injunction order had lapsed and fresh affidavits
 Cedric Wong King Ti v Shim Yen Lin
[2023] 4 MLJ (Ravinthran JCA) 265

A had been sworn before a commissioner for oaths for the ad interim injunction
application and to oppose the setting aside application, the appeal was
academic; (c) whether s 11 of the Courts of Judicature Act 1964 (‘the CJA’) and
O 41 rr 7 and 8 of the ROC were complied with in this case; (d) whether such
an affidavit was wholly defective; and (e) whether the requirements for a
B Mareva injunction were satisfied.

Held, dismissing the appeal with costs of RM10,000 to the respondent subject
to the payment of allocatur:

C (1) The JC cited s 11 of the CJA and found that a JP in Sabah had the power
to attest an affidavit under it for the reason he was deemed to be a second
class magistrate. However, the court disagreed with the JC’s finding for
two reasons. Firstly, the Fourth Schedule of the Subordinate Courts Act
1948 (‘the SCA’) stated that some public officers were, by virtue of office,
D deemed to be First Class or Second Magistrates. For example, an assistant
registrar of the subordinate court was an ex officio second class
magistrate. But the schedule did not state the converse, ie, it did not deem
that a second class magistrate was also an assistant registrar. Secondly, the
JC erred in referring to the definition of ‘Registrar’ in s 2 of the SCA
E because the definition of such word ought to be discerned from the CJA
itself. The CJA limited the meaning to all ranks of registrars of the
superior courts only and not the registrars of subordinate courts.
Therefore, even if a JP was deemed to be an assistant registrar of the
subordinate courts, he or she could not come within the ambit of s 11(a)
F of the CJA. For the above reasons, a JP in Sabah who was deemed to be
second class magistrate could not attest affidavits for general use in civil
proceedings unless specially authorised by law (see paras 19–20 &
22–23).
(2) The Sabah Oaths Ordinance (Cap 89) could not apply to affidavits as it
G only referred to oaths and affirmations administered to a witness in a
judicial proceeding. In addition, the defect in question was not a mere
irregularity in form as the attestation was made before an unauthorised
person. For the same reason, the court found it difficult to agree with the
respondent that O 2 of the ROC could cure the defect (see para 25).
H
(3) The court found that the appeal was academic because the ex parte
Mareva injunction had lapsed and considering that the ex parte Mareva
injunction and the subsequent inter parte ad interim Mareva injunction
as well as the inter parte Mareva injunction were all distinct and separate
I orders, the defect of the ex parte Mareva injunction did not affect the
subsequent fresh order such as the Mareva injunction granted after full
argument (see paras 26–28).
(4) The JC found that the test for a Mareva injunction had been satisfied by
the respondent for the following reasons: (a) the respondent had obtained
266 Malayan Law Journal [2023] 4 MLJ

judgment against the appellant and all appeals against the said decision A
had been dismissed, as such, a good arguable case had been established by
the respondent; (b) the respondent had disclosed sufficient affidavit
evidence to prove that there were assets within the jurisdiction; and
(c) the learned judge via the said judgment had found that the appellant
had fraudulently concealed the fact that he set up Sunlight Seafood to B
replace Sunlight Aqua to enter into a joint venture with a subsidiary of
Sabah Foundation, as such, the risk of dissipation could be inferred. The
court agreed with the JC’s finding that there was a real risk of dissipation
of assets by the appellant before the court could assess the damages
C
payable to the respondent. The court further found that in the
memorandum of appeal, the appellant did not raise any ground of appeal
in respect of the finding of the JC that the respondent satisfied the test for
the grant of a Mareva injunction (see paras 33 & 35).
(5) The court found no merit in the appellant’s ground of appeal that the D
terms of the Mareva injunction order were ‘oppressive and onerous and
far too wide as well as ambiguous in its terms’. This was because the upper
limit of RM30m specified in the Mareva injunction order in respect of
the value of assets that must not be removed from Malaysia was not fixed
arbitrarily by the JC because such figure was based on the finding of the E
judge in the said judgment that one Nobel Pang had agreed to buy the
respondent’s shares in Sunlight Aqua for RM30m. The court also found
that the ancillary order for disclosure of information in para 4 of the ex
parte order that was adopted in the inter parte order was not too wide or
oppressive. The disclosure order was prayed in aid of the Mareva F
injunction as without it, the respondent would have no knowledge of the
assets of the appellant. However, considering that there was no upper
limit specified in respect of disclosure of assets, the court varied para 4 to
read that the extent of the disclosure by the appellant of his assets be
limited to unencumbered assets to the tune of RM30m only (see G
para 36).

[Bahasa Malaysia summary

Sebuah syarikat dikenali sebagai Sunlight Aqua Sdn Bhd yang ditubuhkan oleh
kedua-dua perayu dan responden telah berjaya mendapatkan pengesahan dan H
pembiayaan untuk projek ternakan udang daripada Yayasan Sabah. Responden
kemudiannya memfailkan saman ke atas perayu kerana menubuhkan syarikat
lain yang dikenali sebagai Sunlight Seafood secara fraud untuk memeterai
perjanjian dengan anak syarikat Yayasan Sabah. Mahkamah membuat
keputusan yang memihak kepada responden dan berdasarkan penghakiman I
tersebut (‘penghakiman tersebut’), responden telah memperoleh injunksi
Mareva ex parte. Bertindak balas daripada itu, perayu memohon untuk
mengenepikan dan membatalkan injunksi Mareva ex parte tersebut serta
permohonan inter parte responden untuk injunksi Mareva. Pesuruhjaya
 Cedric Wong King Ti v Shim Yen Lin
[2023] 4 MLJ (Ravinthran JCA) 267

A kehakiman (‘PK’) menolak permohonan perayu dan mendapati, antara lain,

bahawa seorang ‘Justice of the Peace’ (‘JP’) di Sabah diberi kuasa oleh
undang-undang untuk mengesahkan afidavit dan walaupun sebaliknya,
kecacatan tersebut boleh diperbetulkan di bawah A 2 k 1 Kaedah-Kaedah
Mahkamah 2012 (‘KKM 2012’) dan oleh itu boleh diterima di bawah A 41 k 4
B KKM 2012. Berhubung dengan merit permohonan injunksi Mareva, PK
mendapati perayu mempunyai kes yang boleh dipertikaikan dan perayu
mempunyai aset dalam bidang kuasa mahkamah. Selanjutnya, Yang Arif
mendapati bahawa terma perintah ex parte tersebut tidak membebankan atau
menindas kerana terdapat bukti bahawa responden akan menjual sahamnya
C
dalam Sunlight Aqua Sdn Bhd pada harga RM30 juta kepada bakal pembeli
sekiranya projek tersebut tidak dialihkan kepada syarikat lain oleh perayu.
Tidak berpuas hati dengan keputusan tersebut, perayu memfailkan rayuan
semasa. Isu-isu yang timbul ialah: (a) sama ada JP di Sabah boleh mengesahkan
D afidavit; (b) sama ada rayuan telah menjadi akademik — berhubung dengan
isu ini responden berhujah bahawa oleh kerana perintah injunksi ex parte telah
luput dan afidavit baharu telah diikrarkan di hadapan pesuruhjaya sumpah
untuk permohonan injunksi ad interim dan untuk menentang permohonan
pengenepian, rayuan telah menjadi akademik; (c) sama ada s 11 Akta
E Mahkamah Kehakiman 1964 (‘AMK’) dan A 41 kk 7 dan 8 KKM 2012 telah
dipatuhi dalam kes ini; (d) sama ada afidavit tersebut adalah cacat sepenuhnya;
dan (e) sama ada syarat-syarat untuk injunksi Mareva telah dipenuhi.

Diputuskan, menolak rayuan dengan kos sebanyak RM10,000 kepada

F responden tertakluk kepada bayaran alokatur:
(1) Pesuruhjaya kehakiman memetik s 11 AMK dan mendapati JP di Sabah
mempunyai kuasa untuk mengesahkan afidavit atas sebab dia dianggap
sebagai majistret kelas kedua. Bagaimanapun, mahkamah tidak bersetuju
dengan penemuan PK tersebut atas dua sebab. Pertama, Jadual Keempat
G Akta Mahkamah Rendah 1948 (‘AMR’) menyatakan bahawa sesetengah
pegawai awam, disebabkan oleh jawatannya, disifatkan sebagai majistret
kelas pertama atau kedua. Sebagai contoh, penolong pendaftar
mahkamah bawahan ialah ex officio majistret kelas kedua. Tetapi jadual
tersebut tidak menyatakan sebaliknya, iaitu, ia tidak menganggap
H bahawa majistret kelas kedua juga merupakan penolong pendaftar.
Kedua, PK terkhilaf apabila merujuk kepada takrifan ‘Pendaftar’ dalam
s 2 AMR kerana takrifan perkataan tersebut sepatutnya didapati daripada
AMK itu sendiri. Akta Mahkamah Kehakiman 1964 menghadkan
takrifan tersebut kepada semua pangkat pendaftar mahkamah atasan
I sahaja dan bukan pendaftar mahkamah bawahan. Oleh itu, walaupun JP
dianggap sebagai penolong pendaftar mahkamah bawahan, dia tidak
termasuk dalam peruntukan s 11(a) AMK. Atas alasan-alasan di atas, JP
di Sabah yang dianggap sebagai majistret kelas kedua tidak boleh
mengesahkan afidavit untuk kegunaan am dalam prosiding sivil
268 Malayan Law Journal [2023] 4 MLJ

melainkan dibenarkan secara khusus oleh undang-undang (lihat A

perenggan 19–20 & 22–23).
(2) Sabah Oaths Ordinance (Cap 89) tidak boleh diguna pakai untuk
afidavit kerana ia hanya merujuk kepada sumpah dan ikrar yang
diberikan kepada saksi dalam prosiding kehakiman. Di samping itu, B
kecacatan dalam kes ini bukanlah satu bentuk ketidakaturan
semata-mata kerana pengesahan tersebut dibuat di hadapan orang yang
tidak mempunyai kuasa. Atas sebab yang sama, adalah sukar untuk
mahkamah bersetuju dengan responden bahawa A 2 KKM 2012 boleh
memperbetulkan kecacatan tersebut (lihat perenggan 25). C
(3) Mahkamah mendapati rayuan ini telah menjadi akademik kerana
injunksi Mareva ex parte tersebut telah luput dan memandangkan
kesemua injunksi Mareva ex parte dan seterusnya injunksi Mareva ad
interim inter parte serta injunksi Mareva inter parte adalah perintah yang
berbeza dan berasingan, kecacatan injunksi Mareva ex parte tidak D
menjejaskan perintah baharu berikutnya seperti injunksi Mareva yang
diberikan selepas penghujahan penuh (lihat perenggan 26–28).
(4) Pesuruhjaya kehakiman mendapati bahawa ujian untuk injunksi Mareva
telah dipenuhi oleh responden atas alasan-alasan berikut: (a) responden E
telah mendapatkan penghakiman terhadap perayu dan semua rayuan
terhadap keputusan tersebut telah ditolak, oleh itu, satu kes yang boleh
dipertikaikan telah dibuktikan oleh responden; (b) responden telah
menunjukkan keterangan afidavit yang mencukupi untuk membuktikan
bahawa terdapat aset dalam bidang kuasa; dan (c) hakim yang bijaksana F
melalui penghakiman tersebut telah mendapati perayu telah secara fraud
menyembunyikan fakta bahawa dia telah menubuhkan Sunlight Seafood
untuk menggantikan Sunlight Aqua untuk mengadakan usaha sama
dengan anak syarikat Yayasan Sabah, oleh itu, risiko pelesapan boleh
dianggap. Mahkamah bersetuju dengan penemuan PK bahawa terdapat G
risiko sebenar pelesapan aset oleh perayu sebelum mahkamah boleh
menilai ganti rugi yang perlu dibayar kepada responden. Mahkamah
selanjutnya mendapati bahawa dalam memorandum rayuan, perayu
tidak membangkitkan alasan-alasan rayuan berkenaan dengan dapatan
PK bahawa responden telah memenuhi ujian untuk pemberian injunksi H
Mareva (lihat perenggan 33 & 35).
(5) Mahkamah mendapati tiada merit dalam alasan rayuan perayu bahawa
terma perintah injunksi Mareva adalah ‘oppressive and onerous and far
too wide as well as ambiguous in its terms’. Ini kerana had atas RM30 juta
yang dinyatakan dalam perintah injunksi Mareva tersebut yang I
berhubung dengan nilai aset yang tidak boleh dikeluarkan dari Malaysia
tidak ditetapkan sewenang-wenangnya oleh PK kerana angka tersebut
adalah berdasarkan kepada dapatan hakim dalam penghakiman tersebut
bahawa seorang Nobel Pang telah bersetuju untuk membeli saham
 Cedric Wong King Ti v Shim Yen Lin
[2023] 4 MLJ (Ravinthran JCA) 269

A responden dalam Sunlight Aqua pada harga RM30 juta. Mahkamah juga
mendapati perintah sampingan untuk penzahiran maklumat dalam
perenggan 4 perintah ex parte yang diterima pakai dalam perintah inter
parte tidak terlalu luas atau menindas. Perintah penzahiran tersebut
dipohon sebagai bantuan bagi injunksi Mareva kerana tanpanya,
B responden tidak akan mengetahui tentang aset perayu. Walau
bagaimanapun, memandangkan tiada had atas yang dinyatakan
berhubung dengan penzahiran aset, mahkamah mengubah perenggan 4
tersebut di mana tahap penzahiran perayu berkenaan dengan asetnya
dihadkan kepada aset tanpa beban sehingga jumlah RM30 juta sahaja
C
(lihat perenggan 36).]

Cases referred to
Hong Kim Sime, ex p Malayan Banking Bhd, Re [1994] 3 MLJ 261; [1994] 3
D CLJ 646, HC (refd)
Motor Sports International Ltd (servants or agents at Federal Territory of Labuan)
& Ors v Delcont (M) Sdn Bhd [1996] 2 MLJ 605; [1996] 3 CLJ 483, CA
(refd)
RIH Services (M) Sdn Bhd v Tanjung Tuan Hotel Sdn Bhd [2002] 3 MLJ
E 1; [2002] 3 CLJ 83, CA (distd)

Legislation referred to
Courts of Judicature Act 1964 ss 3, 10(4), 11, 11(a)
Criminal Procedure Code s 424
F Insolvency Act 1967 s 128, 128(a)
Justices of the Peace Ordinance 1961 s 4(1)
Rules of Court 2012 O 1A, O 2, O 2 r 1, O 29 r 1(2B), 1(2BA), O 41 rr 4,
7, 8
Oaths Ordinance (Cap 89) s 9
G Subordinate Courts (Powers of Justices of the Peace) (Sabah) Regulations 1990
reg 2
Subordinate Courts Act 1948 ss 2, 99(2), Fourth Schedule

Appeal from: Shim Yen Lin v Cedric Wong King Ti [2021] 11 MLJ 350 (High
H Court, Kota Kinabalu)
Jeyan Marimuttu (with Eric Chong) (J Marimuttu & Partners) for the appellant.
Alexdecena @ Alexander Decena (with Jordan Christian Kong Tzu Fui)
(Jayasuriya Kah & Co) for the respondent.
I
270 Malayan Law Journal [2023] 4 MLJ

Ravinthran JCA: A

INTRODUCTION

[1] This is an appeal against the dismissal of the appellant’s application to

discharge an ex parte Mareva injunction order and the grant of the inter parte B
Mareva injunction order. The said orders were granted in favour of the
respondent who had obtained judgment in respect of liability against the
appellant in 2015. The assessment of damages was still pending at the time the
post judgment injunction orders were granted on 11 January 2021 and
26 April 2021. C

BACKGROUND FACTS

[2] The brief background facts are as follows. The appellant and respondent
entered into an agreement to invest in a joint venture project involving prawn D
farming (the Pitas Project). For that purpose, Sunlight Aqua Sdn Bhd was set
up as the joint venture vehicle. The appellant held 51% of the shares in the
company whereas the respondent held 49% of the shares. The company
managed to obtain endorsement and funding for the project from a
governmental body, ie the Sabah Foundation. Subsequently, the respondent E
sued the appellant for fraudulently setting up another company to enter into an
agreement with a subsidiary of Sabah Foundation. After a full trial, the High
Court found the appellant liable for breach of contract and fraudulent
concealment and ordered damages to be assessed. Judgment against the
appellant was entered on 30 December 2015. The decision of High Court was F
affirmed by the Court of Appeal and Federal Court. The matter is now pending
assessment of damages before the High Court.

MAREVA INJUNCTION APPLICATION

G
[3] Pending the assessment of damages, the respondent filed for a post
judgment Mareva injunction (encl 140) on ex parte basis. The essential order
sought was that the appellant must not remove from Malaysia any of his assets
up to the value of RM30m and in any way dispose of or deal with the same to
diminish its value. The prohibition sought extends to monies in bank, real H
estate and shares in companies. The respondent also applied for disclosure of
details of the assets and liabilities of the appellant in aid of the Mareva
injunction.

[4] The grounds of the application were as follows. Judgment on liability I

had been entered in favour of the respondent. The appellant has assets within
the jurisdiction. There is a real risk of dissipation of assets. The RM30m upper
limit in respect of assets that the appellant must not remove from Malaysia was
arrived at in the following way. In the affidavit in support of the ex parte
 Cedric Wong King Ti v Shim Yen Lin
[2023] 4 MLJ (Ravinthran JCA) 271

A application, the respondent deposed that the High Court made a finding that
an investor had agreed to buy 49% of the shares of Sunlight Aqua Sdn Bhd
from the respondent for the said price.

APPLICATION TO DISCHARGE MAREVA INJUNCTION ORDER

B
[5] The learned judicial commissioner heard the ex parte application in
encl 140 and granted the ex parte Mareva injunction on 11 January 2021. On
26 January 2021, the appellant filed a notice of application in encl 169 to set
aside and discharge the ex parte injunction order. The decision of the learned
C judicial commissioner to dismiss encl 169 and the subsequent grant of the inter
parte Mareva injunction order on 26 April 2021 is the subject of this appeal.

[6] The main ground of appeal to discharge the ex parte order was that the
D affidavit in support was not properly affirmed as it was attested before a Justice
of the Peace (JP). Apart from that ground, counsel for the appellant also raised
some procedural grounds. The application for ex parte injunction and the
unsealed copy of the order that were served on the appellant on 12 January
2021 did not have a return date. The sealed copy of the ex parte Mareva
E injunction order was not served within seven days of the order. The
above-mentioned grounds were also raised in the form of preliminary
objections to the inter parte application of the respondent for the grant of the
Mareva injunction.

F DECISION OF HIGH COURT

[7] The application of the appellant to discharge the ex parte order and the
inter parte application of the respondent for the Mareva injunction were all
heard together. It must be noted that the inter parte application of the
G respondent for an ad interim application prior to the hearing of the setting
aside application was supported by a fresh affidavit that was attested by a
commissioner of oaths. The affidavit in reply of the respondent to the affidavit
in support of the appellant to set aside the ex parte order was also attested by a
commissioner for oaths. The learned judicial commissioner dismissed the
H application of the appellant to discharge the ex parte order and granted the
inter parte application of the respondent for the grant of the Mareva injunction
on 26 April 2021.

[8] His Lordship held that a JP in Sabah is empowered by law to attest

I affidavits. Even if it were otherwise, he said that the defect is curable under O 2
r 1 and is therefore admissible under O 41 r 4 of the Rules of Court 2012. In
respect of the absence of a return date, the learned judicial commissioner noted
that the initial date that was given by the court was converted to an e-review
date due to the imposition of the Movement Control Order (MCO) in 2021.
272 Malayan Law Journal [2023] 4 MLJ

He dismissed the objection of the appellant as no prejudice was occasioned. In A

respect of the two-day delay in the service of the sealed ex parte order, the
learned judicial commissioner found that it was due to the imposition of the
MCO and therefore dismissed it after citing O 1A of the Rules of Court 2012.

[9] In respect of the merits of the Mareva injunction application, the learned B
judicial commissioner found that the appellant has a good arguable case and
that the appellant has assets within the jurisdiction.

[10] His Lordship also found that the terms of the ex parte order were not C
onerous or oppressive as there was evidence that the respondent would have
sold her share of Sunlight Aqua Sdn Bhd for RM30m to a potential buyer had
the ‘Pitas Project’ not been diverted to other companies by the appellant.

ISSUES
D
[11] The notice of appeal was directed against the decision of the learned
judicial commissioner to dismiss the application to discharge the ex parte
injunction order and at the same time to grant the inter parte Mareva
injunction order. The learned judicial commissioner dismissed the application E
to set aside the ex parte order for the reasons that we summarized earlier. Before
us, counsel for the respondent also argued that since the ex parte injunction
order had lapsed and fresh affidavits had been sworn before a commissioner for
oaths for the ad interim injunction application and to oppose the setting aside
application, the appeal is academic. Thus, the issues in this appeal are as F
follows:
(a) the main issue whether a JP in Sabah can affirm affidavits;
(b) whether the appeal is academic?
(c) whether s 11 of the Courts of Judicature Act 1964 and O 41 rr 7 and 8 of G
the Rules of Court 2012 were complied with in this case;
(d) whether such an affidavit is wholly defective; and
(e) whether the requirements for a Mareva injunction were satisfied?
H
Whether a JP in Sabah can attest affidavits?

[12] The learned judicial commissioner held that a JP can attest affidavits for
general use in the Sabah courts. We observe that this decision is without any
precedent. Thus far, the only court decision that approved the use of an I
affidavit attested by a JP in Sabah concerned a bankruptcy matter. The High
Court and the Federal Court in that case relied on a provision of the then
Bankruptcy Act 1967 to validate the said affidavit. We shall briefly discuss the
said decision and reasons of the learned judicial commissioner to hold that an
 Cedric Wong King Ti v Shim Yen Lin
[2023] 4 MLJ (Ravinthran JCA) 273

A affidavit attested by a JP in Sabah can be used for general court proceedings.

[13] In Re Hong Kim Sime, ex p Malayan Banking Bhd [1994] 3 MLJ

261; [1994] 3 CLJ 646, the issue at hand was whether a Sabah JP was legally
competent to attest an affidavit used to verify a creditor’s petition. Ian Chin J
B firstly looked at the law that authorised affirmation of affidavits in the High
Court which is s 11 of the Courts of Judicature Act 1964 (‘the CJA 1964’). It
reads as follows:
(1) Any Registrar and any person appointed by the Chief Justice to be a
C Commissioner for Oaths (subject to any limitations expressed in his appointment)
may do all or any of the following things:
(a) receive acknowledgments of married women in all cases where
acknowledgments are required by law to be taken before a public officer;
(b) receive acknowledgments of recognizances of bail and bail-bonds;
D
(c) administer oaths for —
(i) the justification for bail;
(ii) taking any affidavit or affirmation;
E (iii) receiving and taking the answer, plea, demurrer, disclaimer,
allegation or examination of any party or parties to any action;
(iv) the examination of any witnesses upon any interrogatories or de
bene esse or in chief or on any other occasions;

F (v) swearing executors and administrators; and

(vi) swearing persons in any action, matter or proceeding, which is
pending or about to be instituted in any court in any of its
jurisdictions; and
(d) take and receive statutory declarations.
G
(2) The Chief Justice may make rules for the appointment, conduct, fees to be
charged by and for all things appertaining to Commissioners for Oaths and persons
appointed by him under subsection (1).

H [14] His Lordship observed that ‘Registrar’ would include deputies and
assistants. This observation is supported by s 3 of the Courts of Judicature Act
1964. The other category of persons is a commissioner of oaths. Thus, His
Lordship concluded that a JP is not authorised under s 11 to attest an affidavit.
However, s 128(a) of the Bankruptcy Act 1967 (now Insolvency Act 1967)
I authorised a magistrate to attest an affidavit for use in the bankruptcy court in
Malaysia. His Lordship then considered s 4(1) of the Justices of the Peace
Ordinance 1961 of Sabah which reads as follows:
Every Justice of the Peace shall be authorised and is hereby required to administer
oaths and affirmations, take and receive statutory declarations and attest signatures
274 Malayan Law Journal [2023] 4 MLJ

under any written law or when otherwise required to do so as though such Justice of A
the Peace were a Magistrate.

[15] It was pointed out by the learned judicial commissioner in the instant
case that the Justices of the Peace Ordinance 1961 of Sabah was repealed by the
time of the decision in the Hong Kim Sime case. However, we note that Ian B
Chin J also considered reg 2 of the Subordinate Courts (Powers of Justices of
the Peace) (Sabah) Regulations 1990 which was made pursuant to s 99(2) of
the Subordinate Courts Act 1948 (‘the SCA 1948’). Regulation 2 is similarly
worded as s 4(1) of the Justices of the Peace Ordinance 1961. It reads as follows: C
2 Every Justice of the Peace shall be authorised and is required:
(a) to administer oaths and affirmations;
(b) to make and receive statutory declarations; and
D
(c) to attest signatures,
under any written law or when otherwise required to do so as though such Justice of
the Peace were a Second Class Magistrate. (Emphasis added.)

[16] Ian Chin J then concluded that under the above-mentioned provisions, E
a JP in Sabah is deemed to be a second class magistrate and therefore can attest
an affidavit for the purpose of bankruptcy proceedings. The Court of Appeal
upheld the decision of Ian Chin J. The Federal Court also upheld the said
decision. The Federal Court judgment is reported as Re Hong Kim Sime, ex p
Malayan Banking Bhd [1994] 3 MLJ 261; [1994] 3 CLJ 646. Chong Siew Fai F
CJ at the Federal Court held that a JP in Sabah can administer oaths and
affirmations as he or she were a second class magistrate under s 99(2) of the
SCA 1948 and reg 2 of the Subordinate Courts (Powers of Justices of the Peace)
(Sabah) Regulations 1990. Therefore, under s 128(a) of the Bankruptcy Act G
1967, a JP is competent to attest an affidavit as a second class magistrate.

[17] The learned judicial commissioner in the instant case noted that the
Federal Court did not say that a JP cannot attest an affidavit in a
non-bankruptcy case. His Lordship then proceeded to hold that a JP in Sabah H
can do so for the following reasons. Under the Fourth Schedule of the SCA
1948, an assistant registrar of the subordinate courts is an ex officio second class
magistrate. Under s 2 of the SCA 1948, ‘registrar’ includes an ‘assistant
registrar’ of the subordinate courts. His Lordship then considered the general
law that authorises the taking of affidavits which is s 11 of the Courts of I
Judicature Act 1964. It authorises a ‘Registrar’ to attest an affidavit. Therefore,
the learned judicial commissioner reasoned that a JP in Sabah is empowered to
attest affidavits for ‘any legal proceedings in the subordinate courts and the
High Court’.
 Cedric Wong King Ti v Shim Yen Lin
[2023] 4 MLJ (Ravinthran JCA) 275

A Section 11 of the CJA 1964

[18] We note that the only general provision that refers to the taking of
affidavits is s 11 of the CJA 1964. There is no general provision in the Rules of
Court 2012 or its predecessor Rules of High Court 1980 or the Subordinate
B Court Rules 1980 that governs the taking of affidavits. There is no general
provision in the SCA 1948 in respect of the attestation of affidavits either. That
is the reason for the reference to s 11 of the Courts of Judicature Act 1964 in the
Hong Kim Sime case by the High Court and the Federal Court. In the Hong
Kim Sime case, as we pointed out earlier, both the Federal Court and High
C
Court had also regard to another provision, ie s 128 of the Bankruptcy Act
1967 that permits attestation of an affidavit by a Magistrate. This is the reason,
the taking of an affidavit by a JP in Sabah who is deemed to be a second class
magistrate was held to be valid. Likewise, there may well be a provision in other
D laws that permits the taking of an affidavit by a magistrate. One such law is
s 424 of the Criminal Procedure Code which provides that an affidavit used in
criminal courts may be sworn before a magistrate.

[19] Coming back to the facts of the instant case, s 11 of the Courts of
E Judicature Act 1964 was cited by the learned judicial commissioner. His
Lordship found that a JP in Sabah has the power to attest an affidavit under it
for the reason he is deemed to be a second class magistrate. However, we are of
the view that His Lordship erred in holding that the JP can avail this provision
to attest an affidavit for general use in civil proceedings for two reasons.
F
[20] His Lordship held that since an assistant registrar of the subordinate
courts is an ex officio second class magistrate, a JP is also an assistant registrar.
In other words, His Lordship conflated the office of a second class magistrate
with that of the assistant registrar. We should think that he erred in doing so.
G The Fourth Schedule of the SCA 1948 enacts that some public officers are, by
virtue of office, deemed to be first class or second magistrates. For example, a
State Secretary is an ex officio first class magistrate and an assistant registrar of
the subordinate court is an ex officio second class magistrate. But the schedule
does not state the converse, ie it does not deem that a second class magistrate is
H also an ‘assistant registrar’. Therefore, it is wrong to say that because an assistant
registrar is an ex officio second class magistrate, the latter is also an assistant
registrar. Otherwise, a first class magistrate would also be deemed to be a State
Secretary merely because the latter is an ex officio first class magistrate. The
public officers listed in the Fourth Schedule are ex officio magistrates only
I because of a specific provision to that effect in the law.

[21] However, we would hasten to add that unlike a second class magistrate,
a first class magistrate is also a ‘Registrar’ because of s 10(4) of the Courts of
Judicature Act 1964. The said provision enacts that first class magistrates are
276 Malayan Law Journal [2023] 4 MLJ

also senior assistant registrars of the High Court if its registry is within the local A
limits of their jurisdiction.

[22] In our view, the second error of the learned judicial commissioner is
this. His Lordship had regard to the definition of ‘Registrar’ in s 2 of the SCA
1948 which includes an ‘assistant registrar’. However, the meaning of B
‘Registrar’ in s 11 of the Courts of Judicature Act 1964 should be discerned
from the Act itself. The Act limits the meaning to all ranks of Registrars of the
Superior Courts only. There is no reference to the Registrars of Subordinate
Courts. In the premises, even if a JP is deemed to be an assistant registrar of the
C
subordinate courts, he or she cannot come within the ambit of s 11(a) of the
Courts of Judicature Act 1964. But as we said earlier, a JP in Sabah is deemed
to be a second class magistrate for the limited purpose of reg 2 of the
Subordinate Courts (Powers of Justices of the Peace) (Sabah) Regulations 1990
only. There is no provision in any law that deems that a JP is also an assistant
registrar of the subordinate courts. D

[23] For all the above reasons, we are of the view that a JP in Sabah who is
deemed to be second class magistrate cannot attest affidavits for general use in
civil proceedings unless specially authorised by law such as s 128 of the E
Insolvency Act 1967.

[24] Counsel for the respondent urged us to hold that the attestation of an
affidavit in support of the ex parte application by JP is a mere irregularity that
cannot invalidate evidence. He cited s 9 of the Sabah Oaths Ordinance (Cap F
89) that states as follows:
No omission to take any oath or make any affirmation, no substitution of any one
for any other of them, and no irregularity whatever in the form in which any one of
them is administered shall invalidate any proceeding or render inadmissible any
evidence whatever in or in respect of which such omission, substitution or G
irregularity took place, or shall affect the obligation of a witness to state the truth.

[25] In our view, the said ordinance cannot apply to affidavits as it only refers
to oaths and affirmations administered to a witness in a judicial proceeding.
Secondly, the defect question is not a mere irregularity in form as the attestation H
was made before an unauthorised person. For the same reason, we find it
difficult to agree with counsel for the respondent that O 2 of the Rules of Court
2012 can cure the defect. However, we find that the part of the appeal against
the grant of the ex parte order is academic. We shall address this issue below.
I
Whether appeal against ex parte order is academic?

[26] Counsel for the respondent argued that regardless whether the affidavit
to support the ex parte Mareva injunction is defective, the instant appeal
 Cedric Wong King Ti v Shim Yen Lin
[2023] 4 MLJ (Ravinthran JCA) 277

A against the grant of it is academic and therefore the appeal should be dismissed.
The reason for this argument is that the ex parte Mareva injunction in question
has lapsed and a fresh inter parte injunction was granted. We find merit in this
argument for the following reasons.

B [27] The ex parte Mareva injunction which is the subject of the instant
appeal was granted on 11 January 2021. Order 29 r 1(2B) provides that unless
earlier revoked or set aside, an ex parte interim injunction shall automatically
lapse 21 days from the date it was granted. In the premises, the ex parte order
lapsed on 1 February 2021. On the same date, the respondent applied for an ad
C
interim injunction on inter parte basis. The application was supported by a
fresh affidavit sworn before a commissioner of oaths on 29 January 2021. An ad
interim Mareva injunction was granted on 1 February 2021. The Mareva
injunction was granted on 26 April 2021.
D
[28] As correctly pointed out by counsel for the respondent, the ex parte
Mareva injunction order and the subsequent inter parte ad interim Mareva
injunction and inter parte Mareva injunction orders are distinct and separate
orders. In RIH Services (M) Sdn Bhd v Tanjung Tuan Hotel Sdn Bhd [2002]
E 3 MLJ 1; [2002] 3 CLJ 83, this court held that an ad interim order made after
expiry of the ex parte injunction order is a fresh order and not an extension of
the ex parte order. It follows that since the ad interim Mareva injunction order
is a separate order and not an extension of the previous ex parte order, it is not
affected by any defect in the latter order. Similarly, the Mareva injunction
F granted after full argument is also a fresh order. In the premises, the appeal
against the ex parte Mareva injunction order is academic and, on this ground,
we dismiss it.

[29] We are mindful that in the RIH Sevices case, it was stated that the court
G could still consider whether a lapsed ex parte injunction order should have been
made in the first place not for the purpose of setting it aside but to determine
whether damages that should be awarded. An inquiry as to damages would be
ordered if there was inequitable conduct on the part of the plaintiff such as
non-disclosure of material facts or misrepresentation in the application for the
H ex parte injunction. However, in the instant case, the main complaint is based
on a technicality, ie that the first affidavit in support was sworn before a JP. For
this reason, we see no reason to order any inquiry as to damages in respect of the
lapsed ex parte order.

I [30] Before we proceed to consider the appeal against the inter parte Mareva
injunction order, for sake of completeness, we observe that before the learned
judicial commissioner, some procedural points were argued by the counsel for
the appellant. It was argued that the ex parte Mareva injunction order that was
served on the appellant’s solicitors was not endorsed with a return date.
278 Malayan Law Journal [2023] 4 MLJ

Furthermore, the sealed copy of the ex parte Mareva injunction order dated A
11 January 2021 was not served within seven days in accordance with O 29
r 1(2BA). The learned judicial commissioner dismissed the above-mentioned
issues raised in the form of preliminary objections and gave detailed reasons.
We find it unnecessary to address the above issues at any length as the appellant
did not raise them in the memorandum of appeal. In any event, we agree with B
the learned judicial commissioner who accepted the explanation for
non-compliance and delay and found that no prejudice was occasioned.

[31] Before us, the issue of delay in applying for the Mareva injunction as the
C
judgment on liability was pronounced in 2015 was also raised. This ground of
appeal was pleaded in the memorandum of appeal. This issue does not appear
to have been addressed by the learned judicial commissioner. In the instant
case, it is apparent that the respondent was alerted to the risk of dissipation
when she became aware of the intention of the appellant to sell 80% of his D
shares in Sunlight Seafood in December of 2020. The ex parte application was
made in January of 2021. Thus, we find no merit in this ground of appeal.

Appeal against inter parte Mareva injunction order

E
[32] Insofar as the inter parte order is concerned, we are of the view that the
respondent can rely on the affidavits that were attested before the
commissioner for oaths. These affidavits refer to the contents of the earlier
affidavit sworn before the JP. However, as these affidavits were properly
attested, we see no reason why the respondent could not have relied on it. In F
any event, the basic fact that judgment against the appellant on liability had
been granted is not disputed. And in para 32 of the affidavit in opposition, the
appellant has agreed that he has entered into a sale and purchase agreement to
transfer his shares in Sunlight Seafood Sabah. In the premises, the learned
judicial commissioner had sufficient admissible evidence before him to G
consider whether there was an arguable case and whether there was risk of
dissipation.

[33] As we said earlier, the learned judicial commissioner found that the test
for a Mareva injunction prayed had been satisfied by the respondent. The H
respondent had obtained judgment against the appellant and all appeals
against the said decision had been dismissed. Therefore, a good arguable case
had been established by the respondent. In respect of the issue whether there
were assets within the jurisdiction, His Lordship held that the respondent had
disclosed sufficient affidavit evidence to prove that fact. In respect of the crucial I
issue of risk of dissipation of assets, His Lordship had regard to the fact that
Justice Gabriel Gumis had earlier found as a fact in 2015 that the appellant
fraudulently concealed the fact that he set up Sunlight Seafood to replace
Sunlight Aqua as the company to enter into a joint venture with a subsidiary of
 Cedric Wong King Ti v Shim Yen Lin
[2023] 4 MLJ (Ravinthran JCA) 279

A Sabah Foundation. For this reason, His Lordship held that the risk of
dissipation could be inferred.

[34] The learned judicial commissioner held as follows in respect of the risk
of dissipation of assets:
B
Where there has been a breach of contract and dishonesty, the courts were inclined
to find that there was a real risk of dissipation. Bumi Armada Navigation Sdn Bhd
v Mirza Marine Sdn Bhd [2015] MLJU 953; [2015] 5 CLJ 652 and Rosnah bt
Kamarul Zaman & Ors v Extreme Chocolate Sdn Bhd & Anor [2011] 7 MLJ 249;
C [2010] 1 LNS 113 are both cases where the High Court found that as a result of the
breach of contract and breach of payment terms of the settlement agreement
respectively, the breaching party was held to have lacked honesty and probity. For
that reason, the risk of dissipation could be inferred.
… His Lordship judicial commissioner Gabriel Gumis (as he then was) in his
D grounds of judgment dated 30 December 2015 found that the defendant had
breached the contract and had fraudulently concealed the fact that he incorporated
Sunlight Seafood to replace Sunlight Aqua as the company to enter into a joint
venture with Inno Resource to develop the Pitas Project.

E [35] For the same reasons, we do not disagree with the finding of the learned
judicial commissioner that there is a real risk of dissipation of assets by the
appellant before the court can assess the damages payable to the respondent.
We also note that in the memorandum of appeal, the appellant did not raise
any ground of appeal in respect of the finding of the learned judicial
F commissioner that the respondent satisfied the test for the grant of a Mareva
injunction.

[36] The appellant pleaded in the memorandum of appeal that the terms of
the Mareva injunction order were ‘oppressive and onerous and far too wide as
G well as ambiguous in its terms’. We find no merit in this ground of appeal for
the following reasons. In Motor Sports International Ltd (servants or agents at
Federal Territory of Labuan) & Ors v Delcont (M) Sdn Bhd [1996] 2 MLJ
605; [1996] 3 CLJ 483, this court held that where a plaintiff claims an exact
sum, a Mareva injunction that restrains the defendant from dissipating his asset
H must specify an upper limit and that if does not, the order would be too wide
and oppressive. In the instant case, the upper limit specified in the Mareva
injunction order in respect of the value of assets that must not be removed from
Malaysia is RM30m. This figure was not fixed arbitrarily by the learned judicial
commissioner in the instant case as the High Court when granting judgment
I on liability in 2015 made a finding that one Nobel Pang had agreed to buy the
respondent’s shares in Sunlight Aqua for RM30m. We are also of the view that
the ancillary order for disclosure of information in para 4 of the ex parte order
that was adopted in the inter parte order is not too wide or oppressive. The
disclosure order was prayed in aid of the Mareva injunction as without it, the
280 Malayan Law Journal [2023] 4 MLJ

respondent would have no knowledge of the assets of the appellant. Any A

dissipation of the assets of the appellant would render the judgment of the
High Court that was rendered in favour of the respondent in 2015 nugatory.
However, we shall vary para 4 as there is no upper limit specified in respect of
disclosure of assets. In the premises, we shall vary the inter parte order dated
26 April 2021 to read that the extent of the disclosure by the appellant of his B
assets be limited to unencumbered assets to the tune of RM30m only.

CONCLUSION

[37] In summary, whilst we agree with counsel for the appellant that a JP in C
Sabah is not authorised to attest an affidavit for use in general civil proceedings,
by operation of law, the ex parte order in question has automatically lapsed.
Therefore, the appeal against the grant of it is academic. We find it unnecessary
to consider ordering an inquiry into damages because there is plainly no
inequitable conduct on the part of the respondent in applying for the ex parte D
order. The only error committed was technical, ie, it was assumed based on the
Hong Kim Sime case, a JP in Sabah could attest the affidavit in support. In
respect of the inter parte Mareva injunction order, we were satisfied that the
learned judicial commissioner had correctly found that the test for the grant of
it had been satisfied. E

[38] For all the above reasons, we dismissed the appeal subject to the
variation that disclosure of assets be limited to unencumbered assets to the tune
RM30m only. We granted costs of RM10,000 to the respondent subject to
payment of allocatur. F

Appeal dismissed with costs of RM10,000 to respondent subject to payment of

allocatur.

Reported by Dzulqarnain Ab Fatar G