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How to (not) steal a building
Sepandai-pandai tupai melompat, akhirnya jatuh ke tanah juga.
A clumsy translation of this lovely Malay proverb would read: “As dexterously as the squirrel leaps, it will eventually come crashing down.”
It essentially means that you can’t continue to get-away with nonsensical conduct; it will eventually catch up to you.
An appropriate aphorism for the facts narrated below.
The brief facts of Datuk Seri Maglin v Tan Sri Kayveas
myPPP was a political party. It was established pre-independence (1953).
myPPP owned a building called Wisma myPPP.
The registered owner of Wisma myPPP was Bintang Iradat (M) Sdn Bhd (BI). All 100,000 shares in BI and the entirety of Wisma myPPP were held on trust for myPPP. This was recognised (in previous proceedings) by the Federal Court ([2014] 4 MLJ 64).
In 2018 (lead-up to GE13), there was a leadership tussle. 2 camps emerged. One supported Datuk Seri Maglin as President and the other, Tan Sri Kayveas.
The leadership tussle resulted in myPPP being de-registered by the Registrar of Societies (ROS) on 14.01.2019.
The surreptitious proceedings
Unbeknownst to DS Maglin and his team, TS Kayveas’s “camp” had initiated surreptitious proceedings in the Kuala Lumpur High Court (in November 2018). The proceedings were mendacious. They were collusive and had been initiated solely to record an unlawful consent judgment.
The ROS’s decision to de-register caught everyone by surprise (including the conspirators).
Undeterred, the conspirators immediately approached the KLHC and attempted to lodge a consent judgment. On 15.01.2019, they were rebuffed by Darryl Goon J (as His Lordship then was). They returned on 16.01.2019 and after some wrangling, lodged the fraudulent consent judgment before His Lordship. The CJ was recorded 2 days after myPPP had been de-registered.
The conspirators kept myPPP’s de-registration from the Justice Darryl. They also kept the 2014 Federal Court finding from the High Court. To exacerbate matters, one of the conspirators was also a terminated member (from as far back as 2015). This too, was wilfully hidden.
The fraudulent CJ is put into effect
The Consent Judgment dated 16.01.2019 (CJ) was used to unlawfully transfer the shares in BI. All 100,000 shares (in BI) were transferred to Kayveas Holdings Sdn Bhd, which was under the control of TS Kayveas.
TS Kayveas could not help himself. Via his Instagram account, he vaunted his “achievements”. Specifically, he stated that “All these agendums were activated the very instant the party got deregisterd” (sic).
In a nutshell, the fraudulent CJ was used to steal a building.
The High Court proceedings
We acted for the Plaintiffs (who were the Supreme Council members of myPPP). After a 13-day trial, the High Court on 30.03.2022 made a specific finding that 3 individuals (TS Kayveas, Dato’ Ly Kim Cheong and Datuk Chandrakumanan) had entered into an unlawful means conspiracy to record the CJ.
The High Court set-aside the CJ and declared that the 100,000 shares of BI and Wisma myPPP were to be returned to myPPP ([2023] 7 MLJ 512).
There were numerous interlocutories including:
a. An ex-parte injunction (which was initially disputed but subsequently conceded-to, on the decision date);
b. An application to strike (which involved a legal discussion on the locus standi of members once a Party is de-registered) ([2020] 1 LNS 1053, affirmed in Civil Appeals No.: W-02(IM)NCC-125-01/2020, W-02(IM)NCC-181-01/2020 and W-02(IM)NCC-183-01/2020);
d. 4 applications to stay proceedings;
e. An application to amend the Defendants' Defence;
g. A last-minute application to discharge (which was withdrawn on the day of trial);
h. An application by 30 individuals to intervene;
i. Supervening proceedings in the Alor Setar HC, the KL Judicial Review Court and the Seremban HC, all of which necessitated us to intervene and strike (and which formed the basis of the quia timet injunction);
j. An application to set-aside a subpoena; and
k. At least 6 appeals;
l. Applications for stay of execution of the Court of Appeal;
m. Bankruptcy proceedings (as against the Defendants);
I am pleased to note that we succeeded in every application and appeal (and yes, I mean every application and appeal).
The Court of Appeal
Dissatisfied with the High Court’s findings, TS Kayveas and his fellow conspirators lodged an appeal.
On 13.02.2023, the CA dismissed the appeal. The CA issued its Grounds on 27.07.2023. I thoroughly enjoyed reading the CA’s Grounds. Key takeaways include these findings:
[48] Upon being served with the writ and statement of claim, Dato’ Ly realized there were some amendments need to be done to the statement of claim. He then instructed Dato’ Chandrakumanan (the plaintiff) to make the amendments. In this regard, we entirely agree with the plaintiffs’ submission that probably this is the first time in history that the defendant advised and instructed the plaintiff to amend his pleading.
[80] For the sake of completeness, we will proceed to show that there is absolutely no merit whatsoever in this appeal.
[85] We find the learned High Court Judge had rightly decided that illegality was proven and held the consent judgment was illegal, unlawful, fraud on the court and must be set aside. We fully agree with him.
The CA set-out the law on fraud and conspiracy (paras. 86-89) and on the tort of abuse of process (paras. 90-91) and concluded:
[91] Given the facts and circumstances of Suit 796, it is clear that the said suit and the procurement of the consent judgment was for the purpose of causing harm and losses to myPPP. Suit 796 was an abuse of the court process as it was used to legitimize the unlawful transfer of shares and Wisma myPPP which belongs to the Party. Since it was proven that Suit 796 and the consent judgment obtained therein is an abuse of court process, the learned High Court Judge was right in setting aside the consent judgment on this ground as well.
The Federal Court
The Appellants have since lodged an application for leave to appeal to the Federal Court. The same was heard and dismissed on 31.10.2023 [(Federal Court Motion No.: 08(f)-59-03/2023(W)]. With this, the findings made by both the High Court and the Court of Appeal remain wholly intact.
The current status of myPPP
DS Maglin lodged an appeal against the de-registration with the Home Minister. On 11.04.2023, the Home Minister allowed his appeal.
With myPPP a going concern, the Party moved the Court to have the rights under the Judgment dated 30.03.2022 (which were previously vested in the DGI) vested in itself (myPPP). The DGI objected to our application (despite having laid dormant throughout the HC proceedings).
The High Court agreed with us and granted a vesting order in favour of myPPP. The Party has since re-taken possession of its Headquarters.
After 5 long years of serious litigation, the Party has finally regained its lawful headquarters, in lawful accordance with the Judgments of the High Court and the Court of Appeal.
Key takeaways
I must admit that these proceedings granted me the ability to learn aplenty. The legal discussion on the status of a society upon de-registration was exhilarating, to say the least.
The law surrounding societies and political parties is truly fascinating and I was grateful for the opportunity to discern the nuts and bolts.
In Mario Puzo’s Godfather, I believe it was Don Corleone who makes mention to Tom Hagen that “A lawyer with a briefcase can steal more than a hundred men with guns”. This case brought this home (fortunately, sans the Sicilian Mafia, a bullet-riddled Sonny Corleone and exploding vehicles).
GAVIN JAYAPAL
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