A liquidator's obligation to prepare financial statements and compliance with listing requirements rests with the company's directors, not the liquidator, under statutory provisions.

JUDGMENT

Lau Bee Lan JCA:

Introduction

[1] This is an appeal from the appellant against the decision of the High Court dated 15 June 2020 allowing the respondent's judicial review application primarily for the following orders:

(a) a certiorari order to quash the appellant's Listing Committee's decision dated 18 December 2018 ('LC's Decision') and Appeals Committee's decision dated 6 May 2019 ('AC's Decision'); and

(b) a mandamus order to direct the appellant to issue an announcement that the public reprimand imposed against the respondent by the appellant be nullified and declared invalid within 14 days from the date of the Court's order. This order was upheld by the AC.

[2] Having considered the respective parties' written submissions and the oral arguments and the relevant Records of Appeal, we had dismissed the appeal with costs. These are our reasons in respect of the said decision.

Background Facts

[3] The facts relevant to this appeal are as follows:

(a) The appellant is the regulator of the Malaysian capital market and maintains, among others, the Main Market and ACE Market. Section 11 of the Capital Markets and Securities Act 2007 (Act 671) ('CMSA') empowers the appellant to put in place a comprehensive and effective regulatory and supervisory framework to regulate the market and its participants, among others, through the issuance of the Listing Requirements ('LR') for various markets including the ACE LR.

(b) Section 354(2)(j), CMSA provides for persons to whom the LR applies to comply with and observe the same. Rule 2.05, ACE LR provides that (i) a listed issuer by virtue of its admission to the Official List is bound by the ACE LR; and (ii) a listed issuer, its directors, officers, advisers, a Controlling Person (as defined under the ACE LR) which includes a liquidator and any other person to whom the ACE LR is directed must comply with the ACE LR for so long as the listed issuer or its securities remain listed on the Official List, even during the period when the listed issuer's securities are suspended from trading.

(c) Paragraph 2.04, ACE LR sets out the principles upon which the ACE LR are based, which includes the requirement that investors and the public will be kept fully informed by the listed issuers of all facts or information that might affect their interests and in particular, full, accurate and timely disclosure will be made of any information which may reasonably be expected to have a material effect on the price, value or market activity in the securities of listed issuers.

(d) It is settled law that the LR issued pursuant to the CMSA "has statutory force in the form of rules containing obligations and requiring compliance by participating organisations pursuant to the CMSA" as held by this Court in Tan Sri Dato ' Lamin Mohd Yunus v. Bursa Malaysia Securities Berhad, [2012] 3 CLJ 837. (See also Tengku Dato' Kamal Ibni Sultan Sir Abu Bakar & Ors v. Bursa Malaysia Securities Berhad; [2013] 1 MLJ 158; [2012] 8 CLJ 678).

(e) Wintoni is a public listed company listed on the appellant and was under the supervision of the appellant pursuant to the ACE LR and the CMSA as alluded to above.

(f) The respondent was appointed as liquidator pursuant to a Kuala Lumpur High Court Winding-Up Order dated 17 August 2017. Proceedings were commenced shortly thereafter to challenge the Winding-Up Order.

(g) On 20 September 2017, the respondent provided an undertaking to the appellant in the form of a Letter of Undertaking ('LOU') bearing the same date with the following contents:

"Compliance with ACE Market Listing Requirements

I, Mohd Afizan Bin Husain I/C No 670821-03-5159, am a Liquidator of Wintoni Group Berhad (In Liquidation) ("Company") which has been admitted to and is currently listed on the Official List of Bursa Malaysia Securities Berhad ("Bursa Securities").

In consideration of Bursa Securities allowing the continued listing of the Company on the Official List, I, UNDERTAKE AND AGREE to comply with Bursa Securities ACE Mark