Gopal Sri Ram JCA:

The facts and background relevant to this case have already been set out in the judgment of this Court in an earlier appeal by the same appellant. See, Tsoi Ping Kwan v. Medan Juta Sdn. Bhd. & Anor. [1996] 3 MLJ 367 ('Medan Juta No. 1'). We do not propose to engage in a repetition of them. Suffice to say that the earlier appeal concerned the High Court's decision to remove the caveats entered by the instant appellant while the present case concerns the refusal by the same Court to accede to the appellant's application for a Mareva injunction. This Court, in the course of its judgment in Medan Juta No. 1, adverted to the present appeal. See, [1996] 3 MLJ at p. 383 .

It is conceded by the respondents (the second respondent being Medan Juta Sdn. Bhd.) that the appellant had made out an arguable case for the grant of a Mareva. There are several issues upon which the disputants before us stand in disagreement. However, we find it necessary to deal with only two of them. The first has to do with the question whether the appellant has established that there is a serious risk or danger that the respondents will dissipate their assets to avoid meeting any judgment that may be obtained against them. The second relates to the question where the balance of convenience or, more appropriately, the balance of justice lies. In other words, whether justice favours the grant of a Mareva or its refusal. Before we address ourselves to the resolution of this question, there are some preliminary matters that call for attention.

In addition to the appeal, there were before us three motions. Two of these were taken out by the appellant. The first was to amend the notice of appeal; the second, sought to admit, as further evidence, the affidavit of the first respondent filed in this Court in Medan Juta No. 1 pursuant to a direction made therein. Both these motions were unopposed and the orders sought in each of them were granted.

The third motion was taken out by the first respondent seeking to admit three documents by way of further evidence to show re-payment. It was opposed by the appellant on the ground that the test laid down in Ladd v. Marshall [1954] 3 All ER 745 had not been met. Ladd v. Marshall (supra) was referred to and applied by the former Federal Court in Lau Foo Sun V. Government Of Malaysia [1969] where Suffian FJ (as he then was) stated the requirements in this way:

To justify the reception of further evidence three conditions must be fulfilled:

First, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial;

Second, the evidence must be such that, if given, it would probably have an important influence on the result of the case, although it need not be decisive;

Third, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible although it need not be incontrovertible.

Now, it must be borne in mind that the Ladd v. Marshall test applies to cases where further evidence is sought to be admitted at the appellate level after a trial on merits. It does not apply to interlocutory matters. This is made clear by the judgment of Gunn Chit Tuan SCJ (as he then was) in William Jacks & Co. (m) Sdn. Bhd. V. Chemquip (m) Sdn. Bhd. & Anor [1991] 1 CLJ 492 (Rep), where, when delivering the unanimous decision of the Supreme Court, he said:

Firstly in so far as the said notice of motion was concerned, we considered that the conditions laid down in Ladd v. Marshall (supra) regarding the strict approach for fresh evidence to be admitted on appeal only applies where there has been a trial or hearing on the merits. But where there has not been a trial or hearing on the merits as in this case, the Ladd v. Marshall conditions do not apply.

But this Court has in any case a full and general discretion whether to admit fresh evidence ...

The present appeal comes well within the purview of the exception to the Ladd v. Mar