The term 'shall' in AMLR Rule 16.11(2) is interpreted as directory, granting Bursa discretion in de-listing following a winding-up order, rather than imposing a mandatory duty.

Nallini Pathmanathan FCJ:

[1] This entire appeal turns on what is perhaps one of the most misused words in all legal language namely "shall". Here it is the use of the word "shall" in r 16.11(2) of the ACE [Access, Certainty, Efficiency] Market Listing Requirements ('AMLR' or 'Rules') that has given rise to the present conundrum before us.

[2] The salient facts are not in dispute and are set out below.

Background Facts & Decisions Of The Courts Below

[3] On 17 August 2017, the KL High Court wound up Wintoni Group Berhad ('Wintoni'), a listed corporation on the ACE Market of the appellant, Bursa Malaysia Securities Berhad ('Bursa'). The respondent, Mohd Afrizan Husain ('Afrizan') was appointed the liquidator of Wintoni in the winding up order.

[4] On 20 September 2017, Afrizan provided a letter of undertaking ('LOU') to Bursa pursuant to r 2.22 of the ACE [Access, Certainty, Efficiency] Market Listing Requirements ('AMLR') to the effect that in consideration of Bursa allowing the continued listing of Wintoni on the Official List, he would comply with the AMLR (including any amendment) applicable to him.

[5] However, on 31 October 2017, Afrizan issued a General Announcement stating that he would not prepare Wintoni's annual report that includes the annual audited financial statements together with the auditors' and directors' reports for the financial year ended 31 December 2016 and any financial statements for any subsequent financial periods.

[6] On 13 March 2018, Bursa conducted an inquiry in relation to the delay in announcement of Wintoni's quarterly reports for the financial period ended 30 September 2017 and 31 December 2017 (due on 30 November 2017 and 28 February 2018 respectively).

[7] Through emails on 15 March 2018 and 21 March 2018, Afrizan took the stand that as Wintoni had ceased operations, he would not prepare the relevant financial statements. He had not delegated compliance with the AMLR to the directors and did not arrange for the directors and/or management or any agent to comply with the AMLR.

[8] On 10 October 2018, Bursa issued a requisite notice together with a Listing Committee (LC) memo, giving notice to Afrizan on the proposed enforcement action against him and specifying the nature and particulars of his breach of the AMLR. In his response dated 9 November 2018, Afrizan reiterated his earlier stance.

[9] On 15 November 2018, the LC deliberated on the facts and evidence presented to them, including Afrizan's representations and found that he had breached the AMLR. The LC imposed a public reprimand on him and directed him to do the necessary to ensure announcement/issuance of the Financial Statements [collectively referring to annual reports for the financial year ended 31 December 2016 and 31 December 2017 and the quarterly reports for the financial period ended 30 September 2017, 31 December 2017, 31 March 2018 and 30 June 2018] and any other outstanding financial statements, within 3 months from the date of notification of the LC's decision.

[10] On 11 January 2019, Mohd Afrizan appealed to the Appeals Committee (AC) on the ground that he did not have to comply with the listing requirements as once a listed corporation is wound up, it will immediately be de-listed and the winding up provisions of the Companies Act 2016 would be applicable.

[11] The AC vide letter dated 6 May 2019 upheld the LC's decision on the basis that Bursa had the power and discretion not to de-list Wintoni pending final disposal of Court proceedings challenging the winding up order and as long as Wintoni remained on the Official List, Afrizan was bound to comply and to ensure Wintoni's compliance with the AMLR. On the same date, Bursa announced Mohd Afrizan's public reprimand.

[12] Afrizan instituted judicial review proceedings in respect of the decisions of the LC and the AC. Leave was granted on 4 September 2019.

[13] In the meantime on 17 September 2019, pursuant to a consent judgment [Post-Companies Winding Up No: WA-28PW-507-