Ramly Ali JCA (delivering judgment of the court)

[1]The appellants, at the material time, were directors of Cepatwawasan Group Bhd, ('Cepatwawasan') a company listed on the main board of the Malaysian stock exchange, Bursa (M). The respondent is Bursa (M) Securities Bhd which has a statutory duty pursuant to s 11

[2]Shortly prior to their removal as directors of the company (Cepatwawasan) the appellants had caused the company's wholly owned subsidiary, Prolific Yield Sdn Bhd to make payments totaling RM16m to a company called Opti Temasek Sdn Bhd and an individual Sheikh Abdul Rahim (who, at the material time, was the driver of the first appellant, Tengku Dato Kamal Ibni Sultan Sir Abu Bakar).

[3]Such payments were in breach of the financial assistance provisions in the respondent's listing requirements ('LR'). The respondent had on 12 July 2005 issued a notice to show cause against the appellants and fixed a date for hearing before the respondent's listing committee.

[4]The appellants failed to attend the initial hearing before the Listing Committee on 13 October 2005. The Listing Committee proceeded with the hearing and made a finding that the appellants had breached section 16.11(a) of the listing requirements for causing Cepatwawasan to breach section 8.23(1) of the LR. At the material time, the first and second appellants were the only directors of Prolific Yield.

[5]Consequently, the Listing Committee imposed the following penalties, namely:

(a)the first and second appellants were fined RM1m each;

(b)the third and fourth appellants were fined RM500,000 each; and

(c)the first and second appellants were also directed to restore to Cepatwawasan the RM13m paid to Opti Temasek and the RM3m paid to Sheikh Abdul Rahim.

[6]The appellants appealed to the Appeal Committee against the said order of the Listing Committee. However on 12 June 2006, the appeal was dismissed. Consequently the penalties and directions of the listing committee stand. The appellants' application for judicial review was dismissed by the High Court on 18 January 2010.

[7]On 26 May 2010, the respondent filed the originating summons to seek the court's orders to enforce its sanctions or penalties against the appellants pursuant to ss 360(1)(c)(i), 360(J) and 360(K) of the CMSA 2007

(a)that within 14 days of the date of this order, the first defendant (first appellant) pay the sum of RM1,000,000 to the plaintiff (respondent);

(b)that within 14 days of the date of this order, the second defendant (second appellant) pay the sum of RM1,000,000 to the plaintiff (respondent);

(c)that within 14 days of the date of this order, the third defendant (third appellant) pay the sum of RM500,000 to the plaintiff (respondent);

(d)that within 14 days of the date of this order, the fourth defendant (fourth appellant) pay the sum of RM500,000 to the plaintiff (respondent);

(e)that within 30 days of the date of this order, the first and second defendants (first and second appellants), jointly and severally, restore to Cepatwawasan Group Bhd the RM13,000,000 paid to Opti Temasek Sdn Bhd;

(f)that within 30 days of the date this order the defendants (the appellants), jointly and severally, restore to Cepatwawasan Group Bhd the RM3,000,000 paid to Sheikh Abdul Rahim bin Sheikh Hassan;

(g)that the plaintiff (the respondent) be at liberty to apply for the necessary directions for service of the order on the defendants (the appellants) and any extension of time for such service;

(h)that the plaintiff (the respondent) be awarded the costs of this application; and

(i)such further and/or other order as the court deems fit.

THE APPELLANTS' OPPOSITION TO THE ORIGINATING SUMMONS AT THE HIGH COURT

[8]The appellants (as the defendants at the court below) opposed the originating summons on three main grounds, namely:

(a)under s 360(1)(c) of the CMSA 2007

(b)only the Securities Commission (SC) can bring the present action, as s354s 354(8) of the CMSA 2007, the appellants contended that if the SC gives directions, then