JUDGMENT

RULING

In this Winding-Up Petition, brought by the Suruhanjaya Syarikat Malaysia, under Section 218(1) (m) and (n) of the Companies Act , the Respondent is a "foreign company" as defined under the Act. The Respondent has been issued a "Certificate of Registration of a Foreign Company" in Form 83 under Section 332(1 A) of the Act , with Company No. 994097-M. There is therefore no dispute that it is properly registered under Malaysia law, and the Certificate of Registration recognises that the Respondent is incorporated in Dublin, Republic of Ireland.

For completeness of analysis, Section 332(1A) specifies:

"The Registrar shall issue a certificate in the prescribed form of every registration of a foreign company and the certificate shall be conclusive evidence that the requirements as to registration have been complied with."

This provision, it its to be noted, appears in Division 2 PART XI of the Act headed "Various Types of Companies." Division 2 is headed "Foreign Companies" and applies to a foreign company only where it "has a place of business" or "is carrying on business" within Malaysia. There are penal provisions imposed under Section 349 of Division 2 upon the foreign company, every officer of the company and every agent of the company for any default in complying with any provision of PART XI.

Since the Respondent has been issued with a Certificate of Registration, by virtue of Section 332 , it has to be acknowledged that it has a place of business in Malaysia, at the very least even though there could be some argument on whether it is in fact "carrying on business" in Malaysia.

The issue now raised before this Court, briefly stated, is whether a foreign company such as the Respondent, can be wound-up under Section 218(1) or any other provision in the Act.

Counsel for SSM has conceded during these proceedings that Section 218(1) (m) and (n) , the provision SSM had relied on at the outset, is not applicable to the Respondent, but SSM is presently relying on Section 221(2) (e) and (f) which allows this Court, upon hearing the petition, and on the application of the Petitioner to allow the petition to be amended or "give such direction as to the proceedings as the Court thinks fit."

Section 218(1) (m) and (n) , it is conceded, allows the Registrar (now the SSM) to petition the Court under Section 217 for "a company" to be wound up on the grounds in Section 218 (m) and (n) :

"(m) the company is being used for unlawful purposes or any purpose prejudicial to or incompatible with place, welfare, security, public order, good order or morality in Malaysia, or

(n) the company is being used any purpose prejudicial to national security or public interest."

Since Section 217 refers to "a company", it is then necessary to look at this term's statutory definition. "Company" is defined in Section 4 (the Interpretation Section) as meaning "a company incorporated pursuant to this Act or pursuant to any corresponding previous enactment." Obviously, the Respondent is not "a company" by statutory definition and therefore clearly falls outside the scope of Section 217 and 218 .

The Respondent is a "foreign company" as that term is defined in Section 4. "Foreign Company", according to this section means "(a) a company corporation society association or other body incorporated outside Malaysia" or "(b) an unincorporated society association or other body which under the law of its place of origin may sue or be sued, or hold property in the name of the secretary or other officer of the body or association duly appointed for that purpose and which does not have its head office or principal place of business in Malaysia." Definition (a) without doubt applies to the Respondent.

Counsel for SSM presently requests that this Court allows an amendment to the petition to substitute its reference to Section 218(1) (m) and (n) for Section 315(1) to confer the necessary locus standi on the SSM to move this Court for the winding-up of the Respondent.

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