GROUNDS OF JUDGMENT

Introduction

The fiasco of the purported embezzlement of funds belonging to Lembaga Tabung Haji resulted in the present suit. The plaintiffs' herein went after the defendants herein in an attempt to purge their flagging reputation.

There were two enclosures for disposal and both of them were quite interesting. Enclosures 4 and 21 were the two enclosures in question. Quantum wise the plaintiffs' claims came up to RM124,907,691.03. Now, enclosure 4 was the plaintiffs' application for a Mareva injunction against the first, fourth and fifth defendants. While enclosure 21 was the first defendant's application for an order that the Mareva injunction granted by my immediate predecessor on 21.2.2003 as seen in enclosure 9 be varied on certain terms.

The parties agreed that I should hear enclosure 4 first before hearing enclosure 21. So, I proceeded to hear these two enclosures in that order.

The first defendant by the name of Ahmad bin Haji Hassan is the husband of the fifth defendant by the name of Samsiah bte Hamdan. Now, Samsiah bte Hamdan wears many hats. She was also described as a director and shareholder of the fourth defendant by the name of Asasi Trade & Marketing Sdn Bhd (Co. No: 226557). She too was also described as a signatory together with her husband to all cheques belonging to the fourth defendant.

It must be borne in mind that the Mareva injunction was discharged against the second defendant by the name of Mohd Firdaus bin Ramlee and this was on 10.3.2003. In regard to the third defendant by the name of Multitude Global Asset Management Private Limited - BVI (IBC No: 329542), a judgment in default was entered against it on 11.7.2003 as can be seen in enclosure 47.

Ahmad bin Haji Hassan - the first defendant herein, is no stranger to the courts. He was cited as a party and appeared in court vide civil suit no: S5-21-22-2002 and incidentally I was then the presiding judge. He figured prominently in civil suit no: S5-21-22-2002 because he was cited for contempt and Lembaga Tabung Haji applied to commit him to prison for contempt of court for failing to comply with an earlier order of the court dated March 13, 2002 directing him to, inter alia , swear an affidavit disclosing to Lembaga Tabung Haji the total value of his assets with full particulars. In resisting the application to commit him to prison, he contended that the confiscation of all the material documents from his residence and office by the investigators from the central bank had frustrated all his sources of reference and thus made it impossible for him to comply with the said order of the court. Even though he was found to be in contempt of the said order of the court, yet the apology advanced by him when he took the stand in the witness box before me then was duly accepted by me. The judgment for that civil suit no: S5-21-22-2002 has since been reported in two popular local law journals videLembaga Tabung Haji v. Metrowangsa Asset Management Sdn Bhd & Anor; [2002] 4 CLJ 561; [2003] 1 AMR 303 , [2003] 1 AMR 303.

Lembaga Tabung Haji, though not a party in the present proceedings, was certainly interested to know of the outcome of enclosures 4 and 21 because they engaged a counsel in the person of Mr. Syed Shafiq Alhabshee to hold a watching brief.

Enclosure 4

Pursuant to Order 29 rule 1 of the Rules of the High 1980 ("RHC") read together with Order 11 rule 9 of the RHC as well as the inherent jurisdiction of the court, the plaintiffs sought for the following orders as seen in enclosure 4:-

"1. Upon the undertaking of the Plaintiffs:-

(a) To obey any Order this Honourable court or the Judge may make as to damages in case this Honourable court or a Judge should hereafter be of the opinion that the Defendants shall have sustained any by reason of this Order which the Plaintiffs ought to pay.

(b) To pay reasonable costs incurred by any persons other than the Defendants to whom notice of this Order may be served to ascertain whether any assets to which t