Mohd. Azmi SCJ:

We have dismissed this appeal by majority and we now give our reasons.

By a writ filed on 10 January 1985, Bank Bumiputra Malaysia Berhad (BBMB) and its wholly owned subsidiary in Hong Kong, Bumiputra Malaysia Finance Ltd. (BMF) sued Lorrain Esme Osman (Lorrain) for the return to them the total sum of RM27,625,853.06 cts which they claimed were secret profits made by Lorrain without their knowledge and approval, arising from various loans and banking facilities amounting to more than HK$3.2 billion to Carrian group of companies in Hong Kong. At all material times, Lorrain was a director of BBMB and also the chairman of BMF. When the writ was filed, BBMB and BMF also made an ex parte application in chambers for a Mareva injunction to restrain Lorrain from transferring his assets out of jurisdiction, and also for an order of discovery for Lorrain to disclose the value, nature and whereabouts of all his assets. Zakaria J granted the orders on the same day i.e., on 10 January 1985. The orders could not be served on Lorrain and as a result, on 15 January 1985, Zakaria J on the application of BBMB and BMF extended the 10 January Mareva injunction to Lorrain's assets in 32 other banks in addition to the 6 banks cited in the earlier order, and also to his shares held in 104 other companies apart from Aspatra Sdn. Bhd. and the 4 companies mentioned in the original order, for the purpose of restraining Lorrain from dissipating his assets up to the amount claimed in the writ. On the same date, the Court also granted an Anton Piller order against Aspatra Sdn. Bhd. which was subsequently varied on 17 January and extended to other companies. It cannot be seriously disputed that Lorrain had disappeared from this country by the time the writ was filed. At any rate, when the appeal was heard, it was common knowledge that he had been arrested in London for the purpose of being extradited to Hong Kong to face criminal charges there. It is necessary to make this brief reference to the international and criminal elements, popularly referred to as "the BMF scandal" in the background situation of this case in order to appreciate the extensive and extraordinary nature of the various orders applied for and granted by Zakaria J.

Aspatra Sdn. Bhd. and the other companies affected were allowed to be joined as interveners in the Mareva proceedings to enable them to set aside the ex parte injunction and Anton Piller orders made against them. The applications to set aside the ex parte orders by the various companies were filed and heard in batches, and by 18 February 1985 there were still 77 companies affected by the 15 January Mareva injunction which had not intervened. Of these, 12 had been discharged from the said orders on the application of BBMB and BMF themselves. The injunction in respect of the remaining 65 companies remained in force, but as in the case of the 27 companies which had intervened, the terms of the injunction were varied to enable the companies to carry on with their day to day business. Aspatra Sdn. Bhd. and 21 other companies which had intervened had appealed against the order dated 26 April 1985 in respect of such part only of the said order which dismissed (1) the interveners' application for dissolution of the Mareva injunction granted on 1 & 15 January 1985 and (2) the Aspatra Sdn. Bhd.'s application for dissolution of the Anton Piller order made against them as varied by the order dated 17 January 1985.

The memorandum of appeal as amended contained a number of grounds but by agreement of both parties we only considered the following four main grounds:

(1) Whether the High Courts in Malaysia had jurisdiction to grant Mareva injunction.

(2) Whether the affidavit of Mr. Chan Kah Hong sworn on 29 January 1985 made subsequent to the ex parte application and the granting of Mareva injunction, was admissible in subsequent interpartes proceedings.

(3) In granting Mareva injunction, whether Zakaria J was correct