Tuesday, November 18, 2025

Jaguh Kampung by Daim Zainudin


Jaguh Kampung, A Personal Perspective on Business Outside Malaysian Shores

by Tun Daim Zainuddin

Since my second retirement in 2001, I have accepted only one invitation to speak in Malaysia and that was in 2004.

So to accept this invitation, it took some serious thinking on my part. I have spoken many times overseas but at home I think people may be tired of hearing me talk all the time so as a retiree I should just keep quiet!

“I accepted this invitation because I have great faith in our young people. For us as a nation to grow and succeed in the future we need good leaders and you here are our leaders of tomorrow.

So, thank you Tengku Zafrul Aziz for inviting me. The topic you chose is interesting – Jaguh Kampung, A Personal Perspective on Business Outside Malaysian Shores.

Nowadays, the term Jaguh Kampung seems to suggest our failures. It dismisses our achievements and local successes. It portrays us as a failure overseas. It looks down upon us. It used to refer to sports, now it encompasses business.

I do not see anything derogatory about being a Jaguh Kampung, for how can you succeed globally if you have not achieved success even at home. It is here that you hone your skills, know of your strengths and weakness, make your mistakes and learn from them; it is here that you plant the seed of your success overseas. It is only negative when you are successful at home yet not able to translate the same success abroad. Why?

It has been argued that Malaysians are far too comfortable at home and therefore cannot stand the competition outside. For the Malays particularly it is said that we do not have the history of migrants who came in junks and sampans to make a new life in a new land; that we have no history of doing business and that there is no NEP overseas.

I don’t subscribe to such an argument. Many non-Malays fail too. Many non-Malays who have succeeded here with Government help have failed overseas. It has nothing to do with race and everything to do with ourselves. We have to see our own strengths and weakness to know why we succeed and why we fail. I have no sociological or anthropological thesis on this but I can tell you of my personal experience to illustrate, if that is of any help.

So, I guess I shall start from the beginning. I come from a small place called Lorong Kampong Padang in Kota Tanah, Seberang Perak, Kedah. Growing up I was confused, we had no padang, no kota (fort), no perak (silver)! It was a small kampong where everyone knew everyone. Yet this village produced 3 doctors, 2 veterinary surgeons, a dentist and may top civil servants. As far as I knew, they were no lawyers, yet my father kept urging me “Grow up to be a lawyer”.

Two of the three doctors were Dr Mahathir who married another doctor, and Dr Bakar who married Tan Sri Dr Salmah, the first female Malay doctor in the country. Amongst my schoolmates and seniors were Tan Sri Hanafiah Ahmad of Tabung Haji, Tan Sri Hanafiah Hussein, the first Malay Chartered Accountant, and Tan Sri Bakar Hamid, Head of Income tax. The list goes on.

The late Tun Zahir (Speaker of Parliament) helped me with my admission to Lincoln’s Inn. In London I was friends with other students some of whom went on to become Judges, Chief Justices, President of the Ct. of Appeal, Lord Presidents, top Civil Servants etc. I learnt politics from the likes of Syed Albar and even when back in Kuala Lumpur he would come to my house weekends and drive me around Kuala Lumpur introducing me to the whos who of Malay politics. Hussein Onn would tell me Malayan political history.

When I moved to Kelantan I got to know the various political leaders in PAS like Asri, Zulkifli and Wan Mustapha. In fact PAS was the first to offer me to stand for election. When I joined the Legal Service, I served in Johor and Perak and built up further my network of friends.

When I was in private practice I represented the Governor of Sarawak in the case of Stephen Kalong Ningkan. I was in Allen & Gledhill then and a very junior lawyer too but the senior partner asked me to do it as he thought that I was able to handle it as he considered me well read and thorough in my work plus he knew that I was well versed in the politics of the day. It was during this case that I got to know Tun Razak, Tun Rahman Yakob and Tan Sri Taib Mahmmud. At 28, I attended my first Cabinet meeting to brief the Cabinet on the case. I never thought that 18 years later I would be attending it weekly.

Tengku Razaleigh and Manan Othman for reasons known to themselves, recommended to Hussein Onn that I be appointed a Senator. Suddenly people wanted to find out who this Daim was. Manan when he was Minister of Public Enterprise, put me on Board of UDA as I was recognized as a successful property developer then and later made me chairman of Peremba. When Tun Mahathir became PM, he appointed me as Chairman of Fleet Group. Tan Sri Sanusi made me Chairman of Rakyat First Merchant Bank. In 1984, Tun Mahathir made me Minister of Finance.

It is from all these people that I learnt so much and who had in some way or the other helped me in my professional, business and political life.

I was also a busy body and had an opinion on everything. I was there when Tan Chee Koon, Lim Chong Eu and Syed Hussein formed Parti Gerakan. I took part in the debate on the issue of Bahasa Kebangsaan and had friends who alerted me that I was to be arrested under the ISA on the issue. I wrote letters to the Prime Ministers in office, offering them my 2 cents worth, the advice unasked and often ignored but that did not deter me.

I started my private practice with some savings and a RM60k loan from MARA. I furnished my office frugally and spent the rest on the stock market. When May 13 came I almost lost the shirt on my back. I learnt there and then that the stock market is not a casino for me to gamble in but that investment has to be made through informed choices. Later when I decided to go back to the market I only invested in quality and strategic stocks.

Before I could invest in these quality stocks I had to make money to pay off my debts. Luckily I had my practice; but the need to succeed was too strong for me to remain purely a lawyer. Not one to give up, I decided to go into business. I invested in a salt making business – everyone needs salt right? well, an unseasonal storm washed that away! I went into many businesses that didn’t do too well, until I decided to go into property development. I approached Dato Harun Idris then MB of Selangor for a piece of an abandoned, disused mining land. I paid the premium for it and finally was on the road to success. It was not easy going. It would have been easier if it was a piece of flat estate land, instead I had manylakes to be filled before I can build.

But if it had been easy then I’m not sure I would have learnt the lessons that failure teaches you. Failure is a great teacher if you are willing to learn. My tenacity was my strength. I never gave up. As Churchill said “Success is not final and failure is not fatal. It is the courage to continue that counts”. I stumbled, picked myself up and continued.

By the time I was in my mid thirties I was a millionaire. With the money I made I went looking for my strategic stakes not only in the stock market but also in properties. By the time I join the Cabinet I was the shareholder of Raleigh Bhd (a name famous worldwide for its bicycle, made since 1887) Raleigh had shares in Prudential and had landed properties and another listed company. I bought into UEP which had a 1,400 acre land bank which I later reversed into SIME for shares, making me the single largest shareholder of SIME then. I also had a Joint Venture with the State Government of Kedah to develop 2,000 acres of converted land. Maluri also JV’ed with PNB to develop 600 acres of land in Kajang. I had a housing estate in Malacca. My land bank was massive. I was also a founding shareholder and chairman of TV3. I was also the largest individual shareholder in Nestle, and in Jaya Jusco. I had 4 factories in Malacca producing cast iron, plastic, packaging and preserved foods. I also invested in a haulage company. I also had a stake in UMBC Bank. I’m telling you all this not to show off and impress you but to share with you my journey.

When I was asked by Dr Mahathir to join the Government I had to think very carefully. I knew it will be a sacrifice on my part to take the offer but then this would not be the first time I have been asked to sacrifice in the name of national interest. When I had the opportunity to increase my share in SIME to 30% Dr. Mahathir heard about it and asked me not to take it up as it would be better to be given to PNB. When UMNO youth objected to MCA buying shares in UMBC, MCA approached me to exchange my controlling shares in Malaysian French Bank for a non controlling stake in UMBC. I was not keen to give up control in one for non-controlling in another, further I had to borrow as I was buying into a bigger bank, but the government insisted on the exchange for economic and political stability. By the time the deal was completed I was made MoF and later had to sell my stake. The government insisted that I can only sell to a Bumi or Bumi company and at cost too! I had much higher offers from non Bumis and could have made money on this sale but I have no choice. On top of it all, I had to pay tax on the sale too!

As I said earlier, it was a sacrifice on my part. Joining the Government also meant that I would have to give up my business. I was rich and answered to no one. I was carefree and wanted to enjoy the fruits of my labour. I had my privacy which I value highly. It was a difficult decision to make. I took more than a month to think it over. Whilst I would sacrifice a life of greater wealth, there is more to life than making money and more money. At some point you have to look beyond material wealth and personal interest. In the end the call to serve was made, partially because growing up my father had always drummed it into my head that there was no better calling than to be serving the government. That to be of service is an honour. And he also thought that I should be Prime Minister. In fact when I was appointed MoF and I told him, he replied “bukan PM?”!! Obviously he thought very highly of me.

There has been bouquets and brickbats, but I did not take the job to win a popularity contest. National interest comes first and in the end, you have to do what you think is best for the nation. Joining the government has brought me immense satisfaction to see the economy succeed from an agrarian economy to an industrialised economy. If I had not joined the government I would have been far richer in wealth but so much poorer in experience. If there is any regret, it is regret for the loss of my privacy.

I couldn’t have done all this on my own. The friends I knew, the network I built was very useful. You cannot be successful if you are a hermit staying in your house watching TV after work. Whether its through school, work or sports, there is always an opportunity to meet people. Networking, building relationships, what the Chinese called “quan xi”, is important in business – you never know who you meet may be your guardian angel in disguise. Of course I’m not suggesting that you make friends for an ulterior motive – if you are not sincere, people can see through you. If you use people, it can only work once or twice before you lose your reputation and that, if once lost cannot be recovered.

Whenever I travel and meet people I would always write to them, to thank them, to keep in touch, to invite them over etc. So wherever I went I always knew someone or the other. But mix with like minded people. Your so called friends can lead you astray. As I have said earlier,networking is very important but is of no use when all you do with your network of friends is to “omong-omong kosong”.

Saudara, Saudari / Ladies and Gentlemen

After retirement I had no ministry and no company to run. All my life I have been active and staying home doing gardening and playing golf did not appeal to me. So I went to the Kennedy School of Government at Harvard. I spent my time reading, meeting people, attending lectures. After a few months I was restless. I reassessed my situation – do I restart in Malaysia? If I did, and succeeded, my success would be questioned as I still had friends and contacts both in and out of Government. I had nothing to prove but I thought if I could succeed in Malaysia, maybe I could do so overseas. As I’ve said earlier Malays have been criticised that they can only succeed because of the NEP, I thought that I owe it to the Malays to prove otherwise.

In the course of my work as MoF I travelled and engaged with various people, government and non-government everywhere. I had visited Eastern Europe and was convinced that Russia could not hold on to them for very long.

In 1994 I started my banks in Republic of Czech and then Hungary, Albania, Bosnia. Whatever we may say of Russia, it left behind a very good education system and excellent infrastructure. Still, it was tough to do business there. There is the question of language and there was no experience of market economy. It was not easy to get Malaysians to work there and the locals were used to working for the government. We had to motivate them to work for profit, to understand that we go into business to make profit, profit to pay salaries, bonuses and to expand.

If Eastern Europe was tough, Africa was tougher. Why Africa? Its too long to go into but if you are interested I’ve given my reasons in a separate paper. Its with Tengku Zafrul. It was not easy for us to start in Africa. We were not Citibank or HSBC or Standard Chartered. Whilst most of the Governments in Africa knew me when I was MoF and I was involved in both the Smart Partnership and South-South Cooperation, nobody knew the Bank. Tun Dr. Mahathir’s name carries a lot of weight and Malaysia under him was held in high esteem. All these helped but we still had to prove ourselves and further we had to carry the burden of maintaining Malaysia’s good name. Failure was not an option.

Africa was tough. There was little discipline, most do not have the expertise nor the experience. The better ones had left and were in Europe or America. The pool to draw staff was small. If it was difficult to entice Malaysians to Eastern Europe, you can imagine what it was like to ask them to go to Africa!

We started from scratch. Fortunately for me, I had an excellent team who understood and shared my vision. The team you build is critical. You cannot do it alone.

My team were as determined as me to succeed. We had put our money there and our reputation and the country’s reputation were at stake. My team were motivated and prepared to sacrifice the comforts of home to blaze a trail there. It was pure team work and dedication that made it. Without a good team, no way would we be where we are today. Our banks have won many awards, particularly Euromoney’s Bank of the Year awards, some of them repeatedly. I am very proud of them. And I must add that we have a good reputation in Africa. Wherever I go and I meet Presidents, Prime Ministers, MoF, Governors of Central Bank of countries where we operate and where we don’t, they now know us and of us and are happy with us. They see that we have been fair and honest. We treat them as partners and equals. We train the locals and it is a measure of our success that our local staff are always in demand and poached by other financial institutions. We get a lot of requests to open up in their countries but we are limited by our resources. We cannot over-stretch ourselves and end up with quantity but not quality. Quality is of the utmost importance.

Today we have a presence in 10 countries in Africa and have also expanded our reach into Asia; Indonesia, Bangladesh, Laos, and are looking at other neighbouring countries. People must think that you have to be immensely rich to be in Europe, Africa and Asia, but that is not true. When we first started, the paid up for each bank was only US$2 million. Today a European bank’s paid up must be at least Euro 5 million, in Yemen for example, US$20 million, and in Nigeria US$100 million. With that kind of requirement, we had to reassess our business plans. We sold off Europe and with the proceeds decided to go to Asia.

In every business you start with a plan but the plan has to re evaluated, reassessed, and reconsidered at every turn. What works today may not necessarily work tomorrow. Facts change, operating conditions change and we must change with them. Business is not static and we cannot run on the spot.

I know I have gone on too much, boring you with my personal history. I should have just quoted my son’s one paragraph biography he wrote of me when he was in primary school: “My father was born in Kedah. He studied law and became a lawyer, then a businessman, then MoF twice. He is now retired and runs banks and does charitable work. He is a good father because he plays football with me.”

Seriously, though, what distinguish one who succeeds from one who fails? Everyone I’m sure starts out wanting success, but it has been said that success usually comes to those who were too busy to look for it. It is a sacrifice. You will have to defer immediate gratification and forgo leisure. You have to be the first to arrive and the last to leave. It really is hard work and nothing else. There is just no substitute for hard work. But you cannot work hard stupidly. You have to plan, execute the plan, change the plan when necessary to suit changing situations. As was said by Darwin – “It is not the strongest of the species that survive, nor the most intelligent, but the one that is most adaptable to change”. How do you know that the situation changes? You have to read, read and read. Read all the time. Be curious about the world around you. Try to keep up with the latest in technology and business, the latest trends and the geo political changes too. As an example, when I read that the French Government was nationalising its banks I realised that it would have to sell its bank in Malaysia as Malaysia then did not allow government owned banks to operate in Malaysia. I saw an opportunity here and decided to contact the French Government to take over the Indo-Suez Bank which I later renamed the Malaysian French Bank. Nothing ventured, nothing gained.

It is also important that you take the opportunity to work in and learn from businesses that have been successful. It is no embarrassment to say you don’t know and to be aware of your own limitations. Never be too proud to learn from others. But on the other hand, do not follow blindly. If someone is successful at one thing it does not mean that you can too. You have to know yourself. It helps if you can do something that you love. As Confucius said “Choose a job that you love and you will never have to work a day in your life”. You have to be hands-on. No one is interested in your success except you. Its your money, and in most cases, borrowed money. You have to ensure your own success. You are your own best asset and the master of your own destiny, to make your own future. You have a choice to either work hard, remain committed, diligent, determined and disciplined or just buy a lottery ticket and hope to get rich overnight!

For the Malays particularly I say this to you – do not be afraid of competition. We are used to competing – we have other races to measure against, so there is no reason why we can’t succeed. Don’t believe in handouts, there is no such thing as a free lunch. Handouts do not test you and when faced with adversity, the price of that handout is failure.

For the Non-Malays, I say this to you – Do not accept any discrimination or perceived discrimination as an excuse for failure. See it as an obstacle to overcome and an opportunity to strengthen your resolve.

Do not fear the fear of failure. Do not fear to take chances. Do not fear of making mistakes that will shatter your confidence and fill you with doubts. You have to take a chance on life. When one door closes another opens but you have to look for that open door and not remain fixated on the closed door. Move on, you have done what you can. Learn from it and that will give you confidence in the next venture.

In your quest for success, be wary of making compromises; your values and beliefs will be tested. Have a clear conscience in what you do as you have to face the mirror everyday. Do not let praise go to you head nor criticism weigh you down. Have faith in yourself and faith in God. He will not let you down.

When you have achieved material successes, live simply and shun extravagance and arrogance. Do not lose all that you have achieved because you were resting on your laurels. What happens when that laurel wilts? Be humble and reach out to those less fortunate than you. Your success is an obligation and a responsibility to your society and it is only when you give back to society that you are truly successful.

Ladies and Gentlemen/ Saudara, Saudari

Be brave to leave your ‘kampung’ and go anywhere in the world to claim your future. I wish you well.

Thank you.
(Articles from Leaders for Tommorow - http://www.14t.org/)

No comments:

Post a Comment

(Komen menggunakan pengenalan anonymous TIDAK AKAN DILAYAN. Sila gunakan nama sebenar atau nama samaran. Jikalau menggunakan anonymous, sila nyatakan nama di penghujung komen. Ulasan yang mengandungi unsur fitnah, hasutan, perkauman dan bahasa kesat tidak akan disiarkan. Ulasan yang terkeluar daripada tajuk tidak akan diberi keutamaan.

Saturday, February 17, 2024

Former Finance Chief Plays Key Role as Mahathir's Adviser : Malaysia's No-Nonsense Reformer

Malaysians could be excused for feeling like they had already heard of some of the austerity measures announced Friday.

A decade ago, Daim Zainuddin, the architect of modern corporate Malaysia and the finance minister at the time, slashed government spending and grappled with the issue of corporate bailouts, the same issues facing Finance Minister Anwar Ibrahim today.

In 1985, a year after Mr. Daim took control at the Finance Ministry, the economy shrank. But Mr. Daim's tough and initially unpopular measures led to a decade of record growth. The stock market swelled to become the third-largest in Asia, behind Japan's and Hong Kong's.

In an interview this week, Mr. Daim said that fixing the economy would be more difficult this time.

"In 1985 and 1986, things were different, and the economy was much smaller," he said. "Looking back, it was much easier to handle that."


The possibility of a turnaround, he said, depends on what the government does now. "Are we going to face the problem head on — which I would recommend," he asked, "or do we want to delay things like Japan, thinking that time will cure things?"

His advice: "Cut expenditure and no bailouts for any companies. This is business. If the markets decide it should be that way, they have to face the consequences."

The comments are strikingly similar to those Mr. Anwar made Friday. "We are not here to protect or bail out," Mr. Anwar said, outlining a package he called "market-driven."

Mr. Daim, 59, currently holds the title of economic adviser to Prime Minister Mahathir bin Mohamad. He and Mr. Mahathir are credited with transforming a country that had relied on tin, rubber and palm oil into a diversified high-end manufacturing center.

"Daim's role has been providing access to the prime minister," said Jomo K.S., a professor of economics at the University of Malaya. "In a country where executive support has been crucial for business success, this has been important."

Mr. Daim has also provided a practical, no-nonsense voice on economic policy, in contrast to the fiery rhetoric of Mr. Mahathir. This is his nuts-and-bolts view of the current crisis: "If you want to run a marathon, you need a breather. You have to consolidate your position for the next stage. You can't continue expanding and expanding. There would be bottlenecks, shortage of manpower and, when you become too big, bureaucracy."

Events this week provide a good example of the contrast between the prime minister and Mr. Daim. Mr. Mahathir said early in the week that banks had been instructed not to make too many margin calls — demands that a client make up the difference between loan and the price of the shares pledged as collateral. The prime minister also called traders who recently increased the price of cooking oil "economic saboteurs." Mr. Daim, by contrast, sends a message of sink or swim. On the issue of margin calls, he said: "The banks must be left to decide. They know who their clients are."

Investors have in the past taken comfort from the notion that behind the rhetoric of Mr. Mahathir, they could divine hard government policy through Mr. Daim.

Mr. Daim, who is treasurer of Mr. Mahathir's party, the United Malays National Organization, said he and Mr. Mahathir consulted regularly. "That doesn't mean that we always share the same views," he said, "but Dr. Mahathir is big enough to know that differences of opinion are part of democracy. "

Last week, in a sign of their continued cooperation, he and Mr. Mahathir traveled to Tokyo, where they met with Japanese businessmen and government officials.

It was Japanese investment that played an important role in helping Malaysia emerge from its recession in 1985. This time, however, Mr. Daim said he was not counting on Tokyo.

"The good thing about them is that they understand us," Mr. Daim said, referring to Japan's wartime occupation of much of Southeast Asia. "They have been here a long time; they ruled us."

However, he added, "If they want to lead, they can, but they are not interested, and nobody can force them. So, I do not look to Japan." More than the United States, which he said was is due for an economic correction, Mr. Daim said he was counting on Europe, but he is not counting on outside investment alone.

"Nobody owes us a living," he says. "If you want to survive in this world, there's no other way: hard work, efficiency."

Sunday, January 8, 2023

Ilustrasi Hikmat Sdn Bhd Vs. Syed Mokhtar Court Transcript

 

  • 1

    DALAM MAHKAMAH RAYUAN, MALAYSIA (APPEAL JURISDICTION)

    RAYUAN SIVIL/RAYUAN NO W-02(IM)(NCC)-2748-12/2013

    BETWEEN

    ILUSTRASI HIKMAT SDN BHD PERAYU

    AND

    TAN SRI DATO SERI SYED MOKHTAR SHAH BIN SYED NOR .RESPONDEN

    DALAM MAHKAMAH RAYUAN, MALAYSIA (APPEAL JURISDICTION)

    RAYUAN SIVIL/RAYUAN NO W-02(IM)(NCC)-2749-12/2013

    BETWEEN

    ILUSTRASI HIKMAT SDN BHD PERAYU

    AND

    TRADEWINDS (M) BHD .RESPONDEN

    DALAM MAHKAMAH RAYUAN, MALAYSIA (APPEAL JURISDICTION)

    RAYUAN SIVIL/RAYUAN NO W-02(IM)(NCC)-2750-12/2013

    BETWEEN

    ILUSTRASI HIKMAT SDN BHD PERAYU

    AND

    PADIBERAS NASIONAL BERHAD .RESPONDEN

  • 2

    (DALAM MAHKAMAH TINGGI DI KUALA LUMPUR) GUAMAN NO: 22NCC-331-04/2013

    ANTARA

    ILUSTRASI HIKMAT SDN BHD PLAINTIF

    DAN

    TAN SRI DATO SERI SYED MOKHTAR SHAH BIN SYED NOR

    TRADEWINDS (M) BHD PADIBERAS NATIONAL BERHAD BUDAYA GENERASI SDN BHD .. DEFENDAN-DEFENDAN

    CORAM:

    Y.A DATO ALIZATUL KHAIR BINTI OSMAN KHAIRUDDIN, HMR Y.A. DATO ABDUL AZIZ BIN ABD. RAHIM, HMR

    Y.A DATUK DAVID WONG DAK WAH, HMR

    JUDGMENT OF THE COURT

    Introduction:

    1. Before us are three appeals against the decision of the High Court in

    which the learned Judge allowed an application by the

    Respondents/1st, 2nd and 3rd Defendants to strike out the statement of

    claim of the Appellant/Plaintiff premised on Order 18 rule 19 of the

    2012 Rules.

  • 3

    2. We heard the appeals and after due consideration to respective

    submissions of counsel, we allowed the appeals and now give our

    reasons.

    3. For the purpose of this Judgment, the parties shall be referred as

    Plaintiff and Defendants as in the High Court.

    Striking out principles:

    4. The legal principles relating to striking out pleadings are settled and

    there are numerous Judgments setting out those principles.

    5. The Plaintiff has a right to access to Court and with it the right to have

    his day in Court. Hence case laws dictate that Court should only

    exercise its power to strike out only in exceptional circumstances. One

    such circumstance is that on the pleadings themselves and assuming

    that they are true, they do not disclose any cause of action. The Court

    will also strike out an action which is clearly time-barred even if parties

    do not dispute the existence of a cause of action and the date the

    cause of action accrued. In both circumstances, there is no dispute as

    to the factual matrix of the statement of claim. Hence when there is a

    dispute as to the factual matrix of the case, the Court would not strike

  • 4

    out the statement of claim and the Plaintiff is entitled to have his day

    in Court to prove its claim.

    6. Further it has also been held by the apex Court of the land that so long

    as the statement of claim discloses a reasonable cause of action,

    however weak the claim is, that claim cannot be struck off summarily

    (see Bandar Builder Sdn Bhd v Unites Malayan Banking Corp,

    Bhd (1993) 4 CLJ 7). The burden is on the Defendants here to show

    to the Court that the claim is so plain and obviously unsustainable or

    in other words, the Plaintiffs claim is bound to fail at trial. It is with the

    above principles at the forefront of our minds that we considered this

    appeal.

    Background:

    7. According to the Plaintiff, the circumstances leading to his legal action

    are these. Bernas (the 3rd Defendant) was incorporated on 14 April

    1994 by the Federal Government for the purpose of dealing with the

    distribution of rice in the country.

    8. On 11 July 1995, seven parties entered into a Shareholder Agreement

    to form a joint venture company called Budaya Generasi Sdn Bhd (4th

  • 5

    Defendant) to purchase the shares from the Federal Government in

    the 3rd Defendant. This transaction was for the purpose of allowing the

    4th Defendant to take over the liabilities and rights of the 3rd Defendant.

    The seven shareholders and their shareholdings were as follows:

    (a) Permatang Jaya Sdn Bhd (PJSB).. 38.89%

    (b) Pertubuhan Peladang Kebangsaan (NAFAS).. 11.111%

    (c) Persatuan Nelayan Kebangsaan (NEKMAT) 11.111%

    (d) ZAW Ventures Sdn Bhd (ZAW) ..11.111%

    (e) Simpletech Sdn Bhd (Simpletech) 11.111%

    (f) Syarikat Perniagaan Peladang (MADA) Sdn Bhd (SPPM).

    11.111 %

    (g) Syarikat Perniagaan Peladang (KADA) Sdn Bhd

    (SPPK)..5.555 %.

    9. On 2 January 1996, a supplementary shareholders agreement was

    entered into between the Plaintiff and the aforesaid 7 shareholders and

    one Sebiro Holdings Sdn Bhd (Sebiro) in which both the Plaintiff and

    Sebiro became 5% shareholders in the 4th Defendant, resulting in a

    reduction of the shareholdings of ZAW and SSB.

    10. It is not in dispute that the 3rd Defendant held a monopoly as the sole

    importer of rice in Malaysia. And hence according to the Plaintiff, the

    5% shareholding in the 4th Defendant was a valuable investment.

  • 6

    11. However according to the Plaintiff, the worth of the Plaintiffs

    shareholding in the 4th Defendant was rendered valueless when

    through a series of corporate exercises involving the 1st Defendant,

    the 2nd Defendant (Tradewinds (M) Bhd) and the 3rd Defendant in

    2003, 2009 and 2013, the 4th Defendant ceased to hold any shares

    in the 3rd Defendant and the 2nd Defendant became a shareholder in

    the 3rd Defendant to the extent of 83% by 2013. By a novation

    agreement in December 2009, the rice import business of the 4th

    Defendant contained in the Privatisation Agreement with the

    Government was novated to the 2nd Defendant. Through these series

    of exercises, the Plaintiffs interest in the 4th Defendant according to

    the Plaintiff became virtually valueless.

    12. According to the Plaintiff, they were assured by the 1st Defendant in

    2003 that when the corporate exercises first began that their value in

    the 4th Defendant would not be rendered valueless. This is how the

    Plaintiff said in paragraphs 21-22 of the statement of claim:

    (a) SM had been instructed by the then Prime Minister of

    Malaysia to assume control of Bernas to provide better

    efficiency to its affairs and the entry of SM through the SM

  • 7

    2003 Nominee would advance the commercial interest of all

    shareholders of the Original Private Promoter (including the

    Plaintiff).

    (b) SM intended the investment in Bernas to be a long term

    investment (which he desired to pursue with the Plaintiff) and

    his plans would ensure significant benefit to the Plaintiff and

    the adherence of the underlying objective of Bernas in terms

    of the Privatization Agreement and Bernas Agreement.

    (c) SM will conduct himself in a transparent manner in his future

    dealings within the Original Private Promoter and Bernas so

    as to allay concerns of the Plaintiff that there would be any

    further activities undertaken in stealth.

    (d) The shareholders agreement and the Supplemental

    Shareholders Agreement will be honoured in its original form

    and spirit.

    13. It is the contention of the Plaintiff that the 1st Defendant breached the

    above assurances which the Plaintiff in his statement of claim

    describes as follows:

    (a) The spirit of the pre-emption under the Shareholder

    Agreement was again being breached by SM and SM 2003

    nominee by essentially allowing control of Bernas to be again

  • 8

    hived off to another remote nominee of SM namely

    Tradewinds.

    (b) The objective of the dividend in specie exercise that was

    being formulated on a parallel basis with the 2009 General

    Offer was such that the premium that was had by the Original

    Private Promoter in Bernas was removed away from each of

    the minority shareholders of the Original Private Promoter and

    housed entirely with SM.

    (c) The dividend in specie exercise was effected on or about

    5.11.2009 through a positive controlling vote of

    representatives of SM on the Board of the Original Private

    Promoter without declaring their ultimate interest in the

    exercise.

    (d) The said dividend in specie exercise undermine the very

    purpose and existence of the Original Private Promoter which

    was then rendered dormant with no further business activity.

    (e) The Bernas Agreement was subsequently novated to

    Tradewinds without any formal; meeting of the Board or

    shareholder of the Original Private Promoter.

    Our grounds of decision:

    14. In dealing with an application to strike out a statement of claim, the

    Courts in our view must first assume the allegations of the Plaintiff

  • 9

    to be true and then ask the question whether the allegations

    disclose a reasonable cause of action. To recapitulate, the Plaintiff,

    according to the submission of their counsel had pleaded two

    causes of action:

    (a) Oral assurances from the 1st Defendant that the Shareholders

    Agreement and Supplemental Agreement thereto would be

    honoured and that his entry into the 3rd Defendant would be

    for the benefit of the Plaintiff.

    (b) The 2009 2nd Defendants takeover of the 4th Defendant,

    apart from being a breach of the assurances was unlawful in

    the following respect:

    (i) The dividend-in-specie exercise for the 2nd

    Defendants takeover was undertaken in the Board

    of the 4th Defendant without Gandingan Bersepadus

    directors (5 out of 8) declaring their interest in the

    exercise.

    (ii) The 3rd Defendants Privatisation Agreement was

    novated without formal approval of the Board and or

    shareholders of the 4th Defendant.

  • 10

    15. From a cursory look at the contents of the statement of claim, we

    have no hesitation in concluding that they disclose a reasonable

    cause or causes of action.

    16. Having found that, we must then determine whether the aforesaid

    causes of action can exist in light of the affidavit evidence before the

    Court. The learned Judge premised her decision, in our view, mainly

    on the following:

    (a) That the Plaintiffs locus in filing this suit is suspect in

    that the 1st Defendant, 2nd Defendant and 3rd Defendant were

    not parties to the Shareholders Agreement and the

    Supplementary Agreement.

    (b) That the Plaintiff had surrendered its right to

    challenge the privatization in view of the Deed of Waiver.

    (c) That the Plaintiff had received a large dividend of

    RM15 million pursuant to the privatization exercise.

    (d) That to sustain the Plaintiffs claim would create

    commercial chaos.

    17. Reading the statement of claim and the affidavit evidence, one can

    safely say that the Plaintiffs main complaint is simply the breach of

    the oral assurances given by the 1st Defendant which is linked to

  • 11

    the signing of the Deed of Waiver, a fact relied on by the learned

    Judge. It is the contention of the Plaintiff that they only signed the

    Deed of Waiver premised on the 1st Defendants oral assurances.

    Now whether that is true or not, cannot, in our view be determined

    by affidavit evidence. Oral evidence must be called and be

    subjected to cross examination. Only in this manner can the Court

    determine whether the allegations by the Plaintiff is true or not.

    18. Further there appears to be some dispute as to whether the Plaintiff

    did suffer any loss from the privatization exercise. The learned

    Judge found that the Plaintiff had received RM15 million in cash

    dividend which the Plaintiff denied receiving and referred the Court

    to Tab 7 of the Core Bundle page 1870. This document shows that

    the Plaintiff had only received a sum of RM252,775.00. This is a

    major dispute of fact which again can only be resolved in a full trial.

    19. It is also our view that the learned Judge may have misconstrued the

    Plaintiffs locus to sue. The learned Judge questioned the Plaintiffs

    right to sue under the Shareholders agreement and Supplementary

    Shareholders Agreement when the 1st, 2nd and 3rd Defendants are

    not party to those agreements. It is of course the Plaintiffs

  • 12

    contention that it is not suing pursuant to those two agreements. Its

    cause of action is premised on the oral assurances given by the 1st

    Defendant. In our view this is an issue which should also be resolved

    at the trial.

    20. The Plaintiff needs only to show that there is a triable issue to the

    Court and when shown the Court is duty bound to order a full trial.

    From our analysis above, we have shown that there are disputes as

    to the factual matrix leading to the privatization exercise. The

    question of commercial chaos, with respect, cannot be a ground to

    rely on to strike out a claim.

    Conclusion:

    21. The whole foundation of the Plaintiffs claim is the oral assurance of

    the 1st Defendant. And when on the face of the evidence, it shows

    that the Plaintiff did suffer substantial loss by the implementation of

    the privatization exercise, can we say that there is no reasonable

    cause of action? The answer for reasons stated above is in the

    negative. It is not the duty of the Court at this stage of the

    proceedings to delve into an arduous exercise of determining what

    is alleged by the Plaintiff is true or not. That would be at the trial

    stage.

  • 13

    22. Accordingly we allowed the appeal with costs in the cause. We also

    ordered that the deposit be refunded to the Appellant.

    t.t Dated : 8th July 2015 (DAVID WONG DAK WAH)

    Judge Court of Appeal Malaysia

    For the Appellant : Cyrus Das with him Mohd Rizal Bahari Tetuan Bahari & Bahari

    For the 1st Respondent : M. Pathmanathan with him Shanti Pathmanathan Tetuan M. Pathmanathan & Co. For the 2nd Respondent : Kalearasu Veloo Messrs SF Chan & Co.

    For the 2nd Respondent : Eric Clement Messrs Abdul Halim Ushah & Associates

    Notice: This copy of the Court's Reasons for Judgment is subject to

    formal revision.