Citation: Rayuan Sivil Nos. W-02(IM)(NCC)-187-01/2017 & 188-01/2017; Date of Judgment: 29 January 2018; Name of Court: Court of Appeal; Source: Federal Court Registry
Assignment:
Find the criminal elements in this CRIMINAL case in CIVIL disguise, where the PLAINTIFF is the criminal suspect.
Facts:
This is a civil case which derived from criminal activities, including the approach of Chong Ket Pen (the alter ego behind plaintiff Protasco Bhd) to prey, deceive, and induce defendant Tey Por Yee and Ooi Kock Aun to enter a deal and later push them away and took for himself what belongs to them.
CKP deceived the plaintiff by signing a 3 November 2012 personal guarantee agreement with the broker Global Capital and engaged Global Capital to find investors, as well as oil assets as an incentive to cook up a deal in order to retain CKP position as managing director of Protasco once investor took over Protasco largest shareholding. Out of desperate, CKP further convinces Tey and Ooi into the purchase of Protasco largest shareholding, despite Global Capital cannot find investors given a tight deadline of 31 December 2012, as per told by CKP his career in Protasco is due by then.
The entire deal from the start until the filling of this lawsuit is a setup by CKP. Evidence shown that from the statement of claim of the plaintiff which is defamation and factually wrong, the basis and evidence being fabricated to fit the lawsuit, the process of the Business Contracts which was planned and meant to fail right from SPA2 onwards in order to put a blame to the Protasco largest shareholder Tey and Ooi, all are fraudulent set up to facilitate the mastermind CKP.
In short, CKP uses Tey and Ooi to get what CKP wanted, and later push them away when CKP has gotten the control of Protasco. Despite CKP calls them names to paint them evil, the facts are straightforward.
The discussion is how fraudulent misrepresented information and plain allegation and lies could induce and deceive the defendant’s lawyers and the court in order to facilitate the mastermind CKP to get and keep his ill-gotten power and riches. CKP’s set up to keep Tey and Ooi busy with lawsuits, while CKP himself busy racking money enriching himself, as proven from Bursa Malaysia Protasco’s annual report, is a classic criminal cheating case.
How would the defendants surface the criminal element of CKP’s fraudulent misrepresentation, and counterclaim what belongs to them in the process?
This is a criminal case in civil disguise. Look from criminal perspectives to finish the assignment.
Key Suspects:
The case is surrounding Chong Ket Pen the mastermind, and his alter ego Ho Chun Fuat, Chong Ket Pen’s son Kenny Chong Ther Nen, Protasco Bhd chairman and directors Hadenan bin Abdul Jalil, Tan Heng Kui, Lim Yew Ting, Tan Yee Boon, and defendant PTASU’s former staff Tjoe Yudhis Guthrie, in their disguise behind Protasco Bhd as the PLAINTIFF, sustained their ill-gotten power and illegal monetary riches by taking advantage of their position in Protasco Bhd.
Breaches and Sections:
How would the subjects Ooi Kock Aun and Tey Por Yee reveal the facts and smoke the conspiracy mastermind Chong Ket Pen to the front and surface his wrongdoing would be a test to Malaysia legal system and understanding of corporate law. How the defendants turn around the prolonged unjust by revealing criminal elements of CKP is a technical test to our legal system. Relevant breaches under the Penal Code on the subject Chong Ket Pen and his alter ego, would count S8 Akta Rahsia Rasmi, s119, s203A Kanun Keseksaan, Seksyen 420, 468, 182, 192, 196, 199, 200, among others.
DALAM MAHKAMAH RAYUAN MALAYSIA DI PUTRAJAYA
(BIDANGKUASA RAYUAN)
RAYUAN SIVIL NO. W-02(IM)(NCC)-187-01/2017
ANTARA
PROTASCO BHD (No. Syarikat: 548078-H) … PERAYU
DAN
TEY POR YEE (No. K/P: 760202-14-5147) … RESPONDEN
DI DENGAR BERSAMA
DALAM MAHKAMAH RAYUAN MALAYSIA DI PUTRAJAYA
(BIDANGKUASA RAYUAN)
RAYUAN SIVIL NO. W-02(IM)(NCC)-188-01/2017
ANTARA
PROTASCO BHD (No. Syarikat: 548078-H) … PERAYU
DAN
OOI KOCK AUN (No. K/P: 670307-07-5561) … RESPONDEN
[Dalam Mahkamah Tinggi Malaya di Kuala Lumpur
Guman No.: 22NCC-362-09/2014
Antara
PROTASCO BHD (No. Syarikat: 548078-H) … PERAYU
Dan
1. PT Anglo Slavic Utama (No. Pendaftaran Syarikat: 09.03.1.46.80564)
2. Tey Por Yee (No. K/P: 760202-14-5147)
3. Ooi Kock Aun (No. K/P: 670307-07-5561) … Defendan-Defendan]
QUORUM: NALLINI PATHMANATHAN, JCA; YAACOB MD SAM, JCA; ZABARIAH MOHD YUSOF, JCA
Some key notes in the defence which did not surface all the evidence in totality :
[25] The Defence of Tey and Ooi states in summary that:
(a) The true picture is that the Executive Vice Chairman and Group Managing Director of Protasco who is also the largest shareholder, one Dato’ Sri Chong Ket Pen (‘Dato’ Chong’) was the one who entered into an investor agreement with Global Capital Limited in November 2012. It is stated that it was Dato’ Chong who invited Tey and Ooi as major investors in Protasco.
Comment:
Materially incorrect. Either court read wrongly or defense lawyer explained wrongly. CKP was not the largest shareholder when he enters an agreement with GCL. How did summary judgment come out with such positioning? It is because of repeated copy-and-paste of “false, fraudulent, misleading” information that tried to paint the wrong impression on judges mind, CKP’s criminal method is not sustainable when truth prevails.
(b) The facts relating to Global Capital Limited through its affiliates and nominees procuring rights to develop and produce oil and gas in Aceh are then set out. Dato’ Chong and Global Capital intended to jointly develop the project and a master agreement was supposed to be entered into. In consideration of this, Dato’ Chong, it is contended, agreed to enter into the agreement for the acquisition of 27.11% of Protasco’s equity from other shareholders. To this end Global Capital acquired that percentage of shareholding for a total consideration of RM96 million vide the agreement of 26 November 2012. This sum was fully paid for.
Comment:
Looking into the facts, CKP had lost his power on 26 June 2012 (note1) when few new directors including executive directors were appointed by the “largest shareholders” to take over the power of CKP.
Tey and Ooi were told by CKP he has a deadline of 31 Dec 2012 to find a buyer to take over Protasco or CKP would be out, hence CKP desperately seeking GCL’s help to find investors to take over Protasco’s 27.11% largest shareholding block in order to secure and sustain his managing director position. CKP seek investors to give him “join control, the board seat, and equal decision making” as an incentive to induce the investor to invest. CKP further deceived investor by “engaging GCL” to procuring rights to develop and produce oil and gas in Aceh, which at the material time oil and gas sector is a bullish industry that investor might benefit from share price appreciation.
The “order” is placed out by CKP through CKP’s personal guarantee as per the 3 Nov 2012 agreement, and “in consideration of these incentives”, investor agreed to enter into the agreement for the acquisition of 27.11% shares; and subsequently after CKP placed the order, GCL had secured PTASU to sell PT ASI to Protasco, as per personal guaranteed by CKP in the 3 Nov 2012 agreement for a pre-agreed price of USD55million, hence PTASU agreed to enter SPA1.
Note1. this is material evidence that CKP is “desperate” and such proof is available on Bursa Malaysia website. Surprising none of defendant lawyer ratified plaintiff fraudulent misrepresentation.
(c) Therefore it was in furtherance of the investor agreement that Protasco and PT ASU entered into SPA 1, namely to enable Protasco to diversify its business into oil and gas in Indonesia vide related companies.
(d) SPA 1 was approved by Protasco’s board of directors vide a circular resolution. No project papers pertaining to SPA 1 were circulated for the Board’s consideration. Neither was there a briefing to the board nor a board of directors’ meeting relating to the decision by Dato’ Chong to enter into SPA 1.
(e) Neither was the investor agreement of 3 November 2012 disclosed to the Board of Protasco. As such it is contended by Tey and Ooi that it was Dato’ Chong who was in breach of his fiduciary duties in failing to disclose the terms of the investor agreement.
(f) Ooi further maintains that from his appointment as director on 10 December 2012 to payment of the deposit on 28 December 2012, there was no board meeting, nor documentation nor communication whereby he could have induced or caused the board of Protasco to enter into SPA 1 and make the payment of RM50 million. Any such representation or inducement, which resulted in Protasco entering into SPA 1, was perpetrated by Dato’ Chong or his son, Kenny Chong Ther Nen (‘Kenny’).
(g) As for the due diligence of SPA 1 and the negotiations and entry into SPA 2, the principal officers acting for and on behalf of Protasco were Dato’ Chong and Kenny. They therefore had full knowledge and had participated in the preparation of SPA 2. This is evident from correspondence and emails.
(h) Protasco was represented by a lawyer while PT ASU was not. Protasco also appointed several professional parties to conduct the due diligence. As such Tey and Ooi maintain that there could not have been inducement, misrepresentation, deception, cheating or fraud as contended by Protasco, which caused the payment of USD27 million to PT ASU under SPA 2.
(i) With respect to the tenure of the exploration and production of oil and gas Tey and Ooi contend that Protasco knew that the concession was only until 14 December 2014. SPA 2 reduced the purchase price to USD22 million but sought to extend the tenure by 10 years while knowing full well that Pertamina’s policy is to grant a contract for only 2 or 3 years.
Comment:
This part is further perfected with the surface of FRAUD, DEFRAUD and CRIMINAL fraudulent misrepresentation by CKP through his alter egos (his son Kenny Chong Ther Nen, and his staff Ho Chun Fuat, etc) in his team, and a mistaken move by CKP when Tjoe Yudhis filed several SDs carrying misleading information on CKP’s behalf. Hence proven SPA2 and documents onwards signed by CKP and Tjoe are fraudulently orchestrated. In short, a SCAM. That explains why the fraudulent misrepresentation of KPMG report which deceived PTASU claiming lower value for PTASI is untrue and it’s an excuse for CKP to lower the SPA price; and the fabrication of SPA3 which came with the 10 years license tenure knowing very well that original SPA came with agreed 2 years tenure at USD55mil price tag, is another proof of FRAUD. Such request self-explained when Tjoe under CKP’s control signed SPA2 and subsequent documents, and ends their scam with a series of manufactured SDs as an excuse to put blame and to manufacture this lawsuit.
(j) It is further contended that Protasco failed to reactivate the oil field or provide a business duration and drilling program for the oil field to facilitate any extension sought.
(k) Tey and Ooi maintain that the investigation conducted was a sham. At all material times Ooi states that the representatives of Protasco namely Dato’ Chong and Kenny were actively involved in the negotiation of SPA 1 and SPA 2 with PT ASU.
(l) Further there was no investigation report produced, no report of its findings to the Board of Directors nor any queries put to Tey and Ooi at all.
(m) The claim it is contended was filed at the behest of Dato’ Chong after a board meeting convened to ratify his unilateral action.
(n) Tey and Ooi’s ownership of shareholding in PT ASU, PT Inovisi and Acclaim is wholly denied. Instead they aver that it is Dato’ Chong and Kenny who enjoy an interest in PT Inovisi vide one R S Maha Niaga Sdn Bhd, an entity they control.
(o) They further aver that Dato’ Chong Kenny and senior management of Protasco and its subsidiaries have financially benefited through illegal financial gains from the agreement between Protasco and PT ASU.
Comment:
The most important summary and motive of this sham lawsuit are because CKP wanted to gain sole control of Protasco after CKP got what he wanted, which is CKP’s position being MD and controls Protasco.
CKP’s unlawful gain of power and money is not just limited to his RM10 million money laundering vehicle RS Maha Niaga, but CKP’s unrealistic salaries ballooned to RM4.2 million a year (note2), and unsustainable dividend to pay CKP. CKP further recycled this ill-gotten money buying into more Protasco shares and gets the more illegal dividend, all of which are evidence that the lawsuit is sham and not a civil case. It’s a criminal case on CKP himself.
Note2: Money that CKP took from Protasco are proven from Protasco annual report available on Bursa Malaysia public information online.
[26] In summary it is Tey and Ooi’s defence that the entire transaction between Protasco and PT ASU was undertaken at the behest of, and with the full knowledge and consent of Dato’ Chong and Kenny.
For civil turn criminal case discussion purposes.
AG may charge Chong Ket Pen for criminal fraud and defraud - Law Lexis - Asean Criminal Fraud in Civil Outfit Case study 