Bursa Malaysia Securities Berhad v Mohd Afrizan bin Husain

Skrine acted on the process.

The Federal Court had to consider five questions of law put forward by the Appellant.  The questions of law concerned the interpretation of the Listing Requirements, which include the ACE Market Listing Requirements (“ACE LR”) and Main Market Listing Requirements (“Main LR”) (collectively “the Listing Requirements”), and the scope of the powers and/or duties of the liquidator of a listed corporation.

The Respondent, Mohd Afrizan bin Husain, is the former liquidator of Wintoni Group Berhad, appointed pursuant to a Kuala Lumpur High Court Order dated 17 August 2017. Wintoni was a listed corporation on the ACE Market of Bursa Securities at the material time.

Shortly after the Respondent’s appointment as liquidator of Wintoni, the Respondent issued a Letter of Undertaking (“LOU”) where the Respondent expressly undertook and agreed to comply with the ACE LR in consideration of Bursa Securities allowing the continued listing of Wintoni on the Official List. Compliance with the ACE LR includes, amongst others, the preparation of the relevant financial statements of Wintoni. During the material period, there were also ongoing legal challenges/ appeals being brought against the Winding-Up Order.

Premised on these facts, Wintoni was not de-listed by Bursa Securities.

Notwithstanding having issued the LOU and being the person responsible for the management of Wintoni, the Respondent failed to comply with the ACE LR by causing and permitting, either knowingly or where he had reasonable means of obtaining such knowledge, Wintoni to fail to announce its relevant financial statements at the material time. The Respondent also did not authorise Wintoni’s directors to take steps to ensure that Wintoni complied with its obligations under the ACE LR.

Consequently, the Respondent was publicly reprimanded by Bursa Securities due to the Respondent’s said breaches of the ACE LR.

Being dissatisfied with Bursa Securities’ decision, the Respondent commenced judicial review proceedings seeking, amongst others, to quash Bursa Securities’ decision to publicly reprimand him for failing to comply with the ACE LR.

In allowing Bursa Securities’ appeal, the crux of the Federal Court’s decision turned on the interpretation of the word ‘shall’ at Rule/paragraph 16.11(2) of the ACE LR/Main LR.

The Skrine team consisted of Partners Khoo Guan Huat (Picture), Preetha Pillai and Nimalan Devaraja, and Senior Associate Ann Tiang Wen En.

Involved fees earner: Nimalan Devaraja – Skrine; Khoo Guan Huat – Skrine; Preetha Pillai – Skrine; Ann Tiang Wen En – Skrine;

Law Firms: Skrine;

Clients: Bursa Malaysia Securities Berhad;

Sonia Carcano

Author: Sonia Carcano