Master High Engineering Sdn.Bhd. v Umar Zen (JA-22NCvC-186-12/2021)

1 IN THE HIGH COURT OF MALAYA AT JOHOR BAHRU IN THE STATE OF JOHOR DARUL TA’ZIM MALAYSIA CIVIL SUIT NO. : JA-22NCvC-186-12/2021 BETWEEN

1. MASTER HIGH ENGINEERING SDN. BHD. (COMPANY NO. : 541303-V)

2. AW CHENG GUAN (NRIC NO. : 670930-01-5763) …PLAINTIFFS AND

1. UMAR ZEN (INDONESIAN CITIZEN NIK NO. : 3276021008580008 ALSO KNOWN AS YUAN QIANG ZHONG HOLDER OF SINGAPORE IDENTITY CARD NO. : S3010978D)

2. CINDY ZEN (SINGAPORE IDENTITY CARD NO. : S8186265F) 22/07/2026 12:00:23 JA-22NCvC-186-12/2021 Kand. 48 **Note : Serial number will be used to verify the originality of this document via eFILING portal 2 3. HO KIN HANG JERFF LUKE (HA NO. : 9069593) …DEFENDANTS GROUNDS OF JUDGMENT INTRODUCTION

1. This is an action founded on deceit. The plaintiffs claim that they were induced by false representations and fabricated documents to part with substantial sums of money, which they sue to recover together with interest and costs. The first plaintiff (“P1”) is a company of which the second plaintiff (“P2”) is the director and shareholder. The first defendant (“D1”) was the principal actor in the dealings complained of; the second defendant (“D2”) is his daughter and the third defendant (“D3”) is her husband. The plaintiffs allege that the defendants acted in concert to deceive them.

2. This trial was part-heard. It commenced before my predecessor, the Honourable Justice Nurulhuda Nur'aini Binti Mohamad Nor, on 8 October 2024, when the PW1, affirmed and gave his evidence-in-chief. Following Her Ladyship transferred to the Kuala Lumpur High Court, the matter came before me and I continued the trial from the stage which it had reached before my predecessor. I conducted the trial on the following dates : 22, 23, 27 and 28 January 2026, 2 March 2026 and 9, 15 and 16 April 2026. **Note : Serial number will be used to verify the originality of this document via eFILING portal 3

3. In reaching my decision I have had the benefit of and have carefully considered, the Court Recording Transcript (CRT) of the trial proceedings conducted before my predecessor and my findings take into account the evidence so recorded. I heard the cross-examination and re-examination of PW1 and the whole of the evidence of PW2, D2 and D3 given before me over the 2026 trial dates. My assessment of the credibility of D2 and D3 accordingly rests on my having seen and heard them testify before me.

4. This is my decision and grounds. BACKGROUND The Plaintiffs’ case

5. The plaintiffs’ pleaded case, drawn from the statement of claim, may be summarised as follows. In or about June 2020 P2 came to know D1, who offered consultancy services to advance P1’s business and in particular, to obtain a Standby Letter of Credit (SBLC) of USD 12 million from WBA Financial Services Ltd (“WBA”) in the United Kingdom. D1 introduced D2 as his assistant for documentation and correspondence. Due to the Covid 19 and because the borders were closed, dealings were conducted by email and WhatsApp. **Note : Serial number will be used to verify the originality of this document via eFILING portal 4 6. On 16 November 2020, D1 informed P2 that he had advanced USD 120,000.00 of his own funds towards the WBA commission and showed P2 a transfer receipt purportedly from D3’s DBS Bank account to WBA. In reliance on that representation, P2 paid D1 USD 120,000.00 on 18 November 2020 and a further USD 240,000.00 on 19 November 2020, making up the total commission of USD 360,000.00.

7. In February 2021 D1 and D2 introduced a diesel trading venture with BTAZ Global Pte Ltd which, the plaintiffs say, required an advance of USD 150,000.00. Persuaded by the documents shown to him, P2 raised and handed USD 150,000.00 to D1 on 18 February 2021.

8. When nothing materialised, P2 made enquiries of DBS and UOB, was advised that the documents were not genuine and confronted D1. The plaintiffs say D1 admitted falsifying the SBLC documents and the transfer receipt and promised repayment. D1 is said to have acknowledged spending of RM 432,207.00 during the consultancy period, in respect of which D2 issued a cheque for SGD 144,069.00 in favour of P2’s wife that was dishonoured, as was a replacement. The plaintiffs also claim a friendly loan of RM 50,000.00 made to D1 in August 2020.

9. The plaintiffs accordingly claim, against the defendants jointly or severally –

4.20);

10. The defence, as pleaded for all three defendants, is in substance a denial coupled with a series of positive assertions. D1 claimed that –

11. D2 claimed that her role was –

12. D3 claimed to have had no knowledge of and no involvement in the matters complained of.

13. On the sum of RM 432,207.00, the defendants plead that the plaintiffs are estopped, or that the matter is res judicata, because the identical sum was earlier the subject of a suit by P2’s wife, Huang Mei Ting, in the Johor Bahru Sessions Court (Suit No. : JA-B52NCC-105- 09/2021), which was withdrawn without liberty to file afresh; and that the sum was there pleaded as a friendly loan, not as consultancy fees. D2 says the cheques were extracted from her under duress and threats to D1’s safety. The defendants also object to the jurisdiction of this Court on the footing that the cheques were issued and deposited in Singapore.

14. Although a defence and a witness statement were filed for D1, D1 did not appear at the trial to give evidence. D2 and D3 gave evidence. **Note : Serial number will be used to verify the originality of this document via eFILING portal 7 The Witnesses

15. The plaintiffs called two witnesses : P2 (PW1), who gave evidence for himself and for P1; and one Ling Yee Vee (PW2), who lent P2 money for the diesel venture and was present at the handing over of funds. The defendants called D2 and D3. D1, as noted, did not testify.

16. A feature of the trial bearing directly on the outcome is the classification of the documents. The defendants’ solicitors had the bulk of the plaintiffs’ documents placed in Part C, with the result that, save for a small number that were converted into exhibits, they remained marked for identification only (“ID”). The learned predecessor judge directed that the trial proceed and that admissibility be determined at its conclusion. I deal with the effect of that classification below. The Agreed Facts And Admissions

17. A number of matters are not in dispute, having been recorded in the Statement of Agreed Facts or admitted on the pleadings. They include the following, which I find to be of particular significance –

18. There is an elaborate list of 22 issues filed by the parties. However, in my judgment, the questions for decision are – **Note : Serial number will be used to verify the originality of this document via eFILING portal 9

19. The burden of proof rests throughout on the plaintiffs, who must prove both liability and loss on the balance of probabilities. [See : sections 101 and 102 of the Evidence Act 1950; Selvaduray v Chinniah [1939] 1 MLJ 253; Wong Thin Yit v. Mohamed Ali [1971] 1 LNS 151]. As the defendants correctly submit, where the party bearing the burden fails to discharge it, the other party need not call evidence. [See : Hong Yik Trading v. Liziz Plantation Sdn Bhd [2017] 8 CLJ 491]. **Note : Serial number will be used to verify the originality of this document via eFILING portal 10

20. That principle, however, must be read with section 114(g) of the Evidence Act 1950. Where a defendant who has filed a defence and a witness statement elects not to give evidence and the matters in issue are within his peculiar knowledge, the Court may draw an inference that his evidence would not have supported his pleaded case. The adverse inference does not relieve the plaintiffs of the burden of establishing a prima facie case. But once a prima facie case is established, the defendant’s silence may legitimately be weighed against him. The True Cause Of Action

21. The defendants devoted much of their submission to the proposition that the plaintiffs pleaded the tort of conspiracy to defraud but failed to plead the agreement or combination and the precise objects of the conspiracy, as required by Renault SA v Inokom Corp Sdn Bhd & Anor and other appeals [2010] 5 MLJ 394, Global Ventures Network Sdn Bhd v Lokman bin Dato’ Mohd Kamal and another appeal [2018] 6 MLJ 103 and Tektikal Sdn Bhd v Sarina bt Kamaludin & Ors [2012] 8 MLJ 734. Nevertheless, I find that there is force in the criticism so far as the tort of conspiracy as such is concerned.

22. However, I also observed that the plaintiffs’ claim is not confined to conspiracy. Paragraphs 52 to 55 of the statement of claim plead fraud and deceit by D1 and D2 directly. The word “bersubahat” (conspiring) appears in the particulars, not as the gravamen. Therefore, the **Note : Serial number will be used to verify the originality of this document via eFILING portal 11 substance of the claim is the tort of deceit, i.e. on a false representation of fact, made knowingly or recklessly, intended to be acted upon and in fact acted upon by the plaintiffs to their detriment. [See : Derry v Peek (1889) 14 App Cas 337]. I therefore approach the case as one founded principally in deceit, with the alleged combination going to the question whether D2 (and D3) are answerable together with D1, rather than as a free-standing tort of conspiracy that must independently be pleaded and proved. The Documents Marked For Identification

23. The defendants’ strongest point is that the documents on which the plaintiffs rely, in particular the WhatsApp messages at pages 177 to 241 of Bundle A1 and the various agreements, remained in Part C, marked only as ID and were never converted into exhibits by calling their makers, nor supported by a certificate under section 90A of the Evidence Act 1950 for the computer-generated material. They rely on Live Capital Sdn Bhd v Pioneer Conglomerate Sdn Bhd [2025] 4 MLJ 420, in which the Federal Court held that a disputed document tendered and marked for identification does not prove the truth of its contents until the maker is called and that the plaintiff must first establish a prima facie case before any evidential burden shifts to the defendant.

24. I accept that statement of the law and apply it. The consequence is that I place no reliance, as proof of the truth of their contents, on the documents that remained as ID. In particular, I do not treat the **Note : Serial number will be used to verify the originality of this document via eFILING portal 12 disputed WhatsApp transcripts as established merely by their production.

25. That, however, does not dispose of the plaintiffs’ case, for three reasons –

26. On the admitted facts, D1 fabricated a transfer receipt using D3’s account and deliberately told P2, falsely, that he had paid USD 120,000.00 of his own money to WBA. Those are representations of fact known by D1 to be false. The defence characterises the fabrication as something done to relieve P2’s “pressure” rather than to deceive; but a person who manufactures a false payment receipt and shows it to another, while falsely asserting that funds have been advanced, makes a fraudulent representation whatever his subjective motive. The representations were plainly intended to be, and were, acted upon. P2 reimbursed the USD 120,000.00 and paid the balance commission of USD 240,000.00.

27. D1 did not give evidence to answer P2’s sworn account, though the matters were peculiarly within his knowledge and he had filed a defence and a witness statement. It was confirmed on the record at the resumed hearing that D1 would not attend at all, he being in Indonesia, against the background of an allegation that he had left Malaysia to avoid these and other proceedings. His absence was therefore a considered choice and not the product of inadvertence or misfortune. I draw an adverse inference under section 114(g) of Evidence Act 1950 that his evidence would not have assisted his defence. Taken with the admissions and P2’s unrebutted testimony, the plaintiffs have established a prima facie case of deceit against D1 which stands unanswered. **Note : Serial number will be used to verify the originality of this document via eFILING portal 14

28. Further, based on the internal contradiction in the defence, that D1 “never offered himself as a consultant” [para 7(iii)] yet “acted as a consultant” [para 43(b)] and the improbability of the assertion that D1, stranded and short of funds, advanced his own money to a transaction he claims to have warned against, further undermine the defence. I find D1 liable in deceit.

29. Aside from the above, I also recorded that among the issues filed by the parties were whether D1 had absconded from Indonesia in connection with offences of fraud, cheating and money laundering, and whether, as a person said to be wanted in that jurisdiction, he had since returned to it (issues 19 and 20). In my judgment, these go to D1's antecedents and movements, not to the representations, reliance and loss that make out the deceit I have had to decide. Beyond what I have already recorded, that D1 is in Indonesia and chose not to appear to answer the claim, they are not necessary to the disposal of this action. Liability of The Second Defendant

30. The position of D2 is more finely balanced and requires separate consideration. D2’s case is that she was a mere assistant who filled in documents and sent emails on her father’s instructions, with no knowledge of the substance of the dealings between D1 and the plaintiffs. The plaintiffs’ own counsel, in cross-examination, put to D2 (and she agreed) that what transpired between D1 and the plaintiffs **Note : Serial number will be used to verify the originality of this document via eFILING portal 15 was beyond her knowledge and that she knew only what D1 told her. Standing alone, those concessions would point towards dismissal.

31. Having seen and heard D2 give evidence before me, I do not accept her account that she was an innocent and ignorant hand. On her own evidence she was the central figure on the defence side. She confirmed that she alone instructed solicitors on behalf of all three defendants and that neither her father (D1) nor her husband (D3) dealt with the solicitors at all. She agreed that she had described and treated D1 as a "consultant". She admitted that she assisted D1 with the documentation and the "online activities", that she sent and received emails on his behalf, including correspondence with WBA - and that she operated D1's "oil trade" Gmail account, D1 being, on her own evidence, not conversant with computers. That is not the profile of a person performing isolated clerical tasks in ignorance of their purpose. It is the profile of the person through whom the impugned documents were prepared and transmitted.

32. D2's evidence on the WhatsApp communications confirmed my impression of her as an evasive and unsatisfactory witness. She began by denying that she had ever communicated with P2 by WhatsApp, saying her dealings were only with her father; pressed, she said she could not remember; she then accepted that she had; she then said it was "not for work"; and when shown a copy of her own identity card sent to P2 by WhatsApp at p. 208 of Bundle A1 she asserted "this is not my WhatsApp", before finally confirming that the messages were between herself and P2. It was put to her and the probabilities support, that she had deliberately deleted the messages, and that P2 had preserved them by screenshot before she did so. **Note : Serial number will be used to verify the originality of this document via eFILING portal 16 Her denial on oath also cannot be reconciled with para 13 of the very defence filed on her instructions, which admits that P2 communicated with her by WhatsApp, nor with the fact that a screenshot she herself exhibited in her affidavit to set aside the earlier judgment in default was shown to be identical to one of the messages she sought to disown. A witness who disowns, on oath, communications that her own pleadings and affidavit admit does so for a reason and I drew the inference that the disavowal was designed to distance herself from documents she knew to be incriminating.

33. On the totality of the evidence I find that D2 did not merely perform clerical tasks in ignorance. She prepared the documentation by which the representations were conveyed to P2; she was the conduit for the agreements and, on the plaintiffs’ evidence, for the diesel documents; and as D3’s wife she had access to the very bank details that appear on the fabricated transfer receipt. D1, on D2’s own evidence, was not adept with computers. The inference I draw, from her integral operational role, her access to D3’s banking details and her demonstrated willingness to deny the truth on oath, is that D2 knew the documents she prepared and transmitted were being used to deceive the plaintiffs and participated in that deception.

34. I found D2 liable not on the discrete tort of conspiracy, which for the reasons given was not pleaded with the precision the authorities require, but as a joint participant in the deceit. The fraudulent misrepresentation case was properly pleaded against both D1 and D2. My findings as to D2’s knowledge and participation make her answerable for that deceit together with D1. To that extent D1 and D2 are jointly liable. **Note : Serial number will be used to verify the originality of this document via eFILING portal 17 Liability of The Third Defendant

35. The claim against D3 stands on a different footing. It is the plaintiffs’ own pleaded and admitted case that the transfer receipt was fabricated by D1 (not D3) and the defence which was unchallenged on this point, is that D3 received none of the money. There is no evidence that D3 agreed to anything, made any representation, or received any benefit. His name was proposed as a director of the Singapore company and his bank details appear on a document fabricated by another.

36. In closing, the plaintiffs sought to fix D3 with liability on the basis of “wilful blindness” and “negligence”. That is neither the pleaded case nor consistent with a claim in fraud and in any event is unsupported by evidence of any duty owed or breached by D3. D3 gave evidence and I found nothing in his account or demeanour to suggest complicity. The claim against D3 is dismissed. The Jurisdiction Objection

37. The defendants’ objection that the dispute belongs in Singapore because the cheques were issued and deposited there is misconceived in respect of the tort claims. The deceit was practised on P2 in Johor Bahru, where the representations were received and where P2 parted with his money. This Court plainly has jurisdiction **Note : Serial number will be used to verify the originality of this document via eFILING portal 18 over a tort committed within the local jurisdiction. The point has force, if at all, only in relation to the RM 432,207.00 head, which is in any event dismissed on other grounds below. Quantum

38. Liability being established against D1 and D2, I turn to the measure of recovery under each head. I keep in mind that the plaintiffs bear the burden of proving their loss and that they candidly accept they hold no bank document evidencing the cash sums handed to D1. A. The SBLC commission - USD 360,000.00

39. I find that this head is proved. The inducement which includes the fabricated receipt and the false “own funds” representation, is admitted. P2 testimony and pleading consistent evidence that, in reliance, he paid USD 120,000.00 on 18 November 2020 and USD 240,000.00 on 19 November 2020 and his contemporaneous police report (exhibit P23) records the complaint. D1 did not testify to deny receipt and I have drawn an adverse inference. I am satisfied on the balance of probabilities that the plaintiffs paid and lost USD 360,000.00. I allow this head in the pleaded sum of RM 1,512,000.00 against D1 and D2 jointly. **Note : Serial number will be used to verify the originality of this document via eFILING portal 19 B. The diesel advance - USD 150,000.00

40. This is the most finely balanced of the heads and I have weighed it with care. The plaintiffs hold no document evidencing payment of USD 150,000.00 to D1 and the defence pleads [para 30(iv)–(v)] that the venture carried a registration fee of USD 150,000.00 to be shared equally between BTAZ Global and P2, so that P2's share was USD 75,000.00, of which it says he paid only SGD 50,000.00, with D1 contributing a further USD 40,000.00. The dispute on this head is therefore not whether P2 paid into the venture, which the defence itself accepts, but how much.

41. I begin with P2's own evidence, which I heard tested at length in cross-examination. He maintained throughout that he raised USD 150,000.00 and handed it, in cash, to D1 in person in Johor Bahru on 18 February 2021 and that the money went to D1 alone and not to D2 or D3. He gave a coherent account of how he assembled the sum, from cash he kept at home, monies of the company and borrowings from a friend. He did not overstate his position : he accepted frankly that he holds no document evidencing the handover. That candour, and the consistency of his account under sustained challenge, weighed with me. Having seen and heard him, I accept his evidence that he paid over the whole of the USD 150,000.00 and I do not accept that he paid only the lesser sum the defence asserts.

42. P2's evidence does not stand alone. PW2 gave evidence that he lent P2 a substantial sum in cash for this venture in early 2021, which corroborates P2's account of borrowing from a friend to raise the **Note : Serial number will be used to verify the originality of this document via eFILING portal 20 money and that he accompanied P2 and D1 to a money changer used for the venture, though he did not himself see the sum remitted. I have not overlooked the weaknesses in his evidence : pressed on the document he had seen he described it as a tenancy agreement rather than a supply contract and the figure he recalled lending does not by itself establish the full USD 150,000.00. But his recollection of the designation "EN590" and the timing of his loan, tie his account to this venture and I take it as confirming that P2 was raising and paying out substantial cash for this transaction at the material time, consistent with and corroborative of his account. The USD 150,000.00 also appears on the PT Berkah invoice as the figure the venture required; that is not proof that P2 paid it, but it is consistent with the sum he says he provided.

43. Against this stands only the defence's lower figure and that figure rests on the pleading and witness statement of D1, who received the money and was the one person able to contradict P2's account of what was handed over, yet who elected not to attend and submit himself to cross-examination. His untested assertion carries little weight and I draw the inference, on this head as on the question of liability, that his evidence would not have supported the lower figure he pleaded. The adverse inference does not relieve the plaintiffs of their burden, but P2's credible and tested evidence establishes a prima facie case that he paid USD 150,000.00 and that case, corroborated as I have described and unrebutted by the only witness who could have rebutted it, is proved on the balance of probabilities.

32. D2's liability under this head follows from my findings at paragraph It rests on her participation in the deceit as the conduit for the diesel documents, not on her having received any part of the money. **Note : Serial number will be used to verify the originality of this document via eFILING portal 21

44. I accordingly find the payment of USD 150,000.00 proved, and allow this head in the pleaded sum of RM 630,000.00 against D1 and D2 jointly. C. The friendly loan - RM 50,000.00

45. This head is pleaded as a personal loan to D1 [para 56(a) of the statement of claim], advanced in August 2020 for the renewal of D1’s Singapore documents and his living expenses, repayable when the ventures bore fruit. It is not part of the fraud and is not, on its pleaded basis, a claim against D2. P2’s evidence of the loan is unrebutted by D1. I allow this head in the sum of RM 50,000.00 against D1 alone. D. The “consultancy” sum - RM 432,207.00

46. The history of the sum of RM 432,207.00 was put to P2 in cross-examination, by reference to documents in the Common Bundle and was not satisfactorily answered. P2's wife, Huang Mei Ting had earlier sued D2 for the very same sum in the Johor Bahru Sessions Court (Suit No. : JA-B52NCC-105-09/2021, filed 7 September 2021), where it was pleaded, on her solicitor's letter of 19 July 2021 as a friendly loan. She obtained judgment in default against D2, who then applied to set it aside (enclosure 13) on a supporting affidavit that was never answered. By letter of 21 December 2021 the wife's solicitor **Note : Serial number will be used to verify the originality of this document via eFILING portal 22 confirmed that she had no objection to the set-aside and consented to the contents of D2's affidavit; and by notice dated 6 January 2022 she discontinued the Sessions Court action without liberty to file afresh. The present suit had by then already been filed, on 30 December 2021 and the same sum is now advanced not as a friendly loan but as consultancy fees.

47. A party may not approbate and reprobate in this way. [See : Cheah Theam Kheng v City Centre Sdn Bhd (in liquidation) and other appeals [2012] 1 MLJ 761]. The plaintiffs cannot reformulate, as a fraud-based claim for consultancy expenditure, a sum that the same family interest first asserted as a friendly loan and then abandoned without liberty to revive. Beyond that, there is no proof of the underlying expenditure : no agreement, account or receipt was produced and D1's alleged "calculation" was not in evidence in any admissible form. P2's answer to each of these propositions in cross-examination was that he did not know. The dishonoured cheques for SGD 144,069.00 evidence an acknowledgment of something, but they do not prove that RM 432,207.00 was money expended on or paid to D1 and D2 as consultancy, which is the case the plaintiffs chose to plead. This head is dism issed against all defendants. **Note : Serial number will be used to verify the originality of this document via eFILING portal 23 CONCLUSION AND ORDERS

48. For the reasons given, I make the following orders –