Ang Hock Heng v Ngu Tieng Ung (WA-22NCC-564-08/2023)

This is a trial initially fixed for 3 days in 2025. However, at the close of the plaintiff’s case on the first day of trial, the defendant elected to submit no case to answer.

Oral submissions were held before me on 14-10-2025. On conclusion of hearing, I allowed the plaintiff’s claim in the Statement of Claim at paragraph 17[a] for the sum RM 1,545,000, paragraph [c] for interest and paragraph [e] for costs of RM 40,000 subject to allocatur.

On 10-11-2025 an appeal was filed by the defendant to the Court of Appeal against my decision. These are my Grounds of Judgment. Background facts

The plaintiff is an individual based in Selangor.

The defendant is an individual based in Kuala Lumpur. Plaintiff’s case Defendant asked plaintiff for a loan

The plaintiff’s case is that in 2021 he met the defendant who introduced himself as Dato Sri Ngu Tieng Ung and told him that he was a director of many companies in particular Tawin Holding Berhad (No. Syarikat: 199401005913 (291592-U), a company listed in Bursa Malaysia.

The defendant requested for a friendly loan of RM 1,545,000 from the plaintiff. Defendant signed the Friendly Loan Agreement

The plaintiff agreed to the request and parties signed a friendly loan agreement as evidenced by a document titled Friendly Loan Agreement dated 02-03-2021. [“Friendly Loan Agreement”].

The Friendly Loan Agreement bears the signatures of both the plaintiff and the defendant.

The terms of the Friendly Loan Agreement [See Enclosure 39 B1 page 1] were-i. The plaintiff loaned RM 1,545,000 to the defendant; and ii. The defendant agreed to repay by 05-04-2021. Plaintiff gave the loan monies

The plaintiff testified [WS-PW1 Q and A 2 and 3] that at the defendant’s request he deposited the RM 1,545,000 into the account of Timur Enterprise Sdn Bhd. [Enclosure 39 B1 pages 2 - 31].

The plaintiff also testified [WS-PW1 Q and A 4] and produced Bank Transfer Records that showed a total transfer of RM 1,545,000 by the plaintiff via third party and or his agent into the account of Timur Enterprise Sdn Bhd. [Enclosure 39 B1 pages 2 - 31]. Defendant gave post-dated cheques to repay. Cheques dishonoured

The plaintiff further testified [WS-PW1 Q and A 5] that the defendant requested to repay by an Instalment Plan and gave post-dated cheques. [Enclosure 39 B1 pages 32 - 45]. However, these cheques were dishonoured.

The plaintiff draws the attention of the Court to one of these cheques (Enclosure 39 B1 page 36), which was issued through the defendant’s own company, Penta Nonferrous Metals Sdn Bhd. The plaintiff refers to the Experian search against the defendant (Enclosure 39 B1 pages 52 & 53) which clearly shows the defendant was a shareholder and director of Penta Nonferrous Metals Sdn Bhd until his withdrawal as shareholder and resignation as director on 18-07-2024. The defendant’s Defence

In his Defence at paragraph 5 the defendant admitted knowing the plaintiff.

The defendant pleads that on or about 02-03-2021, he did sign a friendly loan agreement but not the Friendly Loan Agreement that the plaintiff mentioned. [See Enclosure 32 IP, Defence at paragraph 6.1]

The defendant also pleads that he did not receive any loan monies from the plaintiff. [See Enclosure 32 IP, Defence at paragraph 6.2].

The defendant further pleads that he did not give any post-dated cheques to the plaintiff as repayment for the friendly loan as alleged. [See Enclosure 32 IP, Defence at paragraph 6.3]

However, as mentioned earlier the defendant elected to submit no case to answer. He did not testify. Neither did he call any witness to support his pleaded Defence.

The plaintiff testified in support of his claim. He called no other witness.

The defendant opted not to testify or call any witness.

In view of the stand taken by the defendant, I shall first set out the law on ‘no case to answer' before I apply the law to the facts. Law on ‘no case to answer'

From decided cases, the principles applicable when a defendant submits 'No case to Answer' are as follows: i. At the close of the plaintiff’s case, a defendant can opt not to call any witness for the defence but instead make a submission of 'No case to answer’; ii. Where the defence submits 'No case to answer', the trial judge must put the defence counsel to his election, namely, that if he elects to not call evidence, he would stand or fall on his submissions; iii. The judge should refuse to make a ruling on a submission of 'No case to answer' unless the defence makes it clear that he does not intend to call any witness for the defence; iv. For the purpose of testing whether there is a case to answer, all the evidence given must be presumed to be true. [See Jaafar Shaari & Siti Jama Hashim v Tan Lip Eng & Anor [1997] 1 MLRA 605; [1997] 3 MLJ 693; [1997] 4 CLJ 509; [1997] 4 AMR 3744, CA (“Jaafar Shaari”)]; v. If the plaintiff’s evidence does not appear to be either inherently incredible or inherently improbable, it is the duty of the judge to accept the evidence as true in the absence of any evidence from the defendant going the other way. [See Takako Sakao v Ng Pek Yuen & Anor [2009] 6 MLJ 751, FC [“Takako Sakao”]; vi. Adverse inference can be drawn against the defendant for failing to call any witnesses should the circumstances appropriately call for such an adverse inference. [See Jaafar Shaari]; and vii. However, even if the plaintiff's evidence is presumed to be true and adverse inference is drawn, the burden of proof at all times is borne by the plaintiff on the balance of probabilities to establish his case against the defendant. It is for the plaintiff to prove his case and satisfy the court that his claim is well-founded before the court can grant judgment on his claim. The fact that the defendant has led no evidence or called no witnesses does not absolve the plaintiff from discharging his burden in law. [See Jaafar Shaari and Syarikat Kemajuan Timbermine Sdn Bhd v Kerajaan Negeri Kelantan Darul Naim [2015] 2 MLRA 205; [2015] 3 MLJ 609; [2015] 2 CLJ 1037; [2015] 2 AMR 124, FC, per Ramly Ali FCJ (“Syarikat Kemajuan Timbermine”)]. Two consequences when a defendant elects no case to answer

The Federal Court in Takako Sakao has given two consequences that follow when a defendant refrained from giving evidence by choosing to elect no case to answer-Acceptance of Facts

The first consequence is the evidence given by the plaintiff ought to be presumed to be true. If the plaintiff’s evidence does not appear to be either inherently incredible or inherently improbable, it is the duty of the judge to accept the evidence as true in the absence of any evidence from the defendant going the other way. Drawing an adverse inference

The second consequence is the court is entitled to draw an adverse inference from the absence of testimony from the defendant who might be expected to have material evidence to give on an issue in an action.

In Takako Sakao, this is what Gopal Sri Ram FCJ said- [4]. “In our judgment, two consequences inevitably followed when the first respondent who was fully conversant with the facts studiously refrained from giving evidence. In the first place, the evidence given by the appellant ought to have been presumed to be true. As Elphinstone CJ said in Wasakah Singh v Bachan Singh (1931) 1 MC 125 at p 128: If the party on whom the burden of proof lies gives or calls evidence which, if it is believed, is sufficient to prove his case, then the judge is bound to call upon the other party, and has no power to hold that the first party has failed to prove his case merely because the judge does not believe his evidence. At this stage, the truth or falsity of the evidence is immaterial. For the purpose of testing whether there is a case to answer, all the evidence given must be presumed to be true. Now, what the trial judge did in the present case is precisely what he ought not to have done. He expressed dissatisfaction with the appellant’s evidence without asking himself that most vital question: does the first defendant/respondent have a case to answer? This failure on the part of the trial judge is a serious non-direction amounting to a misdirection which occasioned a miscarriage of justice. The trial judge was at that stage not concerned with his belief of the appellant’s evidence. She had given her explanation as to the discrepancies in the figures. And her evidence does not appear to be either inherently incredible or inherently improbable. In these circumstances it was the duty of the judge to have accepted her evidence as true in the absence of any evidence from the first respondent going the other way. He however failed to direct himself in this fashion thereby occasioning a serious miscarriage of justice. [5] The second consequence is that the court ought to have drawn an adverse inference against the first respondent on the amount of the appellant’s contribution to the purchase price as well as the existence and the terms of the mutual understanding or agreement that she had with the first respondent. Where, as here, the first respondent being a party to the action provides no reasons as to why she did not care to give evidence the court will normally draw an adverse inference. [Emphasis added]

Applying the principles applicable when the defendant submits 'No case to Answer', i.e. For the purpose of testing whether there is a case to answer, all the evidence given by the plaintiff must be presumed to be true but the burden of proof at all times is borne by the plaintiff on the balance of probabilities to establish his case against the defendant, can it be said in this case that the plaintiff has proven he entitled to the reliefs prayed for in his suit in that-i. The plaintiff has given the defendant a friendly loan of RM 1,545,000; and ii. The defendant has failed to repay the plaintiff. Issue [i] – did the plaintiff give the defendant a friendly loan of RM 1,545,000?

The plaintiff has pleaded in his Statement of Claim and relies on the Friendly Loan Agreement [See Enclosure 39 B1 page1]. It shows the defendant’s signature.

The defendant pleads in his Defence that on or about 02-03-2021 he did sign a friendly loan agreement but not the Friendly Loan Agreement that the plaintiff mentioned. [See Enclosure 32- IP, Defence at paragraph 6.1]. But the defendant failed to testify to support his pleaded Defence.

Under a case of “No case to answer”, for the purpose of testing whether there is a case to answer, all the evidence given by the plaintiff must be presumed to be true. If the plaintiff’s evidence does not appear to be either inherently incredible or inherently improbable, it is the duty of the judge to accept the evidence as true in the absence of any evidence from the defendant going the other way. [See Takako Sakao at [4]].

If the defendant contends that the signature on the Friendly Loan Agreement is not his, the burden to prove forgery is on him.

Recently, the Federal Court in Teoh Kiang Hong v Theow Say Kow @ Teoh Kiang Seng, Henry [2025] 2 AMR, FC, when reversing the Court of Appeal, reiterated the burden of proof principles. The relevant facts which concern this burden are as follows; Gary sent a demand letter to Henry for the performance of a share sale agreement ("SSA") which was formalised for the sale of Henry's share in the family companies to Gary. Henry denied the existence of the SSA and claimed that he never signed it. Henry alleged forgery of his signature and questioned the validity of the SSA.

Abang Iskandar Abang Hashim PCA [on behalf of the Federal Court] said at [89]: [89] However, on the question of who in law, shall bear the burden to prove forgery, specifically in this case, the alleged forgery of Henry's signature, we are of the unanimous view that the Court of Appeal had fallen into error in placing that onus on Gary, instead of on Henry. Clearly, Henry was alleging that his signature on the SSA was a forgery. In such a circumstance, because it was Henry who had so alleged, he bore the onus of proving that the signature was a forgery. There is a Latin maxim that reads, "onus probandi incumbit ei qui dicit, non ei qui negat", that translates to mean, the burden of proof lies with the one who speaks, not the one who denies the same. [Emphasis added]

I hold that forgery has not been proven as the defendant had failed to testify. He also failed to call a handwriting expert to prove that his signature was forged. Evidence of release of monies to defendant

The plaintiff has testified [WS-PW1 Q and A 2 and 3] that at the defendant’s request he deposited the RM 1,545,000 into the account of Timur Enterprise Sdn Bhd. [B1 pages 2 - 31].

The plaintiff also testified [WS-PW1 Q and A 4] and produced Bank Transfer Records to contend a total transfer of RM 1,545,000 were transferred by the plaintiff via third party and or his agent into the account of Timur Enterprise Sdn Bhd. [B1 pages 2 - 31]. Evidence of failed repayments by defendant

The plaintiff further testified [WS-PW1 Q and A 5] that the defendant requested to repay by an Instalment Plan and gave post-dated cheques. [B1 page 32 - 45]. However, these cheques were dishonoured.

The plaintiff draws the attention of the Court to one of these cheques (B1 page 36), which was issued through the defendant’s own company, Penta Nonferrous Metals Sdn Bhd. The plaintiff refers to the Experian search against the defendant (B1 pages 52 & 53) which clearly shows the defendant was a shareholder and director of Penta Nonferrous Metals Sdn Bhd until his withdrawal as shareholder and resignation as director on 18-07-2024. Facts, not evidence, required to be pleaded

The defendant contends “the Plaintiff is not allowed to argue a new cause of action ie alleged payment by various third parties as trustee/representative of Plaintiff or alleged repayment by various third parties as trustee/representative of Defendant which is a radical departure from the pleaded cause of action.” [See Enclosure 51 defendant’s Reply WS paragraph 8].

I reject this argument. The plaintiff had sufficiently pleaded his cause of action is based on a loan to the defendant made under the Friendly Loan Agreement [See paragraphs 6, 7 and 11 Statement of Claim]. The release of the loan monies to recipients as directed by the defendant and repayments by the defendant using companies’ cheques are merely evidence.

It is trite law that under Order 18 rule 7(1) ROC 2012 evidence need not be pleaded and only material facts on which the party pleading relies for his claim must be pleaded. Order 18 rule 7(1) ROC 2012 reads as follows-Facts, not evidence, to be pleaded (O. 18, r. 7)

(1) Subject to the provisions of this rule and rules 10, 11 and 12, every pleading shall contain, and contain only, a statement in a summary form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which those facts are to be proved, and the statement shall be as brief as the nature of the case admits. [Emphasis added]

In conclusion, the failure of the defendant to call any evidence to rebut the testimony and evidence of the plaintiff means the plaintiff has proven issue [1] in the affirmative. [See Takako Sakao, Jaafar Shaari and Syarikat Kemajuan Timbermine]. Issue [2] – if the answer to issue [1] is yes, did the defendant repay the plaintiff.

The defendant has never asserted he had repaid the plaintiff. In any event, the burden is on the defendant.

The failure of the defendant to call any evidence means the plaintiff has proven issue [2] in the negative. [See Jaafar Shaari and Syarikat Kemajuan Timbermine].

For the reasons above, I allow the plaintiff’s claim in the Statement of Claim at paragraph 17[a] for the sum RM 1,545,000, paragraph [c] for interest and paragraph [e] for costs of RM 40,000 subject to allocatur. Dated: 01st December 2025 ………(signed)………….. Leong Wai Hong Judge High Court of Malaya Kuala Lumpur (NCC 6) Counsel for plaintiff: Elaine Foong. Elaine, Yun & Associates (Petaling Jaya) Counsel for defendant: Tay Shieh Chin and Liao Jia Wen. Ganaeswaren & Latib (Klang)

Jaafar Shaari and Syarikat Kemajuan Timbermine Sdn Bhd v Kerajaan Negeri Kelantan Darul Naim [2015] 2 MLRA 205; [2015] 3 MLJ 609; [2015] 2 CLJ 1037; [2015] 2 AMR 124, FC.

Jaafar Shaari & Siti Jama Hashim v Tan Lip Eng & Anor [1997] 1 MLRA 605; [1997] 3 MLJ 693; [1997] 4 CLJ 509; [1997] 4 AMR

Takako Sakao v Ng Pek Yuen & Anor [2009] 6 MLJ 751, FC.

Teoh Kiang Hong v Theow Say Kow @ Teoh Kiang Seng, Henry [2025] 2 AMR FC.

Wasakah Singh v Bachan Singh (1931) 1 MC 125.

Rules of Court 2012, order 18 rule 7(1)