Best Amity Sdn Bhd v Sakura Binti Ariffin (JA-22NCC-36-07/2020)

SAKURA BINTI ARIFFIN [NRIC NO. : 780211-01-6898]

CHIN TECK SIANG [NRIC NO. : 801209-01-5247]

CHAU FOOK SANG [NRIC NO. : 670228-01-5835]

CHIAM TOW YONG [NRIC NO. : 631225-01-5571] …DEFENDANTS

This is an action by the Plaintiff, a company carrying on a recycling business, against four Defendants. The first Defendant (“D1”), Sakura binti Ariffin, was a director of the Plaintiff from 29.11.2013 until she was removed on 15.12.2017. She is also the sole proprietor of a separate business firm registered under the name Best Amity Enterprise [Company Registration No. : JM 0555590K]. The second Defendant (“D2”), the third Defendant (“D3”), and the fourth Defendant (“D4”), are individuals who were present at the Plaintiff’s premises during the material period. D4 is also a director of Yong Hup Metal Sdn Bhd, a company in the scrap trading business.

The Plaintiff’s claims against the Defendants are for, inter alia, breach of fiduciary duty by D1, conspiracy and fraud by all Defendants in relation to the misappropriation of scraps purchased from Flextronics Shah Alam Sdn Bhd, trespass and conversion of a lorry bearing registration number JHV 3900, breach of confidence by D1 and unjust enrichment. The Defendants have denied the claims and have filed a counterclaim for unpaid salaries/allowances.

The trial was conducted over six days between 27 October 2025 and 23 January 2026. The Plaintiff called one witness, Kew Khuan Ying (“SP1”), who is the Plaintiff’s director. The Defendants called four witnesses, being the Defendants themselves (D1–D4). Written submissions, reply submissions together with bundle of authorities were filed by both parties.

Having considered the evidence, the submissions of the parties and the applicable law, on the balance of probabilities, I now set out my findings and the reasons for my decision.

The Plaintiff is a private limited company established for the purpose of carrying on a recycling business. Its business involves collecting and/or purchasing scrap items from customers and reselling the scraps to manufacturing companies after segregation into relevant categories including mixed plastic, carton boxes and pallets.

Since 2014, the Plaintiff entered into business contracts with several companies for the sale and purchase of scrap items, including LSM Metal Ace Sdn Bhd, BIOCON Sdn Bhd, Meng Hoe Trading Sdn Bhd, Taiko Metals Sdn Bhd, Hiap Huat Recycling Enterprise, Aikha Hardware Sdn Bhd and Flextronics Shah Alam Sdn Bhd.

D1 was appointed as one of the Plaintiff’s directors on 29.11.2013. It is common ground that she was removed as a director in late 2017 in which the Plaintiff pleads 15.12.2017 and the Defendants refer to 29.11.2017. Nothing material to this suit turns on the precise date, and I adopt the pleaded date of 15.12.2017 for the purposes of this judgment.

It is not in dispute that as a director, D1 owed fiduciary duties to the Plaintiff under section 132 of the Companies Act 1965 (and subsequently section 213 of the Companies Act 2016) [Act 777] and at common law. During cross-examination, D1 as SD1 agreed that she owed duties to act honestly, to be loyal to the Plaintiff, to avoid conflicts of interest, to act in the Plaintiff’s interest and not her own, and not to act in any manner that could bring benefits to herself at the Plaintiff’s expense.

D2, D3 and D4 were present at the Plaintiff’s premises during the material period. Their precise role is disputed. The Plaintiff says they came voluntarily to learn the recycling business and had no authority to deal with the Plaintiff’s assets or finances. The Defendants say they were invited by the Plaintiff’s director and her husband, New Ken Seng, to work for the Plaintiff in exchange for salary/allowance.

The issues for determination are –

whether D1 breached her fiduciary duties to the Plaintiff in respect of the specific monetary claims;

whether the Defendants conspired to misappropriate scraps belonging to the Plaintiff purchased from Flextronics Shah Alam Sdn Bhd and if so, the quantum of damages;

whether lorry JHV 3900 belongs to the Plaintiff and whether the Defendants committed trespass and/or conversion in respect thereof;

whether D1 breached her duty of confidence to the Plaintiff;

whether the Defendants were unjustly enriched;

whether the Plaintiff is entitled to general damages and/or exemplary damages;

whether an adverse inference ought to be drawn against the Plaintiff for not calling New Ken Seng as a witness; and

whether the Defendants’ counterclaim for unpaid salaries/allowances is established.

It is well established that a director of a company stands in a fiduciary relationship with the company. Section 132 of the Companies Act 1965 (now section 213 of the Companies Act 2016) [Act 777] imposes statutory duties on directors to exercise their powers for a proper purpose and in good faith in the best interest of the company and to exercise reasonable care, skill and diligence.

At common law, the duties of a director include –

a duty not to place himself in a position where his personal interest conflicts with his duty to the company [see : Avel Consultants Sdn Bhd & Anor v Mohamed Zain Yusof & Ors [1985] 2 MLJ 209];

a duty not to make a profit from his position without the company’s knowledge and consent [see : Dato’ Abul Hasan bin Mohamed Rashid v Multi-Code Electronics Industries &

a duty not to act in any manner detrimental to the company’s interests [see : Zaharen bin Hj Zakaria v Redmax Sdn Bhd and other appeals [2016] 5 MLJ 91].

The test for determining whether there has been a breach of fiduciary duty, as laid down in Charterbridge Corp Ltd v Lloyds Bank Ltd [1970] Ch 62 and adopted by the Court of Appeal in Pioneer Haven Sdn Bhd v Ho Hup Construction Co Bhd & Anor and other appeals [2012] 3 MLJ 616. The test is whether an intelligent and honest man in the position of the director of the company concerned could, in the whole of the existing circumstances, have reasonably believed that the transactions were for the benefit of the company.

In a civil case, one party’s evidence is the other’s as well. A plaintiff may rely on the defendant’s evidence, including admissions made during cross-examination, to prove its case [see : Tan Kah Khiam v. Liew Chin Chuan & Anor [2006] 4 CLJ 715; Cahaya Berlian Sdn Bhd v. Datuk Bandar Kuala Lumpur [2021] 1 LNS 839]. I bear this principle firmly in mind, as the Plaintiff’s case is in several respects established through the Defendants’ own admissions during cross-examination. Adverse Inference - Section 114(g) Evidence Act 1950 [Act 56]

Section 114(g) of the Evidence Act 1950 [Act 56] provides that the Court may presume that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it. This is a permissive presumption, not a mandatory one. The Court retains discretion as to whether to draw the inference, having regard to the materiality of the evidence and the circumstances of the case [see : Sabah Shell Petroleum Co Ltd & Anor v The Owners of and/or Any Other Persons Interested in the Ship or Vessel the ‘Borcos Takdir’ [2012] 5 MLJ 515].

The tort of conversion requires proof that –

the plaintiff has possession or an immediate right to possession of the goods;

the goods are specifically identified; and

there was a positive wrongful act of dealing with the goods inconsistent with the rights of the owner. [see : OSK Trustees Bhd v Metroplex Holdings Sdn Bhd [2020] 3 MLJ 358 and JH Rayner (Mincing Lane) Ltd v Teck Hock & Co (Pte) Ltd & Ors [1990] 2 MLJ 142]. The measure of damages is the full market value of the goods at the time of conversion [see : The “Jag Shakti” Chabbra Corporation Pte. Ltd. v. M.V. "Jag Shakti", Owners & Ors., Interested [1986] 1 M.L.J. 197, PC].

The Federal Court in Dream Property Sdn Bhd v Atlas Housing Sdn Bhd [2015] 2 MLJ 441 recognised unjust enrichment as a distinct cause of action in Malaysian law. The elements are –

the defendant has been enriched;

the enrichment was gained at the plaintiff’s expense;

the retention of the benefit is unjust; and

there is no defence available to extinguish or reduce the liability.

Against this background, I will address this dispute below.

Before turning to the specific issues, I address one preliminary point raised repeatedly throughout the Defendants' submissions, namely, that no arrest or criminal prosecution was brought against any of the Defendants by the police, and that this somehow defeats the Plaintiff's civil claims. This argument is misconceived. Civil and criminal liability are distinct. The Plaintiff's burden in this suit is to prove its case on a balance of probabilities. It is not required to prove criminal conduct beyond reasonable doubt, nor is a civil court bound by any prosecutorial decision of the police. The absence of a criminal prosecution is therefore immaterial to the question whether the Defendants are civilly liable on the pleaded causes of action.

A further preliminary argument advanced by the Defendants is that SP1 agreed during cross-examination that the Plaintiff's financial statements for the period 29.11.2013 to 31.12.2014 were true and disclosed no irregularities in cash flow. On this basis, the Defendants contend that the Plaintiff cannot have suffered any loss. I do not accept that this concession is a complete answer to the Plaintiff's claims, for reasons I will develop in my assessment of witness credibility below. In short, the specific sums claimed under breach of fiduciary duty (RM92,048.90) are relatively modest against the overall business turnover and would not necessarily surface as irregularities in audited annual accounts, whilst the larger Flextronics conspiracy claim concerns diverted inventory rather than cash-flow anomalies. The agreement does not therefore displace the specific evidence establishing each head of loss.

I now turn to the specific allegations of breach of fiduciary duty against D1. I examine each allegation in turn.

LSM Metal Ace Sdn Bhd (RM6,632.00 and RM2,779.00)

It is not in dispute that D1 received RM6,632.00 and RM2,779.00 from LSM Metal Ace Sdn Bhd. D1 admitted this at answer no. 12 of her Witness Statement (WSSD1). These were payments due to the Plaintiff for business transactions between the Plaintiff and LSM Metal Ace Sdn Bhd. D1’s defence is that the sums were used on the Plaintiff’s instructions to pay employees’ salaries, as evidenced by the payment vouchers at pages 1 - 16 of Bundle A1.

I have examined the payment vouchers relied upon by D1. I find that they are unreliable and do not support D1’s defence for the following reasons –

several vouchers do not state the identity card numbers of the recipients (pages 1, 2, 3, 11, 12, 15 of Bundle A1), making verification impossible;

none of the vouchers state the month for which the advance was supposedly paid;

there are contradictions between the amount stated on the voucher and the amount purportedly paid to the recipient (pages 5 and 6 of Bundle A1);

payments were issued twice to the same recipient on the same day without any explanation (pages 5 and 6 of Bundle A1);

there is no document to show that any advance was subsequently deducted from any employee’s salary;

none of the named recipients were called to testify and verify the contents of the vouchers;

D1 admitted during cross-examination that she retained the original vouchers and handed them to D2 - D4 instead of to the Plaintiff company. This is itself a breach of her duty as director, as it concealed financial documents from the company and disclosed them to third parties without authority; and

D1 agreed during cross-examination that she was unsure whether the contents of the documents at pages 17 - 19 of Bundle A1 were true.

SP1 denied giving any instructions for D1 to use the LSM Metal money for employee salaries (refer answer no. 72 of WSSP1). In the absence of any corroboration for D1’s defence, and in the face of the deficiencies identified above, I reject D1’s defence that the said sums were used for legitimate company purposes.

I note in passing that the Defendants raised a minor discrepancy between the pleaded sum of RM6,632.00 and SP1's reference to RM6,532.00 during examination-in-chief and that the Plaintiff's itemised damages list refers to “RM2,279.00” in one place where the body of its submissions consistently pleads “RM2,779.00”. I am satisfied that these are inadvertent typographical errors in the record. D1 herself admitted at answer 12 of WSSD1 that she received RM6,632.00 and RM2,779.00 from LSM Metal Ace Sdn Bhd, and I accept those figures as the pleaded and admitted sums.

Accordingly, I find that D1 received RM6,632.00 and RM2,779.00 belonging to the Plaintiff from LSM Metal Ace Sdn Bhd, failed to deposit the same into the Plaintiff’s account, and has failed to account for the same. This constitutes a breach of fiduciary duty. The Plaintiff is entitled to the sum of RM9,411.00 on this head.

(ii) BIOCON Sdn Bhd (RM10,460.00)

The Plaintiff alleges that D1 received a cheque from BIOCON Sdn Bhd dated 26.8.2014 for RM10,460.00 which was payable to the Plaintiff. D1 denies receiving the money, claiming the cheque was an account payee cheque payable only to the Plaintiff and that it was handed to Chai LK Associates on 19.12.2014.

During cross-examination, the following was established –

D1 admitted that she sent an image of the BIOCON cheque to SP1 via WhatsApp;

D1 admitted that in the same WhatsApp message, she demanded that SP1 prepare her salary and Fauzi’s salary before she would hand over the cheque to the Plaintiff;

D1 agreed that she had no power to retain the cheque and was aware that if she did not hand it over, the Plaintiff would be unable to deposit it and would suffer loss; and

D1’s claim that she handed the cheque to Chai LK Associates is contradicted by her own reply letter at page 63 of Bundle A, wherein she stated the cheque was handed to CY Management Services, a different entity entirely. When confronted with this contradiction in court, D1 was unable to provide a coherent explanation.

The act of retaining a cheque belonging to the company and conditioning its return on the payment of personal salary is, in itself, a clear breach of fiduciary duty and a conflict of interest. A director who leverages company assets for personal benefit acts contrary to the duty of loyalty and the duty to avoid conflicts of interest. The material contradiction between ‘Chai LK Associates’ and ‘CY Management Services’ demonstrates that SD1’s explanations cannot be relied upon.

Accordingly, I find that D1 received or retained the BIOCON cheque of RM10,460.00 and failed to ensure the same was deposited into the Plaintiff’s account. The Plaintiff is entitled to the sum of RM10,460.00.00 on this head.

(iii) Meng Hoe Trading Sdn Bhd (RM3,031.60)

This allegation is particularly instructive. Meng Hoe Trading Sdn Bhd was a customer of the Plaintiff. A cheque for RM3,031.60, which was a payment due to the Plaintiff, was issued in the name of Best Amity Enterprise, i.e D1’s own personal business. D1 answered no to WSSD1 no. 38, stating that she instructed D3 to collect the cheque from Meng Hoe Trading.

During cross-examination –

D1 agreed that in September 2014, there was no business relationship between Best Amity Enterprise and Meng Hoe

D1 agreed there was no reason for Meng Hoe to issue a cheque to Best Amity Enterprise unless instructed to do so;

D3 admitted during his cross-examination that D1 instructed him to collect the cheque, that the cheque was issued to Best Amity Enterprise and that he knew Best Amity Enterprise belonged to D1;

D1’s defence that the cheque was ‘cancelled’ is unsupported by any documentary evidence. D3 agreed there was no document showing the cheque was cancelled; and

D1’s claim that the cheque was cancelled is directly contradicted by her own reply letter, where she stated the money from Meng Hoe was used to pay employees’ salaries, not that it was cancelled.

The diversion of a company payment to a director’s own personal business is a textbook breach of fiduciary duty and conflict of interest. No intelligent and honest person in D1’s position could reasonably have believed that directing a company payment to her own personal business was for the benefit of the Plaintiff. I find the Plaintiff’s claim of RM3,031.60 on this head is proved.

(iv) Taiko Metals Sdn Bhd (RM2,513.00)

The Plaintiff alleges that D1 instructed one Koh Kok Peng, who was not an employee of the Plaintiff, to collect a cash payment of RM2,513.00 from Taiko Metals Sdn Bhd. D1 denied instructing Koh Kok Peng.

SP1 testified that she lodged a police report, following which Koh Kok Peng was detained. SP1 further testified that D1 attended the police station and told the police that she was the Plaintiff’s director and that Koh Kok Peng acted on her instructions. During cross-examination, D1 said she ‘couldn’t remember’ this incident.

I observed that D1’s evidence on this point is evasive. Her response of ‘can’t remember’ falls short of a denial. Taken together with the police report narrative and the pattern of D1 directing non-employees to collect company payments (as established in the Meng Hoe and Hiap Huat claims), I find on a balance of probabilities that D1 did instruct Koh Kok Peng to collect the RM2,513.00 from Taiko Metals. The Plaintiff is entitled to this sum.

Hiap Huat Recycling Enterprise (RM3,678.30)

The Plaintiff alleges that D1 instructed D2 to collect RM3,678.30 from Hiap Huat Recycling Enterprise. D1 denied this.

However, D1’s reply letter states that this sum was used to pay employees’ salaries. She did not deny receiving the sum in that letter.

During D2’s cross-examination, D2 admitted that D1 “usually tells you to go to Siap Huat and take the money” and “if there’s money, she’ll tell me to go to Siap Huat and take the money”. This admission establishes a pattern of D1 directing D2 to collect payments from this customer.

I find that D1’s denial in court is contradicted by her own reply letter and by D2’s admission. Accordingly, the Plaintiff is entitled to RM3,678.30 on this head.

(vi) Aikha Hardware Sdn Bhd (RM382.00 and RM373.00)

D1 denied instructing Ismatfuzan bin Shafee, a Plaintiff's employee, to collect these sums. The Defendants argue that there is a contradiction in SP1's evidence. SP1 testified that Ismatfuzan was not an employee of the Plaintiff but later agreed, when shown the payment voucher at page 35 of Bundle A, that Ismatfuzan had in fact received the sums of RM382.00 and RM373.00. I do not regard this as a material contradiction that defeats the Plaintiff's claim. Whether Ismatfuzan is properly characterised as an “employee” of the Plaintiff or as a person acting on behalf of the Plaintiff does not alter the central question, which is whether the sums collected were remitted to the Plaintiff. It is not disputed that the sums were collected by Ismatfuzan; what is disputed is whether D1 directed that collection and whether the sums reached the Plaintiff. On that central question, D1 admitted during cross-examination that when this specific allegation was raised in the Plaintiff's letter of demand, she did not deny, dispute or reply to it in her reply letter. Where a specific allegation is raised in a letter of demand and the recipient chooses not to address it, the Court is entitled to infer that the allegation is true.

Accordingly, I find the Plaintiff’s claim of RM755.00 on this head is established.

(vii) Customs Withdrawal (RM10,000.00)

The Plaintiff alleges that D1 withdrew RM10,000.00 from the Plaintiff’s funds, purportedly for payment to the Customs authorities, but the payment was never made. D1’s evidence on this point is riddled with contradictions –

at answer no 41 of WSSD1, D1 stated that the RM10,000.00 was paid to Customs as a ‘special payment’ on the Plaintiff’s instructions;

during cross-examination, D1 contradicted herself by testifying that the payment was never made to Customs and that it was cancelled;

her reply letter at page 63 of Bundle A (paragraph (ix) gives yet another version, that the money was returned to a person called “Ah Peng”. D1 could produce no documents proving the existence or identity of Ah Peng; and

her pleaded defence at paragraph 21 of her Statement of Defence provides another version still.

Where a witness provides multiple materially inconsistent accounts of the same event, the Court is entitled to reject all versions and find for the opposing party. I find that D1 withdrew RM10,000.00 and has failed to account for the same. The Plaintiff is entitled to RM10,000.00 on this head.

For completeness, I note that the Plaintiff also pleaded that D1 had directed unidentified non-employees to collect payments from Eco Waste Solution and Management, Sun Recycle Enterprise, Metals Exchange Sdn Bhd and other customers. However, the Plaintiff did not particularise any specific sum against any of these companies and did not include them in its itemised list of damages at paragraph 34 of its written submissions. Whilst the pattern of conduct is consistent with my findings on the other heads, I am unable to award damages for these unparticularised allegations and I make no separate award in respect of them.

In total, I find that D1 breached her fiduciary duties to the Plaintiff in respect of the following sums, which I award to the Plaintiff as against D1 – ITEM AMOUNT (RM) LSM Metal Ace Sdn Bhd (RM6,632.00 + RM2,779.00) 9,411.00 BIOCON Sdn Bhd 10,460.00 Meng Hoe Trading Sdn Bhd 3,031.60 Taiko Metals Sdn Bhd 2,513.00 Hiap Huat Recycling Enterprise 3,678.30

Aikha Hardware Sdn Bhd (RM382.00 + RM373.00) 00 Customs Withdrawal 10,000.00 SSM Fine 1,200.00 Resignation Process Costs 1,000.00 Winding-Up Defence Costs 50,000.00 TOTAL 92,048.90 Issue (b) : Conspiracy - Flextronics Scraps

The Plaintiff’s most substantial claim is for RM458,038.13, being the alleged value of scraps purchased from Flextronics Shah Alam Sdn Bhd which the Plaintiff says were misappropriated by the Defendants through a conspiracy to divert them via exit no. 3 of the Flextronics premises.

I first address the evidence supporting the allegation of conspiracy –

D1 admitted during cross-examination that scraps purchased from and brought out of the Flextronics premises are valuable and belong to the Plaintiff;

D2 and D3 agreed they knew about the Plaintiff’s contract with Flextronics and that scraps were brought out through three exits and were to be taken to the Plaintiff’s premises for segregation;

When put directly to D3 that he conspired with the other Defendants to remove scraps from exit no. 3, D3 said he “couldn’t remember”. He did not deny it. When put to him that the scraps were taken to another location and not to the Plaintiff’s premises, D3 again said he “couldn’t remember”. D3 agreed that all the misappropriated scraps belonged to the Plaintiff. He admitted that to date, he and the other Defendants have failed to return the scraps. He could not say to whom the scraps were sold but did not deny any sale;

D4 admitted being a director of Yong Hup Metal Sdn Bhd. The SSM statement confirms Yong Hup Metal carries on the business of selling and buying scraps. A receipt from Metals Exchange Sdn Bhd dated 31.7.2014 confirms that Yong Hup Metal sold scraps worth RM17,277.55 to Metals Exchange. SD4 could not produce any documents showing the source of those scraps; and

The Creditor Ledger dated 31.12.2014, is a contemporaneous business document recording the value of scraps purchased from Flextronics. SP1 gave evidence on its contents.

I also consider the weaknesses in the Plaintiff’s case on this head –

New Ken Seng, who personally conducted the investigation at the Taman Universiti shophouse and took the photographs at page 120 of Bundle A, was not called to testify. SP1’s evidence of his investigation is hearsay;

the photograph at page 120 of Bundle A shows no address, no company name and does not identify any of the Defendants. SP1 agreed to all three deficiencies during cross-examination;

no CCTV footage from Flextronics was produced. SP1 admitted she did not investigate through Flextronics’ CCTV;

no Flextronics employee or representative testified;

the business agreement between the Plaintiff and Flextronics was not produced in any bundle; and

the Plaintiff’s pleading does not state the exact dates of the alleged sales.

Notwithstanding these weaknesses, I find that the Plaintiff has established the existence of a conspiracy on a balance of probabilities. An agreement to conspire may be inferred from the conduct of the parties. D3’s non-denials are significant. A witness who, when directly confronted with a specific allegation in cross-examination, responds with “I can’t remember” rather than a denial, invites the Court to draw the inference that the allegation is true. D3’s failure to deny the conspiracy, combined with D4’s connection to the confirmed sale through Yong Hup Metal, and the established pattern of D1 directing the other Defendants to handle company funds, sufficiently proves the conspiracy.

The Defendants’ defence on this issue is a bare denial unsupported by any documentary or corroborative evidence. They have offered no alternative explanation for where the scraps from exit no. 3 went. Where a fiduciary and those acting in concert with her have made it impossible to trace misappropriated assets with precision, the Court will not allow the wrongdoers to benefit from the uncertainty they have created.

However, on the question of quantum, I have reservations about awarding the full RM458,038.13. This figure appears to represent the total value of all scraps purchased from Flextronics as recorded in the Creditor Ledger, rather than a particularised calculation of only those scraps diverted through exit no. 3. The Plaintiff has not adduced specific evidence to establish that the entirety of the Flextronics scraps were misappropriated. Some scraps were legitimately processed through exits 1 and 2 and sold to the Plaintiff’s customers.

The only specifically proven transaction is the sale by Yong Hup Metal Sdn Bhd to Metals Exchange Sdn Bhd on 31.7.2014 for RM17,277.55. However, D3’s non-denials suggest the diversion was larger than this single transaction. Taking into account –

the Creditor Ledger as a contemporaneous document;

the Defendants’ failure to account;

SD3’s admissions; and

the need for proportionality in the assessment, I assess the damages for the Flextronics scraps conspiracy at RM250,000.00 as against all four Defendants jointly and severally. I note that even this figure may be conservative, but in the absence of more precise particularisation by the Plaintiff, I adopt it as a reasonable and defensible assessment on the available evidence. Issue (c) : Lorry JHV 3900 Ownership and Conversion

The Plaintiff claims ownership of the Nissan lorry bearing registration number JHV 3900. The Plaintiff relies on a letter from Taiko Metals Sdn Bhd which confirms the sale of the lorry to the Plaintiff at a total price of RM175,760.00 (deposit of RM35,152.00, balance payable over four months from 15.7.2014). D4 claims he purchased the lorry with his own money and relies on four RHB cheques (nos. 796483 - 796486) totalling RM125,152.00.

I also observed that neither party produced the JPJ vehicle registration card. SP1 admitted this during cross-examination. Nevertheless, the Taiko Metals letter is addressed to the Plaintiff and confirms the Plaintiff as the buyer. SP1 explained that D4’s cheques represent money that the Plaintiff borrowed from D4, i.e. D4 made payments on the Plaintiff’s behalf. D4, on the other hand, contends the lorry is his.

I prefer the Plaintiff’s version for the following reasons –

The Taiko Metals letter, being a letter from the seller, is the strongest piece of documentary evidence on ownership. It identifies the Plaintiff as the buyer;

The Plaintiff sent letters to Taiko Metals dated 21.9.2014 and 24.9.2014 stating that no agent was authorised to deal with the lorry. These contemporaneous letters are consistent with the Plaintiff asserting ownership;

The Plaintiff sent a letter to D1 raising the lorry issue. D1 received the letter but did not reply or deny the Plaintiff’s claim of ownership;

D4 produced no document (no registration card, no insurance policy, no road tax receipt) to establish his ownership; and

D2 admitted during cross-examination that he never personally saw D4 purchase the lorry and was merely told by D4 that he had done so.

I find that the lorry JHV 3900 belongs to the Plaintiff. D1’s detention and use of the lorry from 13.9.2014 to 22.9.2014 for personal profit and the failure to return it, constitute trespass and conversion. The Plaintiff is entitled to the purchase price of RM175,760.00 as the value of the converted lorry.

As regards the Plaintiff’s claim for expected loss of profit from the use of the lorry (RM15,000.00 per month totalling RM1,050,000.00), I decline to award this sum. SP1’s estimate is based on approximately two months’ usage only, with no independent financial evidence, no profit-and-loss statements and no market comparables. This is insufficient to establish the quantum of lost profits with reasonable certainty. The Plaintiff has not discharged its burden of proof on this head. Issue (d) : Breach of Confidence by D1

The Plaintiff alleges that D1 disclosed its confidential financial statements to Merah Jaya Sdn Bhd, which was a litigation opponent of the Plaintiff in Civil Suit No. 22NCVC-40-04/2015. The Plaintiff discovered that Merah Jaya had attached a draft of the Plaintiff’s financial statements (for the period 29.11.2013 to 31.12.2014) to an affidavit in that suit.

D1 was one of only two directors of the Plaintiff at the material time. The draft financial statements were in the custody of the directors only. D1 was subsequently named as a witness for Merah Jaya Sdn Bhd against the Plaintiff, her own company. D1 denied the disclosure but admitted during cross-examination that she did not deny or reply to this issue in her response to the Plaintiff’s letter of demand despite it being specifically raised.

The circumstantial evidence points irresistibly to D1 as the source of the disclosure. She was one of only two persons with access, she was named as a witness for the party that used the document and she failed to deny the allegation when it was put to her in writing. I find that D1 breached her duty of confidence to the Plaintiff.

Further, D1 filed a winding-up petition against the Plaintiff (JA- 28NCC-52-03/2017) which was dismissed. D1 admitted during cross-examination that the petition was dismissed because it was baseless. She further agreed that the act of filing such a petition while still a director was not in the Plaintiff’s interest. The Plaintiff incurred RM50,000.00 in legal costs defending the petition, which I have already included in the specific sums above.

Related to the above, the Plaintiff pleaded and led evidence that D1 had also threatened SP1 directly. D1 admitted during cross-examination that she had used the foul word “kanina” in a WhatsApp message to SP1 and further admitted that she had threatened to terminate the Plaintiff's contract with Flextronics Shah Alam Sdn Bhd if her demands on salary were not met. D1 agreed that her act of threatening was not in the Plaintiff's interest. I accept SP1's evidence on this point. A director who resorts to abusive language and threatens to terminate a material contract of the company in order to extract personal payment acts in clear conflict with the duty of loyalty. This conduct is a further breach of fiduciary duty and is also relevant to my assessment of general and exemplary damages below. Issue (e) : Unjust Enrichment

The Plaintiff’s claim for unjust enrichment is founded on the same facts as the conspiracy and breach of fiduciary duty claims. Having found those claims established, I found that the elements of unjust enrichment [see : Dream Property Sdn Bhd v Atlas Housing Sdn Bhd [2015] 2 MLJ 441] are made out –

the Defendants were enriched by receiving the proceeds of misappropriated scraps and funds;

the enrichment was at the Plaintiff’s expense;

the retention is unjust as it arose from breach of duty and conspiracy; and

no defence has been shown to extinguish the liability. This provides an additional basis for the awards made above. Issue (f) : General and Exemplary Damages

The Plaintiff has proven multiple torts : breach of fiduciary duty, conspiracy, conversion and breach of confidence. The cumulative effect of the Defendants’ conduct has affected the Plaintiff’s business operations, reputation and business relationships. D1 threatened to cancel the Plaintiff’s contract with Flextronics, disclosed confidential information to a litigation opponent and filed a baseless winding-up petition. In Ong Ah Long v Dr S Underwood [1983] 2 MLJ 324, it was held that general damages are compensation for reparation for the wrongful act and for all natural and direct consequences thereof.

Having regard to the nature and extent of the proven wrongs, I award general damages of RM60,000.00 against all four Defendants jointly and severally.

As regards exemplary damages, the Plaintiff relies on Sin Heap Lee-Marubeni Sdn Bhd v Yip Shou Shan [2005] 1 MLJ 515, where the Court of Appeal granted exemplary damages of RM900,000.00 (25% of compensatory damages) for continued acts of trespass calculated to profit the defendants. In the present case, D1’s actions, diverting a cheque to her own enterprise, conditioning the return of another cheque on personal salary, conspiring to divert company scraps, were deliberate and calculated to profit her at the Plaintiff’s expense. The Defendants’ conduct falls within the second category enunciated in Rookes v Barnard [1964] AC 1129.

Accordingly, I award exemplary damages of RM60,000.00 against all four Defendants jointly and severally, which I consider proportionate to the gravity of the wrongs proved. Issue (g) : Adverse Inference - New Ken Seng

The Defendants urge this Court to draw an adverse inference under section 114(g) of Act 56 against the Plaintiff for not calling New Ken Seng as a witness. They rely on Sabah Shell Petroleum Co Ltd & Anor v The Owners of and/or Any Other Persons Interested in the Ship or Vessel the ‘Borcos Takdir’ [2012] 5 MLJ 515 and Pannir Selvam a/l Sinnaiyah & Anor v Tan Chia Foo & Ors [2019]

I have considered this issue. New Ken Seng’s evidence would have been most material to the Flextronics scraps claim, as he was the person who personally investigated the Taman Universiti shophouse and took the photographs. His evidence would also have been relevant to the Defendants’ counterclaim, as they allege he was the person who invited them to work for the Plaintiff and made salary/allowance promises.

However, I decline to draw a blanket adverse inference against the Plaintiff for the following reasons –

the Plaintiff’s claims regarding the specific monetary sums (RM92,048.90) are established primarily through D1’s own admissions during cross-examination. New Ken Seng’s evidence is not material to those claims;

the status of D2 - D4 as non-employees is established through their own admissions in cross-examination. New Ken Seng’s evidence is not essential to dispose of that issue;

the presumption under section 114(g) of Act 56 is permissive, not mandatory. It is one factor to be weighed, not an automatic bar;

if the Defendants were of the view that New Ken Seng’s evidence was essential to their defence (particularly regarding the alleged employment relationship and salary promises), they could have subpoenaed him. The Plaintiff’s decision not to call a witness does not prevent the Defendants from doing so; and

a party has the right to decide which witnesses to call and the failure to call a witness does not automatically attract an adverse inference where the case is otherwise established through other evidence [see : Cahaya Berlian Sdn Bhd v. Datuk Bandar Kuala Lumpur [2021] 1 LNS 839].

That said, I have taken into account the non-calling of New Ken Seng in my assessment of the quantum of the Flextronics scraps claim. The evidentiary gaps arising from his absence, particularly regarding the photograph at page 120 and the details of the investigation are one of the reasons I have assessed the Flextronics scraps damages at RM250,000.00 rather than the full RM458,038.13 claimed. Issue (h) : The Defendants’ Counterclaim

The Defendants counterclaim for unpaid salaries/allowances as follows – PARTIES AMOUNT (RM) D1 58,500.00 D2 35,000.00 D3 50,000.00

I dismiss the counterclaim in its entirety for the following reasons –

D2, D3 and D4 all admitted during cross-examination that there was no written employment agreement between them and the Plaintiff. D2 admitted there was “no promise regarding salary or allowance”. SD4 agreed he merely “helped” the Plaintiff and was not an employee;

the Defendants’ own pleaded case at paragraph 50 of the Statement of Defence states their purpose was to ‘venture into the business of the Plaintiff in order to obtain the profits to be distributed’ - which is profit-sharing, not employment. D2 and D3 agreed during cross-examination that profit-sharing differs from salary;

at paragraph 51 of the Statement of Defence, the Defendants stated they “assisted” (menolong) the work of the Plaintiff. D3 agreed that helping someone and working for someone are different;

D3 agreed during cross-examination in a separate suit (JA-A72NCC-921-09/2020) that his salary was RM4,000.00 per month, yet claims RM10,000.00 per month in this suit, a material contradiction;

most significantly, D3 agreed during cross-examination that his defence, counterclaim, and evidence in WSSD3 were untrue, fictional (“rekaan semata-mata”) and an afterthought. This is a devastating judicial admission that effectively concedes the counterclaim is fabricated;

no Defendant produced any documents to substantiate any claim for unpaid salary or allowance;

D1’s own claim of RM58,500.00 is undermined by three contradictory characterizations –

in her WhatsApp message, D1 described it as payment for the use of her licence (RM1,500.00 for “lu pakai saya punya lesen”);

(ii) in the winding-up petition, she described it as “director fees”; and

(iii) in her witness statement and Statement of Defence, she described it as “work allowance”. These three descriptions are mutually inconsistent; and

in D1’s reply letter at page 63 of Bundle A, she voluntarily offered to surrender her shares without payment and apologised for ‘all the difficulties and mistakes’ she had caused. This is inconsistent with someone who is owed RM58,500.00.

On this point, I have also considered the Defendants' argument, raised in their reply submissions, that in SP1's own police report dated 9.9.2014, SP1 described the Defendants as “pekerja-pekerja” (employees). This, the Defendants say, contradicts SP1's trial evidence that D2, D3 and D4 were never the Plaintiff's employees. I reject this argument. A colloquial description in a police report, drafted in a moment of complaint, does not establish the existence of a contract of employment. The question whether an employment relationship existed falls to be determined on the totality of the evidence, which I have addressed above, including the Defendants' own admissions that there was no written agreement, no promise of salary and that they “helped” (menolong) rather than worked for the Plaintiff. The single word “pekerja” in a lay person's police report cannot displace those admissions and the pleaded case of the Defendants themselves.

Accordingly, the counterclaim is dismissed with costs.

Before arriving at my final orders, I record my assessment of the witnesses’ credibility.

SP1 (Kew Khuan Ying) was generally consistent in her evidence. She maintained her account under sustained cross-examination. Her evidence was supported by documentary evidence, including WhatsApp messages, the reply letter, and contemporaneous business records. Her agreement that the Plaintiff’s financial statements were accurate (pages 235 - 237, Bundle B) does not undermine her case on the specific breaches, as the specific sums claimed are relatively small against the overall business turnover and the larger Flextronics claim concerns diverted inventory rather than cash flow irregularities that would appear in annual accounts. I find SP1 to be a credible witness whose evidence I accept on the contested issues.

D1 as SD1 (Sakura binti Ariffin) was an unreliable witness. Her evidence was characterised by multiple material contradictions –

on the Customs RM10,000.00 withdrawal (at least three different versions); the BIOCON cheque (Chai LK Associates vs CY

the Meng Hoe cheque (“cancelled” vs “used for salaries”); and

the allowance claim (licence fee vs director fees vs work allowance).

When confronted with contradictions, SD1 was unable to provide coherent explanations. Her reply letter at page 63 Bundlle A, in which she apologised and offered to surrender her shares, is fundamentally inconsistent with the defence she has mounted in this suit. I find D1 to be a witness whose evidence I am unable to accept on contested facts.

D2 as SD2 (Chin Teck Siang) and D3 as SD3 (Chau Fook Sang) provided limited evidence. D2’s most significant contribution was his admission that D1 “usually” directed him to collect money from Hiap Huat, which contradicts D1’s denial. D3’s evidence was the most damaging to the defence. His non-denials on the Flextronics conspiracy, his contradictory salary claims between two separate suits, and his agreement that his evidence was “rekaan semata-mata” undermine the entire defence case.

D4 as SD4 (Chiam Tow Yong) gave relatively consistent evidence but admitted he merely “helped” the Plaintiff, could not explain the source of scraps sold by Yong Hup Metal and could produce no ownership documents for the lorry beyond the cheques.

For the foregoing reasons, I make the following orders – A. The Plaintiff’s Claim

The first Defendant, Sakura, shall pay to the Plaintiff the sum of RM92,048.90 being special damages for breach of fiduciary duty, as particularised in paragraph [46] above;

all four Defendants shall jointly and severally pay to the Plaintiff the sum of RM250,000.00 being damages for conspiracy to misappropriate the Plaintiff’s scraps purchased from Flextronics Shah Alam Sdn Bhd;

all four Defendants shall jointly and severally pay to the Plaintiff the sum of RM175,760.00 being the value of lorry JHV 3900 which has been converted by the Defendants;

all four Defendants shall jointly and severally pay to the Plaintiff general damages of RM60,000.00;

all four Defendants shall jointly and severally pay to the Plaintiff exemplary damages of RM60,000.00;

interest at the rate of 5% per annum on the sums in Orders (1) to (3) above from the date of filing of this suit until the date of full realisation;

the Plaintiff’s claim for expected loss of profit from the use of the lorry (RM1,050,000.00) is dismissed; B. The Defendants’ Counterclaim

The Defendants’ counterclaim is dismissed in its entirety; C. Costs

Cost for the main claim is fixed at RM 100,000.00 subject to the allocator fees; and

Cost for the counterclaim is fixed at RM 50,000.00, subject to the allocator fees. Dated : 17 March 2026 -signed-Dr Noradura binti Hamzah Judicial Commissioner High Court Civil 2 Johor Bahru Solicitor for the Plaintiff : : Muhamad Nur Aizat Bin Noor Azam together with Muhammad Shakeel Bin Mohd Saifuzzaman Messrs. Aizat Izuan Shakeel Solicitor for the Defendants : : Hussin Othman Messrs. Hussin Othman & Co.